TRUMP IN HIS MEGALOMANIA MADE ANOTHER FALSE CLAIM OF UNBOUNDED PRESIDENTIAL AUTHORITY AT THE PRESS BRIEFING TODAY

CDC is in fact authorized to “detain, medically examine, and release persons arriving into and traveling between states who are suspected of carrying [certain] communicable diseases [including severe respiratory diseases like #covid19]. 1/20

CDC holds this authority constitutionally under the Commerce Clause, and statutorily under section 361 of the Public Health Service Act (42 U.S. Code § 26. 2/20

Who has the authority to enforce isolation and quarantine because of a communicable disease?

Note that Trump’s “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak” on March 18 — a travel ban — was signed under section (F) of this act.) 3/20

Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19)…

(That proclamation also invoked sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.). But NEA does not provide any specific emergency authority on its own, but relies on emergency authorities provided in other statutes.) 4/20

National Emergencies Act, Sections 201 and 301

The Public Health Service Act does grant the CDC (and therefore the president) extensive powers, but hardly the total and absolute power that Trump asserted he had today. 5/20

42 U.S. Code § 264 - Regulations to control communicable diseases

For one thing, the statute clearly restricts the presidential power to controlling, and if appropriate quarantining, incoming travelers from abroad (U.S. citizens included), and to interstate travel of possibly infectious individuals. 6/20

(On March 28, Rhode Island tried to block cars with NY license plates from entering the state. I was sure that was unconstitutional at the time, as only the federal government would have that power — in emergencies. That order by the governor has been rescinded.) 7/20

Under the Public Health Service Act, the federal government also has the power to enter a state that an infected interstate traveler has entered and, if appropriate, quarantine that person. 8/20

Clearly, the federal government’s authority (and therefore the presidential authority) is quite limited under this act. 9/20

First of all, the statute does not give the federal government the authority to enter a state and test and quarantine any resident of that state.

Suppose X travels from state A to state B, and then infects Y and Z in state B. Federal authority over Y and Z is highly restricted. 10/20

“Except as provided in subsection (d), regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession.”

(Subsection (d) grants federal authority to apprehend and examine “any individual reasonably believed to be infected with a communicable disease in a qualifying stage 11/20

and who is or may be moving about from state to state, and probably does grant quarantine authority over those individuals — but only those.) 12/20

Bottom line: Under the Public Health Service Act the individual states retain their sovereignty over how they handle a public health care crisis like covid19. (This may not be a good thing — I think it probably isn’t — but that is the way things are in our federal system of government.) 13/20

This means that Trump, as president, cannot occupy the field and displace or countermand the covid19 public health related programs of individual states or what they do cooperatively, as he has claimed. 14/20

Above all, it must be noted that (e) of the Act, which covers “preemption,” explicitly states that the statute does not supersede state or local laws or regulations, except to the extent permitted by the 42 U.S. Code § 26. 15/20

This means, among other things, that states (or groups of states) are entirely at liberty to impose quarantine, shelter-in-place, or other related public health measures that are more restrictive than anything Trump may desire. 16/20

And that must be particularly grievous for Trump, because what he clearly wants to assert is the power to direct states when and how they should relax their social distancing measures. 17/20

In particular, he clearly intends to direct them to do so on or soon after May 1, against the advice of medical experts, the wishes of most voters, and most governors. 18/20

No wonder hackles were raised by Trump’s incendiary remarks about his total and absolute power to deal with cv19 at the press briefing today. The intuition of the press corps was that Trump did not have the authority he was asserting, and in fact he doesn’t. 19/20

Hence @neal_katyal’s arch remark in a tweet today: 20/20