Former acting Solicitor General Neal Katyal penned the a New York Times editorial explaining to President Donald Trump, and his allies, that under the Constitution he's got the least amount of power.
"I teach my law students that every so often in the law, the best way to understand the veracity of a claim is just to say it out loud," he wrote, noting that Monday's press conference was the perfect example when Trump added to the "legal lexicon."
"When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total," Trump claimed.
Katyal noted that Trump's words "would even have made President Richard Nixon blush." He wrote that Trump sounds more like the leader of a tinpot dictatorship than a US president.
An actual Constitutional scholar and professor, Katyal explained that the founding documents specifically made the presidency a lower-power branch of government out of fear that the person in the position would be able to declare themselves a king.
"Separation of powers and federalism aren’t fusty concepts designed to please rebellious aristocrats; they are the living embodiment of our founders’ desire to divide and check power — not vest 'total' 'authority' in one person, no matter how wise that person may be," said Katyal, who also served as a former deputy attorney general.
"That was the basic genesis of the Declaration of Independence — King George III had grabbed all the government power for himself," he explained. "The declaration’s text proclaims 'the history of the present King of Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.' The American Constitution is a self-conscious reaction to that concentration of power, not a document to mirror and enable it."
The Tenth Amendment, often cited by conservatives during President Barack Obama's administration, is clear in creating the flip of the Declaration’s problems with King George III:
“'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.' And the health authorities at issue in the response to the coronavirus crisis are the ones at the heart of state governments — what scholars have called 'the police power” for decades,'" cited Katyal.
While Trump has said things similar to this before, Katyal said that this time was a little different, in four specific ways.
"First, and most important, such ridiculous assertions of power are distracting sideshows that inhibit true federal solutions in a time of extreme peril," he wrote. The federal government should be working with states to partner and help the states instead of trying to fight with them during a pandemic.
"Second, because Mr. Trump is so flat out wrong about his powers, his comments also undermine decision-making in states," he continued. "The decision each state makes to reopen its economy will be just about the most fraught decision each political leader will make in that person’s lifetime." Indeed, governors hold the lives of their citizens in their hands and if they open prematurely and people die, they will be blamed.
"Third, Mr. Trump’s claims reveal a selective impotence about his powers," he continued, recalling that over a week ago Trump was saying he couldn't help the states because of the Constitution. Son-in-law Jared Kushner was shredded for the idea that federal surpluses supplies weren't for the states it was for the federal government.
"Fourth, it’s hard to find something more un-American than Mr. Trump’s statement — and the idea that lawyers at the revered Department of Justice and the White House, as well as members of the president’s political party, have mostly stood silently by (and sometimes enabled) such legal views should give every American pause," he said.
Katyal closed by saying that instead of proclaiming false and foolish claims, he should use his power to sell the idea to the public if he believes the government needs to reopen with a bang on May 1.
"Don’t hide behind pretensions of raw authority. Too many lives are at stake. And at stake is something even deeper: the idea of what America is," he closed.
Read the full editorial at the New York Times.