Trump against tests his power by declaring only he can re-open US from lockdown

News analysis: ‘If governors choose to disregard his call to reopen their states, their decisions will be final, and the president will have to live with them’

John T. Bennett
Monday 13 April 2020 18:03
Trump reacts to Jim Acosta suggesting recent briefings have been 'happy talk'

Donald Trump is declaring he – and only he – can give a lawful order opening the United States from its coronavirus lockdown. The claim, questioned by experts, amounts to a resumption of the impeached president pushing his office’s powers in new ways since being acquitted by the Senate.

Before the Covid-19 outbreak, Mr Trump’s aides did not deny their boss felt newly confident with renewed swagger after the GOP-run Senate cleared him on House-approved charges of abusing his power and obstructing Congress. Those same aides said he felt more comfortable issuing pardons, delving into Justice Department matters, and taking other executive actions after coming to fully understand that Democrats lack the votes to use his most norms-busting actions to convict and remove him from office.

After stumbling for a few weeks during the initial stages of the coronavirus crisis, Mr Trump has found is footing -- in large part by taking control of the White House’s daily Covid-19 press conference, which can span two hours and feature slews of misleading statements by the president as he eggs on reporters to verbally joust each evening.

With his fighting spirit back, Mr Trump also has returned to aggressively using and testing the powers of the office of the president.

First came his decision to fire the intelligence community inspector general whose bosses say followed proper procedures when he corroborated then delivered a whistleblower’s concerns about Mr Trump’s July 2019 telephone conversation with Ukraine’s new president to Congress. That sparked House Democrats’ impeachment push, and Mr Trump earlier this month sought retribution.

Last week, he fired the acting Defence Department watchdog elected be his peers to oversee the administration’s implementation of coronavirus relief legislation. That official had a reputation, like most high-level watchdogs, for independence.

“If, three years ago, president Trump had removed two inspectors general from their posts within a week of each other for overtly self-interested reasons – as he has done over the past few days – it would have been a big scandal,” said Benjamin Wittes of the Brookings Institution. “Presidents don’t just fire inspectors general for doing their jobs, after all.”

This one does. At least the impeached-and-acquitted version of the 45th president, who peppered his first verbal statements about firing the intel-sector IG, Michael Atkinson, with misleading information.

“He took a whistleblower report, which turned out to be a fake report--it was fake. It was totally wrong,” Mr Trump told reporters. “It was about my conversation with the president of Ukraine. He took a fake report and he brought it to Congress, with an emergency. Okay? Not a big Trump fan – that, I can tell you.”

But the firing of a couple of inspectors general for transparently – and, in one case, admittedly--self-interested reasons is no longer that big a deal, according to Mr Wittes. “Part of the reason is that the coronavirus has sucked all the air out of the room....We’ve gotten so used to this sort of thing that we don’t see it as all that scandalous any more. We see it just as Trump being Trump.”

With a country desensitised to his chaotic presidency and willingness to see just how far he can stretch the already elastic-like - thanks, in large part to Congress and the courts – powers of his office, Mr Trump is setting out on yet another attempt to be seen as the country sole decider-in-chief.

And, in typical fashion, it’s rife with contradiction and fuelled by his willingness to take big gambles.

‘Call it federalist’

For weeks, Mr Trump has tried pushing responsibility for what Democrats and some public health experts onto the shoulders of state chiefs executive. And he claimed a list of crucial decisions should be made by governors – not him.

“You know, I like to allow governors to make decisions without overruling them because from a constitutional standpoint, that’s the way it should be done,” Mr Trump said Friday during his longest coronavirus press conference yet.

“If I disagreed, I would overrule a governor and I have that right to do it. But I’d rather have them, you can call it federalist, you can call it the constitution, but I call it the constitution. I would rather have them make their decisions,” he said, again stating his belief in state’s rights – but also offering some foreshadowing.

Later in that same briefing came a rare moment of humility from the typically swashbuckling commander in chief.

“I look at what is happening and the amount of people that are dying and dying, violently dying, it’s....a very tough adversary, but we are going to win and we are going it very decisively,” he said. “I’m going to have to make a decision and I only hope to God that it is the right decision.

“But I would say without question it is the biggest decision I have ever had to make,” he said in a tone that appeared to understand the gravity of the coming call, a departure from what many Democrats have described as a tone deaf president struggling to understand the pandemic outbreak.

‘Decision of the president’

By Monday morning, the president issued what amounted to a legal assessment from the White House residence. Those used to come from the White House counsel’s office or Justice Department’s Office of Legal Counsel.

No more.

“For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect....” Mr Trump wrote on Twitter. “...It is the decision of the President, and for many good reasons.”

That came just before New York Governor Andrew Cuomo, a Democrat, announced later Monday he would unveil his plan to reopen his state, suggesting he has concluded only a state chief executive has the legal power to make those decisions under the US constitution that Mr Trump is so fond of quoting.

Still, the president also claimed on Twitter that he and his team “are working closely with the governors, and this will continue,” while making clear his view is an order to open the economy and daily life is one that will be made “by me, in conjunction with the governors and input from others, will be made shortly!”

Mr Trump, always charging forward, has even offered a glimpse into what he’s thinking: more testing and perhaps guidance that all Americans must wear protective face gear.

“Governors, get your states testing programmes & apparatus perfected. Be ready, big things are happening,” he wrote in a Sunday tweet. “No excuses! The Federal Government is there to help. We are testing more than any country in the World. Also, gear up with Face Masks!”

As Mr Trump grows increasingly inclined to issue a re-opening order, governors likely should get their lawyers ready.

“Can president Trump order them to change course? The short answer is no, unless he wants to disregard the constitution,” said William Galston, a former Clinton White House aide.

“No federal statute gives the president the authority to override state decisions. Nor does he possess this inherent authority under article II of the constitution. Nor do any other provisions of the constitution,” said Mr Galston. “If governors choose to disregard his call to reopen their states, their decisions will be final, and the president Trump will have to live with them.”

Will he?

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