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Pence says national emergency gives president absolute power. Here's what experts say.

Indianapolis Star logo Indianapolis Star 4/15/2020 Elizabeth DePompei, Indianapolis Star
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When Donald Trump said that his authority as president during a national emergency "is total," his right-hand man Mike Pence supported him in strong terms. 

"Well, make no mistake about it," the former Indiana governor and current vice president said during a heated Monday press conference, "in the long history of this country, the authority of the president of the United States during national emergencies is unquestionably plenary."

Don't worry — you're not the only one who had to look up the definition of "plenary." It means "unqualified; absolute," according to the Oxford English Dictionary. 

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Pence's comment came amid debate over whether the president has the power to unilaterally reopen a country virtually shutdown due to the COVID-19 pandemic. Trump claims, and Pence seemingly supports the notion, that he could order states to lift stay-at-home orders and business restrictions. 

a man wearing a suit and tie: President Donald Trump departs after speaking about the coronavirus, with Vice President Mike Pence at left, in the James Brady Press Briefing Room of the White House, Monday, April 6, 2020, in Washington. © Alex Brandon, AP President Donald Trump departs after speaking about the coronavirus, with Vice President Mike Pence at left, in the James Brady Press Briefing Room of the White House, Monday, April 6, 2020, in Washington.

The president said he'd be justified by authority granted him during a national emergency, which Trump declared March 13.

“When somebody’s president of the United States, the authority is total," Trump said. "And that’s the way it’s got to to be. It's total. It’s total. And the governors know that."

Pence added that "you can look back though times of war and other national emergencies" for examples of the president's authority, though it's not clear to what he was referring. A spokesperson for Pence did not respond to IndyStar's emailed questions. 

The constitutional argument

Gerard N. Magliocca, professor at the Indiana University Robert H. McKinney School of Law and a constitutional law expert, said there's a simple reason the president really can't unilaterally lift stay-at-home orders: the Trump administration never issued a national order. 

"A national lockdown was not even attempted. How could there be a national order to open?" Magliocca said.

But as to the constitutional question of whether Pence is right in his assertion that the president's power is "plenary," Magliocca put it plainly: "No."

"To say that the president has greater powers in a national emergency is correct," he said. "But to say that the powers are unlimited has no basis in law, at all."

The National Emergencies Act of 1976 gives presidents greater power, including the ability to declare a national emergency without Congressional approval. While the law is broad, Magliocca said the powers granted generally have to do with mobilizing funding and supplies -- in this case, ventilators and personal protective gear -- needed during an emergency. 

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Magliocca pointed to a time Trump successfully invoked a national emergency to exert authority. In February 2019, the president declared a national emergency on the U.S.-Mexico border in order to redirect funding to build a border wall. Magliocca said the move was covered by the 1976 Act that allows for emergency military construction. 

But no such allowance applies in the case of reopening the country after shutdowns, he said. 

"The question here is about well, when should you reopen your skating rinks or your stores or your parks," he said. "those are decisions that local officials make all the time and they are the ones empowered to do it. The federal government has no power to do so."

"You can't find it in the Constitution, you can't find it in the history of the United States."

Pence said Monday that he and the president would be happy to prepare a legal brief supporting their claim, but it's unclear when that would be released. 

The public health appeal 

Dr. Ogbonnaya Omenka, assistant professor at Butler University's College of Pharmacy and Health Sciences, says that on paper, the president does have far-reaching authority in a national emergency. 

But ultimately, Omenka has faith in the country's checks and balances to prevent potential overreaches and settle any disputes. Omenka notes that the National Emergencies Act calls for Congressional review of a president's declaration every six months. And if the president wishes to renew the declaration, he has to get Congressional approval. 

He also points to the courts as an important check on the president. During the Korean War, then-President Harry Truman declared a national emergency in an attempt to take federal control of the country's steel mills leading up to a steelworkers' strike. Magliocca said Truman tried to argue that steel production was essential to fight the Korean War, but it didn't hold up in court. 

COVID-19: Resources

Omenka said the balance between state and federal power has long been a battle, and a public health emergency like the coronavirus pandemic only highlights the complicated balance. Besides that tricky balancing act, Omenka said public health is "very, very complicated."

"I don’t expect the president to remember or to know actually all the stipulations about how the government should or is to interact with states when it comes to public health," Omenka said. 

But the stakes are high. If the president were to call for a blanket reopening of the country, it would be a critical and counterproductive mistake, Omenka said. 

"There are necessary steps or measures that need to be put in place before we can start taking about returning to normalcy," like testing infrastructure, contact tracing and mitigation, he said. 

"(Which) are not uniformly implemented by states... While one state is coming out of the worst case scenario another state may only be beginning their worst case scenario."

That's why Omenka calls for a more nuanced approach that's specific to an area's population and rate of infection. 

On March 26, Indiana Gov. Eric Holcomb said that when it comes to lifting restrictions, he would listen "to doctors, physicians, scientists, law enforcement — folks that are on the ground in the state of Indiana."

When asked about the president's authority to make that call on Monday, Holcomb referenced balancing state's rights and federalism. 

"I think the president has Hoosiers' best interests in mind. We'll continue to work with the president and his team."

Pence reiterated Monday that the White House Coronavirus Task Force he leads is in regular communication with governors. 

"We'll continue to respect the leadership and partnership that we forge with every governor in America," he said. "But this is an unprecedented time."

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USA Today contributed to this story. 

Contact IndyStar reporter Elizabeth DePompei at 317-444-6196 or edepompei@indystar.com. Follow her on Twitter: @edepompei.

This article originally appeared on Indianapolis Star: Pence says national emergency gives president absolute power. Here's what experts say.

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