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Trump says he'll speak to all 50 governors and will be 'authorizing' reopenings. States disagree on his role

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WASHINGTON – President Donald Trump embraced a less confrontational tone with the nation's governors Tuesday, asserting he wouldn't "force" states to reopen during the coronavirus pandemic a day after he claimed he had "absolute authority" to do so.

Though at times he echoed his claims of authority – which had been widely criticized by governors, lawmakers of both parties and constitutional scholars – Trump said he would speak with each governor about reopening their economies this week and signaled that he would support any state that decided to maintain lockdowns past May 1.

"The governors are going to be running their individual states. Some of them will say, 'No, I can’t open now.' And some of them may last longer than we even would think," Trump said in the Rose Garden. "I’m not going to put any pressure on any governor to open."

Still, Trump said he would be "authorizing" states to reopen, potentially before federal social distancing guidelines are set to expire at the end of the month. That remark appeared to mimic his earlier claim that the president has "absolute" authority to reopen the country from the economic stranglehold caused by the deadly coronavirus.

"I will then be authorizing each individual governor of each individual state to implement a reopening," he said.

Governors, who for weeks have been enforcing a near-total shutdown of the country, vowed that they would determine when and how the country would return to work. The federal social distancing guidelines Trump announced last month likely influenced state officials, mayor and schools, but they were not binding.

Republican and Democrat chief executives pushed back at Trump's initial claim of authority, saying they would not relinquish responsibility for deciding when to unwind a patchwork of restrictions aimed at slowing the spread of the virus that has claimed more than 23,000 lives in the U.S., and infected nearly 600,000.

"We don't have a king in this country; we don't want a king," New York Gov. Andrew Cuomo said Tuesday, adding that state authority was a basic principle of the Constitution. "There are laws and there are facts in this wild political environment. The president is clearly spoiling for a fight on this issue. This is no time for politics; this is no time to fight."

Legal experts also said the Constitution does not give a president the type of complete power Trump described.

Briefing or rally?

President Donald Trump turned a coronavirus White House briefing into a defense of his response actions to the deadly pandemic and confronted media.
President Donald Trump turned a coronavirus White House briefing into a defense of his response actions to the deadly pandemic and confronted media.

Increasingly, states have been exerting control and, in some cases, consolidating their authority in plotting their own return to business.

Part of a consortium of seven northeastern states, Cuomo cautioned that the country must move carefully in easing social distancing or risk a rapid reemergence of the virus that has killed more than 10,000 in New York alone.

Michigan Gov. Gretchen Whitmer said she is consulting with other Midwestern states about a path forward.

"The government doesn't get opened up via Twitter," Whitmer said, referring to Trump's preferred method of governing and communication. "It gets opened up at the state level."

On the West Coast, California, Washington and Oregon have formed their own strategic alliance in a run-up to reopening.

"The West Coast is guided by science," California Gov. Gavin Newsom tweeted. "We issued stay at home orders early to keep the public healthy. We’ll open our economies with that same guiding principle. CA, WA, and OR will work together on a shared vision focused on health–not politics."

Trump calls state challenges a mutiny

Trump, meanwhile, fumed on Twitter Tuesday, referring to the state challenges as a "mutiny."

"A good old fashioned mutiny every now and then is an exciting and invigorating thing to watch, especially when the mutineers need so much from the Captain," the president wrote. "Too easy!"

Trump rankled governors Monday night, declaring that he alone was authorized to rollback social distancing policies and restart the country's dormant economy.

"The president of the United States calls the shots," Trump said. "When somebody is the president of the United States, the authority is total."

Back to work:

Only the drive-through of the Smoothie King in Lafayette, Louisiana, is open as businesses try to limit exposure to the coronavirus.
Only the drive-through of the Smoothie King in Lafayette, Louisiana, is open as businesses try to limit exposure to the coronavirus.

But the pushback was nearly immediate, with some of it coming from unlikely sources.

Republican New Hampshire Gov. Chris Sununu late Monday said the responsibility for unwinding stay-at-home orders rests with the states.

"All of these executive order are state executive orders," Sununu told CNN. "Therefore, it would be up to the state and the governor to undo a lot of that."

Beyond the states, some of the president’s Republican allies in Congress dismissed Trump’s declaration of absolute control.

“The Constitution and common sense dictates that these decisions be made at the state level,” Sen. Marco Rubio, R-Fla., tweeted Tuesday.

A sign indicates that a beach is closed as the city government takes steps to fight the coronavirus outbreak on March 25, 2020 in Key West, Florida.
A sign indicates that a beach is closed as the city government takes steps to fight the coronavirus outbreak on March 25, 2020 in Key West, Florida.

Rep. Liz Cheney, R-Wyo., echoed Rubio, referring to the text of the 10th Amendment.

"The federal government does not have absolute power," Cheney said.

Legal experts also maintained that Trump did not have the authority he claimed under existing law or within the Constitution.

"It's so plain and obvious it's not even debatable," said Kathleen Bergin, a law professor at Cornell University. "Trump has no authority to ease social distancing, or to open schools or private businesses. These are matters for states to decide under their power to promote public health and welfare, a power guaranteed by the 10th Amendment to the Constitution."

David Cole, the American Civil Liberties Union's national legal director, agreed.

"The 10th Amendment reserves all powers not expressly given to the federal government to the states," explained Cole. "The idea when the federal government was created was that the federal government is a government of limited powers."

Cole said the president "can only execute laws that Congress has passed, and Congress can only pass laws that are authorized by the Constitution." And he said Congress had not passed any law creating the "authority to act with respect to pandemics, with respect to curfews, with respect to the vast majority of the regulations that govern human life in this country."

"The president doesn't have any authority to do it on his own," he said.

Coronavirus in the US: How all 50 states are responding

Limits on presidential powers

Even if such a law were passed and survived constitutional challenges, Trump could not compel the states to enforce it but would rather have to use the National Guard or FBI, Cole said. That is because the courts have ruled the states cannot be forced to carry out a federal program involuntarily under what is known as the "anti-commandeering principle."

Harvard Law professor Charles Fried did not think the 10th Amendment was relevant because Congress could theoretically pass a law granting the president the power that Trump claimed to have under its authority to regulate businesses. Fried said the key fact was that Congress had never created any such statutory power.

"It's not really a 10th Amendment issue. It's a rule of law issue," Fried said. "The president can't just say, 'I am the boss.'"

Fried pointed to the 1952 case in which the Supreme Court ruled President Harry Truman did not have the power to take control of the nation's steel mills despite a labor strike that threatened production during the Korean War.

In his opinion, Justice Robert H. Jackson wrote that even in the case of a war, which Trump has often cited in the virus response, there are limits on presidential powers.

"There are indications that the Constitution did not contemplate that the title commander in chief of the Army and Navy will constitute him also commander in chief of the country, its industries and its inhabitants," Jackson said.

Trump eager to 'reopen' nation: Governors will decide when to ease lockdown

When asked about states' rights to decide when to reopen schools and businesses, Trump said, "The president of the United States calls the shots."
When asked about states' rights to decide when to reopen schools and businesses, Trump said, "The president of the United States calls the shots."

Trump's standoff with the states has been fueled by an unceasing desire to reopen the country and an economy that he had hoped would be the centerpiece of his reelection bid.

The president first raised the prospect of easing restrictions by Easter Sunday, a proposal that faded as the virus cut an increasingly fatal path in New York, Louisiana and other hot spots across the country.

But governors and other lawmakers were increasingly cautioning against a speedy and all-inclusive reopening.

Sen. Lindsey Graham, R-S.C., one of Trump's closest advisers, urged the president to maintain an "aggressive containment" policy.

"When it comes to how to fight #CoronavirusPandemic, I’m making my decisions based on healthcare professionals like Dr. (Anthony) Fauci and others, not political punditry," Graham tweeted, referring to the country's top infectious disease expert.

In some places, even the contemplation of a reopening seemed distant.

“We still have a situation in Delaware that is getting worse," said Gov. John Carney, whose state is part of the Northeast consortium. "Infections of COVID-19 and hospitalizations are rising. Delawareans should stay home. Don’t go out in public unnecessarily. Don’t visit Delaware unless you need to see a doctor, or care for a family member. You’ll only increase everyone’s risk."

Fact check:

This article originally appeared on USA TODAY: Coronavirus: Can Trump tell governors when to reopen? States say no

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