I would like to take this opportunity to scream two constitutional truths into the void of the blogosphere.
First, the President does not have the authority to command a governor to reopen his or her state’s economy. In essence, the President would be demanding a governor to rescind his or her executive “stay-at-home” order. That would be impermissible under the anti-commandeering clause of the 10th Amendment.
The president may potentially have the power to withhold discretionary emergency relief funds from non-conforming states, or rescind his emergency declaration to deprive states of those funds. The scope and contours of that power, and whether that is a prudent idea in the first place, is a question for another blog entry.
EDIT: As of April 17, 2020, the President has determined that he will not attempt to force state governors to lift their respective stay-at-home orders.
It is worth noting that Congress has some power to coerce the states into implementing federal policies. For example, Congress could threaten to withhold highway dollars unless states set the minimum drinking age at 21. (They did, and the Supreme Court said: “Yeah, that’s cool.”)
Counter-example: Congress could not threaten to withhold all Medicaid funding unless a state agreed to accept the Obamacare Medicaid expansion. Refusing to accept the expansion would have an excessive impact on a state’s budget. Such a coercive measure exceeded Congress’s authority under the Spending Clause of the Constitution. (Federalism wins!)
Whether the anti-commandeering clause can be read to contain similar limits is an interesting question for another day.
Second, it has been suggested that the President can adjourn Congress for the purpose of pushing through recess appointments. (When the Senate is not convened, the President has the power to make temporary appointments to positions that would otherwise require the advice and consent of the Senate. The appointment needs to be confirmed once the Senate reconvenes.)
Article III, Section 3 of the Constitution grants the president the power to “on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.”
No president has exercised this power in the history of our Republic.
The moments we are living in right now are undoubtedly extraordinary. But, the President only has the power to adjourn both the Senate and the House if they disagree as to adjourning. Right now, they do not. In fact, the only way that the President would be able to step in would be if the Republican-controlled Senate to adjourn, while the Democratic-controlled House remained in session.
The President would cause a constitutional crisis if he attempts to adjourn the House and the Senate when they are both in session and no disagreement exists between them as to adjourning.
Theoretically, if the President could adjourn the House and the Senate for the purposes of appointing high-level positions within the executive branch, he could then refuse to reconvene the House and the Senate for an inordinate period of time because he doesn’t think the “time is proper” yet.
I’m not suggesting that the President would actually take (or be inclined to take) such a constitutionally-injurious action. And of course, the President would be forced to reconvene the House and the Senate eventually in order to pass spending bills to fully fund the government. At that point, his recess appointments would need to be confirmed.
I am suggesting, however, that the Senate would be derelict in its constitutional duty to preserve separation of powers if it decides to adjourn for the purposes of allowing the President to circumvent its power to confirm his appointments. The legislative branch cannot set a precedent by ceding such an incredible power to the executive branch.
The challenges posed by coronavirus are unquestionably unprecedented. But the purpose of our Constitution is to preserve the fundamental principles of our democracy, such as federalism and separation-of-powers, during the worst of times. Our leaders must use foresight and prudence. The decisions our leaders make now could have generational impacts. History is watching.
the irked moderate 