INSIGHT: President Trump’s Misunderstanding of Federalism

President Donald Trump recently threatened to interfere with several states in their attempts to control the protests associated with the George Floyd murder. Trump’s edict, filled with hyperbolic language, photo ops, and reference to protecting Second Amendment rights, reflects his authoritarian view of the U.S. presidency.

Trump has repeatedly demonstrated his lay view of the power of the presidency as well as our democratic structure of checks and balances. He has repeatedly expressed a view of his “total” power in the context of addressing the Covid-19 pandemic, enforcing certain immigration policies, and dealing with the protests in several states.

No ‘Absolute’ Power

In fact, just recently, he pronounced that his authority over the Covid-19 emergency was “absolute.”

Upon claiming his absolute power to reopen states while the shelter in place orders were still in place, the clamor from legal experts was deafening. He quickly backtracked from his pronouncement, promising to work with governors on the issue. What Trump fails to fully grasp, or chooses to reject, is that our governmental system consists of a structure of shared powers and duties.

In the context of federal versus states’ rights, the principle of federalism governs. Simply stated, federalism is the Constitution’s means of distributing decision-making authority, granting the national government the power to conduct certain acts, and reserving the rest of governmental decisions to the states.

In other words, the federal government, including the president, only has the authority expressly given to it by the constitution: its enumerated powers. These powers are those necessary to establish, unify, and defend the country. These powers include those pertaining to national defense, international trade, foreign policy, immigration, international trade, patents, and interstate commerce.

The states are empowered to address broad issues pertaining to their citizens, which includes their health and well-being, often referred to as the states’ police powers.

Thus, despite Trump’s wishes to merely proclaim the power to order the states to act in a host of settings, he often does not have the power to make them do so. In the context of the shelter-in-place orders, for instance, this was an issue of the health of the citizenry of several states. He does not have the power to merely order the states to open.

In another context, the recent Floyd murder protests, a federal law, the Posse Comitatus Act, outlaws the use of U.S. military to execute the law domestically unless expressly authorized by the Constitution or an act of Congress.

The 1807 Insurrection Act provides limited circumstances when the president can order the military to certain states. Unlike what Trump suggested in his recent proclamation, the Insurrection Act has never been used, and likely cannot be used, to allow a president the sweeping power to order the military throughout the U.S.

Immigration Powers

In other settings, Trump’s position of federalism and absolute power has similarly faced push back. The federal government, for instance, typically has power to regulate immigration as part of the president’s power associated with national security.

In the context of sanctuary cities, generally viewed as cities and communities that are safe havens for undocumented immigrants, the Trump administration, in its effort to vigorously enforce its promise to deport undocumented immigrants, denied grant monies to localities that deemed themselves sanctuary cities.

On April 30, the Seventh Circuit Court of Appeals held the Trump administration could not condition federal law enforcement funds on conduct that contradicts municipalities’ policing ordinances. The court specifically based its decision on federalism grounds, stating “the issues before us today concern the spheres of power that reside in the state rather than in the federal government.”

While we likely have not heard the last on this issue, even if the president succeeds in the suit, the sanctuary cities may not succumb to the financial threat, thereby frustrating the federal plans for local assistance with deportation efforts.

In terms of his perception of power, Trump is not all that different from several presidents of the 20th century. FDR wanted to change the size of the U.S. Supreme Court when he disagreed with them; President Richard Nixon did not believe the Supreme Court could question his determinations; and President Bill Clinton fought against exposure to liability while in office.

What is different with Trump is his persistent, and sadly, misguided belief his power is always unchecked. This behaviorism, as demonstrated above, often leads to pronouncements, rebuke, and then, either compromise or suit.

The two latter reactions—compromise or initiating legal action—are likely the product of a first-term president interested in a second term. This is both the danger and the rub.

In a second term presidency, we will witness a more determined Trump without need for compromise. In the end, Trump will not change, and if not ultimately checked, we will witness attempts at a monarchial reign with less consultation, deliberation, or cooperation with states and other branches of government.

Our notions of federalism and system of checks and balances will be in jeopardy virtually every day.

For those weary and worried over such prospects, the only option may be action on Nov. 3.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical theory scholar at Florida International University. He edits NYU Press Series, “Citizenship and Migration in the Americas.”