The President likely in response to demands that he do more about the crisis has yet again swayed his opinion to meet the shifting winds of public opinion mainly that people want to go back to work and has issued a broad and somewhat stunning order than states open up or face the consequences. (He has somewhat softened this position after widespread criticism but still maintains he has some authority to demand states act at his whim.) Reporters and commentators that just last week had no problem demanding that Trump ignore the Constitution and overrule state governments to do MORE to fight the virus now find themselves apoplectic that the President would use the very same power they demanded in a fashion they dont like. That this is mostly their fault has been lost. They have sown the wind and now they will reap the whirlwind. The same federal government that had no constitutional authority to act to issue guidelines to close and has not had that authority challenged can now demand reopening.
So the follow up question is: does the President actually have such authority? if we are going solely by the Constitution the answer is of course no. However the Constitution is largeley an irrelevant document that no one even pretends to follow. The federal government exercises powers every day that it may not Constitutionally use. And with a handful of exceptions the Supreme Court has blessed each and every act or more often has refused to intervene. So in answering this question we must look at what the law currently is not what the Constitution says it should be. Will the courts uphold it in other words? For if they will the President may do it. So what are the courts likely to do? The Court has repeatedly found that the very action contemplated by Trump forcing people to open shop against their will on federal terms is fully within federal power under the commerce clause. The Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation found that Congress could end a strike and force a business owner to accede to his employees demands because their work stoppage affected interstate commerce. So long as any activity related to business has an aggregate effect (viewing business as a whole not as an individual act) on the economy no matter how indirect (and this certainly has an effect) Congress may regulate it to its hearts content. Further this extends to individuals as in Wickard v Filburn the Court held that Congress could ban a man from growing his own wheat and require him to purchase it from the marketplace. There is no question then that the Court will reject that the federal government CAN act.
As to federalism and the states police powers even to quarantine that is likely a dead issue. Once the matter is nation wide and affects the economy states powers largely cease. According to United States v Darby if the federal power exercises its powers it cannot invade state authority. The 10th Amendment is but a truism saying that the federal government cannot exercise powers it does not possess. Thus even if it invades what is the traditional power of the states it will be upheld. This is true no matter how ridiculous the connection to Constitution powers. If Congress asserts that its action is withing its powers in essence the Court will acquiesce. In Gonzales v Raich for example the Court said that it was irrelevant whether medical marijuana ACTUALLY affected interstate commerce and thus could be Constitutionally regulated. All that mattered was that Congress baldly asserted that it was within their powers. Lest we think this is some weird outlier (it is one of the most cited Supreme Court cases of all times) the Court heavily cited previous cases to show its holding was nothing new. The federal government may further regulate the states directly as in California v United States if it finds they are engaged in commerce or indirectly as in South Dakota v Dole and Sabri v United States if the government finds states are abusing federal funding. Given that every state accepts dozens if not hundreds of federal grants every year and the shutdown of the entire state economy unquestionably affects interstate commerce it is highly unlikely that the courts would find that federal authority is exceeded.
The issue will come down to whether the President specifically not the government as a whole has a right to act. This question is a lot murkier than most commentators pretend. The most on point case is Youngstown Sheet and Tube v Sawyer. There Harry Truman tried to force the steel mills to stop striking and to produce steel. The Court found he had no such inherent authority under the Constitution and therefore such a power had to come from an act of Congress. The necessary implication of this is that had Congress done something that authorized it it would have been upheld. There are so many thousands of laws at the federal level and a myriad of regulations that carry the force of law that it is impossible to truly say whether there is anything out there that can authorize his action. If there is a lower court is entitled to give the President or his agency Chevron deference. In doing so the question is not whether Congress has actually authorized his action (nor is it whether Congress has the power to do so) but whether it is arguable that they did so. If Congress has drafted a vaguely worded enough law (and all laws are vaguely worded for this very reason) the President may make the argument that his power is not explicitly denied. In that case he may act. And the Courts today are far more permissive of federal power than they were in Trumans day.
Worse even if it is found that the President lacks such a power he can use the excuse of emergency. Contrary to the view of Constitutional experts (see for example the exaggerated horror at: https://www.washingtonpost.com/nation/2020/04/14/trump-power-constitution-coronavirus/) the Court has repeatedly held that in times of crisis the Constitutions restrictions must simply be put on hold. For example in the World War I free speech cases Schneck Debs and Frohwerk v United Snites the Court openly acknowledged that criminalizing criticism of the United States entering into the war and conscripting men to fight in a cause they did not believe in was likely unconstitutional. Nevertheless they upheld it as when a nation is at war many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." Similarly in World War II the Court upheld the internment of the Japanese even after the conclusion of the war as necessitated by the dangers of the war itself. In Korematsu the Court accepted blatantly racist action against its own citizens as a wartime necessity. And it did this even though the Presidents actions had not been authorized by Congress at least until after the fact. In short the President acted outside of his legal authority and that authority was still validated.
Lest we think this was a wartime only situation as some commentators have argued the Supreme Court has repeatedly held that economic conditions qualify as an emergency. In Home Building and Loan Assoc v Blaisdell the Supreme Court held that during an economic recession states could simply dispense with home owners rights to collect rent in spite of an express Constitutional restriction (Art I Sec 10 cl 1) forbidding states from doing so. The Court held that the explicit wording of the Constitution forbidding an action could not matter when circumstances the founders never considered could arise. (That the contract clause was designed for the very purpose at issue as argued by the dissent was not relevant). This case is still the law of the land and has repeatedly been cited by courts at all levels for government power. The claim that we have never seen anything like Coronavirus will almost certainly be accepted by the courts.
What about the Obamacare case? Doesnt that help? The Court did say after all that Congress has no authority to force people to buy a product! Surely that must mean something! Maybe not. The opinion has been routinely ignored by lower courts even where it is directly applicible. Even if it comes to the Supreme Court the opinion had a single judge writing it and was disagreed with by the remaining 8. Since virtually everyone disagreed with it it is unlikely anyone will follow it. Further the opinion then still upheld the law simply under a different provision. It set a precedent that Courts may completely rewrite a law and set their own arguments to do so to uphold it AGAINST the express will of its writers and defenders. Moreover the court carefully limited its holding to stop Congress from forcing an individual to engage in an action that he otherwise would have absolutely no intention of doing. Forcing an individual to reopen his shop would likely not qualify as the shop is already open. Not only did the Obamacare opinion not overrule any of the Courts prior precedents it approvingly cited them. Obamacare did not change the law it simply extended it. Jones and Wickard would continue to apply. Since the business has already opened it may be forced to act within federal mandates.
Trumps action as blatantly unconstitutional as it is is tragically supported by precedent. A willing press corps and compliant courts have created the situation we see today. The only bright side is that Trump is such an unlikeable character that he will receive pushback where other presidents asserting an almost identical power certainly would not. In this way Trumps abrasiveness and inability to work within the system greasing the wheels may benefit everyone as his opponents will miraculously find they have a sudden attachment to the Constitution they have long ignored if just to spite him. Trump may inadvertantly cause a new round of Constitutional fidelity simply by being himself.
The President likely in response to demands that he do more about the crisis has yet again swayed his opinion to meet the shifting winds of public opinion mainly that people want to go back to work and has issued a broad and somewhat stunning order than states open up or face the consequences. (He has somewhat softened this position after widespread criticism but still maintains he has some authority to demand states act at his whim.) Reporters and commentators that just last week had no problem demanding that Trump ignore the Constitution and overrule state governments to do MORE to fight the virus now find themselves apoplectic that the President would use the very same power they demanded in a fashion they dont like. That this is mostly their fault has been lost. They have sown the wind and now they will reap the whirlwind. The same federal government that had no constitutional authority to act to issue guidelines to close and has not had that authority challenged can now demand reopening.
So the follow up question is: does the President actually have such authority? if we are going solely by the Constitution the answer is of course no. However the Constitution is largeley an irrelevant document that no one even pretends to follow. The federal government exercises powers every day that it may not Constitutionally use. And with a handful of exceptions the Supreme Court has blessed each and every act or more often has refused to intervene. So in answering this question we must look at what the law currently is not what the Constitution says it should be. Will the courts uphold it in other words? For if they will the President may do it. So what are the courts likely to do? The Court has repeatedly found that the very action contemplated by Trump forcing people to open shop against their will on federal terms is fully within federal power under the commerce clause. The Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation found that Congress could end a strike and force a business owner to accede to his employees demands because their work stoppage affected interstate commerce. So long as any activity related to business has an aggregate effect (viewing business as a whole not as an individual act) on the economy no matter how indirect (and this certainly has an effect) Congress may regulate it to its hearts content. Further this extends to individuals as in Wickard v Filburn the Court held that Congress could ban a man from growing his own wheat and require him to purchase it from the marketplace. There is no question then that the Court will reject that the federal government CAN act.
As to federalism and the states police powers even to quarantine that is likely a dead issue. Once the matter is nation wide and affects the economy states powers largely cease. According to United States v Darby if the federal power exercises its powers it cannot invade state authority. The 10th Amendment is but a truism saying that the federal government cannot exercise powers it does not possess. Thus even if it invades what is the traditional power of the states it will be upheld. This is true no matter how ridiculous the connection to Constitution powers. If Congress asserts that its action is withing its powers in essence the Court will acquiesce. In Gonzales v Raich for example the Court said that it was irrelevant whether medical marijuana ACTUALLY affected interstate commerce and thus could be Constitutionally regulated. All that mattered was that Congress baldly asserted that it was within their powers. Lest we think this is some weird outlier (it is one of the most cited Supreme Court cases of all times) the Court heavily cited previous cases to show its holding was nothing new. The federal government may further regulate the states directly as in California v United States if it finds they are engaged in commerce or indirectly as in South Dakota v Dole and Sabri v United States if the government finds states are abusing federal funding. Given that every state accepts dozens if not hundreds of federal grants every year and the shutdown of the entire state economy unquestionably affects interstate commerce it is highly unlikely that the courts would find that federal authority is exceeded.
The issue will come down to whether the President specifically not the government as a whole has a right to act. This question is a lot murkier than most commentators pretend. The most on point case is Youngstown Sheet and Tube v Sawyer. There Harry Truman tried to force the steel mills to stop striking and to produce steel. The Court found he had no such inherent authority under the Constitution and therefore such a power had to come from an act of Congress. The necessary implication of this is that had Congress done something that authorized it it would have been upheld. There are so many thousands of laws at the federal level and a myriad of regulations that carry the force of law that it is impossible to truly say whether there is anything out there that can authorize his action. If there is a lower court is entitled to give the President or his agency Chevron deference. In doing so the question is not whether Congress has actually authorized his action (nor is it whether Congress has the power to do so) but whether it is arguable that they did so. If Congress has drafted a vaguely worded enough law (and all laws are vaguely worded for this very reason) the President may make the argument that his power is not explicitly denied. In that case he may act. And the Courts today are far more permissive of federal power than they were in Trumans day.
Worse even if it is found that the President lacks such a power he can use the excuse of emergency. Contrary to the view of Constitutional experts (see for example the exaggerated horror at: https://www.washingtonpost.com/nation/2020/04/14/trump-power-constitution-coronavirus/) the Court has repeatedly held that in times of crisis the Constitutions restrictions must simply be put on hold. For example in the World War I free speech cases Schneck Debs and Frohwerk v United Snites the Court openly acknowledged that criminalizing criticism of the United States entering into the war and conscripting men to fight in a cause they did not believe in was likely unconstitutional. Nevertheless they upheld it as when a nation is at war many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." Similarly in World War II the Court upheld the internment of the Japanese even after the conclusion of the war as necessitated by the dangers of the war itself. In Korematsu the Court accepted blatantly racist action against its own citizens as a wartime necessity. And it did this even though the Presidents actions had not been authorized by Congress at least until after the fact. In short the President acted outside of his legal authority and that authority was still validated.
Lest we think this was a wartime only situation as some commentators have argued the Supreme Court has repeatedly held that economic conditions qualify as an emergency. In Home Building and Loan Assoc v Blaisdell the Supreme Court held that during an economic recession states could simply dispense with home owners rights to collect rent in spite of an express Constitutional restriction (Art I Sec 10 cl 1) forbidding states from doing so. The Court held that the explicit wording of the Constitution forbidding an action could not matter when circumstances the founders never considered could arise. (That the contract clause was designed for the very purpose at issue as argued by the dissent was not relevant). This case is still the law of the land and has repeatedly been cited by courts at all levels for government power. The claim that we have never seen anything like Coronavirus will almost certainly be accepted by the courts.
What about the Obamacare case? Doesnt that help? The Court did say after all that Congress has no authority to force people to buy a product! Surely that must mean something! Maybe not. The opinion has been routinely ignored by lower courts even where it is directly applicible. Even if it comes to the Supreme Court the opinion had a single judge writing it and was disagreed with by the remaining 8. Since virtually everyone disagreed with it it is unlikely anyone will follow it. Further the opinion then still upheld the law simply under a different provision. It set a precedent that Courts may completely rewrite a law and set their own arguments to do so to uphold it AGAINST the express will of its writers and defenders. Moreover the court carefully limited its holding to stop Congress from forcing an individual to engage in an action that he otherwise would have absolutely no intention of doing. Forcing an individual to reopen his shop would likely not qualify as the shop is already open. Not only did the Obamacare opinion not overrule any of the Courts prior precedents it approvingly cited them. Obamacare did not change the law it simply extended it. Jones and Wickard would continue to apply. Since the business has already opened it may be forced to act within federal mandates.
Trumps action as blatantly unconstitutional as it is is tragically supported by precedent. A willing press corps and compliant courts have created the situation we see today. The only bright side is that Trump is such an unlikeable character that he will receive pushback where other presidents asserting an almost identical power certainly would not. In this way Trumps abrasiveness and inability to work within the system greasing the wheels may benefit everyone as his opponents will miraculously find they have a sudden attachment to the Constitution they have long ignored if just to spite him. Trump may inadvertantly cause a new round of Constitutional fidelity simply by being himself.