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Breaking Down The Law: Can Pres. Trump assert 'total' authority over nation's governors?

President Trump has recently discussed efforts to reopen the economy in the wake of efforts to combat the Coronavirus.

When asked about what individual states may do, President Trump indicated the Federal Government, not the States, would make the decision whether to curb Coronavirus mitigation efforts.

In response, legal scholars and politicians like Governor Cuomo have indicated the President is wrong, and that the individual states have the power to determine whether to reopen.

What are the legal implications of the Federal government lowering the emergency declaration versus the individual states, and what could it mean for Nevada? Here to discuss the issue is attorney Matt Hoffmann with Battle Born Injury Lawyers.

1. So the President is saying the states should reopen according to his directive, but the states are saying they will make their own decisions. Who’s right?

- On paper, going by the Constitution, the states are, of course, right.

- We are a democratic republic, meaning the individual states have the right to make their own laws and run their government the way the see fit, so long as it is not an issue specifically given to the Federal government or in violation of the Constitution.

  • The President is not a “King.”

- And the 10th Amendment lays out this principle.


2. What practical effect could it have on the states, including Nevada, if the President and the Federal government lift their emergency declaration and give new guidance on reopening the economy?

- That’s where gong strictly by the book gets thrown out the window.

- Practically speaking, it would put a lot of states in a difficult position as far as remaining in lockdown with stay at home orders when the Federal government is saying businesses should be open.

  • First, in most of the 13 different emergency declarations issued by our governor, one of the basis’ listed for why he is doing what he’s doing is that the President has declared a national emergency.

- - If that’s no longer the case, the very basis for having our state in a stay-at-home situation is weakened.

  • Second, in that same vein, if the Federal government is giving new guidelines that encourage businesses to reopen, but our state does not follow that guidance, there is the possibility of businesses and people suing to have the Governor’s directives and our entire Emergency Declaration statute deemed unconstitutional.

- - I think with the current deadline of April 30th, most businesses have just decided to wait it out. But if it is pushed further, and especially if the Federal government is encouraging businesses to reopen, you could see many lawsuits.

  • Third, and I think this is the most important practical issue, our state, and every state, is going to need Federal assistance to recover from this.

- Do you really want to run afoul of the very people you are going to request funding from?

- The example I would give is the drinking age of 21.

  • The Federal government wanted all states to raise their drinking age to 21 back in the 1980s.

- So what did the Federal government do to get around the 10th Amendment? They passed the National Minimum Drinking Age Act, which said that any state that had a drinking age below 21 would lose 5% of their annual Federal Highway funds.

- And the result is that every state has a drinking age of 21.

- So using that as an analogy, you could see a situation where states that have the strictest emergency declarations are deemed ineligible to obtain as much Federal funding.

- - I’m over-simplifying it, to be clear, but in some way, shape, or form, that is what could happen - practically.

- So, does the Federal government have the power to force Nevada to end its State of Emergency? No.

- Does it have leverage? Yes. And I think that is the next battle we could see.