ARI SHAPIRO, HOST:
The president has certain powers in a national emergency like this pandemic. Yesterday, President Trump falsely said that his power is total.
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PRESIDENT DONALD TRUMP: The federal government has absolute power. It has the power. As to whether or not I'll use that power, we'll see.
SHAPIRO: Today, he moderated his message saying he'll work with governors to determine when the country should reopen. Elizabeth Goitein studies presidential power at the Brennan Center. And she's here to explain where the line is between state and federal authority in moments like this. Good to have you back on the program.
ELIZABETH GOITEIN: Thanks very much for having me.
SHAPIRO: There is always this kind of push-pull between the federal government and the states. In a national emergency like this, does the president have certain powers that he doesn't ordinarily have?
GOITEIN: He does. When the president declares a national emergency, it gives him access to more than 100 different statutory powers that Congress has granted over the decades. And those powers allow him to do some pretty remarkable things, some rather scary things I would argue. But none of them provides the authority to do what the president was threatening to do here. And that is to require the states to reopen businesses and to lift their stay-at-home orders. So the simple answer to that question is, no, a national emergency does not give him that authority.
SHAPIRO: But you've also written about secret emergency powers that the president has had for decades that we don't actually know what's in them. Can you explain what those are?
GOITEIN: Yeah. There's something called a presidential emergency action document. And what that is is a draft order or executive proclamation that is prepared in advance in order to anticipate a wide variety of worst-case scenarios. And so these documents essentially take on hypothetical situations, very bad situations like, for example, the aftermath of a nuclear attack. And they try to anticipate what orders the president might need to order at that time. And those are kind of on standby. I mean, they are there in case the president feels that he needs them. And what's extraordinary about these documents is their secrecy, their total secrecy. So even the most sensitive military operations or intelligence operations have to be reported to at least some members of Congress. But these documents apparently even Congress has never seen them. So you have to kind of wonder what's in them.
SHAPIRO: That raises a whole bucket of questions. But I wonder just generally, you know, many people have compared the fight against this pandemic to a war. And legally, a president does get certain extraordinary powers in times of war. Does the analogy translate here? I mean, does he have those war powers in the fight against this disease?
GOITEIN: It's a really interesting question. I mean, we have heard a lot of comparisons coming from the White House between the fight against COVID-19 and war. The president has said that he's now a wartime president. But public health crises and war are not the same thing. Under the Constitution, Congress has the power to declare war and the president, as commander in chief, has the power to conduct military operations and to defend against attack. The Constitution doesn't give either the president or Congress authority over public health. That is one of the powers that's reserved to the states under the 10th Amendment. Now, Congress does have some ability to legislate on public health as a result of its - of other powers it has over taxing and spending and interstate commerce. So it does share some of these powers with the states, but that's Congress. The president has no authority over public health beyond what Congress delegates to him. He is not commander in chief of the fight against COVID-19.
SHAPIRO: That's really interesting. Just in our last minute, I wonder whether you find it odd to see, for the most part, liberals making a states' rights argument here, which has traditionally been the more conservative position.
GOITEIN: It is really interesting. And I should mention that even though the states are doing the responsible thing here in a situation where the president is not, and so that's something to be grateful for, there are some advantages to a coordinated response to a pandemic like this one. And ideally, the federal government, not just the CDC and the secretary of Health and Human Services, but the president would be providing the necessary leadership and could assist with interstate coordination. But what we've seen is that in the absence of this leadership, the states are doing this on their own. They're entering into these agreements with one another, and that's the next best thing.
SHAPIRO: Elizabeth Goitein is co-director of the Brennan Center for Justice's Liberty & National Security Program.
Thank you for talking with us.
GOITEIN: My pleasure.
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