The nation's governors were the ones who made the decisions to shut down their states' businesses and institutions, and according to the Constitution, it is up to them and not President Donald Trump to make the decision to open them back up, Judge Andrew Napolitano said Tuesday.
However, the Fox News senior judicial analyst told "Fox and Friends" that he also thinks the nation's governors have enacted rules that take away from their residents' civil liberties.
"We are witnessing the slow death of civil liberties in the name of public safety," Napolitano said. "When a drone hovers over you, that is surveillance, and surveillance is a search. This is not me. This is the Supreme Court. A search can't go on without a search warrant . . . I think that some of the governors have the authority to regulate for health, safety, and welfare (but) have taken too much of that authority and have taken too much civil liberty away from us. The question is, will we get it back when this is over?"
But when it comes to Trump, who on Monday said he has "total" authority to order states to reopen, the 10th amendment of the Constitution "expressly reserves the power to regulate for those areas to the states," Napolitano said, adding that the government can help with cash or guidelines, but it can't order states to reopen businesses and institutions.
The president and Congress can use the power of money to get states to do their will, he added.
"If Congress were to say to Gov. (Andrew) Cuomo, here is $100 million to supplement the loss of your state tax revenue. In return, open up the Yankee Stadium and open up Broadway, he probably would take the money to do that," said Napolitano. "But, if he rejected the money, or if Congress didn't offer the money, the decision is the governor's and not the president's."
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