Just when I had made up my mind not to write about the coronavirus or President Trump, Mr. Trump has done it again. I can't sit silent when he once again attacks reporters for asking relevant questions with a childish tantrum and while so badly mistaken about his constitutional power. On Monday President Trump conducted a shouting exchange with reporters involving name calling and interrupting. He took the occasion to repeatedly claim he had the ultimate and final power to compel states to lift stay-at-home orders and businesses to open. Asked what provisions of the Constitution gave him such authority over the states, he replied, “Numerous provisions,” without naming any. “When somebody’s the president of the United States, the authority is total.” At his news briefing, Mr. Trump repeated his position a number of times. “The president of the United States calls the shots,” he said. “They can’t do anything without the approval of the president of the United States.”
This not the first time Trump has made totally false claims about his presidential power. For example, in a speech back in July 2019, he asserted, "I have an Article II, where I have to the right to do whatever I want as president."
Disgraced former president Nixon made similar presidential claims of power during a 1977 interview after his resignation. David Frost, citing his various unconstitutional actions during the Watergate crisis, asked: Would you say that there are certain situations,” Frost asked, “where the president can decide that it’s in the best interests of the nation, and do something illegal?” Nixon’s reply became infamous. “Well, when the president does it, that means it is not illegal,”
Trump’s reliance on Article II for his mistaken idea is misplaced. The Article and the Constitution do not give the president this kind of power. Article II provides:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law..”
Article II also requires that the president “shall take care that the laws be faithfully executed." The Constitution and Article II do not give the president the powers he claims.
Not only that the Tenth Amendment says "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." In other words, states have all powers not granted to the federal government by the Constitution. Under our constitutional form of government all power not given government remains with the people and all power not given the federal government by the states remains with the state.
Furthermore, the federal government is divided into three branches: the executive power, invested in the President, the legislative power, given to Congress and the judicial power, vested in one Supreme Court and other federal courts created by Congress. The Constitution provides a system of checks and balances designed to avoid the tyranny of any one branch. Tyranny of a president under our constitution is only possible when the three branches lose their independence and their power to check the actions of another branch. That can happen under the constitution by loading the judiciary with people who are selected because of a political or religious agenda and electing legislatures who have similar goals. By abandoning their duty of holding the president accountable, he or she can quickly become despot.
It has been argued that it is way past time for Congress to rein in unconstitutional assertions of executive. Meanwhile, President Trump needs to adhere to his Article II oath: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."