It now seems like a practice from some other country. Just months after passage of the Civil Rights Act of 1964, the Heart of Atlanta Motel refused to provide accommodations to African Americans. The motel sued, alleging that the Act exceeded the federal government’s authority. The U.S. Supreme Court would hold, unanimously and wisely, that the law fell well within the bounds of the U.S. Constitution’s Commerce Clause. Thankfully, the statute put a stop to such overtly racist practices.
As you gathered from the headline, however, this piece isn’t about fighting systemic racism; rather, it’s about who has the authority to re-start the economy. Two of the three actors involved – the president and assorted governors – differ mightily as to who has the last word on such decisions. The impasse may have passed, at least for now, as the Trump administration’s Opening Up America Again plan explicitly shoulders governors with the decision of when to remove restrictions on economic activity. But the question remains: Who has authority to re-open the economy?
In his recent Wall Street Journal piece entitled “Trump Flunks Federalism,” Professor William A. Galston of the Brookings Institution argues forcefully that basic principles of federalism have left the states with the primary responsibility for the police, health and quarantine policies implemented within their borders. The current state-level orders we have all experienced, which limit or stop commercial activity, are drawn upon those principles.
In support of his argument, Professor Galston cites the foundational 1824 Supreme Court decision in Gibbons v. Ogden, in which the Court noted that “quarantine laws” and “health laws of every description” are component parts of “that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves.”
It must be noted the Supreme Court of nearly 200 years ago was far more attuned to the 10th Amendment’s call for adherence to states’ rights. Nowhere is that more true than in its restrictive interpretation of the Commerce Clause. Even as late as 1937 the Court would routinely strike down federal legislation as being beyond the scope of the Commerce Clause. Following President Franklin Roosevelt’s plan to “pack” the Supreme Court by increasing the number of justices, however, the Court would change course. After the “court packing” incident of 1937, it would take another 50 years before the Court asserted any even minor restrictions on the Commerce Clause. And it is in that context that the Court decided against the Heart of Atlanta Motel in 1964.
Today, the Commerce Clause is seen as the broadest of the federal government’s enumerated powers. Operating in conjunction with the Commerce Clause is the Dormant Commerce Clause, which provides that, since the federal government has the power to regulate commerce among the states, the states don’t have that power.
What does this mean today, in the midst of what is clearly a conflict between state and federal powers? Shutting down commercial activity will necessarily affect interstate commerce, so the Commerce Clause grants the federal government authority in that regard. Where state-level orders conflict with that authority, however, those orders are preempted by both the Dormant Commerce Clause and the so-called Supremacy Clause, which allows federal law to prevail over any conflicting state law.
With Congress’ grant of emergency powers to the executive branch, which itself was authorized by the Commerce Clause (particularly in the National Emergencies Act of 1976), the president has the authority to issue orders that preempt conflicting state orders to restrict economic activity.
So who is the third actor referenced above? That would be we the people. Few terms have recently been subject to more overuse than “elites.” At the risk of contributing to that overuse, it may be noted that, should political elites at any level decide that they are ok with many of us dying or spending time on ventilators in the name of re-starting the economy, they may discover that we remain a free people. Until it is safe, we simply won’t comply – and we are free to do so because we are a free people. There is no surer path to the private sector for public officials than to suggest that a rapid economic recovery is of greater value than life.
The answer to the question is: While the president has the authority to rescind state-level orders limiting economic activity, that power is far from total. The president’s authority merely extends to countermanding those orders. Whether states re-open for business ultimately turns on whether the people deem it safe to do so.
Mary Z. Connaughton is Director of Government Transparency and Jim McKenna is Senior Legal Fellow at Pioneer Institute, a Boston-based think tank.