Could Trump declare national coronavirus shutdown? Momentum is rising

Momentum appears to be building for a national shutdown to confront the coronavirus crisis, raising the prospect that President TrumpDonald John TrumpBiden leads Trump by 36 points nationally among Latinos: poll Trump dismisses climate change role in fires, says Newsom needs to manage forest better Jimmy Kimmel hits Trump for rallies while hosting Emmy Awards MORE could issue an order requiring people to stay at home.

Such an order would be unprecedented in American history, but some of Trump's top advisers have said publicly they would be open to it. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said Sunday he had raised the prospect of such a dramatic step with the administration.

“I think we should really be overly aggressive and get criticized for overreacting,” Fauci said Sunday on NBC's "Meet The Press." “I think Americans should be prepared that they're going to have to hunker down significantly more than we as a country are doing.”

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More and more states and cities on Friday were taking drastic steps to stop the spread of the coronavirus, which has infected more than 14,000 Americans.

Even some who have been outspoken critics of the Trump administration say faster action must be taken to avoid a catastrophe on the level that Italy faces today.

“We are two weeks behind Italy,” Ezekiel Emanuel, a former top Obama administration official now at the University of Pennsylvania and the Wharton School, said Friday on MSNBC. “I am a little curious why the task force and the president have not made this a mandate nationwide. Not the lockdown but a mandate for all the states and to close restaurants and do the other things. It seems to me they are being slow on this.”

California on Thursday became the first state in the country to issue a shelter-in-place order, expanding a directive first issued to cover several counties in the Bay Area. Illinois Gov. J.B. Pritzker (D) on Friday issued a similar order for his state, and governors around the country said the option was on the table.

What such an order at the federal level might look like — and even whether Trump has the authority to issue an order — is unclear, because no president had ever tried it before. 

“I don’t think Congress has ever authorized the president to issue a curfew or a shelter-in-place order,” said Michael Klarman, a constitutional law expert at Harvard Law School. “I’m sure the Trump people will think Trump can do whatever he thinks is necessary to protect the nation’s health. I have a hard time imagining this Supreme Court ruling otherwise. And I have little doubt Trump would violate a court order anyway if he thought he could get away with it.”

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Most experts said anything Trump tried would most likely take the form of an executive order.

“I assume that he would do this by executive order invoking the state of national emergency and the fact that he’s treating this as essentially as being at war with a virus, with emergency conditions traditionally being associated with more expansive presidential powers,” said Miranda Yaver, an expert in both presidential powers and public health at the University of California at Los Angeles. “Given that we are in a state of national emergency, and this national emergency is so gravely endangering pubic health and safety, I think that extraordinary times call for extraordinary measures.”

That wartime footing, something Trump has embraced more in recent days, has historically given presidents broader executive authority, and a measure of deference from the courts. 

Several experts pointed to Franklin Roosevelt’s 1942 executive order interning more than 100,000 Japanese Americans months after the attack on Pearl Harbor. That order was upheld by the Supreme Court in 1944, in Korematsu v. United States — a decision the current Supreme Court repudiated in 2018, when Chief Justice John Roberts called it “gravely wrong.”

“Presidents, especially in wartime, have vast amounts of power in their role as commander-in-chief, and it would be up to the courts to stop any action that Trump took that was deemed unconstitutional,” said Matthew Dallek, an expert on presidential authority at The George Washington University’s Graduate School of Political Management. 

Dallek said it is unclear whether a presidential executive order requiring Americans to stay in their homes would be anything more than symbolic. If such an order is enforceable, it is not clear who would do so. The president cannot deploy American troops around the country to keep people in their homes.

“More likely, he would issue an order and ask states to spread the message and ask people to comply voluntarily, and the states could, in theory, call out the National Guard,” Dallek said. 

Any such order would certainly wind up in court. A group of political activists and religious leaders in New Hampshire filed suit against Gov. Chris Sununu (R) on Thursday, challenging Sununu's order prohibiting gatherings of more than 50 people. Several groups are suing over Ohio Gov. Mike DeWine's (R) move to delay his state's presidential primary.

The Trump administration has claimed vast executive powers in its first three years in office, from a ban on travel from Muslim-majority countries to shifting money between budgets to build a border wall.

But the coronavirus has posed a challenge on an entirely different scale, and Trump, initially skeptical that the virus would spread widely in the United States, has not taken action as aggressively as state and local governments have. 

He invoked the Defense Production Act this week, a 1950 law signed by Harry Truman to spur production in wartime, but he has yet to use it to actually begin any new production of necessary supplies. Similarly, the federal government has not issued guidelines for states over restaurants, bars, gyms and other businesses, leaving it to the states to order those establishments closed.

But if Trump does act, the combination of a history of judicial deference to an executive in times of crisis with a Supreme Court that favors a powerful executive branch makes it likely that any Trump order would be upheld — so long as it applies broadly to Americans regardless of race or national origin like the Korematsu decision.

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“Executive branch power is expansive, especially in conditions of national emergency. This is a judiciary that is very favorable to broad interpretations of executive branch power,” UCLA's Yaver said.