President Donald Trump said he has the power to order schools to remain shut down to help contain the coronavirus—but emphasized he’d rather not override a governor’s decision.
Trump made the comments about his authority during his daily coronavirus briefing at the White House on Friday, against the backdrop of a nationwide shutdown of school buildings and at least 19 states and three U.S. territories having either ordered or recommended that school buildings stay closed for the rest of the academic year.
But as school closures approach their scheduled end dates in some states, there could be pressure on governors, state education officials, and local education leaders to reopen in places without large numbers of coronavirus cases.
If such a scenario arises, would Trump have the power he says he does? Let’s review the facts and some legal analysis of the situation.
At Trump’s briefing Friday, a reporter asked the president about a report that Florida Gov. Ron DeSantis, a Republican, is considering reopening schools in May. Schools in the state have closed their doors after DeSantis’ administration recommended that they shut down through May 1. But as the the Tampa Bay Times reported on Thursday, DeSantis seems open to the possibility that students may yet return to schools. “If it’s safe, we want kids to be in school,” DeSantis told the paper. "... Even if it’s for a couple of weeks, we think there would be value in that.”
In response, Trump first said he had “a lot of faith” in DeSantis to make the right decision. He made it clear that he would prefer not to override a governor’s decision to reopen schools due to constitutional considerations, saying, “I like to allow governors to make decisions without overruling them.” However, he added, “If I disagreed, I would overrule a governor. And I have that right to do it.” (Trump has been a vocal supporter of DeSantis, dating back to his 2018 gubernatorial campaign.)
Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, responded to a follow-up question about the wisdom of reopening schools by saying that if there are populations where the virus is present, “And you allow children to gather together, they will likely get infected.” Then he says they’ll likely “bring the infection home.” Fauci said this applies to congregations of people “such as in classrooms.”
However, researchers at University College London recently stated that school closures have little impact on the spread of the coronavirus.
‘Cannot Coerce the States’
Education Week contributing writer Mark Walsh explored the question of federal and state authority over school closures late last month. James G. Hodge Jr., a professor of public health law and ethics at Arizona State University, said the following about the federal government’s power in this situation:
“From a federalism perspective, the feds could not tell the states they must shut down their schools,” said Hodge ... But he notes that the Trump administration “is proceeding in some different ways” in various areas involving expanded federal power.
“We can’t quite tell how this may go,” Hodge said.
In an April 1 Q&A with legal analysts, the Associated Press considered this question, “Does the president have the authority to override state and local orders?” and provided this answer: “No. Under our constitutional system, states have the power and responsibility for maintaining public order and safety. As we’ve seen since the outbreak began, decisions about limiting social interactions by ordering people to shelter in place, closing businesses and shutting schools are being made by governors and local officials. Those same officials will make the call about when to ease up. Trump’s comments ‘are just advisory,’ said John Malcolm of the Heritage Foundation.”
In a March 24 Lawfare analysis of a president’s power to countermand state coronavirus policies, University of Texas School of Law Professor Bobby Chesney wrote that, “The federal government cannot commandeer the machinery of the state governments (or, by extension, of local governments). That is, the federal government cannot coerce the states into taking actions to suit federal policy preference.”
The federal government does have the power to withhold money from states under certain circumstances. Would a Trump administration withhold emergency coronavirus funding for a state’s schools if it disagreed with the governor about reopening schools, in order to pressure the state into the desired outcome? That seems like an extreme scenario.
Later in the press conference, in response to a question about reopening the economy and whether states ultimately had the power to decide for themselves when to end stay-at-home orders and let businesses resume normal operations, Trump gave a similar reply.
“The states can do things if they want. I can override them if I want,” Trump said. " ... I would rather have the states do it.”
Photo: President Donald Trump speaks during a press briefing with the coronavirus task force, in the Brady press briefing room at the White House, last month. (AP Photo/Evan Vucci)