White House guidelines for re-opening the economy are safe: Larry Kudlow
White House National Economic Council Director Larry Kudlow joins Sean Hannity to discuss President Trump’s phased approach to restarting the U.S. economy.
The U.S. Constitution may have a cure for what ails the country’s economy.
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Business has ground to a virtual standstill over the past month amid “stay-at-home” orders issued by more than 40 U.S. governors fighting the COVID-19 pandemic, forcing the temporary closure of shops and restaurants and bringing non-essential travel to a standstill.
More than 26 million workers have lost their jobs in just the past five weeks, and the major Wall Street banks all say the economy will contract by an annualized rate of at least 30 percent during the second quarter.
The dilemma has, in some ways, left the U.S. at odds with itself. As the coronavirus death toll mounts, a number of state governors are extending their “stay-at-home orders” into the middle of May, while a few others have begun moving to reopen their economies to curb the grinding cost of lost jobs and wages on taxpayers.
The disparity has created tensions between states and the Trump administration, which has urged rebooting the economy as rapidly as possible yet criticized Georgia for moving too quickly, and raised questions about which branch of government has the power to set a timetable.
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While the U.S. Constitution's intricate system of checks and balances makes that a tricky question, Congress can wield its power over interstate commerce to considerable effect, experts say. It can also use the power of the purse to offer incentives to states that move forward on Washington's timetable.
A governor can’t say it’s a crime for you not to distance or it’s a crime for you not to stay at home. That has to be done by the legislature.
Under the commerce clause of the U.S. Constitution, Congress has the power to “regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”
That provision “gives Congress plenary power over interstate commerce, meaning full, final, needing nothing to complete it,” Judge Andrew Napolitano told FOX Business. “So Congress could open up the channels of interstate commerce so long as the president signed the legislation. But Congress cannot order Gov. Murphy in New Jersey to open up restaurants and state parks.”
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Even then, however, the law is tricky. Because of the interconnectedness of the U.S. economy, it’s possible that restaurants could be opened under the commerce clause.
“Even though the Constitution says to regulate interstate commerce, that is commerce that goes from one state to another, the courts have allowed Congress to regulate intrastate state commerce as long as it has a direct relationship to interstate,” Napolitano said.
Neither President Trump nor any state governor has the power to order people to stay home, though.
“Generally, orders by governors or mayors, unless they're authorized by the legislature, are unenforceable by criminal law,” Alan Dershowitz, a professor emeritus at Harvard Law School, told FOX Business.
“A governor can't say it's a crime for you not to distance or it's a crime for you not to stay at home,” he added. “That has to be done by the legislature.”