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The Decision to Remove COVID-19 Restrictions

Who Makes the Decision on COVID-19 Restrictions

CNN recently contacted Page to discuss President Trump’s comments on removing restrictions and reopening the United States economy in the wake of the Covid-19 pandemic shutdown.

Page was asked if the decision to reopen the economy and ease the current restrictions is even President Trump’s decision to make. Page says that it is not, and explains that “In the United States, each governor will have authority to determine what happens in that particular state as far as the restrictions that had been put in place. The president, being in charge of the federal government, certainly does have some responsibilities. He can enact a travel ban, as he’s done. He can control the borders, as he’s done. But as far as specific state restrictions, if one governor wants to be more restrictive than another, the president cannot come in and override that. It is a local decision.”

When asked if it is correct that the United States Constitution and the interpretation from the U.S. Supreme Court does not give President Trump the power to override the state governors’ decisions, Page agrees and further explains how we should “understand that we’ve not been in a situation like this before. So if we have a governor enact a particular restriction that is more restrictive than the president wants, of course, the president can suggest that the governor not do that, and there are certain governors around the country who will follow the president’s suggestion whatever he wants to do. But as far as coming in and telling a specific governor, “You’ve got to reopen your schools. You have to allow businesses to reopen,” a president can only do that if the state restriction interferes with interstate commerce. That will probably be the federal government’s argument, say, “Look, I understand what you wanna do in New York, but it’s affecting the rest of the country.” We’ve never seen this play out in the courts before, but if you look at the constitution, the president’s responsibilities and authority ends with the federal government. He cannot control the individual state as far as specific local restrictions.”

TRANSCRIPTION:

Victor: Now, as we saw that, in Kansas, the President is considering a broader question flexing about the authority about reopening the economy. He says that he is looking at a date, but nothing will happen until he’s certain that Americans are healthy again. So let’s bring in criminal defense and constitutional attorney, Page Pate. Page, good morning to you. Thanks for being with us on short notice.

Page: Absolutely. Good morning.

Victor: Folks at home don’t know this, but if you could join us just a couple of hours ago to ask you about this constitutional question. The President says that it is the hardest decision that he will have to make. Is it his to make?

Page: No, it’s not, Victor. In the United States, each governor will have authority to determine what happens in that particular state as far as the restrictions that had been put in place. The president, being in charge of the federal government, certainly does have some responsibilities. He can enact a travel ban, as he’s done. He can control the borders, as he’s done. But as far as specific state restrictions, if one governor wants to be more restrictive than another, the president cannot come in and override that. It is a local decision.

Victor: So when he says, and that’s the first section of it, that the President says this is a decision he will have to make, then he says that the governors can do some things, but he can override them. You’re telling us that the constitution and the interpretation from the U.S. Supreme Court gives him no authority to override the decision of these governors.

Page: That’s right, Victor. I mean, let’s understand that we’ve not been in a situation like this before. So if we have a governor enact a particular restriction that is more restrictive than the president wants, of course, the president can suggest that the governor not do that, and there are certain governors around the country who will follow the president’s suggestion whatever he wants to do. But as far as coming in and telling a specific governor, “You’ve got to reopen your schools. You have to allow businesses to reopen,” a president can only do that if the state restriction interferes with interstate commerce. That will probably be the federal government’s argument, say, “Look, I understand what you wanna do in New York, but it’s affecting the rest of the country.” We’ve never seen this play out in the courts before, but if you look at the constitution, the president’s responsibilities and authority ends with the federal government. He cannot control the individual state as far as specific local restrictions.

Victor: Page Pate, I appreciate you answering the early call to offer some clarity on this topic. Thanks so much for being with us.

Page: Thank you, Victor.