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Reopening businesses, schools and public facilities is a decision with major implications for public health, the economy and education.
Governors have issued their own closures of non-essential businesses without Trump’s direction.
Legal experts say governors have the right to order closures of non-essential businesses and end such closures.
President Donald Trump said it’s up to him — not the governors — to decide when to reopen the states amid the COVID-19 pandemic.
"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. Let it be fully understood that this is incorrect," Trump tweeted April 13. "It is the decision of the President, and for many good reasons. With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!"
Trump’s tweet comes as he weighs whether to extend his stay-at-home guidelines, which expire April 30, a decision he has described as "the biggest decision I’ve ever had to make."
Reopening businesses, schools and public facilities is a decision with major implications for public health, the economy and education. But Trump’s tweet is misleading because governors do have power to shut down — and reopen — businesses and public spaces in their state.
Trump has traded barbs with governors during the pandemic, especially over where responsibility lies in securing medical supplies for the states. But governors have largely made their own calls about what to close down.
It’s not surprising, then, that governors pushed back against Trump’s comments on who has authority to "open up the states."
Maryland Gov. Larry Hogan, a Republican and chair of the National Governors Association, said on CNN: "Governors made decisions to take various actions in their states based on what they thought was right for their states, based on the facts on the ground, talking with doctors and scientists. And I think individual governors who made those decisions will have the ultimate decision about what to do with their states."
New Hampshire Gov. Chris Sununu, a Republican, said on CNN that "all these orders are executive state orders, so therefore it would be up to the state and governor to undo all of that."
We contacted the White House to ask for evidence behind Trump’s claim and did not get a reply.
On March 16, Trump issued guidelines to slow the spread of COVID-19, which included recommendations on social distancing and to "listen to and follow the directions of your state and local authorities."
But it was the governors who issued more specific directives that closed non-essential businesses and many other facilities, such as schools, bars, swimming pools and beaches.
Many legal experts and political scientists have said that governors have the authority to make such decisions.
States provide licenses for businesses and hold the primary responsibility for making decisions about public health.
"The simple answer is governors have way more legal authority than the president of the United States to make these decisions about closing and opening facilities, closing and opening the economy," said David Schultz, professor of political science and legal studies at Hamline University.
University of Texas law professor Robert Chesney told PolitiFact that Trump has no inherent or statutory authority to command the governors to change shelter-in-place or business-shutdown orders.
While federal powers are supreme, they are limited in scope, Chesney wrote in the Lawfare Blog in March. State governments are independent entities, not mere subordinate layers underneath the federal government, he wrote.
"The federal government cannot commandeer the machinery of the state governments (or, by extension, of local governments)," Chesney wrote. "That is, the federal government cannot coerce the states into taking actions to suit federal policy preference. … And so, the federal government cannot compel state and local officials to promulgate different rules on social distancing and the like."
No existing federal law — including the Public Health Service Act and the Stafford Act — can be read to confer such authority on the president, Chesney wrote. And there is little chance that this Congress will pass a law that gives Trump power to override state and local rules.
James Hodge Jr., a health law professor at Arizona State University, said the president can’t simply command states to re-open.
"He can strongly encourage, advise, or even litigate whether states’ authorities to restrict public movements re: shelter in place or stay home orders are warranted, but cannot tell sovereign governors to lift these orders all at once just because the federal government determines it is high time to do so," he told PolitiFact in an email.
There are other ways Trump could pressure governors, tweeted University of Texas law school professor Steve Vladeck. He could pull emergency funding, or call the federal workforce back into work, Vladeck listed as examples. Still, most action has been taken by local authorities.
Wendy K. Mariner, Boston University health law professor, said the governors have the authority to end their closure orders, though that isn’t the same as ordering them to reopen, which some may not be able to afford to do. Also, in most states, the state legislature can end the emergency declaration if the governor keeps it going beyond the period specified by statute.
Trump’s tweet raises some practical implications. Congress can pass legislation to regulate interstate commerce, but it would be exceedingly odd for the federal government to require businesses to open.
"As a practical matter, such an unprecedented action would be difficult, if not impossible, to enforce," she said.
Trump also tweeted that he’s making a decision "in conjunction with the Governors and input from others." But governors don’t necessarily speak with a collective voice, said Chris Cooper, a Western Carolina University political scientist, who noted that some states have not enacted statewide stay-at-home orders.
Though Trump has criticized some governors, he has generally not interfered with their powers.
In a press briefing April 10, Trump said that he had faith in Florida’s Republican Gov. Ron DeSantis to make the right decision about whether to reopen schools in May.
"I like to allow governors to make decisions without overruling them, because from a constitutional standpoint, that’s the way it should be done," he said. "If I disagreed, I would overrule a governor, and I have that right to do it. But I’d rather have them — you can call it ‘federalist,’ you can call it ‘the Constitution,’ but I call it ‘the Constitution.’ I would rather have them make their decisions."
Trump said "it is the decision of the President," not governors, to "open up the states."
The White House provided no evidence to show that it is up to Trump and not the governors to reopen the states. The governors used their authority to issue emergency orders to close non-essential businesses and public spaces such as beaches and swimming pools, and they can use their powers to reopen them.
Trump can pressure governors to act as he sees fit, but he has not provided evidence that he can decide whether to reopen the states.
We rate this statement False.
President Trump, Tweet, April 13, 2020
White House, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, April 10, 2020
White House, 15 Days to Slow the Spread, March 16, 2020
Lawfareblog by Robert Chesney, Can the Federal Government Override State Government Rules on Social Distancing to Promote the Economy? March 24, 2020
New York Times, Torn Over Reopening Economy, Trump Says He Faces ‘Biggest Decision I’ve Ever Had to Make’ April 10, 2020
University of Texas law professor Steve Vladeck, Tweet, April 13, 2020
CNN opinion Elie Honig, What Trump can — and can't — do to reopen the US, April 12, 2020
Brookings, Trump or governors: Who’s the boss? March 25, 2020
Telephone interview with David Schultz, professor of political science and legal studies at Hamline University, April 13, 2020
Associated Press, States Largely Have Authority Over When to Shut Down, Reopen, April 13, 2020
Reuters, Explainer: Trump has little power to restart U.S. economy, April 13, 2020
The Council of State Governments, Gubernatorial Executive Orders
Washington Post, Live updates: Sailor from USS Theodore Roosevelt dies of coronavirus complications; White House says Trump won’t fire Fauci, April 13, 2020
PolitiFact, Cuomo correctly says no quarantine without state approval, March 20, 2020
PolitiFact, Clarifying what’s accurate, and not, in claims about quarantines, March 16, 2020
Telephone interview, David Schultz, professor of political science and legal studies at Hamline University, April 13, 2020
Email Interview, Wendy K. Mariner, professor of health law at the Boston University School of Public Health, April 13, 2020
Email interview, Bill Galston, Brookings Institution senior fellow in governance studies, April 13, 2020
Email interview, Chris Cooper, Western Carolina University department of political science and public affairs department head, April 13, 2020
Email interview, Robert Chesney, University of Texas law professor, April 13, 2020
Email interview, James Hodge Jr., a health law professor atSandra Day O'Connor College of Law at Arizona State University, April 13, 2020
Email interview, Thomas Merrill, former general counsel, New York State Department of Health, April 13, 2020.
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