The Founding Fathers Wrote the Tenth Amendment to Protect America From Donald Trump

No, the president does not have the “absolute power” that Donald Trump claimed he possesses at Monday’s maddened marathon briefing.

“When somebody is the president of the United States, the authority is total,” he said as the states he left to their own devices when it was time to make the difficult decision to shut things down are now working on their own plans for opening them back up. “And that's the way it's gotta be. It’s total… they can't do anything without the approval of the president."

This didn’t start with the coronavirus; before impeachment began, Trump, who doesn’t know or care what’s in the United States Constitution, claimed that he had an “Article II” super power to “do whatever I want.”

In fact, Article II of the Constitution gives the president express powers to sign or veto legislation, command the armed forces, appoint cabinet secretaries, make treaties (which must be ratified by the Senate), convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. The president takes an oath the day he is inaugurated to faithfully execute the laws, and he has the power to appoint and remove executive officers. The president controls the formation and execution of foreign policy and the nation's diplomatic corps. He also appoints, under Article III, Supreme Court judges with the advice and consent of the U.S. Senate. And if the Senate is in recess, the president may make temporary appointments to his cabinet or other vacancies.

What the president does not have is the power to “reopen America,” just as he lacked the power to close it. The closures we have now were done by the governors of individual, sovereign states in accordance with the powers granted to them under the Tenth Amendment to the Constitution, which states, simply, that 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.

The Constitution does not expressly grant the president additional powers in times of national emergency. To remedy this, Congress passed the National Emergency Act of 1976. Signed into law by President Gerald H. Ford, it affords the president certain powers in an emergency, but those powers have limits and procedural checks. And the declaration of emergency that allowed for those powers can be overturned by a Joint Resolution of Congress. 

The irony is that Trump, like all presidents, does have the constitutional authority to declare martial law, meaning the imposition of direct military control over normal civilian functions.

President Lincoln did this on September 15, 1863, suspending habeas corpus, i.e., the protection of one’s right to be lawfully detained, throughout the entire United States. 

Presidents can also call in the National Guard to restore order or keep the peace in states if necessary, or to enforce federal law when states resist it—as did Presidents Eisenhower, Kennedy, and Johnson during the civil rights era. But this is something Trump expressly decided not to do as he offloaded the difficult decision to shut down state economies to the governors. 

Here’s the reality after Monday’s authoritarian display: The president of the United States of America is delusional. The vice president of the United States is complicit as he claimed, sheepishly and wrongly, that the president’s power particularly in times of national crisis is “plenary.” Then he offered to “brief it” out for reporters. 

There’s nothing here to brief. The founders of this great republic, the framers of our great Constitution understood tyranny. They understood oppression. And they understood that America had to be greater than any one man or woman. That America was about the many of us, never the one of us. That is why they instituted a system of checks and balances. That is why we do not have dictators here. We do not follow strongmen. 

Donald Trump has his countries confused. This is America. This is not North Korea.