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What the 10th Amendment Says

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Asked about the rights of states to decide when to reopen schools and businesses, Trump said, “The President of the United States is calling the shots.” “

USA TODAY

While discussing whether he or the country’s governors have the power to lift state restrictions to combat the spread of the coronavirus, President Donald Trump said at a press conference on Monday: ” When someone is president of the United States, authority is complete. “

The unprecedented demand for total power from the president met with immediate failure on the part of Democrats and Republicans, many of them arguing that the United States Constitution explicitly refutes his claim for absolute authority.

“The federal government has no absolute power,” said representative Liz Cheney, R-Wyo., Who then quoted the text of the 10th amendment in a tweet that went viral.

Senator Marco Rubio, R-Fla., Said changes to social distancing orders should be made by governors. Federal directives “will have a great influence. But the Constitution and common sense dictate that these decisions must be made at the state level “, he tweeted.

Jonathan Turley – a law professor at George Washington University who argued against the removal of Trump from the House Judiciary Committee and a contributor from the USA TODAY – said the drafters wrote the Constitution precisely to prevent presidents from claim the type of authority claimed by Trump.

“Our constitutional system was forged during a period of serious discomfort over the executive. After all, the nation had just broken away from the control of a tyrant, “said Turley. And if there is “one overriding principle” in the Constitution, it is to avoid the concentration of power, and it does so “in many ways,” he said.

The 10th Amendment was a written instrument to help ensure that the federal government would not be able to impose the kind of absolute authority that the drafters feared.

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What the 10th Amendment Says

“Powers not delegated to the United States by the Constitution, or prohibited by it by states, are reserved to the states respectively or to the people.”

What this means

Turley said that federalism, in which states enjoy a large degree of autonomy, was one of the ways in which drafters sought to avoid authoritarianism. The other was to limit the possibility of a “constitutional drift” – in which federal officials or branches of government slowly extend their authority – by creating “clear structural limitations” on the powers of the federal government.

He described the 10th amendment as an “insurance policy” against such a constitutional “mission slip”.

“It essentially requires that the default position” in conflicts between states and the federal government “rest with the states,” he said. “So when the federal pressure overcomes the states, the states are supposed to prevail.”

“There is nothing particularly ambiguous about this. “

Kathleen Bergin, professor of law at Cornell University, agreed.

“It is so simple and obvious that it is not even debatable,” said Begin. “Trump has no power to facilitate social distancing, nor to open schools or private businesses. It is up to the states to decide in their power to promote public health and well-being, a power guaranteed by the 10th amendment to the Constitution. “

How it applies to the coronavirus epidemic

“Federalism was not designed to fight a contagion, it was designed to fight tyranny,” said Turley. But according to the principles of federalism, it is “the primary responsibility of states to prepare for and deal with pandemics” like this one, he added.

Previously, Trump denied that it was his responsibility to provide states with the drugs and equipment needed to contain and treat the virus when asked about government complaints that the federal government was not doing enough to help them. And when forced to issue a national home stay order, Trump said it was up to each governor to impose such restrictions.

“What the president said directly contradicts his position for the past three weeks,” said Turley, who has written articles supporting Trump’s previous approach.

“One of his most troubling statements is that the governors imposed these orders simply because he had let them do so and that he could have declared a national quarantine earlier,” said Turley. “It is a direct contradiction to what he said before, but more importantly, what the Constitution states. “

Bergin said, however, that Trump was not “helpless.”

“It could lift restrictions on international travel and issue directives to military or federal agencies,” she said. “But he doesn’t get constitutional authority just by claiming it. What he is trying to do and what he is authorized by the Constitution to do are two different things. “

No statutory power in matters of social distancing

Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump’s claim of total authority and said that the real problem was that Congress had only passed no law granting Trump the power to order a national quarantine or a stay-at-home directive.

Fried said the 10th amendment was a “false concern” in this case and anyone who makes this argument “barks in the wrong tree” or is a “10th amendment nut”.

“People like Cheney just want to bring federalism into everything, but it’s not a problem of federalism,” Fried told USA TODAY.

Fried said the problem was really due to the fact that Congress had not given Trump the power he claimed. But he said he could theoretically, under his authority, regulate affairs, as set out in article 1, section 8 of the Constitution.

“And that’s why I don’t like to refer to the 10th amendment. It’s not really a question of the 10th amendment, it’s a question of the rule of law, “said Fried. “The president can’t just say, ‘I’m the boss.’ “

Fried highlighted the 1952 Supreme Court case in Youngstown Sheet & Tube Co. v. Sawyer, in which the court ruled that President Harry Truman did not have the power to take control of the country’s steel plants despite a workers’ strike that threatened production during the Korean War.

“The power of the president, if any, to issue the order must flow either from an act of Congress or from the Constitution itself,” wrote judge Hugo Black.

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