Open Sesame: Who Gets to Decide When to Reopen The Economy?

Robert Brooks Contributor
Open Sesame: Who Gets to Decide When to Reopen The Economy?
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Open Sesame: On Monday President Trump tweeted: “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…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!” Why it matters: This sparked debate over who—the President or the States—has the ability to begin to reopen the American economy.

On the right: Conservatives and right-leaning outlets conceded that the President does not have the power to implement a national shutdown and in turn order a national reopening. They did point out that the President has certain authorities to enact travel restrictions, but that any interstate travel bans would likely be met with legal challenges. Zachary Evans of the National Review outlines that, “the federal government does not have the authority to implement a ‘national lockdown’ featuring business closures and mandatory social-distancing efforts, which measures are instead left to be implemented by individual states.” Evans then points to an interview from Keith Whittington, a professor of politics at Princeton University, in which he says ” that while the president does have a certain amount of authority to enact international travel restrictions, as well as to restrict interstate travel, any attempt to expand quarantine measures from one state to another would rest on shaky legal grounds.”

On The Left: Democrats and left-leaning outlets also outlined why the President and the federal government lacks the power to directly order states to reopen their economies. Quint Forgey and Josh Gerstein of POLITICO note that “when it comes to states the president’s legal prerogative to order them to relax their lockdown policies is dubious. The federal government lacks the ‘police power’ authority that states have to regulate their own citizens, including by issuing orders to stay home in an effort to stem the spread of the coronavirus.” Similar to Evan’s note above, the POLITICO authors outline that the “federal powers [that] do exist in this area stem from the central government’s authority to regulate interstate and international commerce. Laws passed on that premise give officials at the CDC the ability to quarantine travelers, as well as planes, trains and automobiles moving between states.”

Flag This: This Thursday we will get the fourth iteration of the weekly jobless report. The forecast is calling for another 6.5 million unemployment filings. That means that nearly 24 million people will have lost their jobs over the past month. Both individual states and the federal government know that, somehow, someway, the economy needs to be reopened. That might mean for certain professions or in certain areas. To that end, two groups of states are already working on regional plans— without the Federal government—to tentatively lift shutdowns. The east coast group is comprised of New York, Connecticut, Delaware, New Jersey, Pennsylvania, and Rhode Island. Out west, California, Oregon, and Washington are banding together. The bi-coastal blocks claim that certain metrics will guide the reopening. At the end of the day, Trump’s claim that “it is the decision of the President” to open up states is constitutionally problematic. Final Thoughts: University of Texas law professor Stephen Vladeck tweeted that, “The President can *informally* put pressure on local/state governments. He can mess with emergency funding. And he can even order the federal workforce back to their offices…But largely because [Trump’s] left so much to local authorities so far, [reopening], too, is ultimately up to them.”