Each State Has the Power to Open Up or Close Down, says Constitutional Expert

There has been much discussion in Washington, D.C. over the procedures to begin reopening the country and who has the power to make that call. Rob Natelson, Constitutional Fellow with the Independence Institute in Denver, provided his perspective.

“The president does have certain powers in an emergency, but the power to open up or close down is really reserved at the state level,” Natelson said. “Every state, as far as I know, has legislation that empowers the governor take action in an emergency.”

Natelson said the Constitution has granted broad powers to the state in matters like the coronavirus response.

“Under our constitutional scheme, the states have what is called the police power,” Natelson said. “Police here doesn’t mean the cop on the beat, police means broad governance power and that includes the authority to respond in an emergency. Fundamentally, the decision of whether we are going to open up or close down has to made at the state level and not by the president, but the president can make recommendations.”

Natelson said one state in particular has already begun planning for a return to ‘business as usual’.

“The lead may very well be taken by Texas where Governor Greg Abbott has indicated that he will be issuing an executive order in the next few days that permits the economy to open up, while still following health restrictions,” Natelson said. “Ultimately, each state is going to make its own decision. Some states may take the lead and some state may cooperate with others.”

Natelson is a former law professor at the University of Montana and appears regularly on the KGVO Talk Back program.