Trump soon dropped the threat, saying he would instead leave such decisions to the states. But he has revived the idea in recent days as he has tried to pressure governors to allow churches and other places of worship to hold in-person services, even where stay-at-home orders and other limits on large gatherings remain in effect.
Asked on Tuesday what authority he had to enforce such a mandate, Trump was cagey.
“I can absolutely do it if I want to,” he said. “We have many different ways where I can override them and if I have to, I’ll do that.”
The White House declined to spell out any specific statute, but White House spokesman Judd Deere said in a statement that “every decision the President has made throughout this pandemic has been to protect the health and safety of the American people.”
“Getting the nation back to work, back to sporting events, back to churches, back to restaurants, and doing so safely and responsibly is the president’s shared goal with governors and the private sector, but the cure cannot be worse than the disease,” Deere said.
Trump “certainly does not have the power under any reasonable reading of the Constitution or federalism to order places of worship to open,” said Matthew Dallek, a historian at George Washington University’s Graduate School of Political Management who specialises in the use of presidential power.
But Dallek said that just because Trump doesn’t have the authority to do most of the things he’s threatened, doesn’t mean he won’t, for instance, try to sign executive orders taking such action anyway – even if they are later struck down by the courts.
“What has limited Trump previously? Not very much. So I think he will do whatever seems to be in his best interest at any particular moment,” Dallek said.
Trump is now on a tear against Twitter after the social media platform, which he uses to speak directly to his more than 80 million followers, slapped fact-check alerts on two of his tweets claiming that mail-in voting is fraudulent.
“Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!” he tweeted. A day later Trump added that: “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen.”
While Congress could pass legislation further regulating social media platforms, Trump “has no such authority,” said former federal judge Michael McConnell, who now directs Stanford Law School’s Constitutional Law Centre. “He is just venting.”
“There is absolutely no First Amendment issue with Twitter adding a label to the president’s tweets,” added Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, who won the case that prevents Trump from banning his critics from his Twitter feed. “The only First Amendment issue here arises from the president’s threat to punish Twitter in some way for fact-checking his statements.”
But Jack Balkin, a Yale University law professor and First Amendment expert, said that’s not Trump’s point.
“This is an attempt by the president to, as we used to say in basketball, work the refs,” he said. “He’s threatening and cajoling with the idea that these folks in their corporate board rooms will think twice about what they’re doing, so they won’t touch him.”
Trump, he said, also could try to abuse his powers to leverage other instruments of government, from the Department of Justice to the Internal Revenue Service, to push for investigations or launch regulatory crackdowns to punish states, cities or companies. Trump also has shown he’s willing to exercise powers that modern presidents have largely avoided, including his recent purging of inspectors-general.
When the President declared the pandemic a national emergency back in March, he activated more than 100 different statutory authorities. Yet Trump, said Vladeck, has failed to exercise many of them.
“I think one of the real ironies of this entire moment is that the President actually has a remarkable array of powers that he hasn’t brought to bear. All the while he continues to claim stunning powers that he doesn’t have,” he said.
That includes the Defence Production Act, which Trump could have used far more aggressively to force companies to mass produce supplies like masks and ventilators. Instead, he used it in more limited ways. And while the Justice Department has threatened to join lawsuits against states that move too slowly, a statement of interest filed by the department in Illinois last week didn’t raise any federal constitutional claims.
Trump’s threatened executive order – it could come as early as Thursday US time – is understood to request a review of a law that has long protected Twitter, Facebook and Google from being responsible for the material posted by their users, according to a draft seen by Reuters and a source familiar with the situation.
The order could change before it is finalised. The White House did not immediately respond to a request for comment.
It would require the Federal Communications Commission (FCC) to propose and clarify regulations under Section 230 of the Communications Decency Act, a federal law largely exempting online platforms from legal liability for the material their users post. Such changes could expose tech companies to more lawsuits.
The order asks the FCC to examine whether actions related to the editing of content by social media companies should potentially lead to the platform forfeiting its protections under section 230.
It requires the agency to look at whether a social media platform uses deceptive policies to moderate content and if its policies are inconsistent with its terms of service.
The draft also states that the White House Office of Digital Strategy will re-establish a tool to help citizens report cases of online censorship.
Called the White House Tech Bias Reporting Tool, it will collect complaints of online censorship and submit them to the Department of Justice and the Federal Trade Commission (FTC).
It requires the FTC to then “consider taking action”, look into whether complaints violate the law, develop a report describing such complaints and make the report publicly available.
The draft order also requires the Attorney-General to establish a working group including state attorneys-general that will examine the enforcement of state laws that prohibit online platforms from engaging in unfair and deceptive acts.
Federal spending on online advertising will also be reviewed by US government agencies to ensure there are no speech restrictions by the relevant platform.
Even if he doesn’t follow through on threats, Trump’s statements still can have consequences as he uses his bully pulpit.
“He’s still trying to wield his often outrageous interpretations of the law as a cudgel to bludgeon others,” said Joshua Geltzer, founding executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Centre.
For Rutgers University media professor John Pavlik, who studies online misinformation, Trump is simply trying to fire up his political base.
“For Trump,” he said, “this is about politics.”