During the Coronavirus crisis, does President Donald Trump have absolute power? The short answer is no. Even during a state of emergency, the United States remains a constitutional republic, and those who believe it is acceptable for states’ rights to be temporarily suspended are gambling away their freedom. However, the 1974 Robert T. Stafford Disaster Relief and Emergency Assistance Act, among other laws, does grant the president wide-ranging authority to enact measures designed to mitigate a crisis and assist states in managing an emergency. Trump did not direct state governors to impose the current draconian restrictions, and he cannot lift those restrictions unilaterally – but he does have the ability to pressure the states into returning to relative normality. Additionally, the president can emerge from the current disaster with a winning political hand if he chooses the right approach to the impending recovery.
Trump certainly appears to have contradicted himself regarding the authority of states to manage the crisis. Countering earlier suggestions from reporters that he order grocery stores across the country to close, the president invoked the Constitution – rightly – to push back.
Emergency Expansion of Authority
The 1974 law calls for the president to work with state governors in the management of emergencies. It endows the commander in chief with considerable decision-making power. Further, the law implies that, in some respects, the president can virtually impose certain conditions upon states:
“Where the area affected by a major disaster or emergency includes parts of more than 1 State, the President, at the discretion of the President, may appoint a single Federal coordinating officer for the entire affected area, and may appoint such deputy Federal coordinating officers to assist the Federal coordinating officer as the President determines appropriate.” [section 302 (d)]
Nevertheless, this language does not contain any clear-cut assertion that a president can simply take from state governors all decision-making power. It does effectively give the president overall authority to coordinate emergency relief measures, though. Language elsewhere in the Robert T. Stafford Act confers upon the president certain overarching authorities:
“The President shall establish comprehensive standards which shall be used to assess the efficiency and effectiveness of Federal major disaster and emergency assistance programs administered under this Act. The President shall conduct annual reviews of the activities of Federal agencies and State and local governments in major disaster and emergency preparedness and in providing major disaster and emergency assistance in order to assure maximum co-ordination and effectiveness of such programs and consistency in policies for reimbursement of States under this Act.” [section 313]
Assuming, then, that President Trump is referring to this law – or other relevant laws – when he claims total authority to manage the Coronavirus crisis, it is not unreasonable to suggest that he should have clarified his reasoning. Absent that clarification, Trump is setting himself up for an avalanche of criticism and accusations of despotism. Better for him to quote the appropriate sections of the law:
“The President may prescribe such rules and regulations as may be necessary and proper to carry out the provisions of this Act, and may exercise, either directly or through such Federal agency as the President may designate, any power or authority conferred to the President by this Act.” [section 321]
As it is, Trump’s political and media enemies always seek to twist and, at times, misrepresent his words. To paint for them such an easy target without context can only make matters worse. In a country founded upon the very principle that the federal government has limited power, it makes little sense to issue broad statements of authority.
Still, the president remains on somewhat solid ground if he continues to acknowledge that he will consult and work with state governors. There is no question, after all, that Trump has a lot of leverage over the states:
“The President may prescribe such rules and regulations as may be necessary and proper to carry out any of the provisions of this Act, and he may exercise any power or authority conferred on him by any section of this Act either directly or through such Federal agency or agencies as he may designate.” [section 701 (a)(1)]
It is not only this law that temporarily expands the president’s authority during an emergency. The Public Health Service Act of 1944 and the National Emergencies Act of 1976 have both been invoked by past presidents to take actions generally beyond their authority.
A More Constitutionally and Politically Sound Approach?
For Trump, the opposite approach may, in fact, prove more productive and politically expedient. Were he to place upon state governors the responsibility for deciding when their states ease the current restrictions, he would avoid being saddled with the blame for continuing economic catastrophe in states that remain in shutdown mode – or a renewed outbreak of COVID-19 in states that return to normal. A cynical approach, for sure, but a smart political maneuver.
Then again, the president is damned if he does and damned if he doesn’t, as usual. Leaving all the decisions to the states would lead his detractors to claim that he had neglected his duty as chief executive.
Ultimately, it would be in Trump’s best interest to avoid revisiting any discussion of “absolute” authority. Rather, he should point out that his foremost duty is to protect and defend the Constitution – for it is this sacred responsibility that gives him the ultimate authority to demand states lift restrictions that clearly violate any number of constitutional rights.
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Read more from Graham J. Noble.
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