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Editorial Advisory Board: The limits of executive authority

President Donald Trump recently proclaimed that he intended to order states to reopen their economies and lift stay-at-home and shelter-in-place orders issued by governors to protect the health and safety of citizens amid the coronavirus pandemic. “When somebody is the president of the United States, the authority is total,” he said during a press conference on April 13. “And that’s the way it’s got to be. It’s total.”

Trump has since appeared to back off this claim, stating that governors could “call your own shots,” but that does not make his initial claim any less jarring or incorrect.

So far the virus has killed nearly 50,000 people in the United States and more than 600 people in Maryland. As a result, governors have issued stay-at-home or shelter-in-place orders affecting 90% of the country’s population, including Marylanders. And although some states, such as New York, appear to be successfully “flattening the curve,” health experts have predicted that other states, including Maryland, may become the next “hot spots.” Indeed, the stay-at-home order issued by Gov. Larry Hogan continues to extend indefinitely. As of April 17 Hogan extended school closures to May 15, and as of April 18 he issued an order requiring that Marylanders wear masks or cloth face coverings in all retail spaces and on public transportation.

Trump cannot change that.

Fundamentally, the United States was formed when colonists separated from the British Crown and created a government based on the separation of powers and checks and balances. The federal government’s powers are enumerated in the U.S. Constitution, and nowhere in the Constitution is the president provided the power to open or close state economies. Instead, the legislative branch passes laws and the executive branch enforces those laws.

Under Article II, Section 3 of the Constitution, the president “shall take Care that the Laws be faithfully executed.” When asked by a reporter to identify a constitutional provision providing the authority he claimed, Trump provided the vague response: “Numerous, numerous provisions.  We can give you a legal brief if you want.” Not surprisingly, no “brief” or additional legal support has been provided.

Although a president may activate certain additional powers by taking actions such as declaring a national emergency, those powers are provided by Congress, and no president has “total authority” to act as he or she chooses. The U.S. Supreme Court made this much clear in the 1952 case of Youngstown Sheet and Tube Co. v. Sawyer. Amid the Korean War, President Harry S. Truman had seized steel mills to avert a strike by workers and to make sure steel continued to be produced for use in the war. The Supreme Court rejected this executive overreach, noting that no such power had been specifically provided to the president and that no such inherent authority exists in the Constitution.

In any event, Congress likely could not provide the president with the power he claimed. Under the concept of federalism, the state and federal governments are separate sovereigns. The 10th Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

The 10th Amendment advances principles of smaller federal government and stronger states’ rights. Reliance on the 10th Amendment has been cited in attempts to bring down the individual mandate in the Affordable Care Act, otherwise known as Obamacare, in 2012. It is also currently being used to thwart efforts to invalidate California’s “sanctuary state” law.

Courts have generally interpreted the 10th Amendment as placing certain limitations on the federal government in favor of allowing state and local communities to take the lead on most issues that directly affect their residents. The 10th Amendment stands as a formidable barrier to efforts by the federal government to control state action in the case of the COVID-19 response.

The Supreme Court has made clear that the amendment especially preserves states’ rights in the area of the health, safety and well-being of their citizens. The court reaffirmed this rule in recent history, striking down, for instance, a statute barring possession of guns near schools, based on states’ police powers. The court has further made clear that the federal government may not commandeer state officials to enforce the federal government’s policies.

The president’s quick turn-around on his claim of “total authority” was appropriate and consistent with fundamental principles of Federalism. Although the federal guidelines for states emerging from the pandemic recently announced by President Trump have been praised by Gov. Hogan, the ultimate authority for when the state reopens does not rest in the federal government’s hands.

We encourage Maryland’s citizens to adhere to state and local directives that are designed to keep our communities safe and to ensure that we are best equipped to thrive together when we emerge from this unprecedented crisis.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.


The Daily Record is providing free access to its coverage of the COVID-19 pandemic.

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