Why Trump’s claim that he has power to ‘open up’ states amid coronavirus is false

President Donald Trump pauses while speaking during the Coronavirus Task Force press briefing at the White House in Washington, D.C., on Thursday, April 9, 2020.

Oliver Contreras | SIPA | Bloomberg via Getty Images

WASHINGTON — As the nation entered its third straight week of near total economic shutdown on Monday, President Donald Trump falsely claimed that it will be his decision when the nation’s businesses will reopen during the coronavirus pandemic, and not a choice left to individual governors. 

But legal experts say Trump is wrong. For one, they note that U.S. law gives state governors wide latitude to protect the health and safety of their constituents. Secondly, they point out that Trump never declared a nationwide lockdown, so there’s no mechanism by which he could order a nationwide reopening now, namely.

Still, that did not prevent Trump from claiming that he could. Citing media reports that it would be up to governors when to “open up the states,” Trump wrote, “this is incorrect. It is the decision of the President, and for many good reasons.”

The president did not detail the “many good reasons” this was true in further tweets. A White House spokesman did not immediately respond to questions from CNBC about what the president meant by this.

In reality, the authority to protect the public health of U.S. citizens by directing shutdowns and shelter-in-place orders lies squarely with the nation’s governors, and not with the president. 

“State and local governments have strong police power to protect their citizens and so I’m unaware of any way in which the federal government could basically try to override anything the states and cities have been doing to protect the public health of their citizens,” said William Buzbee, a professor at Georgetown University Law School and an expert in federalism.

“Since the president has mainly acted in a sort of bully pulpit sort of way, there’s nothing in particular that he would be reversing or restarting,” Buzbee told CNBC.

“I don’t know what it means for the president to ‘open up the states,'” conservative legal scholar Josh Blackman told NBC News on Monday.

“The president does make certain declarations about critical infrastructure and other guidelines that states generally follow. But the president cannot order the governors to do anything. I don’t even think he could withhold funding from states, absent a congressional appropriation,” he said.

States take the lead

In practice, one need look no further than to the individual states themselves for evidence of how different governors have exercised their authority to order closures as the coronavirus has spread from coasts and cities to the nation’s more rural interior. 

Three weeks ago, California’s Democratic Gov. Gavin Newsom closed all non-essential businesses, and prohibited residents from leaving their homes unless absolutely necessary. Newsom’s state was one of the earliest to experience a significant outbreak, and there have been more than 23,000 confirmed cases of Covid-19 in California, with more than 680 deaths. 

Yet in North Dakota, Republican Gov. Doug Burgum has shut down schools, restaurants, health clubs, movie theaters and beauty salons. But as of Monday, no one in the state is under a mandatory stay-at-home order.

This patchwork of restrictions is far from perfect, and it has drawn criticism from public health experts who say it risks luring people from restrictive areas to less restrictive ones in search of goods and services.

Some of these experts have even called on Trump to issue a nationwide lockdown, a response adopted by many governments around the globe which have prohibited their citizens from leaving their homes. 

Yet so far, the federal government’s primary public health agency, the Centers for Disease Control and Prevention, has only issued “guidance” for individuals, businesses and healthcare providers.

An example of this kind of guidance is the CDC’s national campaign, dubbed “30 Days to Stop the Spread,” which recommends hand washing, social distancing and staying home. 

Feds offer guidance and aid

All of this is not to imply that Trump has not used the powers of the presidency to responded to the crisis, however. He has.

Since late January, Trump has issued several executive orders pertaining to the virus, and he has closed federal properties like national parks and the Smithsonian Institution to visitors. He has also restricted travel to the United States from China and Europe, where the virus has infected hundreds of thousands of people. 

As the virus spread through the country this spring, Trump also issued federal disaster declarations for dozens of hard-hit states, permitting them to access emergency funding from the federal government. He has also signed congressional legislation providing more than $2 trillion in federal aid to businesses and individuals hard hit by the economic shutdown. 

After initially resisting the move, Trump was even convinced to invoke the Defense Production Act to force U.S. companies to manufacture much-needed medical equipment.

Still, few of these actions, save for the travel bans, are the type that would be lifted or reversed if the nation’s public health experts determined that the virus’ spread had been slowed enough so that schools and businesses could reopen. Even then, congressional aid would keep flowing and disaster funding would remain available.

—- CNBC’s Kevin Breuninger contributed reporting. 

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