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What Does the 10th Amendment Mean for Claims to Presidential Authority?

WASHINGTON, DC - MAY 16: U.S. President Donald Trump gives a thumbs up as he walks toward Marine One while departing from the White House on May 16, 2019 in Washington, DC. President Trump is traveling to New York to attend a fundraiser.   (Photo by Mark Wilson/Getty Images)
By Richard Dahl on April 20, 2020 1:08 PM

By mid-April, prime ministers and presidents of several European nations announced that their countries may begin to ease restrictions on business and industry in an effort to get their economies off the mat.

At about the same time, U.S. President Donald Trump said that he wanted his nation to do the same. Clearly, many Americans share that sentiment. But when Trump took things a step farther, a bit of hell broke loose.

That's because Trump claimed that he had the power, as president, to order the resumption of business everywhere in the U.S. But in the U.S., unlike those other countries, the federal government — including the head of its executive branch — simply does not have that power.

So, when Trump made that claim, a loud chorus of legal voices responded by saying: No, you don't.

What the Constitution Says

The basis for their reaction is the 10th Amendment to the U.S. Constitution. That amendment, known as the Reserved Powers Amendment, says that powers not granted to the federal government are reserved to the states. Among those state powers is the power to direct responses to disasters, including health emergencies like the coronavirus pandemic.

Of course, the federal government does have a strong role in dealing with health emergencies. It can quarantine people entering the country. And the president can declare a national emergency, as Trump did on March 13. But declaring a national emergency only provides the power, under the Stafford Act, to free up resources for use by the states.

The 10th Amendment dates to the early days of the republic, when the 13 original states under the Articles of Confederation were concerned about the threat posed to their sovereignty by the proposed Constitution. The result was the 10th Amendment, which is a Constitutional promise of states' rights.

Governors Calling Their Own Shots

Throughout April across the U.S., most states' citizens have been following stay-at-home orders that were put in place by governors — not by the federal government. The federal government has the power to impose quarantines on people coming into this country, but when it comes to internal actions to keep people at home and order businesses to cease operations, the power rests with the states.

But does the president have other ways to get businesses operating again? Of course.

He has powers of persuasion through his bully pulpit. And on April 16, that's what he used in releasing a plan he would like the states to follow for a gradual and staggered return to normal.

In a conference call to governors, he told them to "call your own shots."

After all, that's what the Constitution says.

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