Hello? 10th Amendment?

https://thehill.com/homenews/administration/492503-trump-claims-he-not-governors-has-authority-on-opening-state

He claims legal authority, but that is not what the Constitution says. And Pence backed him? SMH.

I will be interested to hear what Trump supporters, who claim to be Constitutional Orginalists, have to say about his statement from yesterday’s campaign rally. I mean virus briefing.

Another head scratcher. Isn’t it against campaign laws to conduct campaign business in the White House?

And while everyone from Voltaire to Spiderman have been attributed the quote, “With great authority comes great responsibility”, it applies here. Mr. Trump is great at the authority part , but extremely lacking in the responsibility department. Everything bad that happens is the fault of someone else, from the media to state governors to the courts, to nonexistent illegal voters.

49 thoughts on “Hello? 10th Amendment?

  1. To hear a Republican VP stand up and declare that the President has total power was jaw dropping. As a small “c” Conservative I NEVER could have envisioned such an abdication of a fundamental tenet of the GOP platform. It truly puts the final nail in the coffin of what use to be the Republican Party.

    And what a complete clusterfuck of a clown show by any sitting US President. His public meltdown was epic for its lying ignorance and childishness.

    What a sad day for our Country and thank the gods for our State Govenors.

    Liked by 2 people

    1. “Suddenly you guys have discovered the 10th Amendment? Welcome to the club.”

      As I was working on this post I said to myself, “You do know what Don is going to say, doncha?” Yerp, I did.

      Liked by 1 person

  2. None of the “lockdown” orders in the states was issued by the federal government, and all of them are constitutionally dubious in one way or another: freedom of religion, freedom of association, etc. In effect their only power at law derives from the fact the federal government allows them to stand.

    As a result, I’d say the president is basically correct, there is no 10th Amendment issue, and the Hill is making a tempest in a teapot.

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    1. So, in your learned opinion, the 10th Amendment is just there because 9 was an odd number?

      And it isn’t just The Hill. News organizations and political leaders all over the country are saying the same thing.

      I love the fact that you have no defense for the “great authority/great responsibility” issue. Cult is probably the nicest way anyone can refer to Trump apologists such as yourself.

      Liked by 1 person

        1. You think the governors acted unconstitutionally? Just because you, or someone who disapproves, says that, does not make it so. Not one action taken by any of the governors has been proven to be unconstitutional.

          What is unconstitutional is for Trump to say he can order the reopening of the country. First of all, he didn’t shut it down. He left it to the individual governors to follow recommendations. That is why not all shutdowns, or stay-at-home orders, were started at the same time. Second, the 10th 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.” No power was even exercised by the President, therefore, he cannot “override” their decisions. If he were the autocrat he wants to be, it would be different. But if that were to occur, even Lindsay Graham might sing a different tune. (Not likely. But always a possibility, if he were to remove his head from the depths of where it is now.)

          Liked by 2 people

          1. Do you think the Constitution, including the 10th Amendment, authorizes the governors to force people to stay in their homes and not come out? I don’t.

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          2. In the name of public health, absolutely.

            I know, you don’t believe this virus is as bad as it is being made out to be. And you are entitled to that opinion, no matter how wrongheaded it may be. But even your boy has acknowledged it is a public health emergency.

            And if you think the actions taken are unconstitutional, I’m sure you can find a lawyer willing to take up that charge. You got an extra $100k laying around for that?

            Liked by 1 person

          3. RE: “In the name of public health, absolutely [the Constitution no longer applies].”

            That’s not my view and I’m glad to see it is not the president’s.

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          4. …”[the Constitution no longer applies].”….
            Not what I said. The governors have constitutional authority to take actions necessary in protection of public health. DO NOT put words in my mouth (so to speak).

            Liked by 1 person

          5. Actually what he said was that he has Constitutional authority to do whatever he wants. On many occasions. I suppose you support it every single time as well. If that is the case, the Constitution no longer applies in your world. And YOU can have it.

            Liked by 1 person

          6. Whether governors have that power in times of emergency would depend on the wording of their State Constitutions.

            Power is a powerful drug and not just at the Federal level. Once this is over, we’re all going to have to be civil libertarians to put our governors and mayors through rehab

            Tyrants popping up like daffodils.

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          1. I read your article as making the point that governors unquestionably have the authority to issue unconstitutional orders, but such orders may not survive adjudication. I’m sure that’s true.

            Since such disputes would be settled in the federal courts, I will repeat that the only power at law such unconstitutional orders currently have derive from the fact the federal government allows them to stand. Hence the president’s superior authority (even responsibility) to act against them.

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      1. Can’t read your NYT piece, and don’t care what it says, because I have not argued that the president has the authority to do “whatever he wants.” He does, however, clearly have the authority to take action against any governor who behaves unconstitutionally.

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        1. Too bad. Your missing on sum compelling arguments. But you would find a way to twitch around what is actually being said.

          As it stands, not one governor has been sued. It will be up to the courts to decide the constitutionality of their actions. “Common good” comes to mind wrt actions taken. And those actions have made a huge difference in flattening the curve.

          But hey, if you wanna go out and lick the cart handle at Walmart, feel free. Just don’t come see me for light bulbs when you are done there.

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        2. Here are the third a fourth points Katyal makes in his argument;

          “Third, Mr. Trump’s claims reveal a selective impotence about his powers. It was just a little over a week ago that he was saying that he couldn’t help the states because “we have a thing called the Constitution.” Indeed, his top lawyers are right now in the Supreme Court saying that presidents cannot use DACA to protect Dreamers because — richly — that is an abuse of presidential power. Constitutional authorities aren’t some shell game or thing to deploy whenever it suits your fancy.

          Fourth, it’s hard to find something more un-American than Mr. Trump’s statement — and the idea that lawyers at the revered Department of Justice and the White House, as well as members of the president’s political party, have mostly stood silently by (and sometimes enabled) such legal views should give every American pause. The point here is not political: It’s as likely that we will see a Democratic president next year as a Republican one. Would Republicans really want a world in which a Democratic president says he has “total” authority — for this Covid-19 crisis or for any other?”

          And his closing statement:

          “Instead of making foolish constitutional claims, President Trump should use an awesome power his predecessors have wielded: the pulpit. If he has a good idea, offer it up to the states and sell it to the public. Don’t hide behind pretensions of raw authority. Too many lives are at stake. And at stake is something even deeper: the idea of what America is.”

          Liked by 2 people

        3. Who determines the constitutionality of the governors’ emergency orders?

          I would suggest that is what the judiciary is for.

          Trump may decide to order an end to the lockdowns. The governors can then file a suit and get a stay.

          I suspect that Trump will not do that. That would make it very difficult for him to avoid responsibility should the virus gain a resurgence.

          His one defense would be that the governors did not use enough caution, or not enough testing or some other deflection.

          He has already lost the approval race to the governors as far as handling this crisis. I think he will defer again.

          It took SCOTUS decisions to overrule segregation in limited fashion in Brown v. Board of Education.
          It then took an act of Congress a decade later to end legal segregation. It wasn’t until either of those two actions that the feds could enforce the law. Unilateral decisions by the president did not apply.

          Liked by 2 people

        4. RE: “As it stands, not one governor has been sued.”

          Which means exactly nothing. Injury and damages are just beginning to pile up. A plethora of civil liberties lawsuits could well become one of the major legacies of the pandemic.

          Like

  3. The fedgov has the authority to establish guidelines and criteria; however, the states — and local governments call the shots at their levels.

    However, the states are bound by the Constitution and cannot force people stay at home and hide under the bed forever.

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        1. RE: ” I left you a place to start above.”

          Yes, you did. Maybe next time you’ll come up with a recommendation that applies. Good luck.

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  4. “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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

    That and acting as CinC of the military and running the Executive Branch to carry out the laws passed by Congress.

    “Trump later clarified his position further, telling reporters, “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total. The governors know that.”

    Authority is not total at all. Trump did not shut down the country, he can’t undo what he never did in the first place.

    If there is a Constitutional issue with state ordered shutdowns, it is not the president’s purview to decide that. It belongs to the judiciary.

    “The federal system created by the framers of the Constitution divided power between the national and state governments. While the Constitution’s supremacy clause means acts of Congress can override the laws of states, the same does not apply to the president acting unilaterally.”

    “Ultimately, Vladeck said, the real problem only begins if Trump’s claims to nearly boundless power are left unchallenged through the system of checks and balances by the courts or Congress.
    “It’s not a crisis when a president claims powers unfettered by those constraints, and unconfined by written law and settled precedent,” he said. “It’s a crisis when those other institutions don’t push back.”

    https://www.washingtonpost.com/nation/2020/04/14/trump-power-constitution-coronavirus/

    The “only I can fix it” President has yet to learn the rules, responsibilities and constraints of the presidency. If he wants more power he has to go to Congress and ask for it.

    Liked by 2 people

      1. @Roberts

        “The attorney general can prosecute a governor for unconstitutional actions.”

        Patently ridiculous! Your “understanding” of our system of laws would cause you to flunk junior high civics. Your Stalinist and anti-democratic belief in the Supremacy of Dear Leader on full display.

        The ONLY remedy for unconstitutional actions by a governor is the courts. Not the federal DOJ.

        Liked by 2 people

        1. RE: “The ONLY remedy for unconstitutional actions by a governor is the courts. Not the federal DOJ.”

          The DOJ has standing to bring a lawsuit on the Constitutional grounds. Or do you think something might prevent them from doing so?

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          1. @Roberts

            Initiating a lawsuit is not the same as “prosecuting” a governor. And, if the DOJ has ever initiated a lawsuit against a state government on purely Constitutional grounds – versus violation of statutes – I am not aware of what case that might be. Maybe you can name such a case?

            Liked by 1 person

      2. On what standing? Because a governor didn’t do what the President told him to do in what is basically an unlawful order? Good luck with that one.

        And I am still waiting for what you are deeming “unconstitutional” because everything else you said is just that it IS. And as I stated before, you don’t know what the hell you are talking about.

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        1. RE: “And I am still waiting for what you are deeming ‘unconstitutional.'”

          I answered this in my original comment: “None of the ‘lockdown’ orders in the states was issued by the federal government, and all of them are constitutionally dubious in one way or another: freedom of religion, freedom of association, etc.”

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          1. All of which can be trumped by public health. Period.

            I don’t see any of those law suits going much further than to the judge who tosses them on their merits.

            And because none of the lockdowns were ordered by the federal government, the federal government has no standing.

            Liked by 1 person

      3. “Prosecute a governor?”

        The DOJ might be able to file suit, which would then be decided in the courts.

        And that is what I said. The judiciary decides, not Trump.

        Presidential fiat won’t work.

        “ A federal judge declined on Friday to allow a small Campo-based Christian church to assemble for Easter services on Sunday, turning aside a lawsuit the church had filed against San Diego County that alleged the public health orders banning group gatherings discriminated against religion.”

        “ U.S. District Judge Cynthia A. Bashant, citing a U.S. Supreme Court ruling, said the right to freedom of religion doesn’t “include the right to expose the community … to communicable disease.”

        https://www.sandiegouniontribune.com/news/courts/story/2020-04-10/federal-judge-denies-churchs-bid-to-hold-easter-service-despite-coronavirus-related-stay-home-orders

        Liked by 2 people

    1. @Tabor

      “Speaking carelessly” or displaying his stupefying ignorance?

      So a President constantly “speaking carelessly” and taking all sides on every issue is just fine with you? So long as he guts the government?

      Liked by 1 person

      1. Compared to the alternative, I’m afraid so.

        I prefer inept government that seeks to reduce its power over us to the relentless efficiency of a power hungry State.

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        1. …”inept government that seeks to reduce its power”…

          Interesting that this whole nightmare is actual proof that sometimes more government is needed. Inept is no way to run this country. And for the past three-and-a-half years, we have been dealing with the ineptitude of the Trump administration. And you cheer it on.

          That’s not libertarianism. That is anarchy. Or in Trump’s case, potentially, authoritarian. He keeps throwing verbal authoritarian bombs and has to be dragged back from that precipice. And yet you cheer him on.

          One of these days it will be actions and not just words and no one will be able to pull him back. And yet, you cheer him on.

          Liked by 1 person

        2. @Tabor

          A government that seeks to reduce its power over us?

          If you are honest and not stupid then you should be more upset with Trump than any of us. There has never been anything remotely close to the concentration of power over us by one individual since we were ruled by George III. How many times did you disdainfully refer to President Obama as a wanna be king and yet he was a total piker compared to you hero Trump.

          Liked by 1 person

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