The Tenth Amendment

Alan Zendell, April 14, 2020

Yesterday, in the midst of an internationally televised pandemic briefing, which was actually more of a tantrum/meltdown that was as embarrassing as it was lacking in facts, President Donald Trump declared that, “The President calls the shots,” and that he has complete authority to order states to resume business as usual whenever he sees fit. He must be taking his cues from Vladimir Putin and Xi Jinping again, trapped in an alternate reality in which the American president has unlimited power. The problem with those assertions is that thing we call the Constitution, which most Americans take seriously, but which Trump regularly ignores and disdains.

I spent several years interpreting federal statutes and regulations, lamenting at their often obscure, difficult to decipher wording. The Constitution, however, is quite clear and direct on most issues. One of the clearest, easiest to read sections is Amendment 10 of the Bill of Rights:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It looks pretty simple to me. The “United States” in this context means the federal government, which could imply the Congress or the President, or both. But what is crystal clear is the distinction between the authority of the President and State Governors. That’s not to say that clever attorneys won’t spend months attempting to argue alternate interpretations before various courts, but let’s be serious. The two most central and contentious subjects addressed by the Founders in our Constitution were distinguishing between a monarchy and a republic, (that is, between a king and an elected president,) and drawing a clear line of separation of powers between the federal government and the individual states.

The State Compacts that were recently announced to assure an orderly return to business as usual when the coronavirus has receded to safe levels, strengthened today by the addition of Massachusetts’ Republican governor, are an unsubtle gauntlet that challenges the President’s authority to force his will on them. When asked how he would respond if the President ordered him to suspend pandemic related restrictions, New York Governor Andrew Cuomo said that if he thought the order endangered his citizens he would refuse it. There’s little doubt that every governor in the compacts, as well as those in other states currently seeing spikes in their coronavirus caseloads (Michigan, Illinois, Ohio, and Louisiana to name a few) would all defy such a presidential order.

I turned to the Constitution Center for a better understanding of the Tenth Amendment. Their analysis points out that the original 1788 version of the Constitution did not contain a bill of rights because the drafters voted unanimously that it was unnecessary. There was a tacit understanding that the federal government was authorized to execute only the powers it was explicitly granted by Article 2, which makes the President Commander in Chief of the Armed Forces but grants him or her no policy-making authority that would supersede the power of either the Congress or the individual States. That’s in direct opposition to the position consistently asserted by President Trump, namely, that he is entitled to do anything not expressly forbidden by the Constitution. That’s like the difference between “innocent until proven guilty” and “guilty until proven innocent.”

There is no doubt that if Trump attempts to force a relaxation of public health guidelines at a time when the majority of governors believe that would threaten the health and lives of their people, they will defy and ignore him. While I would heartily applaud that decision, the notion left me imagining months of constant legal wrangling that would ultimately be decided by the Supreme Court, all occurring while Rome burned, as it were. Since my legal expertise ends with the ability to parse the simple phrasing of the Tenth Amendment I appealed to someone with an incisive understanding of the Constitution.

Ninety minutes later, I understood the reality that that cannot happen, because the President simply has no legal authority to usurp the Governors’ rights to manage their states. There is no statute or phrase embedded in the Constitution that would support such an action; moreover, the President has no enforcement mechanism at his disposal. He has no jurisdiction over local law enforcement, or even the National Guards which report only to their States’ Governors.

Thus, Trump can rant and threaten, but in the end all it will amount to is bluster. We should all be thankful that we are safe from his quixotic temperament, at least in regard to staying safe from COVID-19. Our safety is in the hands of our State Governors.

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