by Roger C. Kostmayer
In the midst of a deadly and highly contagious epidemic, one unlike any we have seen in our lifetime, the President of the United States wants to overrule our Constitution and give himself, and all future Presidents, what he calls “total authority” over States’ decisions about when to reopen their economies and how to respond to the global Coronavirus pandemic more broadly.
There could not be a worse time for partisanship and personal lust for power. Governors and constitutional scholars around the country disagree with the President, but none wants to provoke a Constitutional crisis.
The problem began months ago when the virus first landed on our shores, when America needed a President who would unify the people, tell the truth, and support governors and healthcare workers with strong national mitigation orders and supplies. What the country received instead from this President was the opposite, so governors were forced to assume those responsibilities and impose emergency restrictions to save lives.
The issue then is: what powers does the Constitution reserve for the States in this situation?
Despite their ideological differences, the one concern all our Founding Fathers shared was fear of a king-like president. Alexander Hamilton, the other Founders and the Constitution they drafted and ratified were crystal clear about the need to avoid that danger. (Remember: there were colonies and states before there was a federal government, and it was the states that created the federal government, not the other way around.)
The 10th Amendment of the U.S. Constitution consists of just one sentence—but it is unambiguous. It says that, unless otherwise stated, powers are reserved for the STATES:
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.
Future historians who review this crisis will surely describe the role played by the American President, his family, and administration, by stating that “Never have so few, done so little, for so many.”