The federal government needs to take a role in 'advising governors about how they can serve the national interest': Harvard Professor

President Trump claims he has ‘total’ authority to reopen the economy, but state governors say otherwise. Professor at Harvard Law School Mark Tushnet joins Yahoo Finance’s On The Move to break down who has the power to reopen the economy.

Video Transcript

JULIE HYMAN: But I want to bring in a political element to all of this. Because as we debate when it is safe to reopen across the United States, there's been a debate between President Trump and the individual governors of various states, and also a discussion about legally who has authority to reopen.

We are joined now by Mark Tushnet. He is a professor at Harvard Law School who specializes in constitutional law. Professor, if you can unmute your mic, we can discuss who, perhaps, is correct in this situation. First of all, there is some precedent for this kind of situation. Not necessarily closing the reopening of the economy, but certainly the federal government coming in and imposing strictures or making rules above the protests of individual states. Correct?

MARK TUSHNET: Yes, there can be circumstances. The president would have to rely on some statutes that would authorize him to essentially directly order businesses to operate in their normal fashion, overriding local prohibitions on it. The statutes that are the most obvious ones deal with things like defense production and similar national security things. There may be others.

It'd probably be a stretch to find statutory authority to direct that convention centers or sports arenas, and, of course, restaurants and bars-- authority to open them. But maybe there is somewhere some statutory authority to do that. The president has walked back his claims, of course.

ADAM SHAPIRO: He has walked back those claims. But there is a role for the federal government. It's not an apples-to-apples comparison. But in the '50s we had President Eisenhower actually federalize the National Guard in order to help integrate the schools in Arkansas. So at this point in time, what is the proper relationship with federal government and state government in the terms of this discussion?

MARK TUSHNET: From a constitutional point of view, probably the most straightforward thing is for the federal government to take a role in encouraging counseling, advising governors about what the national interest-- how they can serve the national interest. Mandatory things are more extreme, and are likely to face both political and legal pushback to the point where by the time the legal questions are resolved, the fourth mandatory things from the federal government probably wouldn't be required anyway.

RICK NEWMAN: Hey, Mark, Rick Newman. I'm wondering if businesses would potentially face any legal liability if they opened too soon and somebody got sick, whether it would be customers or workers. I mean, could they be sued for putting people in harm-- in harm's way unnecessarily?

MARK TUSHNET: So the-- an academic's answer to that kind of question-- if you ask the question, could they be sued, the answer is always going to be yes, whatever it is, under any circumstances. The chances of succeeding if they reopen-- of a lawsuit succeeding if a business reopens pursuant to a directive of some sort from the national governments, chances of prevailing are probably pretty slim, not zero. But if I were operating a business, I would be cautious about reopening unless there were some sort of statement from state authorities that the legal situation is back to where it was before the closures.

ADAM SHAPIRO: I am curious. How would you grade the president and how he has dealt with the governors? We keep seeing the governors, in some respects, praise the president. But there's a concern that they're essentially just kissing his backside to get the necessary devices and medical supplies they need. And, you know, they're-- they're cowing down to kind of King George. How would you grade all of this?

MARK TUSHNET: So the president's most extensive claims of authority are clearly overstated, if not qualified-- if they weren't qualified. When he says or I think the vice president said I can get you a brief on that, that's really what happens. These are not people who are making careful legal claims. They're operating in a sort of general environment of what sorts of things do they think they should be able to do. And I wouldn't grade a student for making that kind of claim. What I would grade would be the brief, which we haven't yet seen.

JULIE HYMAN: And so ultimately, even though as we've been talking about the president has backed off to some extent, do you think that we will see more of a showdown? And do you think that that ends up going to court?

MARK TUSHNET: I think that it's unlikely that there'll be any kind of showdown or even a court case because two things. First of all, the president can accomplish, I think maybe all, but certainly nearly all that he wants politically to accomplish by asserting, by encouraging, and counseling governors about what he thinks they should do. And then, secondly, it takes time for litigation to occur. And by the time anything would happen, lots of changes will have occurred in the domain of what we're calling reopening the economy.

JULIE HYMAN: Right. Makes sense. There is an urgency level here, certainly. Professor Mark Tushnet of Harvard Law School, joining us from Washington DC. Thank you very much, sir. Appreciate it.

MARK TUSHNET: You're welcome.

JULIE HYMAN: I just want to bring you some news just coming out from our parent company, Verizon. They have now extended some discounts to more front line workers. It had been available to doctors. Now more discounts for nurses on the front lines, and teachers, as well, in addition to military and first responders were already eligible for this. They can benefit from up to $40 off when they combine Verizon unlimited wireless and Fios internet plans. Also, Verizon's making a $45 million donation to relief efforts.

Well, coming up next we are going to be speaking to Stacey Abrams, a former gubernatorial candidate in Georgia, about what she's doing now, how concerned she is about the South's exposure, both economically and health care-wise, to coronavirus, and her chance of being, perhaps, a vice presidential pick for Joe Biden.