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| blog.google |
Hello Everyone:
Another week, another episode of the socially distant blog. Today The Candidate Forum wants to step in and talk about the powers of the executive branch of government but first, a little news.
Not that anyone was paying attention but VPOTUS Joe Biden (D-DE) won the Wisconsin and Alaska primaries. Both former POTUS Barack Obama, rivals Senators Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) have officially endorsed VPOTUS, adding their considerable and much needed fund raising power. However, VPOTUS is facing a potential sexual assault charges. Former Senate staff assistant Tara Reade alleges that in 1993, VPOTUS sexually assaulted her. Part of a troubling pattern of behavior, something far more criminal, or a case of mistaken identity? The Candidate Forum is neither the police, judge, or jury so it cannot say for sure but The Forum will be keeping an eye on the story. Onward.
Not that anyone was paying attention but VPOTUS Joe Biden (D-DE) won the Wisconsin and Alaska primaries. Both former POTUS Barack Obama, rivals Senators Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) have officially endorsed VPOTUS, adding their considerable and much needed fund raising power. However, VPOTUS is facing a potential sexual assault charges. Former Senate staff assistant Tara Reade alleges that in 1993, VPOTUS sexually assaulted her. Part of a troubling pattern of behavior, something far more criminal, or a case of mistaken identity? The Candidate Forum is neither the police, judge, or jury so it cannot say for sure but The Forum will be keeping an eye on the story. Onward.
It is mid-April and for most of America, it is month two of shelter-in-place. Yours Truly and The Candidate Forum have a confession: They are is tired of waiting in line to get in to the grocery store, having to scavenge of list items, wear gloves and a mask just to go out. We absolutely understands that the social distancing, obsessive hand washing, and so on is necessary to flatten the curve but one has to wonder how much longer do we have to hide out from the world? A group of governors on the West and East Coasts may have the answer.
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| L.H.S. Governor Andrew Cuomo (D-NY) R.H.S.Governor Gavin Newsom (D-CA) latimes.com |
On Tuesday, Governor Gavin Newsom released a set of six factors that will guide his state's return to the land of living. California was the first state to issue shelter-in-place order in response to the COVID-19 pandemic. He joins growing number of of his fellow state chief executives who are taking it upon themselves to figure out how to get back to something that resembles normal, Governor Newsom told the 40 million resident that "the key to going back to work and play depends on six factors--...,
Science, not politics must be the guide,... We can't get ahead of ourselves... I don't want to make a political decision. That puts peoples lives at risk. (cnn.com; Apr. 14, 2020)
Governor Newsom's statement comes as the U.S. death toll from the virus passed 25,000, according to Johns Hopkins University, and his fellow governors around the nation discuss re-opening schools, non-medical non-essential businesses (Ibid). There are slivers of optimism with signs that the U.S. is nearing the peak of the COVID-19 outbreak.
Meanwhile, New York Governor Andrew Cuomo joined the governors of New Jersey, Connecticut, Pennsylvania, Rhode Island, Massachusetts, and Delaware to craft a plan to reopen the region's economies, schools, and other businesses (nytimes.com; Apr. 13, 2020; date accessed Apr. 14, 2020). Governor Cuomo, said "The officials participating in the effort,...would"
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| tenthamendmentcenter.com |
In response to the governors' joint efforts, Mr. Donald Trump took to his daily press briefings and Twitter to carry on about how he has the absolute authority to make that decision. Does he?
The short answer is no. The longer answer is found in The United States Constituton. The Tenth Amendment helps define the concept of federalism, the relationship between the state and Federal governments (law.cornell.edu; Apr. 14, 2020). Federalism is defined as
a system of government in which the dame territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern (Ibid)
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| cnsnews.com |
The president of the United States calls the shots,... They can't do anything without the approval of the president of the United States,... When somebody's the president of the United States, the authority is total" (Ibid),
his claim was baseless, despite his claim that there were numerous provisions in The Constitution, they are nowhere to be found.
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| pt.slideshare.net |
In an email, Georgetown Law School constitutional law professor Susan Low explained,
The President's power are not 'total,'... Our government is a government of divided powers. We call it 'separation of power' with 'checks and balances' (Ibid).
Article 2 of The Constitution outlines the powers and duties of Executive Branch. Taking a quick glance at Article 2 tells us that Mr. Trump's boast that he, alone, has the authority to order businesses to re-open is nowhere to be found. Prof. Bloch continued,
But the Congress, the judiciary, and the states also have powers--as articulated in the rest of the Constitution (particularly in Article I, Article III, and the 10th Amendment respectively). The President is not a king. His powers are broad, but they are definitely not 'total' (Ibid)
Cornell Law School professor Kathleen Bergin added,
It's so plain and obvious it's not even debatable (Ibid)
The President's power are not 'total,'... Our government is a government of divided powers. We call it 'separation of power' with 'checks and balances' (Ibid).
Article 2 of The Constitution outlines the powers and duties of Executive Branch. Taking a quick glance at Article 2 tells us that Mr. Trump's boast that he, alone, has the authority to order businesses to re-open is nowhere to be found. Prof. Bloch continued,
But the Congress, the judiciary, and the states also have powers--as articulated in the rest of the Constitution (particularly in Article I, Article III, and the 10th Amendment respectively). The President is not a king. His powers are broad, but they are definitely not 'total' (Ibid)
Cornell Law School professor Kathleen Bergin added,
It's so plain and obvious it's not even debatable (Ibid)
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| slideshare.net |
Prof. Bergin added,
Trump has no authority to ease social distancing or to open schools or private businesses,... These matters are for states to decide under their power to promote public health and welfare, power guaranteed by the 10th Amendment to the Constitution. Despite what he claims, no president has absolute authority over domestic policy, and he certainly has no power to override the type of measures that have been taken across the country that have proved successful in flattening the curve (Ibid).
The text of the amendment is very simple, emphasizing "that the inclusion of a bill of rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone's rights, but whether it exceeds the national government's enumerated powers" (constitutionacenter.org).
We can distill the matter further, Article II defines the executive branch's jurisdiction over national matters such as: the appointment of federal judges and cabinet officers, represent the U.S. in diplomatic matters, and carry out laws. Washington-based national security lawyer Bradley Moss spoke to public radion,
Quite simply, there is no provision that gives a president 'total authority, and particularly none in the context of a public health crisis.... (npr.org; Apr. 14, 2020)
Mr. Moss said "the Constitution delegates most public health authorities to the states, not the federal government" (Ibid). The president can declare national emergencies, which he did on March 13 and designate select groups for quarantine but none of his Constitutional authority permit him to decide how the individual states open or close (Ibid)
Does Mr. Trump have some authority over matters of public health and welfare? Prof. Kathleen Bergin says yes, he does. She said,
...he doesn't constitutional authority simply by claiming it. What he tries to do and what he's authorized by the Constitution to do are two different things (Ibid)
Polly J. Price, a professor of law and global health at Emory University School of Law told NPR that "the Supreme Court denied the president this kind of authority in a 1952 case, when it ruled against President Harry Truman, who was trying to shut down the steel industry to avert a nationwide steelworkers strike" (Ibid). Prof. Price said,
The order required the secretary of commerce to seize and operate most of the steel mills. The Supreme Court struck it down as beyond the powers of the president, despite the claim it was a matter of national security. (Ibid)
Therefore, while Congress may have the authority to re-open the economy under the Commerce Clause of The Constitution,
Congress could delegate to the president the determination of when a 'reopening' should occur, either regionally or nationwide... (Ibid)
However, there may not be any legislation that grants the president that authority
Trump has no authority to ease social distancing or to open schools or private businesses,... These matters are for states to decide under their power to promote public health and welfare, power guaranteed by the 10th Amendment to the Constitution. Despite what he claims, no president has absolute authority over domestic policy, and he certainly has no power to override the type of measures that have been taken across the country that have proved successful in flattening the curve (Ibid).
The text of the amendment is very simple, emphasizing "that the inclusion of a bill of rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone's rights, but whether it exceeds the national government's enumerated powers" (constitutionacenter.org).
We can distill the matter further, Article II defines the executive branch's jurisdiction over national matters such as: the appointment of federal judges and cabinet officers, represent the U.S. in diplomatic matters, and carry out laws. Washington-based national security lawyer Bradley Moss spoke to public radion,
Quite simply, there is no provision that gives a president 'total authority, and particularly none in the context of a public health crisis.... (npr.org; Apr. 14, 2020)
Mr. Moss said "the Constitution delegates most public health authorities to the states, not the federal government" (Ibid). The president can declare national emergencies, which he did on March 13 and designate select groups for quarantine but none of his Constitutional authority permit him to decide how the individual states open or close (Ibid)
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| slideplayer.net |
...he doesn't constitutional authority simply by claiming it. What he tries to do and what he's authorized by the Constitution to do are two different things (Ibid)
Polly J. Price, a professor of law and global health at Emory University School of Law told NPR that "the Supreme Court denied the president this kind of authority in a 1952 case, when it ruled against President Harry Truman, who was trying to shut down the steel industry to avert a nationwide steelworkers strike" (Ibid). Prof. Price said,
The order required the secretary of commerce to seize and operate most of the steel mills. The Supreme Court struck it down as beyond the powers of the president, despite the claim it was a matter of national security. (Ibid)
Therefore, while Congress may have the authority to re-open the economy under the Commerce Clause of The Constitution,
Congress could delegate to the president the determination of when a 'reopening' should occur, either regionally or nationwide... (Ibid)
However, there may not be any legislation that grants the president that authority
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