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Speaker 1: From Pushkin Industries. This is Deep Background, the show where

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Speaker 1: we explore the stories behind the stories in the news.

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Speaker 1: I'm Noah Feldman. The coronavirus pandemic is fundamentally a public

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Speaker 1: health challenge to us right now, but as we've seen

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Speaker 1: in a series of special episodes that we've been running

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Speaker 1: the last few weeks, that public health challenge has broad

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Speaker 1: interaction with a whole bunch of other serious policy issues.

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Speaker 1: One is the economy, and we've explored that in a

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Speaker 1: recent episode. Another is the law itself, specifically constitutional law,

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Speaker 1: the law that governs the question of where public health

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Speaker 1: stops and your individual liberties begin. That's an issue that's

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Speaker 1: only beginning to emerge as central in our public debate

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Speaker 1: around governmental response the coronavirus. To talk about this issue,

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Speaker 1: I had a conversation with Professor Richard Lazarus of Harvard

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Speaker 1: Law School. Richard is one of the leading Supreme Court

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Speaker 1: advocates in the country. His area of specialization is environmental

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Speaker 1: and natural resources law, and that makes him truly expert

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Speaker 1: on the question of how expertise in government judgment within

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Speaker 1: government agencies interacts with the power of the federal government

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Speaker 1: and the power of the courts. He's the author of

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Speaker 1: a new book, The Rule of Five, Making Climate History

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Speaker 1: at the Supreme Court, which gives you the inside story

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Speaker 1: of the most significant environmental law case of recent decades. Okay, so, Richard,

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Speaker 1: let's just start with Many government institutions are trying to

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Speaker 1: respond to the Corona crisis, and the Supreme Court is

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Speaker 1: now the latest to have announced some steps. What's your

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Speaker 1: sense of what the Court has in fact done. Well,

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Speaker 1: what the Court has done is they've decided to take

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Speaker 1: the quite significant step of postponing oral argument the court

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Speaker 1: we're sposed here or argument in the last week of March,

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Speaker 1: beginning on Monday March. The Court has announced that it's

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Speaker 1: going to postpone the entire March or argument session, that's

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Speaker 1: two weeks of argument, and then hold those cases instead

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Speaker 1: for argument in April. And I expect it's a good

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Speaker 1: chance the Court may well hold argument in May. In

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Speaker 1: addition to that, I mean, I understand they're leaving the

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Speaker 1: door open for May, and we all hope that things

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Speaker 1: have passed their worst end. But why would you think

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Speaker 1: that things would be so different in May. I mean,

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Speaker 1: I don't see anything from any epidemiologist that thinks that

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Speaker 1: things are going to be better then, especially in Washington,

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Speaker 1: d C. Where in fact the cases have been relatively

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Speaker 1: slow to surprisingly slow to get going. Yeah, I think

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Speaker 1: the court is one acting in a hopeful, optimistic way,

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Speaker 1: the way many people are right now. All the different

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Speaker 1: kinds of orders are only for three or four or

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Speaker 1: five weeks, even if people assume it may take long.

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Speaker 1: In that so there's a chance this is the first

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Speaker 1: step and the court may have to take further steps.

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Speaker 1: But beyond that, the court can hear cases, and they

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Speaker 1: can hear argument in ways that are not inconsistent with

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Speaker 1: the measures being take to prevent the spread of the virus.

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Speaker 1: I mean, like a FaceTime argument or zoom argument. They

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Speaker 1: can do a FaceTime market, they can do a zoom argument.

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Speaker 1: They can have people only the lawyers in the courtroom,

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Speaker 1: no one else. And the courts have the lawyers and

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Speaker 1: the justices, the martial and the clerk. They can have

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Speaker 1: only those folks there. They can have them spread out

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Speaker 1: pretty well in the courtroom, and the justice can also.

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Speaker 1: I mean, you know, it's a it's an insult to

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Speaker 1: say it in the presence of such a great oral

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Speaker 1: advocate at the Screme Court, as you. But they could

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Speaker 1: also decide cases without the benefit of oral argument. They

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Speaker 1: do that all the time. Yeah, there's certainly no requirement

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Speaker 1: they have or argument. They can limit the number of

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Speaker 1: cases for which they hear an argument. My guess is

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Speaker 1: they'd only be hearing time sensitive cases anyway. Uh, in

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Speaker 1: any case if they think really has no particular time sensitivity.

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Speaker 1: If things get worse, those cases they can push in

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Speaker 1: a heartbeat to October. It's only the case that see

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Speaker 1: more time sensitive. I mean, give the example. The Trump

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Speaker 1: subpoena cases are probably cases were more time sensitive than

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Speaker 1: McGann subpoena another the other electoral college cases. Those are

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Speaker 1: cases the Court needs to decide. We need to know

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Speaker 1: what the answer is to those before we actually have

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Speaker 1: an election exactly. So I think they'll feel a need

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Speaker 1: if push comes to shop they can decide the oral argument.

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Speaker 1: They can certainly ascide them with only some justices in

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Speaker 1: the room. The Court has already done that. I mean,

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Speaker 1: there are justices. When Chief Justice Renquist was ill during

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Speaker 1: the two thousand four term, you know, fifteen years ago,

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Speaker 1: he would vote on cases if his vote made a

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Speaker 1: difference by listening to the oral argument. Something that you

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Speaker 1: would listen to the tapes. He listen to the tapes

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Speaker 1: of the or argument, and then he would vote. He

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Speaker 1: otherwise wouldn't participate. So they can and the court i

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Speaker 1: believe is shutdown oral argument. Be four during the pandemic

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Speaker 1: uh in night, the Spanish flew the court also, I'm

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Speaker 1: pretty sure shutdown oral argument. So it's not without precedent.

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Speaker 1: There are other institutions will be much more hard pressed

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Speaker 1: to figure out how to function. Congress we much more

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Speaker 1: hard pressed to function than the United States Supreme Court,

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Speaker 1: an ordinary federal district court, I think. I mean, the

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Speaker 1: Supreme Court is much more it's much grander, it's a

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Speaker 1: much more formalized process. There are a lot of you know,

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Speaker 1: nine justices sitting on every case, and they could do

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Speaker 1: everything that they do in principle without or argument because

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Speaker 1: they have detailed written briefs. But not all of that

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Speaker 1: will be true for every federal district court, and certainly

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Speaker 1: not for local court houses around the country. Some parts

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Speaker 1: of justice, like criminal trials, criminal constitutionally can't do them remotely.

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Speaker 1: Probably that's right. I mean, it requires you know, in person,

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Speaker 1: at least we've already always understood it to require in

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Speaker 1: person presence. Yeah, you're supposed to be able to see

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Speaker 1: your witness, supposed to be under the confrontation clause. I mean,

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Speaker 1: they're all kind of constitution gives you the right to

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Speaker 1: confront the witnesses against you, and so far courts don't

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Speaker 1: think that's good enough to confront them on on FaceTime.

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Speaker 1: That's right. So they're all kinds of challenges. In other

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Speaker 1: parts of the judiciary, it will be much more intense

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Speaker 1: than the Supreme Court. Supreme Court can get its job

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Speaker 1: done for talking about the administration the criminal us the

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Speaker 1: system of the United States at the local level, at

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Speaker 1: the trial level, and by police and magistrates, I think

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Speaker 1: the system will could quickly become overwhelmed in sort of

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Speaker 1: a parallel to what's happening, uh with the hospitals being overwhelmed.

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Speaker 1: The Supreme Court it can accommodate this relatively easily, I

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Speaker 1: think as an institutional matter. But the local administration of

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Speaker 1: criminal justice, it's going to be a challenge. They don't

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Speaker 1: have the resources or the expertise to do things remotely. Uh,

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Speaker 1: Universities like Harvard and the rest we can switch to

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Speaker 1: try to figure it out. Yeah, but and it's a

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Speaker 1: challenge for us, but you're not gonna be able to

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Speaker 1: see that happen at the local level, and they're gonna

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Speaker 1: face real issues in real time. Richard, what did it

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Speaker 1: mean when the President said I'm declaring a national emergency. Well,

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Speaker 1: to some extent, it meant a lot less than people

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Speaker 1: might have thought. And they're much less unusual than people

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Speaker 1: might think. We normally just don't hear about them. I mean,

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Speaker 1: give you an example. I mean, there have been about

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Speaker 1: forty eight formal declarations by the president United States of

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Speaker 1: national emergencies in the last thirty plus years. President Trump

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Speaker 1: has done a whole bunch in the last year itself.

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Speaker 1: It's usually about six every four years of national emergencies

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Speaker 1: declared by the president. President Trump has had. In twenty nineteen,

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Speaker 1: there were about eighty declarations of disasters. So that by

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Speaker 1: itself means a lot less than people might think, because

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Speaker 1: normally the declaration of emergency or the declaration of disaster

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Speaker 1: is a very limited sort of salience. You have something

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Speaker 1: which is quite narrowly defined. We're upset about the Taliban,

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Speaker 1: so we're gonna do export restrictions. That's a more classic

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Speaker 1: declaration of national emergency. Or there's been a flood disaster

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Speaker 1: in a certain state. That's a typical disaster declaration. This

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Speaker 1: one is categorically different, which is why we know so

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Speaker 1: much about it. But as result of that, it doesn't

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Speaker 1: by itself mean that much. It can trigger a lot.

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Speaker 1: So for instance, when the President last Friday, just March thirteenth,

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Speaker 1: declared a national emergency, and he did that under the

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Speaker 1: National Emergencies Act, that's an apthlete named Statute UH, and

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Speaker 1: he also did it under what's called the Stafford Disaster Act.

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Speaker 1: Of the two declarations he made, the National Emergency Act

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Speaker 1: by itself is a far less immediate legal consequence under

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Speaker 1: the Stafford Act, by declaring it a disaster, that potentially

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Speaker 1: frees up about forty five to fifty billion dollars which

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Speaker 1: has already been authorized and allocated by Congress to be

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Speaker 1: managed by the Federal Emergency Management Agency for natural disasters

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Speaker 1: and other kinds of disasters, so that money is immediately

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Speaker 1: freed up to some extent it can be spent by

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Speaker 1: the federal government. But what really then allows is the

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Speaker 1: states to respond to that declaration by in turn declaring

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Speaker 1: a major disaster within their states within their orders and

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Speaker 1: then requesting assistance from the federal government. And if you

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Speaker 1: take a look, President Trump made his declaration on March thirteenth.

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Speaker 1: Immediately after that, all the governors that I can see,

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Speaker 1: all the governors of all the states made matching declarations

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Speaker 1: of disasters within their state as the territories Guam, American, Samoa,

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Speaker 1: Puerto Rico. Everyone did. Because what happens is that makes

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Speaker 1: them eligible to receive that money to do all kinds

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Speaker 1: of things to address the current crisis of the virus.

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Speaker 1: Now note it doesn't allows them to get federal assistance,

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Speaker 1: but it's still by a formula. It's by the federal

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Speaker 1: government and by the states, so it's not just free money.

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Speaker 1: Now Congress could change that if they want on the

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Speaker 1: current formulas, but that's what's gonna allow states, through all

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Speaker 1: kinds of things to shore up their public health resources.

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Speaker 1: So now that you brought up the states, Richard, we're

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Speaker 1: we're going to have to wade into one of the

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Speaker 1: things that people around the world I think consider weirdest

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Speaker 1: about the American system of government and specifically about our

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Speaker 1: response to Corona. And it's something where there's already I've

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Speaker 1: already read some articles not only from abroad from within

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Speaker 1: the US saying what are you people doing? And that

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Speaker 1: is the question of the relationship between the federal government

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Speaker 1: and the state governments or what you know we in

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Speaker 1: our business called constitutional federalism. So in Europe, if a

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Speaker 1: central government, if the government of France wants to declare

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Speaker 1: a state of emergency and in post conditions, the central

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Speaker 1: government does it. And every single government official down to

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Speaker 1: the most local public health official or the rat catcher,

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Speaker 1: they all respond to the same central bureaucracy. It's a

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Speaker 1: centralized system. Our system doesn't work that way. We've got

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Speaker 1: fifty states plus the territories, which are maybe a more

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Speaker 1: complicated issue for federalism. We won't touch on them today.

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Speaker 1: But we have fifty states, each of which has its

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Speaker 1: own inherent constitutional authority to do a whole bunch of stuff,

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Speaker 1: and especially stuff connected to public health in the news.

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Speaker 1: The way that's been playing out is that the first

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Speaker 1: handful of states are starting actually to issue orders that

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Speaker 1: limit movement or that close schools, and that authority, I

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Speaker 1: take it they can exercise entirely on their own without

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Speaker 1: federal authority. Correct as absolutely right. It's it's sort of

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Speaker 1: backwards what people might think from other countries. First of all,

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Speaker 1: the presidential declaration disaster into the Stafford Act would have

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Speaker 1: been of limited significance if the states hadn't responded under

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Speaker 1: the statute to say we read there's a disaster here. Uh.

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Speaker 1: The federal money couldn't be spent the way it was.

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Speaker 1: That's one issue. But then you're right beyond the Stafford

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Speaker 1: Act to the extent that decisions are getting made to

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Speaker 1: close schools, to stop crowds of more than twenty five

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Speaker 1: or more uh here in Massachusetts, to close restaurants and

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Speaker 1: bars and other places for public gathering. That's not a

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Speaker 1: power which it's clear the president United States has in

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Speaker 1: the first instance. Those are powers that state officials and

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Speaker 1: local officials have in this country. What about restrictions on

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Speaker 1: movement under conditions of quarantine. I mean, I think that

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Speaker 1: it's straightforwardly the case that if states have laws on

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Speaker 1: the books, which I think almost all states do, sometimes

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Speaker 1: really old laws that authorize the governor or other public

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Speaker 1: health officials in the state to issue quarantine laws, there

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Speaker 1: doesn't seem to be any doubt that that's an inherent

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Speaker 1: power of the states. Yeah, I think that's right. It's

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Speaker 1: inherent power of the state. It's sort of a classic

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Speaker 1: police power, uh, and the states and local governments, the

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Speaker 1: more one looks at this, they exercise those powers. The

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Speaker 1: idea of of a pandemic and contagion is incredibly unsteading

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Speaker 1: to all of us. But it was more the kind

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Speaker 1: of thing people knew about in the early part of

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Speaker 1: the twentieth century in this nation's history. So this was

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Speaker 1: classic state, local governmental action under their police power. My

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Speaker 1: guess is that the federal government could do a lot

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Speaker 1: more uh than it does. So let's say, let's try

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Speaker 1: to do a concrete scenario. I live in Massachusetts. For

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Speaker 1: some reason, I need to cross the state line into

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Speaker 1: Connecticut for something. I need to help a relative or

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Speaker 1: you know, check in on us on our friend who's

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Speaker 1: who needs special care, and then I want to come

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Speaker 1: back across the border. And in the meantime, the governor

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Speaker 1: of Massachusetts says, no one moved in and out of

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Speaker 1: our state. Realistically, it's not clear to me whether that

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Speaker 1: would be something that would happen, but let's imagine that

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Speaker 1: it did, and things like that are happening in other

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Speaker 1: places around the world. Would the governor probably have the

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Speaker 1: inherent authority just to say, I'm putting the state cops

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Speaker 1: at the border, and I'm saying, hey, even if you

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Speaker 1: live in Massachusetts, show us your driver's license, show us

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Speaker 1: where you live, you can't come back in. I mean,

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Speaker 1: that sounds absolutely insane and crazy, but I think the

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Speaker 1: governor would have that inherent authority. I think people would

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Speaker 1: just a few weeks ago, maybe a few days ago,

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Speaker 1: would have bristled at the idea. Maybe many people would now.

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Speaker 1: But my guess is if the governor made such an

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Speaker 1: order and backed it up with different kinds of science

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Speaker 1: fic basis for what he did, I think you find

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Speaker 1: right now that the court would be very wary in

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Speaker 1: the midst of a public health crisis preventing the government

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Speaker 1: from doing that. We'll be back in just a moment.

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Speaker 1: So let's talk about the courts, which are our backstop

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Speaker 1: that we're used to relying on under circumstances where the

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Speaker 1: government takes steps that violate what we think of as

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Speaker 1: our ordinary liberties. And let's start with a state case

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Speaker 1: where let's say I'm stuck at the border and I

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Speaker 1: want to get back into the state, and I go

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Speaker 1: to court and I say, hey, government, you can't just

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Speaker 1: exclude me from getting back home. That's not within your

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Speaker 1: ordinary powers. And let's imagine you were representing the state

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Speaker 1: in court the same way you represented the federal government

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Speaker 1: in the U. S. Supreme Court many times. What would

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Speaker 1: you argue to the court about why it was justified

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Speaker 1: for the government to sustain that kind of an order.

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Speaker 1: I just basically I rely on two things. The first

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Speaker 1: is the degree of the exigency, what the risks were

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Speaker 1: of contagion, to spread of contagion. Uh. And the second,

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Speaker 1: UH is the time sensitivity of it, that this is

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Speaker 1: a true emergency, that there's not time to stay, this

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Speaker 1: to wait and think about it and study it more.

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Speaker 1: The cost to the public health be too great for

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Speaker 1: the court to do what it might normally do, which

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Speaker 1: is enjoying something which looks like it might be overreaching

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Speaker 1: in order to basically let a more deliberative process be used.

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Speaker 1: I think here I try to stress we don't have that. Uh,

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Speaker 1: we don't have that luxury to do that. Now. I

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Speaker 1: think the kind of government order that would be more

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Speaker 1: suspect in a classic sense is it didn't seem neutral

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Speaker 1: in this face. So if you had a government order

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Speaker 1: which said every one of a certain ethnic origin, we're

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Speaker 1: going to stop them. If it looked like it was

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Speaker 1: deliberately targeting uh certain kinds of people uh and certain

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Speaker 1: kinds of populations, then I can imagine a court might

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Speaker 1: well step in. But akin this sort of a first

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Speaker 1: a moment regulation, it looks fairly neutral in terms of time, place,

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Speaker 1: or manner, uh and really looks like on its face

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Speaker 1: it's geared to deal with a public health emergency. I

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Speaker 1: think a court would be very hard pressed, federal or state,

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Speaker 1: to second guess the governor whose advice appeared to be

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Speaker 1: based on real public health information, you know, and to

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Speaker 1: go to the point that you were making about how

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Speaker 1: it seems hard to imagine the state troopers stopping us

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Speaker 1: at the state border. I wonder if we're not in

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Speaker 1: some sort of gradually sliding scale of what seems weird

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Speaker 1: to us. I mean, certainly the rumors which are out

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Speaker 1: there include constant rumors of the possibility of people being

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Speaker 1: blocked from traveling at state borders. UM. I heard from

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Speaker 1: a group of students recently who were trying to figure

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Speaker 1: out whether they if they left campus they could come

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Speaker 1: back to campus, and one of the issues that they

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Speaker 1: were talking about was, well, gee, if we crossed the

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Speaker 1: state borders, even within the United States, might we be

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Speaker 1: blocked from coming back? And I give them exactly the

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Speaker 1: response that you just made to me, which makes me

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Speaker 1: feel a little better, namely that it seems hard to

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Speaker 1: imagine the government doing that, but that it probably would

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Speaker 1: be within the legal authority of the state under these conditions.

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Speaker 1: And after saying and I thought to myself, is it

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Speaker 1: really so unimaginable now that I've said that? And it

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Speaker 1: may be that just what seems unimaginable today may be

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Speaker 1: less unimaginable tomorrow, and the next day and the next day. Well,

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Speaker 1: that's certainly how I think we all feel. In the

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Speaker 1: last three weeks, everything we couldn't have imagined has become

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Speaker 1: imaginable in some way. I don't want to suggest without limit.

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Speaker 1: So if let's talk about the limits. So if if

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Speaker 1: three months ago a governor of a state had announced

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Speaker 1: that he or she thought there was some extraordinary virus

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Speaker 1: affecting the state, didn't try to shut down the borders,

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Speaker 1: I have no doubt that a federal court would have

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Speaker 1: immediately struck that down. The reason I'm suggesting right now

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Speaker 1: that we find greater willingness on the part of federal

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Speaker 1: judges to defer not to second guests. Is what everyone's reading,

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Speaker 1: what everyone's seeing. So it's not as though a public

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Speaker 1: official governor can sort of willy nearly do this. There's

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Speaker 1: enough evidence in the air right early at the moment

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Speaker 1: to take judicial notice that I think a public health

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Speaker 1: official uh and a governor of a state has instant

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Speaker 1: credibility and this issue, at least to the extent the

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Speaker 1: court is not going to enjoin, it is gonna allow

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Speaker 1: to proceed uh, and then may well hold a hearing

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Speaker 1: to have backed up with a heavy presumption in favor

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Speaker 1: of ruling in favor Ultimately, though, especially if this takes

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Speaker 1: place over a longer period of time, I can imagine

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Speaker 1: that courts would gradually become less deferential as the crisis

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Speaker 1: begins to be more managed and begins to recede, and

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Speaker 1: might have eventually require the state or the federal government

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Speaker 1: to provide some clearer justification for why it's really necessary

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Speaker 1: to block people's movement or to shut down businesses and

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Speaker 1: so forth and so on. It isn't isn't our protection

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Speaker 1: ultimately from the courts. The idea that there's only government

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Speaker 1: authority to block our liberties if there's a compelling reason

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Speaker 1: to do so, like pandemic, and if the government methods

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Speaker 1: for doing so are closely matched to what is necessary,

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Speaker 1: even narrowly tailored, as we sometimes say in the law,

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Speaker 1: to what is necessary. I mean, that's our ultimate protection.

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Speaker 1: I take it. At the end of the day. I mean,

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Speaker 1: the courts themselves don't have armies, they don't have police forces,

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Speaker 1: even you know, the federal government doesn't have necessarily unless

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Speaker 1: they're going to bring in the army. It takes some

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Speaker 1: level of public acquiescence. And and this is going to

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Speaker 1: test the patients, American public. It's one thing to do

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Speaker 1: this for a week, another thing to do for two weeks,

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Speaker 1: But when business uses are shut down for potentially weeks,

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Speaker 1: if not months, uh, schools and the rest, it's going

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Speaker 1: to really try the spirit of America to see whether

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Speaker 1: or not willing the acquiesce in these kinds of very

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Speaker 1: very stringent measures. One of the issues around acquiescence that

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Speaker 1: immediately struck me as criminal enforcement. So if you know

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Speaker 1: the state has the power to make you not leave

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Speaker 1: your house, then they have the power to arrest you

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Speaker 1: and punish you criminally if you violate that rule and

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Speaker 1: did oh for the federal government. I mean, I discovered

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Speaker 1: there is in fact a federal statute that says that

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Speaker 1: if the federal government is assisting the states and enforcing

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Speaker 1: their quarantines or isolation orders, that violating the federal orders

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Speaker 1: is itself a federal crime punishable by prison time. It's

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Speaker 1: hard for me to picture the government of the United

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Speaker 1: States actually exercising the power to arrest people and punish

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Speaker 1: them under these circumstances. But I guess if there were

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Speaker 1: widespread violation, or if someone was violating that to make

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Speaker 1: a profit or some other bad thing, it's there as

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Speaker 1: a as a potentional sanctions. That's right. Uh, the federal

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Speaker 1: government can step in criminally just like the state local

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Speaker 1: governments can, and they can punish people at a huge

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Speaker 1: cost to doing so. But the federal government found their

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Speaker 1: authority being challenged, including maybe authority being challenged at some

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Speaker 1: point by local authorities, we might well see the federal

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Speaker 1: government step in and take action to make clear, as

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Speaker 1: we all know, the federal law is supreme. What's the

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Speaker 1: scenario you're describing there where a state pushed back, Well,

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Speaker 1: you can imagine the federal government believes that a certain

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Speaker 1: part of the country is posing a greater threat to

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Speaker 1: the rest of the country, like Boston. We haven't we

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Speaker 1: have an earlier Uh, we have a big outbreak here,

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Speaker 1: and the federal government itself doesn't want people from Boston

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Speaker 1: and Massachusetts go to other parts of the country. People

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Speaker 1: in Boston might well want to leave. They might well

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Speaker 1: want to get out and get to other parts of

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Speaker 1: the country. I certainly know people, maybe you know people.

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Speaker 1: I know people are headed to Maine. I know people

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Speaker 1: headed to Vermont, New Hampshire. They want to get out

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Speaker 1: of an area which looks like it might be an epicenter,

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Speaker 1: and it might well be. The federal government doesn't want that,

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Speaker 1: but the residents of Massachusetts do want that. So you

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Speaker 1: can imagine in terms of the notion of isolation, the

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Speaker 1: pressure will be from the rest of the country to

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Speaker 1: isolate an area which as epicenter, and that area won't

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Speaker 1: have that same incentive. Again, we're not there yet. That's

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Speaker 1: a scenario. It may be that far from it. But

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Speaker 1: but but right now, a lot of people don't want

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Speaker 1: to see people from Seattle. They might not necessarily want

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Speaker 1: people in neighboring states might not want people from Seattle

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Speaker 1: coming into their rural areas. So here, you know, my

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Speaker 1: civil liberties senses start to tangle because you know, we

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Speaker 1: said that the courts would be suspicious of a rule

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Speaker 1: that targeted certain people, but if it targets people from

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Speaker 1: a certain area, then the courts might say, well, you know,

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Speaker 1: maybe we need that. And our current president is not

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Speaker 1: someone who I think would be at all worried about

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Speaker 1: targeting people from areas that happened coincidentally enough not to

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Speaker 1: be his political supports. And we've already seen him do that. Um,

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Speaker 1: it's under a litigation challenge right now, but we saw

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Speaker 1: him do that when he said that New Yorkers could

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Speaker 1: no longer get t s a pre check benefits because

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Speaker 1: he was angry at the state government for the way

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Speaker 1: they were interacting with the immigration authority. So we know

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Speaker 1: that he's more than capable of targeting people from a state.

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Speaker 1: So how would you imagine a court thinking about it

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Speaker 1: if there were sort of a ban on people from

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Speaker 1: Massachusetts but no ban on people from some you know,

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Speaker 1: red state that also had an outbreak, and someone went

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Speaker 1: to court and said, well, look, you know this isn't

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Speaker 1: really justified. You're just targeting us because we're in Massachusetts

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Speaker 1: and you the federal government don't like us. The president

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Speaker 1: doesn't like us. I think what would happen is the

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Speaker 1: court's in the first instance, we wary I'm posting immediate

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Speaker 1: injunction in the context of public health christ, meaning they

433
00:23:54,640 --> 00:23:56,560
Speaker 1: might just let it. They might just say, we're gonna

434
00:23:56,640 --> 00:23:59,480
Speaker 1: we'll think about this, but for the meantime, this order

435
00:23:59,480 --> 00:24:01,439
Speaker 1: is staying in because of the public health care. I

436
00:24:01,440 --> 00:24:03,880
Speaker 1: think you find a court very wary of doing an

437
00:24:03,920 --> 00:24:07,520
Speaker 1: immediate and enjoining to stop the federal government order. Then

438
00:24:07,560 --> 00:24:10,159
Speaker 1: I think you might well see courts step in. They

439
00:24:10,320 --> 00:24:13,000
Speaker 1: want to see some real evidence. But you're right, there

440
00:24:13,080 --> 00:24:16,320
Speaker 1: is a perversity here. President Trump's support right now is

441
00:24:16,359 --> 00:24:19,040
Speaker 1: not in the major urban areas in the United States.

442
00:24:19,080 --> 00:24:23,280
Speaker 1: His support is much more geographically spread out in this country,

443
00:24:23,320 --> 00:24:27,320
Speaker 1: in the rural areas. It's even possible this virus could

444
00:24:27,359 --> 00:24:32,240
Speaker 1: present a rural versus urban rift. And this president does

445
00:24:32,320 --> 00:24:36,679
Speaker 1: all kinds of unprecedented things. There are no norms that

446
00:24:36,760 --> 00:24:40,120
Speaker 1: I found applicable to him. Uh So, the notion that

447
00:24:40,160 --> 00:24:44,639
Speaker 1: he might well find the reasons not to do something

448
00:24:44,640 --> 00:24:48,240
Speaker 1: extorting with affective urban area like Boston or the state

449
00:24:48,280 --> 00:24:52,320
Speaker 1: of California, again not a state which he has been

450
00:24:52,840 --> 00:24:57,239
Speaker 1: sort of shy about, uh, disapproving of their of their

451
00:24:57,280 --> 00:25:01,040
Speaker 1: actions undoutly not unrelated to the fact that he finds

452
00:25:01,040 --> 00:25:03,560
Speaker 1: no political support there. It's not as far fet just

453
00:25:03,600 --> 00:25:07,280
Speaker 1: one might have hoped. The legal scenario where the president

454
00:25:07,600 --> 00:25:12,879
Speaker 1: orders a national shutdown, where the president says, look more

455
00:25:12,920 --> 00:25:16,280
Speaker 1: or less as governors have done in individual states, everybody

456
00:25:16,320 --> 00:25:20,119
Speaker 1: now stay at home. Every business other than you know,

457
00:25:20,160 --> 00:25:23,399
Speaker 1: a food services business shut down or and you know,

458
00:25:23,440 --> 00:25:26,800
Speaker 1: gas stations shut down. Does that seem to you within

459
00:25:26,920 --> 00:25:32,160
Speaker 1: the scope of the president's authority under the current statutory framework.

460
00:25:32,160 --> 00:25:34,080
Speaker 1: I mean, it looks to me from looking at the statutes,

461
00:25:34,119 --> 00:25:39,280
Speaker 1: like the Centers for Disease Control can order effectively quarantine

462
00:25:39,320 --> 00:25:42,520
Speaker 1: or isolation features. So I think the president maybe couldn't

463
00:25:42,520 --> 00:25:44,080
Speaker 1: just do it on his own. Maybe he would have

464
00:25:44,160 --> 00:25:46,679
Speaker 1: to make sure the CDC was on board. But the

465
00:25:46,680 --> 00:25:49,639
Speaker 1: CDC works for the president, and again this is not

466
00:25:49,720 --> 00:25:53,040
Speaker 1: so crazy because it's happened in most other countries. Does

467
00:25:53,040 --> 00:25:56,439
Speaker 1: that look to you like within the realm of constitutional reason.

468
00:25:56,920 --> 00:26:00,840
Speaker 1: I'd have to look at the statutes themselves, because the

469
00:26:00,880 --> 00:26:04,560
Speaker 1: president's inherent authority over this area is different than it

470
00:26:04,560 --> 00:26:07,000
Speaker 1: would be pretty minimal, yeah, than in other countries. Look

471
00:26:07,040 --> 00:26:11,320
Speaker 1: at the statute, See the CDC authority, See who exactly

472
00:26:11,359 --> 00:26:13,880
Speaker 1: Congress has allowed it, and see who Congress has delegated

473
00:26:13,920 --> 00:26:17,159
Speaker 1: that authority to. Within the CDC. It's not going to

474
00:26:17,320 --> 00:26:20,240
Speaker 1: refer to the President United States by name. It's gonna

475
00:26:20,280 --> 00:26:23,639
Speaker 1: referred to certain people within the c. D C is

476
00:26:23,680 --> 00:26:26,240
Speaker 1: going to give them the authority and the first instance,

477
00:26:26,560 --> 00:26:29,919
Speaker 1: and that by itself is a limiting factor. That's really important.

478
00:26:30,080 --> 00:26:31,640
Speaker 1: We can we just drill down on that for one second,

479
00:26:31,640 --> 00:26:34,960
Speaker 1: because the point you made is so significant. When Congress

480
00:26:35,000 --> 00:26:37,959
Speaker 1: authorizes the federal government to do stuff like this in

481
00:26:38,000 --> 00:26:41,000
Speaker 1: the public health interests or the public safety interest, it

482
00:26:41,040 --> 00:26:45,359
Speaker 1: doesn't say typically the President of United States may it

483
00:26:45,440 --> 00:26:49,040
Speaker 1: says the Centers for Disease Control or the Environmental Protection Agency,

484
00:26:49,160 --> 00:26:52,879
Speaker 1: or it gives the authority, usually to an expert agency

485
00:26:52,920 --> 00:26:56,959
Speaker 1: to exercise its expertise to make the determination that this

486
00:26:57,080 --> 00:27:01,480
Speaker 1: is genuinely required or necessary. But we have this three

487
00:27:01,520 --> 00:27:04,080
Speaker 1: part system of government where in theory that agency is

488
00:27:04,119 --> 00:27:06,679
Speaker 1: always under the command in some form or another of

489
00:27:06,760 --> 00:27:11,440
Speaker 1: the president. So in real world terms, what limitation does

490
00:27:11,520 --> 00:27:14,600
Speaker 1: that impose what how does it limit the president's actions

491
00:27:15,160 --> 00:27:17,960
Speaker 1: when the statute authorizes someone who works for the president

492
00:27:18,160 --> 00:27:19,800
Speaker 1: to make a decision like this, because we know this

493
00:27:19,840 --> 00:27:21,720
Speaker 1: president will just want to say I did it. He

494
00:27:21,760 --> 00:27:24,200
Speaker 1: will not want to say the CDC did it. Well,

495
00:27:24,200 --> 00:27:26,639
Speaker 1: he has to get someone in position with authority in

496
00:27:26,680 --> 00:27:29,840
Speaker 1: the in that agency to take the action he requests. Uh.

497
00:27:29,880 --> 00:27:33,800
Speaker 1: And if they decline to do it, which has happened. Uh,

498
00:27:33,920 --> 00:27:36,320
Speaker 1: If they declined to do it, he can he can

499
00:27:36,359 --> 00:27:39,240
Speaker 1: fire them and hire someone else, and hire somebody else.

500
00:27:40,160 --> 00:27:43,480
Speaker 1: But that procedure by itself, if there are a whole

501
00:27:43,520 --> 00:27:49,639
Speaker 1: series of resignations or firing and hiring an appointment of acting,

502
00:27:49,960 --> 00:27:52,920
Speaker 1: that's gonna then raise the kind of trigger concerns and

503
00:27:52,960 --> 00:27:55,760
Speaker 1: federal judges in federal courts because they know there's a

504
00:27:55,800 --> 00:27:59,639
Speaker 1: reason why Congress assigned that to the officer the first instance,

505
00:27:59,720 --> 00:28:02,840
Speaker 1: I I know of only off hand one statute which

506
00:28:02,880 --> 00:28:06,000
Speaker 1: actually assigns that kind of authority the president United States

507
00:28:06,240 --> 00:28:08,480
Speaker 1: as opposed to an agency, and that's actually the Federal

508
00:28:08,480 --> 00:28:11,760
Speaker 1: super Fund law that has this waste law. And the

509
00:28:11,840 --> 00:28:15,040
Speaker 1: statute is written in terms of the president. And that's

510
00:28:15,040 --> 00:28:18,480
Speaker 1: because Congress couldn't decide whether it give that authority to

511
00:28:18,480 --> 00:28:20,080
Speaker 1: the head of e p A or the head of

512
00:28:20,119 --> 00:28:22,240
Speaker 1: the U. S. Army Corps Engineers to address hands to

513
00:28:22,320 --> 00:28:24,520
Speaker 1: his waiste. So they compromise by giving it to the

514
00:28:24,560 --> 00:28:27,960
Speaker 1: President in name in the statute. But that's highly unusual.

515
00:28:28,080 --> 00:28:30,040
Speaker 1: And does that statute, that super fund Statute, which is

516
00:28:30,080 --> 00:28:32,679
Speaker 1: in your heart Latin of environmental law, does it require

517
00:28:32,680 --> 00:28:35,480
Speaker 1: the president to make some factual findings of some kind

518
00:28:35,680 --> 00:28:38,960
Speaker 1: before he exercises that authority. It does certain kinds of

519
00:28:39,000 --> 00:28:42,280
Speaker 1: endangerment fundings, But the President has by executive order immediately

520
00:28:42,320 --> 00:28:46,080
Speaker 1: delegated that to the head of EPA, the Environment Protection Agency,

521
00:28:46,640 --> 00:28:49,640
Speaker 1: So he is basically made it as though the statute

522
00:28:49,920 --> 00:28:52,400
Speaker 1: did that, but the statute didn't. The President United States

523
00:28:52,400 --> 00:28:55,320
Speaker 1: could any time take take that away, but he can't

524
00:28:55,320 --> 00:28:58,720
Speaker 1: do that for the CDC UH And the CDC is

525
00:28:58,720 --> 00:29:02,320
Speaker 1: a particularly and see that it's obviously got a culture

526
00:29:03,240 --> 00:29:05,520
Speaker 1: and a set of norms to it. So one could

527
00:29:05,560 --> 00:29:10,120
Speaker 1: well imagine, uh that a head of a CDC or

528
00:29:10,120 --> 00:29:14,120
Speaker 1: an office from the CDC would decline a directive from

529
00:29:14,160 --> 00:29:16,920
Speaker 1: the President more than you could expect, you know, the

530
00:29:16,960 --> 00:29:19,640
Speaker 1: Secretary State would or the Secretary of Defense, Board of

531
00:29:19,680 --> 00:29:23,680
Speaker 1: the Secretary Treasury would And that's precisely why Congress, when

532
00:29:23,760 --> 00:29:27,000
Speaker 1: it passed those statutes and gave those kind of extorditany authorities,

533
00:29:27,360 --> 00:29:30,440
Speaker 1: didn't just give it to the President United States, but

534
00:29:30,520 --> 00:29:34,240
Speaker 1: gave it to the CDC. The structural issue here, which

535
00:29:34,320 --> 00:29:36,240
Speaker 1: you know, I'm really fascinated by, and it's been under

536
00:29:36,240 --> 00:29:39,840
Speaker 1: attacked throughout the Trump presidency, which is our background assumption

537
00:29:39,840 --> 00:29:43,200
Speaker 1: of what protects our liberties in conditions where expertise is

538
00:29:43,280 --> 00:29:46,320
Speaker 1: needed to limit our liberties, is this idea that there

539
00:29:46,360 --> 00:29:51,040
Speaker 1: are professional bureaucrats who are as close to rational objectivity

540
00:29:51,120 --> 00:29:53,920
Speaker 1: as is possible for humans, who are embedded in these

541
00:29:53,920 --> 00:29:56,560
Speaker 1: different parts of the government, and that when Congress gives

542
00:29:56,600 --> 00:29:58,800
Speaker 1: big authority to the executive branch, it's really trying to

543
00:29:58,800 --> 00:30:00,960
Speaker 1: give it to those people, the people whom Donald Trump

544
00:30:01,040 --> 00:30:03,240
Speaker 1: considers the deep state, you know, the people who are

545
00:30:03,280 --> 00:30:07,120
Speaker 1: supposed to act based on rational judgment, cost benefit analysis,

546
00:30:07,240 --> 00:30:11,520
Speaker 1: and make decisions that are in everyone's interest. Trump has

547
00:30:11,560 --> 00:30:14,560
Speaker 1: been so busy trying to erode and undercut that kind

548
00:30:14,560 --> 00:30:18,160
Speaker 1: of authority and expertise that we really have had to

549
00:30:18,200 --> 00:30:20,840
Speaker 1: thank for the last you know, three plus years about

550
00:30:20,960 --> 00:30:23,560
Speaker 1: just how strong that resistance power is. And I'm not

551
00:30:23,640 --> 00:30:26,520
Speaker 1: using resistance in a capital our resistance to Trump, but

552
00:30:26,600 --> 00:30:29,080
Speaker 1: just in the sense of, you know what bureaucrats who

553
00:30:29,080 --> 00:30:31,600
Speaker 1: are supposed to exercise their authority are doing. And it

554
00:30:31,640 --> 00:30:34,600
Speaker 1: does seem to me, given everything he's said and done

555
00:30:34,680 --> 00:30:38,120
Speaker 1: already during the Corona pandemic, that he will be very

556
00:30:38,160 --> 00:30:41,440
Speaker 1: unsympathetic to the idea that there are professionals who exercise

557
00:30:41,560 --> 00:30:44,800
Speaker 1: judgment and who have to kick in with their own

558
00:30:44,880 --> 00:30:47,920
Speaker 1: judgment before heat tech steps. I can very easily picture

559
00:30:48,000 --> 00:30:51,280
Speaker 1: him contradicting them in either direction, either to say I've

560
00:30:51,280 --> 00:30:52,600
Speaker 1: said everyone has to stay home and they have to

561
00:30:52,600 --> 00:30:54,719
Speaker 1: stay home, or the other way when those officials say

562
00:30:54,760 --> 00:30:56,320
Speaker 1: we think everyone should stay home, and you can imagine

563
00:30:56,360 --> 00:30:59,760
Speaker 1: Trump saying, no, you know, I refuse to do that.

564
00:31:00,440 --> 00:31:02,920
Speaker 1: And this is a case where, you know, all of

565
00:31:02,960 --> 00:31:05,200
Speaker 1: our worries about the separation of powers that we've been

566
00:31:05,240 --> 00:31:07,280
Speaker 1: talking about over the last three plus years, I mean,

567
00:31:07,480 --> 00:31:11,360
Speaker 1: I've been talking a lot about it, um you know,

568
00:31:11,560 --> 00:31:14,200
Speaker 1: are sort of coming to a head in a situation

569
00:31:14,280 --> 00:31:17,160
Speaker 1: where it could really matter. I think that's absolutely right now.

570
00:31:17,240 --> 00:31:20,160
Speaker 1: I've actually found it someone unsettling. Uh, In the past

571
00:31:20,200 --> 00:31:23,000
Speaker 1: few weeks, I expect others have as well. To see

572
00:31:23,000 --> 00:31:26,680
Speaker 1: the President United States surrounded by those public health officials, uh,

573
00:31:26,720 --> 00:31:28,840
Speaker 1: and he seems to be trying to co opt them

574
00:31:28,880 --> 00:31:31,560
Speaker 1: and make them into public health in the sort of

575
00:31:31,560 --> 00:31:35,280
Speaker 1: political spokes people for him to be. You know, they

576
00:31:35,320 --> 00:31:39,280
Speaker 1: now congratulate him when they stand up and make comments

577
00:31:39,320 --> 00:31:42,680
Speaker 1: on everything that he's doing. I'd like some separation there

578
00:31:43,240 --> 00:31:46,240
Speaker 1: between the President United States of the public health officials

579
00:31:46,240 --> 00:31:49,720
Speaker 1: and not make them seem like their mouthpieces political mouthpieces

580
00:31:49,960 --> 00:31:51,880
Speaker 1: for the president. So I do worry that he's a

581
00:31:51,960 --> 00:31:55,800
Speaker 1: rooting that kind of trust we might otherwise have, which

582
00:31:55,920 --> 00:31:58,120
Speaker 1: is so important right now in a moment of crisis.

583
00:31:59,160 --> 00:32:01,520
Speaker 1: This deserves its own conversation, and maybe we'll be able

584
00:32:01,560 --> 00:32:04,440
Speaker 1: to have it going forward. But I have a worry

585
00:32:04,480 --> 00:32:07,240
Speaker 1: in the back of my mind, maybe not the back,

586
00:32:07,280 --> 00:32:12,600
Speaker 1: maybe the middle of my mind about the elections. Um.

587
00:32:12,640 --> 00:32:14,640
Speaker 1: You know, there could be good public health reasons for

588
00:32:14,720 --> 00:32:18,520
Speaker 1: justifying delays in some primaries, but that may not matter

589
00:32:18,600 --> 00:32:22,280
Speaker 1: all that much, especially if the next few primaries end

590
00:32:22,400 --> 00:32:26,360
Speaker 1: up leaving one of the Democratic challengers way ahead of

591
00:32:26,440 --> 00:32:29,320
Speaker 1: the other. So maybe delaying those primaries isn't the end

592
00:32:29,320 --> 00:32:33,440
Speaker 1: of the world, but the big worry, of course, is

593
00:32:33,640 --> 00:32:37,840
Speaker 1: the presidential election. Nothing in the Constitution as I read it,

594
00:32:38,320 --> 00:32:43,480
Speaker 1: would allow authorized, or even contemplate delaying a presidential election.

595
00:32:44,200 --> 00:32:47,160
Speaker 1: But individual states have a lot of discretion in how

596
00:32:47,200 --> 00:32:50,120
Speaker 1: they could enable that election to happen. States could put

597
00:32:50,120 --> 00:32:54,400
Speaker 1: in place mail in voting, They could experiment with various

598
00:32:54,440 --> 00:32:58,400
Speaker 1: online methods, provided those are protected from Russian hacking efforts.

599
00:32:59,120 --> 00:33:01,160
Speaker 1: But I think it might be too soon to sort

600
00:33:01,160 --> 00:33:04,000
Speaker 1: of put a marker down and say no, the President

601
00:33:04,000 --> 00:33:10,400
Speaker 1: of United States or Congress cannot delay a presidential election. Yeah.

602
00:33:10,440 --> 00:33:13,320
Speaker 1: I think it's very little doubt that the president United

603
00:33:13,320 --> 00:33:16,640
Speaker 1: States cannot do it on his own, that that would

604
00:33:17,360 --> 00:33:20,360
Speaker 1: raise very serious constitutional issues. I don't think there's any

605
00:33:20,400 --> 00:33:24,600
Speaker 1: worry that Congress would do it right now, given a democratic,

606
00:33:25,080 --> 00:33:28,840
Speaker 1: democratic house. Here here's the worry. The worry is the states,

607
00:33:29,960 --> 00:33:34,920
Speaker 1: to the extent um that the President directed to the States,

608
00:33:35,600 --> 00:33:38,560
Speaker 1: uh to do it to the extent that we've seen,

609
00:33:39,000 --> 00:33:42,640
Speaker 1: sort of, to my sense, a shocking acquiescence in the

610
00:33:42,680 --> 00:33:48,440
Speaker 1: presence demands by a lot of Republican leadership in this country.

611
00:33:48,720 --> 00:33:50,720
Speaker 1: I don't think it's beyond the pale. I hope it

612
00:33:50,840 --> 00:33:56,000
Speaker 1: is beyond the pale. The President United States basically directed governors.

613
00:33:56,160 --> 00:33:59,600
Speaker 1: I don't I've not done a recent count of governors

614
00:33:59,640 --> 00:34:04,000
Speaker 1: that are UH by Republican. But if a sizeable number

615
00:34:04,040 --> 00:34:08,560
Speaker 1: of states responded to that by saying, we are not

616
00:34:08,640 --> 00:34:13,719
Speaker 1: going to hold elections because of this disaster which inflicting

617
00:34:13,880 --> 00:34:19,239
Speaker 1: us UH, and I'm sure we could find instances of fires, tornadoes, hurricanes,

618
00:34:19,400 --> 00:34:23,160
Speaker 1: maybe even contagion in the past where elections were delayed

619
00:34:23,440 --> 00:34:25,400
Speaker 1: not by order of the President United States, but by

620
00:34:25,520 --> 00:34:29,320
Speaker 1: order of a local government official or state government official.

621
00:34:29,440 --> 00:34:32,759
Speaker 1: I'm hoping that doesn't happen UM, But at the very

622
00:34:32,880 --> 00:34:37,120
Speaker 1: least I can say with this president, and I can

623
00:34:37,200 --> 00:34:41,480
Speaker 1: well see him making such a request, and then the

624
00:34:41,560 --> 00:34:45,520
Speaker 1: question will be whether or not those Republican governors view

625
00:34:45,560 --> 00:34:50,960
Speaker 1: themselves as independent actors or not as usual, Richard, talking

626
00:34:50,960 --> 00:34:53,400
Speaker 1: to you not only teaches me a huge amount, but

627
00:34:53,440 --> 00:34:56,279
Speaker 1: it enables me to think through the structure and see

628
00:34:56,280 --> 00:34:58,040
Speaker 1: the see the problems coming down the road. I think

629
00:34:58,040 --> 00:35:00,840
Speaker 1: of you as the constitutional lawyers, traditional lawyer. You know,

630
00:35:00,880 --> 00:35:03,120
Speaker 1: you're the person, as you know, whom I always come

631
00:35:03,120 --> 00:35:04,719
Speaker 1: to it sometimes it's two in the morning to say

632
00:35:04,760 --> 00:35:07,120
Speaker 1: I'm trying to figure out this constitutional issue. Am I right,

633
00:35:07,160 --> 00:35:08,719
Speaker 1: Am I wrong? How should I be thinking about it?

634
00:35:08,760 --> 00:35:11,440
Speaker 1: And you've just been super super helpful on all of

635
00:35:11,480 --> 00:35:14,600
Speaker 1: these issues as we've been going through the coroner situation

636
00:35:14,600 --> 00:35:17,080
Speaker 1: and in this conversation as well. Thank you very very much.

637
00:35:18,960 --> 00:35:21,800
Speaker 1: As I talked to Richard, I gradually found myself getting

638
00:35:21,840 --> 00:35:26,279
Speaker 1: more and more nervous about the possible civil liberties consequences

639
00:35:26,320 --> 00:35:30,600
Speaker 1: of the coronavirus pandemic. It's not our primary worry right now.

640
00:35:30,680 --> 00:35:33,440
Speaker 1: Our primary worry is staying safe, and in a moment

641
00:35:33,520 --> 00:35:36,479
Speaker 1: of trying to stay safe, we do tend, as Richard said,

642
00:35:36,760 --> 00:35:42,040
Speaker 1: to defer to the government's decisions, but as this pandemic continues,

643
00:35:42,400 --> 00:35:45,160
Speaker 1: we should keep a close eye on how our civil

644
00:35:45,200 --> 00:35:48,520
Speaker 1: liberties do end up being limited and constrained by the government,

645
00:35:49,040 --> 00:35:52,720
Speaker 1: because those liberties are crucial to our human well being.

646
00:35:53,280 --> 00:35:55,280
Speaker 1: They may not be as important as not being sick,

647
00:35:55,719 --> 00:35:58,279
Speaker 1: but in the long run, they set the conditions for

648
00:35:58,360 --> 00:36:06,120
Speaker 1: a healthy and free society. Deep Background is brought to

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Speaker 1: you by Pushkin Industries. Our producer is Lydia gene Cott,

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Speaker 1: with studio recording by Joseph Friedman and mastering by Jason

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Speaker 1: Gambrell and Martin Gonzalez. Our showrunner is Sophie McKibbin. Our

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Speaker 1: theme music is composed by Luis Gara. Special thanks to

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Speaker 1: the Pushkin Brass, Malcolm Godwell, Jacob Weissberg, and Mia Lobel.

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Speaker 1: I'm Noah Feldman. I also write a column for Bloomberg Opinion,

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Speaker 1: which you can find at Bloomberg dot com Backslash Feldman.

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Speaker 1: at Noah R. Feldman. This is deep background