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Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: The limits of who has what emergency powers are being

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Speaker 1: tested by the coronavirus pandemic as states order residents to

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Speaker 1: stay at home while President Trump considers the lifting of

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Speaker 1: precautions over the objections of governors. Joining me is Stephen Vladdock,

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Speaker 1: Professor at the University of Texas Law School. Steve, First,

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Speaker 1: of all, governors can order people to stay at home

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Speaker 1: and businesses to close. But is there a limit to

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Speaker 1: how they can enforce those orders. I mean, it really

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Speaker 1: varies that to stay June. The short answer is, the

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Speaker 1: limits on governors in those circumstances are just the law

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Speaker 1: in past, which they're crossing into an invasion of our

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Speaker 1: own civil liberties. But you know, states and multiple governments

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Speaker 1: have a general police power that can regulate, you know,

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Speaker 1: the regular sort of content of our daily lives. So

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Speaker 1: if there's a strong enough justification for the shelter at

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Speaker 1: home and shelter and place orders, and if they're not

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Speaker 1: violating our individual rights, then they're generally permissible, especially in

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Speaker 1: a public health crisis like this one. So now the

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Speaker 1: president has suggested he has the power to order people

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Speaker 1: back to work. Suppose that conflicts with the governor's stay

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Speaker 1: at home order. Who wins? Can he override a governor's

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Speaker 1: stay at home order? I mean, the short answer is no.

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Speaker 1: The federal government does not have the same kind of

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Speaker 1: general regulatory police powers that local and state governments have.

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Speaker 1: And so, you know, whatever the president might wish, he

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Speaker 1: can't just snap his fingers and order schools to reopen

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Speaker 1: and order private businesses to you know, go back to

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Speaker 1: where we were a month ago. You know, there are

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Speaker 1: sort of more subtle things the president can do, some

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Speaker 1: of which I think are pretty punitive, some of which

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Speaker 1: I think are more sort of leading by persuasion. But

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Speaker 1: you know, the actual authority here is principally at the

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Speaker 1: local and state levels, and it's really up to our

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Speaker 1: mayors and our governors to make those decisions for us.

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Speaker 1: Suppose the president ordered businesses deemed essential to get back

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Speaker 1: to business. Could he do that? I mean, I really

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Speaker 1: don't think so. The federal government's power over business really

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Speaker 1: is only through the length of Congress's power to regulate

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Speaker 1: interstate commerce. And there really is no statutes that exists

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Speaker 1: right now that would authorize the president as a matter

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Speaker 1: of statutory interpretation to issue that kind of in order.

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Speaker 1: I think Congress maybe could pass some kind of statutes

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Speaker 1: that affected those businesses that are part of interstate commerce,

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Speaker 1: but you know, I don't think that that's likely any

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Speaker 1: time soon from this Congress or really from any other compress.

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Speaker 1: When the President issues guidelines like he announced on March sixteen,

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Speaker 1: do they carry any force at all? Not? I mean

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Speaker 1: the guidelines the President issued, those guidelines which came from

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Speaker 1: the CDC, really were you know, binding within the executive

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Speaker 1: branch June, but otherwise just suggestions to everybody else. You know,

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Speaker 1: the federal government does have a whole lot of coercive powers,

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Speaker 1: including course of powers and the public health emergency like

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Speaker 1: this one. But telling individual small businesses, telling in the

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Speaker 1: visual public schools when they can open, when they can close,

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Speaker 1: what they should do, what they shouldn't. You know, that's

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Speaker 1: beyond the power anyone's ever thought that President United States has,

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Speaker 1: and probably even beyond the power of the entire federal

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Speaker 1: government if it could actually get on the same page.

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Speaker 1: There's been this struggle where the governors want the President

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Speaker 1: to start acting under the Defense Production Act. Where does

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Speaker 1: that stand right now? And is there anything they can

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Speaker 1: do besides you their persuasive powers. So, I mean the

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Speaker 1: Defense Production Act is this nifties era statute that gives

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Speaker 1: the federal government powers that basically a sort of ratchet

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Speaker 1: and level of coerciveness to not take over private industry June,

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Speaker 1: but to basically sort of jump the line when it

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Speaker 1: comes to ordering goods, buying goods, commissioning you know, the

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Speaker 1: manufacturer particular goods. And you know, President Trump made a

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Speaker 1: big deal out of signing an executive order that unlocked

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Speaker 1: the Defense Production Act, but there's no indication that the

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Speaker 1: federal government has taken any further steps to use the

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Speaker 1: coercive authorities, for example, to buy up a whole bunch

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Speaker 1: of ventilators or you know, ppe personal protective equipment. And

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Speaker 1: I think what these governors are really frustrated about is

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Speaker 1: this is power the federal government has and could be exercising.

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Speaker 1: The fact that they're not leaves these individual governors to

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Speaker 1: basically try to make their own deals with these companies.

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Speaker 1: And there's a big difference June, when you've got fifty

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Speaker 1: different governors competing for a limited pool of resources versus

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Speaker 1: one federal government that by federal law is entitled to

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Speaker 1: priority over everybody else. That's why the Defense Production Acts

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Speaker 1: is such an important tool, and that's why I think

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Speaker 1: it's so frustrating too many that it's been underutilized to

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Speaker 1: this point. The White House is going to suggest categorizing

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Speaker 1: counties as low, medium, or high risk. Do governors do

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Speaker 1: they have any obligations to follow that? Not? In the abstract? June,

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Speaker 1: I mean, I think again, the president's principal lever here,

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Speaker 1: besides persuasions, it is his control over the federal workforce.

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Speaker 1: And so it's possible that this is a precursor to

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Speaker 1: send him federal employees in those counties labeled low risk

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Speaker 1: back to work. But beyond governing the federal workforce and

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Speaker 1: beyond you know, parting out federal dollars, the president really

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Speaker 1: doesn't have any formal authority to tell governors and mayors

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Speaker 1: what they should be doing about their own public health crisis.

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Speaker 1: And I think that's something that in some circumstances as

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Speaker 1: a bug and in others is a feature. But is

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Speaker 1: that defining structural result of our system of federalism. The

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Speaker 1: president has the power to declare a national emergency, and

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Speaker 1: some people see that and think that that gives him

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Speaker 1: some kinds of enormous powers over the States, But does it. No,

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Speaker 1: I mean to declare him a national emergency, as you know,

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Speaker 1: as we saw with the border wall, is really just

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Speaker 1: a means for unlocking a bunch of other authorities. And

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Speaker 1: in this context, the authorities that you know, the national

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Speaker 1: emergency and loss are principally about funding. And so the

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Speaker 1: area where I think the President has the most control

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Speaker 1: is in deciding just how much federal disaster funds to

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Speaker 1: share with states to open up resources to help them

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Speaker 1: pay for everything they're doing to manage this crisis. I

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Speaker 1: think June, it's not hard to see how the ability

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Speaker 1: to control those funds gives the president a pretty prominent

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Speaker 1: ability to persuade by trying to get states to cooperate.

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Speaker 1: But at the end of the day, it's just about cooperation.

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Speaker 1: In Florida, the governor has ordered National Guard units to

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Speaker 1: greet passengers arriving from the New York area and ask

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Speaker 1: where they plan to self isolate while they're in Florida,

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Speaker 1: and local sheriffs are empowered to enforce that. So any

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Speaker 1: kind of do process concerns here and why it's just

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Speaker 1: people from New York. Yeah, I think. I think there

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Speaker 1: are a couple of different problems. June, I think that

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Speaker 1: the most glaring problems with Florida's doing is that they're

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Speaker 1: acting a lot more aggressively towards folks traveling from out

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Speaker 1: of state and towards their own state citizens. I mean,

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Speaker 1: I think Florida has been one of the lack cer

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Speaker 1: states to date with regard to shelter in place restrictions

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Speaker 1: and attempts to flatten the curve. But from a Comma perspective,

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Speaker 1: the real problem with what Florida is doing is the

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Speaker 1: requirement in Article four of the Constitution that states not

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Speaker 1: discriminate against out of state residence, at least without sufficient cause.

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Speaker 1: And so it's not hard to imagine if this ever

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Speaker 1: got to litigation, that a New Yorker or New Jersey

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Speaker 1: resident who is subject to one of these restrictions, or

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Speaker 1: let's say, who got a ticket for not compliant with

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Speaker 1: the self quarantine, would object that Florida's good reason for

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Speaker 1: being especially harsh on them. Concerns about public health are

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Speaker 1: belied by Florida's lack of similar aggressiveness towards its own residence.

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Speaker 1: That's Stephen Vladick, Professor at the University of Texas School

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Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Grosso.

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Speaker 1: This is Bloomberg