Yes, Trump can open America

Just a few weeks ago the MSM and the Dems were screaming about Pres. Trump not employing the Defense Production Act aggressively enough. This was back when Gov. Andrew Cuomo was doing his woe-is-me diatribe about 30,000 ventilators. You remember, the ones Trump said he wouldn’t need, and which Cuomo ultimately confessed he didn't need.

The worm is about to turn, though, and Donald Trump, it seems, will be using the Defense Production Act in a few weeks to reopen the country, but now the MSM won’t like it. They are touting the resistance of Democrat governors who want to keep the country shut down indefinitely. These are politicians who love pushing people around under the current arrangement, like Andy Beshear harassing Easter services or the pothead  governor of Michigan, now being recalled, whose bright idea was to close garden sections at big box stores.  

Trump just moves ahead. As he said, “I’m right… a lot.” Right on the travel ban for China and Europe. Right on using face masks in public. And right on hydroxychloroquine, now the most prescribed treatment for the virus in the world, and likely the only one we will have for the rest of the year.

Trump is also right on his authority to override the various governors and their public health orders. Under the Supremacy clause, federal law beats state laws, and boy, is the Defense Production Act a law. By the terms of 50 USC 55, Sect. 4533, there is a general power to “create, maintain, protect, expand, or restore domestic industrial base capabilities essential for the national defense…”  and by which “…the President may make provision -- for the development of production capabilities.”

Under this law, any commercial entity the President finds in any way helpful to the defense economy, i.e., all of them, may have permission to reopen, irrespective of state health orders. An interesting question might arise as relates to opening state government itself, along with public schools. That would raise a fundamental question of federalism. I would not expect Trump’s orders to go that far, though. They will likely only cover the voluntary reopening of private business, and probably done on a county-by-county basis where there is ample virus decline.

Most people are already going stir crazy with the virus lock down orders. Many of the country’s hospitals are near empty as they cannot do elective procedures but there are no Wuhan patients to treat. Local governments and small business bottom lines have already cratered. Give this another three weeks, and by May 1, let’s see how many Democrats will fight Pres. Trump’s powers to open the country. 

Frank Friday is an attorney in Louisville KY.