This is a terrific look at federalism during coronavirus.
The answer seems to be, no.
- Click here for the article.
2. No, the president cannot simply order state and local officials to change their policies
Here we have issues that fall under the headings of both federalism and separation of powers. Let’s start with federalism.
Most readers will appreciate this already, but it needs to be said: Our constitutional order has a federal structure, meaning that (a) federal powers are supreme, yes, but limited in scope and (b) the state governments are independent entities, not mere subordinate layers under and within the federal government (that is, the federal-state relationship is not similar to the way that counties and cities are subordinate layers under the state governments).
What follows from this? The federal government cannot commandeer the machinery of the state governments (or, by extension, of local governments). That is, the federal government cannot coerce the states into taking actions to suit federal policy preference. See, e.g., New York v. United States and Printz v. United States. And so, the federal government cannot compel state and local officials to promulgate different rules on social distancing and the like.
3. But could the federal government override contrary state and local rules?
As noted above, federal law is supreme over state law in our system. And so, if there is an otherwise-constitutional federal law compelling an outcome that runs contrary to a state or local rule, the federal law prevails. But it does not follow that President Trump can therefore override state and local rules on matters like shelter-in-place.
First, no currently existing statute plausibly can be read to confer such an authority on the president. The Stafford Act, the Defense Production Act, the Public Health Service Act, and the various statutes triggered by a declaration under the National Emergencies Act—none of these come close to authorizing something like this.
Second, there is little chance that this Congress is going to pass a statute that even purports to confer authority on the president to override state and local rules. I just do not see the House cooperating in such an effort.
Third, the president cannot plausibly claim inherent Article II authority to accomplish an override. Recall that President Truman, in the midst of the Korean War and facing the prospect of a strike in the steel industry that might disrupt the flow of arms and ammunition, asserted emergency Article II authority in order to temporarily nationalize the steel industry. The Supreme Court famously struck down that action as an unconstitutional usurpation of the authority of Congress, notwithstanding the exigency, in Youngstown Sheet & Tube Co. v. Sawyer.
