For some reason, both sides of the political fence felt the need to erupt when President Trump said Monday, perhaps with less-than-perfect presidential manners, that reopening the American economy in a couple weeks (it had better not be much longer) is his decision.
Asked what legal authority he had to declare America open for business again, he said, “When somebody is the president of the United States, the authority is total. And that’s the way it’s gotta be. It’s total.”
By that language, Trump is wrong. Everybody knows he’s wrong, because, as National Review‘s John Yoo says while putting on his constitutional lawyer hat,
Our elected leaders confront the difficult decision on when to start lifting the lockdowns, even at the risk of a faster spread of COVID-19. Presiding Trump claims that he has the right to determine when businesses open their doors, employees return to work, and consumers shop again. “For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government,” he tweeted earlier today. “Let it be fully understood that this is incorrect … It is the decision of the President, and for many good reasons.”
But the federal government does not have that power. The Constitution’s grant of limited, enumerated powers to the national government does not include the right to regulate either public health or all business in the land. Congress enjoys the authority to “regulate Commerce with foreign Nations, and among the several States.” This gives Washington, D.C. an important, yet supporting, role in confronting the pandemic. It can bar those who might be infected from entering the United States or traveling across interstate borders, reduce air and road traffic, and even isolate whole states.
But our federal system reserves the leading role over public health to state governors. States possess the “police power” to regulate virtually all activity within their borders. As the Supreme Court has recognized, safeguarding public health and safety presents the most compelling use of state power. Only the states can impose quarantines, close institutions and businesses, and limit intra-state travel. Democratic governors Gavin Newsom in California, Andrew Cuomo in New York, and J.B. Pritzker [in] Illinois imposed their states’ lockdowns, and only they will decide when the draconian policies will end.
Right, right. Yes, yes. And nobody ought to fault Yoo, a constitutional lawyer, for pointing this out.
But by now it should be recognized and understood that it’s of no use taking Trump literally when he says things. Take him seriously instead of literally.
And seriously, Trump is the guy who is going to open America’s economy back up. It’ll happen when he says it’s time to happen. Trump knows it, and so does everybody else.
Think about it. Most states with Republican governors aren’t all that hard hit by the Wuhan ChiCom virus anyway, and some of them, like Gov. Kristi Noem’s South Dakota (Noem might just be the best governor in America, just like Michigan’s Gretchen Whitmer is clearly the worst), have never really shut their states down. Do you really think that if, say, late next week Trump announced the American comeback begins on May 1, that every Republican governor won’t at least move in the direction of following suit?
That gives you 26 states reopening, which gives you a majority of the country. Perhaps Charlie Baker in Massachusetts and Larry Hogan in Maryland won’t go full-hog in reopening, but they’re going to at least relax a little. Ditto for some red-state Democrat governors, like for example John Bel Edwards in Louisiana, who is turning into a cross between Eric Cartman the Cop and Alec Guinness’ character in The Bridge On the River Kwai in delighting in the state’s shutdown and prolonging it as much as he can. Edwards has styled himself as a Trump-friendly governor in a red state even though the president campaigned against his reelection last year, but he is getting cover from Trump on the shutdown so far despite the state’s unspeakably severe economic collapse (which had begun even before the virus hit). Once Trump lifts the recommendation for the shutdown, Louisiana’s legislature might just overrule Edwards and end it at the state level.
If Trump is serious about whipping recalcitrant governors and mayors into shape, he can certainly manipulate rules on things like disaster declarations and federal aid in order to modify behavior. Andrew “Sonny” Cuomo might like to make a mutiny against Trump, whom he’s now treating as a friend for some strange reason, but if the president yanks his chain by having federal funding for his virus response dry up, Cuomo will reopen New York so fast you’d think the races were running at Belmont.
Everybody knows this. These objections are pro forma at best. It’s a bunch of politicians trying to make themselves look good, and it’s a bunch of talking heads trying to preserve a patina of relevance amid a situation in which none of us are in control of our own lives anymore.
Which, as much as those of us on the right might like to say was done at the state and local level, and that isn’t completely wrong either, was mostly Trump’s call to begin with. It was Trump who suggested all of this, whether against his instincts and better judgment and as a function of the Overton window moving away from his preferences, or not.
That’s just a fact. He’s the president, it’s a national emergency, and this is what you get. If you don’t like that, then next time try not to let an irresponsible media, attention-whore local politicians, and a gaggle of academics desperate to go on TV turn an unusually bad winter virus season into a real-life enactment of Stephen King’s The Stand by use of garbage-in, garbage-out data models and off-the-charts hype.
And while on the subject, a quick word about the reopening, because there sure seems to be a surfeit of hand-wringing about how we need a “plan” to reopen the country.
No, you don’t. You don’t need a plan. You need freedom. Your plan is guaranteed not to work for the majority of Americans, whose needs and responsibilities don’t match whatever you’re going to put in your white paper.
These people are adults. They’ve managed to survive in the world long enough to make their own decisions. They didn’t deserve to have their lives upended and their livelihoods destroyed, something that a lousy government check or a worse government loan, whether forgiven or not, is not recompense for. You have done enough to them.
Let my people go. Just let them go. They’ve all seen enough of this virus on TV that they understand the risks, and they’ll act accordingly. And they’ll do a better job of undoing the damage you’ve done to the economy than you ever will, whether you’re Sonny Cuomo or Gavin “let’s let the communist virus make us a communist America” Newsom, or even Trump.
Freedom is a damn good plan. Let’s try that for once.
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