'State of war is not a blank check'
The US Supreme Court has restrained executive power even during national crises. In 1952, the court struck down President Harry Truman's attempt to seize steel mills without congressional approval to avert a strike during the Korean War. Justice Robert Jackson warned against policies of the moment that "lose sight of enduring consequences upon the balanced power structure of our Republic."
In 2004, when the justices rejected part of President George W. Bush's detention policy after the September 11, 2001, terrorist attacks, Justice Sandra Day O'Connor cited the 1952 case and declared, "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
This week's Trump incidents, like the previous episodes challenging norms, seemed spit out, lacking consultation with his legal experts.
When pressed on Monday about his claim of absolute authority to decide when states should restart local economies, Trump said his authority was grounded in "numerous provisions" of the Constitution. He cited none and wrongly declared of state and local officials, "They can't do anything without the approval of the President of the United States."
Governors pushed back based on the entrenched principle that the Constitution reserves numerous powers for the states, including authority for public health and safety. From its earliest beginning, the Supreme Court has endorsed state sovereignty, and the justices' touchstone for state power to quarantine people and mandate vaccination during the outbreak of disease dates to 1905.
In the current coronavirus crisis, in fact, the nation's governors and mayors have been the ones imposing "shelter in place" restrictions for individuals and shuttering businesses and schools.
The President has also said states are responsible for acquiring equipment and helping their citizens and hospitals, calling the federal government a "backup."
A day after his claim of authority, Trump acknowledged that state governors would decide when to lift their stay-at-home orders. "The governors are going to be running their individual states," Trump said, with no real explanation for his prior stance.
Then on Wednesday, he threatened to use untested constitutional authority to adjourn Congress so that he could win "recess" confirmations of pending nominees. Senate Majority Leader Mitch McConnell has said that senators would not be returning to Washington for votes until at least May 4 because of the pandemic.
"The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments," Trump said, complaining about the current pending nominations for Director of National Intelligence, Treasury assistant secretary and the head of the Voice of America.
The Constitution states that the President "may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper."
But the meaning of such "disagreement" over adjournment is unclear. Normally, both the House and Senate would need to vote on resolutions to adjourn. After Trump's assertion, McConnell's office released a statement that said in part, "The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent from (Senate Minority Leader Chuck) Schumer."
In observing that adjournment would require agreement from Schumer, McConnell implicitly rejected any plan that would give the President unilateral power to close the chambers. The Senate has routinely used "pro-forma" sessions over the last decade to prevent controversial recess appointments under Presidents Bush and Barack Obama.
Trump lacks awareness, or at least regard, for history and norms. Bluster has become a tool. In that vein, Trump's critics often brush off his remarks as mere distractions.
Sen. Kamala Harris, a California Democrat, told CNN's Anderson Cooper Wednesday night that in threatening to shut down Congress, Trump was trying "to deflect from the fact that he has failed to be a leader during a pandemic, an economic crisis facing our country."
Yet, now, as the country's death count rounds 30,000, the travesty of distractions only seems to deepen the tragedy."