President Trump tweeted something earlier this week that sounded more inaccurate than normal. I don’t personally care much for what Trump says. After reading Win Bigly by Scott Adams this weekend, I’m convinced Trump uses his words wisely, whether or not they are backed in facts. (It’s a good read, I recommend it.) Regardless, it’s a well-documented phenomenon that President Trump stretches the truth.
His tweet can be summarized as follows: his argument that the Executive Branch of the federal government wields authority which allows directing state governments to re-open. Effectively, Trump has the power to nullify state stay-in-place orders.
Unlike some in the media, I have read the Constitution of the United States a few times. In fact, I have devoted a lot of my time to studying our Founding document and about the geniuses who devised it. I adhere to the original public meaning interpretation of the Constitution—the words used in the document and its amendments are to be interpreted by the public meaning during the time of enactment or ratification. For instance, the 14th Amendment should be interpreted by the meaning of the words during 1868. The parts of the Constitution which were ratified on June 21, 1788, should be interpreted through the meaning of the words during that time.
At first, I thought there was no place in the Constitution which confers authority on President Trump to override governor stay-in-place orders. The federal government is not endowed with Police Powers. Nor does the General Welfare Clause allow such powers.
There is an argument under the Commerce Clause, but the state orders are directed in-state and are not closing their borders to commerce. Moreover, under the current Commerce Clause jurisprudence, Congress does not have the authority to regulate noneconomic activity.
In United States v. Morrison, the Court struck down Joe Biden’s prized Violence Against Women Act (something he oddly touts as a success) as being an overreach of Congress’ Commerce Clause powers. There is an argument that such a law allowing the federal government to override state orders is for interstate economic activity, allowing people to go back to work. But states have a strong argument under their sovereign Police Powers to protect during a medical crisis—a noneconomic activity. Something which the Court has correctly expressed as being within the purview of the States.
However, as I continued to think what would confer on Trump the authority to override state stay-in-place orders, the obvious struck me, but I am unsure if it is an argument put forth before.
President Trump swore his oath to “faithfully execute the Office of the President of the United States,” which has been interpreted to execute federal law. Importantly, he swore to the best of his ability he would “preserve, protect, and defend the Constitution of the United States.”
Right now, state governors and local governments are concentrating powers unto themselves in unprecedented ways. Never before has a medical crisis—or any other crisis, to the best of my knowledge—led to state and local governments having the authority to arrest people at church. Or a father tossing a softball with his daughter at a park. Have you ever heard of people being arrested at homes during a birthday party? They were violating social distancing guidelines. The list goes on.
To be sure, the federal and state governments have conferred on themselves vast war time powers. President Lincoln suspended habeas corpus and jailed journalists during the Civil War. President Woodrow Wilson was the closest politician we’ve had to a tyrant. And let’s not forget President Franklin Delano Roosevelt interning Japanese-Americans in camps during World War II—which was upheld in Korematsu v. United States. Truly one of the most abhorrent judicial decisions in the history of the Supreme Court. Which was finally overruled in Trump v. Hawaii, 2018.
Trump’s exercise of authority to re-open up the states, if he so chooses to use it, is arguably quite powerful, but limited.
Article VI, Clause 2 of the United States Constitution is the barely mentioned Supremacy Clause. It states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof…under the authority of the United States, shall be the supreme law of the land…”
To discover the objective fact that the Constitution is the Supreme Law of the Land, one only has to simply read the document. It is hiding in plain sight. This interpretation of the Constitution is the foundational principle behind original public meaning originalism. Justices, Congressmen, and the President should interpret the words within the four corners of the document, not through penumbras and emanations.
Thus, Trump has the authority to override state and local government orders which are unconstitutional. It is Trump’s job to “defend, preserve, and protect” the Constitution. For President Trump to allow state and local governments to enforce orders which quite clearly erode and degrade constitutional rights, would actually be something impeachable. It is his duty to defend, preserve, and protect the constitutional rights of Americans.
Currently, many local governments have ordered gun stores to shut down as “nonessential.” The Supreme Court in District of Columbia v. Heller, an opinion authored by the late Justice Scalia, held the right to keep and bear arms as a constitutional guarantee. Our rights guaranteed by the constitution are essential. If they weren’t, why were they argued, debated, and then ratified by 3/5 of the States? If our rights weren’t essential, then sure, governments could take them away during an emergency. Rights cannot be absolutely stripped without the due process of law—that’s what makes them essential.
For the government to infringe on our rights, it must have a substantial justification. The ultimate goal of government is to limit coercion on the individual so that individuals are free to choose so long as they do not injure others. Governments do this by creating a framework that enables the maximization of individual liberty—not to suspend the ability of the individual to choose what is best for himself. What is the point of having social distancing guide lines, inter alia, if we are not able to exercise our freedoms?
Unfortunately, state and local governments have felt it proper to infringe on our essential rights to defend ourselves, freedom of speech, freedom of assembly, and the freedom to exercise religion. They are acting as if politicians and bureaucrats know what is better for American citizens—quite authoritarian.
What gets confused in the media is the mischaracterization of the First Amendment. The common misconception is that it creates a “separation of church and state.” This is incorrect. It states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” We have laws which grant benefits to all religious institutions, we do not have an entirely free separation.
Most importantly, state and local governments shall make no laws “prohibiting the free exercise [of religion].”
The rights guaranteed by the First and Second Amendments have been applied to state governments since the ratification of the Fourteenth Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunites of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
Any governor or mayor who have included in stay-at-home orders any provision which deprives Americans of any of their constitutional guarantees is unconstitutional on its face and should be found unenforceable by a federal judge. Rights are still rights, even in times of emergency. The government cannot freely take them away because of a crisis. Individual rights and liberties come before government. Mankind formed government to protect our inherent rights from being infringed on by others. Government does not grant us our rights, they are endowed to us by God.
Trump has the authority to defend, protect, and preserve these rights from unlawful encroachment by state governments. Trump should issue executive orders lifting the restrictions state and local governments have set in place that infringe upon our fundamental rights. Attorney General William Barr’s Department of Justice is already taking the first steps. The DOJ announced it will take action in a religious liberty case where police officers in Greenville, Mississippi issued $500 tickets to churchgoers who refused to leave the premises. These Christians were in their cars socially distancing themselves.
If the states continue to enforce these orders, Trump should send federal troops.
A president sending in federal troops to enforce federal law or the Constitution is not unprecedented. President Eisenhower sent the 101st Airborne Division in 1957 to enforce the Supreme Court’s decision in Brown v. Topeka, which made segregation in public schools illegal. The freedom to exercise religion and peacefully assemble are fundamental constitutional rights. They should be protected as such.
The DOJ, moreover, has authority to bring civil and criminal lawsuits and seek injunctions in the District Courts where states have enacted unconstitutional orders. Under Title 42, United States Code § 1983, there is a civil action for the deprivation of rights under the color of state law. Additionally, there is Title 18 U.S.C. § 242, which is the criminal action. Section 242 states “whoever, under color of any law, statute, ordinace, regulation, or custom, willfully subject any person in any State… to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States…” shall be criminally liable. Section 1983 allows injunctive relief.
In short, President Trump’s authority to override state stay-in-place orders is not absolute. The DOJ and AG Barr have more power to enforce the Constitution and federal laws through the federal judiciary. However, that is a semantical difference since the DOJ is under the executive branch. Trump and the executive branch’s power to take action to protect American constitutional rights and protections under federal law should be absolute. This does not mean what Trump says goes. This means that the executive branch has a wide array of powers to use to protect and enforce the constitutional rights guaranteed by the Constitution. Trump and AG Barr should use them. To an extent, if we find ourselves in a situation where some state and local government carry on orders too far or too long, Trump and the DOJ may sue for further freedoms, depending on the state of the crisis. It is all fact-based.
Arguing that the President of the United States cannot take executive action to “defend, preserve, and protect” the United States Constitution is skeptical, at best. The President is expected to refrain from taking action that is unconstitutional and to take action when the rights of citizens are being infringed. How else would a president “defend” or “protect” the Constitution when its being assaulted?
It would be a dereliction of duty for a President to sit idly while authoritarian state and local governments trample on the constitutional rights of Americans. It is outrageous to think he should.