What Trump Can and Can't Make States Do and Why a 'National Lockdown' Order Isn't Really a Thing
Here's what keeps the president from ordering everyone in the country to stay at home during the pandemic
To stop the novel coronavirus pandemic, health officials have urged people to stay at home and more and more states (as well as other countries) have ordered their citizens to remain indoors with few exceptions.
Because of this, many people have wondered about the possibility of a “national lockdown” in America.
The phrase calls to mind the kind of widely enforced military- and police-backed curfews and severe social restrictions far more common in movies and TV shows about pandemics than real life — even though various governments are cracking down on people who don’t take the isolation strategy seriously (often with fines).
In reality, the Trump administration’s authority to impose a nationwide quarantine isn’t as simple as it may seem.
President Donald Trump, who had initially said he deferred to state authorities on the best quarantine strategy — a move that drew some criticism for creating confusion — this week abruptly reversed himself.
On Monday, out of seeming annoyance that some state governors said they would work together on a plan to resume business as usual when it was appropriate, Trump insisted the decision was his alone.
At an increasingly irritable press conference at the White House later on Monday, he said, “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be.”
This is not true.
To cite the lessons many first learned in school: America’s federalist system of government works much differently than some other hard-hit countries, like Italy, that don’t focus on individual state rights as fiercely as the U.S.
Rather, the federal government’s wide authority is focused not on the laws inside individual states but more on the flow of business between states, matters of war and security and international relations.
“The federal government could say that ‘we think a national lockdown, so to speak, is desirable,’ ” Thomas Rudolph, the head of the University of Illinois’ Department of Political Science, tells PEOPLE. “Where they don’t have as much power is in terms of actually enforcing it directly. That tends to be the province of governors and mayors at the state and local level.”
Trump does still have power here, however, as do federal government agencies like the Centers for Disease Control and Prevention.
As Rudolph notes, Trump has broad influence in encouraging which strategy states should adopt collectively.
Whereas this week the president said he would make a decision on national strategy, he previously deferred to individual governors, even when some of them suggested they wanted more guidance from the White House.
Trump and his coronavirus task force have also refrained from calling for every state to institute some kind of stay-at-home order.
If every state followed that recommendation — which they wouldn’t have to, though the president’s recommendation carries weight — it would in effect create a lockdown on the scale of countries like Italy and New Zealand.
The federal government has also resisted taking drastic steps with regard to domestic activity such as grounding flights between states.
More dramatically, Trump (or Congress) could technically invoke martial law, in which the military — at their direction — takes over other government functions, include acting as police, in order to provide safety and stability at the cost of the usual rules and laws.
However, the concept of nationwide martial law is exceedingly rare and ill-defined outside of literal rebellions and conflict such as the Civil War.
Separately, various states have their own references to martial law, which can be activated at a local level during natural disasters and other crises.
The CDC also has the authority to force people into isolation and quarantine as part of its powers to fight disease, with particular focus on people who have traveled internationally or between states. But it’s unlikely that ability alone would allow something as simple and direct as the president dictating what all the states must do with their own stay-at-home policies.
“Authority to order quarantines inside states rests almost entirely with states …, courts have ruled consistently for years,” according to the Associated Press.
Of course, President Trump could spark a legal fight by straying into this disputed territory about what he can do regarding the states’ decisions.
Here’s what else you need to know about the idea of a nationwide shutdown and what powers the president does and doesn’t have over the states.
Could the President Enforce Such a Lockdown?
As Georgetown Global Health Law professors Lawrence Gostin and Sarah Wetter recently explained in The Atlantic, even if the Trump administration wanted a nationwide lockdown, the federalist system the U.S. is built on would put the power to actually do so in the hands of the states.
The federal government can mostly only recommend how states enforce their own stay-at-home orders.
“Constitutional authority for ordering major public-health interventions, such as mass quarantines and physical distancing, lies primarily with U.S. states and localities via their ‘police powers’ — a drastic difference from the national authorities of countries such as China and Italy,” Gostin and Wetter wrote.
Rudolph tells PEOPLE the federal government’s power mostly lies within its recommendations and guidelines.
“The federal government has tremendous advisory power in terms of setting national guidelines — like social distancing, whether people should wear masks, that sort of thing,” he says. “They have a lot of indirect influence.”
So, What Can Trump Actually Do in a Lockdown?
The president has already invoked much of his power, Rudolph tells PEOPLE.
Trump can close international borders and make recommendations to states to follow federal guidelines, both of which the White House has done.
On March 18, Trump announced with Canadian Prime Minister Justin Trudeau that the two countries agreed to close down their shared border to non-essential travel. A similar move was made with Mexico.
In recent weeks, the Trump administration has also elevated its recommendations for states to enact social distancing guidelines and shut down public gatherings — which states have largely followed.
“A majority of states have already implemented these sort of lockdowns or ‘stay-at-home’ orders and so there are a few who have not done so,” Rudolph tells PEOPLE, adding that some governors have hesitated to issue stay-at-home orders because their states are less densely populated or have yet to face serious outbreaks as in New York, California and Washington. Some lawmakers have also cited economic concerns over shuttered businesses.
While the federal government can’t force a state to issue a stay-at-home order, their recommendation is often persuasive.
The lack of a more forceful guideline can also be decisive: Florida Gov. Ron DeSantis has said he delayed issuing a lockdown order before finally doing so Wednesday because he was waiting for that guidance to come directly from the White House.
“If [the White House calls for a national stay-at-home order], obviously that would be something that carries a lot of weight with me,” DeSantis said last week, one day before issuing the state’s order, according to CNN. “We are obviously take whatever they say and we’re going to implement that in Florida. If any of those task force folks tell me that we should do X, Y or Z, of course we’re going to consider it. But nobody has said that to me thus far.”
So far, a majority of the U.S. states have issued stay-at-home orders on their own after the federal health officials’ repeated calls over the past month for Americans to avoid coming into unnecessary contact with one another.
As of Friday, 38 states have issues stay-at-home orders on their own, according to The New York Times.
The federal government has not used its more dramatic ability to control travel between states. But it could shut down air traffic, like it did in the wake of 9/11, or it could try to restrict other forms of movement between states, likely in highly affected areas of New York, New Jersey and Connecticut.
But state officials such as New York Gov. Andrew Cuomo have asked the federal government not to do that because it would essentially wall off portions of the country. Such a move would likely be immediately polarizing to those states’ residents as well.
Cuomo went as far as to say a regional lockdown on the tri-state area would be “illegal.”
“I’ve sued the federal government a number of times over the years. I do not believe it’s going to come to that on this,” Cuomo told CNN on March 28. “This would be a declaration of war on states, a federal declaration of war.“
And When We Talk About ‘Lockdown,’ We Mean …
For those people living in one of the 38 states that have already issued stay-at-home orders, it looks like this: States creating rules based in part on — or sometimes going beyond — the federal government’s social distancing recommendations to slow new infections.
“The federal government doesn’t really have the authority to limit the behavior of individuals within a state in that way, in the same way that governors and mayors do,” Rudolph explains. “Their power is really more indirect: They can encourage individuals to behave a certain way, they can encourage state and local officials to take action. But at the end of the day, it’s really the governors and mayors that have to take direct action.”
Generally speaking, people under “stay-at-home” orders are still able to go out in public to make necessary supply runs for food and medicine or make essential stops like getting gas or buying household items like cleaning supplies or toiletries while still staying six feet away from other people and following other health guidelines. Exercise is also usually allowed in some form.
Many states have threatened to fine people or even jail them for not following their stay-at-home orders.
In lieu of a national lockdown that is ordered by Trump, instead each resident should check with their local and state governments to learn which guidelines to follow.
“It seems like the White House is in pretty constant communication with state governors, and it seems like things are being coordinated more smoothly now than maybe they were a few weeks ago,” Rudolph says. “Hopefully that’s a sign of continued cooperation.”
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