Apr 08, 2020 11:35 AM

Mulligan: Trump is Constitutional leaving stay home to states

Posted Apr 08, 2020 11:35 AM


Hutch Post

HUTCHINSON, Kan. — President Donald Trump has chosen to leave the administration of the COVID-19 epidemic as a state and local issue. A law professor at the University of Kansas says that action is in keeping with the U.S. Constitution.

"Our system of government leaves the general, residual power, the so-called police power to the states, by design," said Lou Mulligan, Earl B. Shurtz Research Professor of Law at The University of Kansas. "There's not any broad, statutory authority that would give the President, any President, the authority to order everyone to be at home."

There's always the theory that martial law could be declared, but that's not likely as a practical matter.

"The federal government has not declared martial law since World War Two," Mulligan said. "There are some broad background powers, but they're not the type of thing that the federal government usually uses. We tend to allow those things to be done by states or sometimes even city authority."

The word pandemic isn't in the Constitution and so it is a source of tension when the ability of germs to travel is so much greater than it was at our nation's founding.

"Power resides on the local level by design, but our government was not really crafted to address a situation like this," Mulligan said. "I don't think nationwide quarantine was an idea that our framers were thinking about. Certainly, they were aware of plagues, but they never, I don't think, perceived them on this level, with this rapidity."

Mulligan sees this as a time when those in office need to set aside politics and think of the health of the people first. There will be time to deal with partisan differences once the threat has passed.