1 00:00:15,356 --> 00:00:23,036 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:23,076 --> 00:00:26,556 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:27,076 --> 00:00:32,636 Speaker 1: I'm Noah Feldman. The coronavirus pandemic is fundamentally a public 4 00:00:32,676 --> 00:00:35,396 Speaker 1: health challenge to us right now, but as we've seen 5 00:00:35,476 --> 00:00:37,876 Speaker 1: in a series of special episodes that we've been running 6 00:00:37,996 --> 00:00:41,796 Speaker 1: the last few weeks, that public health challenge has broad 7 00:00:41,916 --> 00:00:46,516 Speaker 1: interaction with a whole bunch of other serious policy issues. 8 00:00:46,996 --> 00:00:49,716 Speaker 1: One is the economy, and we've explored that in a 9 00:00:49,716 --> 00:00:55,316 Speaker 1: recent episode. Another is the law itself, specifically constitutional law, 10 00:00:55,516 --> 00:00:58,716 Speaker 1: the law that governs the question of where public health 11 00:00:58,756 --> 00:01:02,916 Speaker 1: stops and your individual liberties begin. That's an issue that's 12 00:01:02,956 --> 00:01:06,516 Speaker 1: only beginning to emerge as central in our public debate 13 00:01:06,676 --> 00:01:10,836 Speaker 1: around governmental response the coronavirus. To talk about this issue, 14 00:01:11,116 --> 00:01:14,716 Speaker 1: I had a conversation with Professor Richard Lazarus of Harvard 15 00:01:14,796 --> 00:01:17,876 Speaker 1: Law School. Richard is one of the leading Supreme Court 16 00:01:17,876 --> 00:01:22,156 Speaker 1: advocates in the country. His area of specialization is environmental 17 00:01:22,196 --> 00:01:25,836 Speaker 1: and natural resources law, and that makes him truly expert 18 00:01:26,036 --> 00:01:30,196 Speaker 1: on the question of how expertise in government judgment within 19 00:01:30,436 --> 00:01:34,316 Speaker 1: government agencies interacts with the power of the federal government 20 00:01:34,676 --> 00:01:38,236 Speaker 1: and the power of the courts. He's the author of 21 00:01:38,236 --> 00:01:41,236 Speaker 1: a new book, The Rule of Five, Making Climate History 22 00:01:41,236 --> 00:01:43,996 Speaker 1: at the Supreme Court, which gives you the inside story 23 00:01:44,036 --> 00:01:51,316 Speaker 1: of the most significant environmental law case of recent decades. Okay, so, Richard, 24 00:01:51,396 --> 00:01:54,476 Speaker 1: let's just start with Many government institutions are trying to 25 00:01:54,556 --> 00:01:58,116 Speaker 1: respond to the Corona crisis, and the Supreme Court is 26 00:01:58,116 --> 00:02:02,396 Speaker 1: now the latest to have announced some steps. What's your 27 00:02:02,396 --> 00:02:04,636 Speaker 1: sense of what the Court has in fact done. Well, 28 00:02:04,636 --> 00:02:08,356 Speaker 1: what the Court is done is they've decided to take 29 00:02:08,356 --> 00:02:12,116 Speaker 1: the quite significant step of postponing oral argument. The Court 30 00:02:12,156 --> 00:02:15,116 Speaker 1: was supposed here oral argument in the last week of March, 31 00:02:15,196 --> 00:02:18,236 Speaker 1: beginning on Monday, March twenty third. The Court has announced 32 00:02:18,276 --> 00:02:22,636 Speaker 1: that it's going to postpone the entire March or argument session, 33 00:02:22,676 --> 00:02:26,316 Speaker 1: that's two weeks of argument, and then hold those cases 34 00:02:26,356 --> 00:02:30,236 Speaker 1: instead for argument in April. And I expect as a 35 00:02:30,236 --> 00:02:33,516 Speaker 1: good chance the Court may well hold argument in May. 36 00:02:33,956 --> 00:02:36,556 Speaker 1: In addition to that, I mean, I understand they're leaving 37 00:02:36,596 --> 00:02:39,236 Speaker 1: the door open for May, and we all hope that 38 00:02:39,436 --> 00:02:41,476 Speaker 1: things have passed their worst end. But why would you 39 00:02:41,516 --> 00:02:44,036 Speaker 1: think that things would be so different in May. I mean, 40 00:02:44,076 --> 00:02:46,596 Speaker 1: I don't see anything from any epidemiologist that thinks that 41 00:02:46,596 --> 00:02:49,436 Speaker 1: things are going to be better then, especially in Washington, DC, 42 00:02:49,636 --> 00:02:52,276 Speaker 1: where in fact the cases have been relatively slow to 43 00:02:52,516 --> 00:02:55,636 Speaker 1: surprisingly slow to get going. Yeah, I think the court 44 00:02:55,796 --> 00:02:58,956 Speaker 1: is one acting in a hopeful, optimistic way, the way 45 00:02:58,956 --> 00:03:01,756 Speaker 1: many people are right now. All the different kinds of 46 00:03:01,956 --> 00:03:04,956 Speaker 1: orders are only for three or four or five weeks, 47 00:03:04,996 --> 00:03:07,276 Speaker 1: even if people assume it may take long than that. 48 00:03:07,436 --> 00:03:09,596 Speaker 1: So there's a chance this is a first step and 49 00:03:09,636 --> 00:03:12,356 Speaker 1: the court may have to take further steps. But beyond that, 50 00:03:12,676 --> 00:03:16,916 Speaker 1: the court can hear cases, and they can hear argument 51 00:03:17,396 --> 00:03:21,756 Speaker 1: in ways that are not inconsistent with the measures being 52 00:03:21,836 --> 00:03:25,076 Speaker 1: take to prevent the spread of the virus. I mean, 53 00:03:25,116 --> 00:03:27,356 Speaker 1: like a FaceTime argument or a zoom argument. They can 54 00:03:27,396 --> 00:03:29,156 Speaker 1: do a FaceTime market, they can do a zoom argument. 55 00:03:29,356 --> 00:03:33,156 Speaker 1: They can have people only the lawyers in the courtroom, 56 00:03:33,236 --> 00:03:35,716 Speaker 1: no one else, and the courtments have the lawyers and 57 00:03:35,756 --> 00:03:39,436 Speaker 1: the justices, the marshal, and the clerk. They can have 58 00:03:39,476 --> 00:03:42,196 Speaker 1: only those folks there. They can have them spread out 59 00:03:42,436 --> 00:03:45,276 Speaker 1: pretty well in the courtroom, and the justice can also 60 00:03:45,356 --> 00:03:47,316 Speaker 1: I mean, you know, it's it's an insult to say it. 61 00:03:47,356 --> 00:03:49,876 Speaker 1: And the presence of such a great oral advocate at 62 00:03:49,876 --> 00:03:52,316 Speaker 1: the scream court as you. But they could also decide 63 00:03:52,356 --> 00:03:55,956 Speaker 1: cases without the benefit of oral argument. They do that 64 00:03:55,996 --> 00:03:58,516 Speaker 1: all the time. Yeah, there's certainly no requirement they have 65 00:03:58,596 --> 00:04:00,916 Speaker 1: oral argument. They can limit the number of cases for 66 00:04:00,956 --> 00:04:03,156 Speaker 1: which they hear an argument. My guess is they'd only 67 00:04:03,196 --> 00:04:07,236 Speaker 1: be hearing time sensitive cases anyway. In any case if 68 00:04:07,276 --> 00:04:10,436 Speaker 1: they think really has no particular times sensitivity. If things 69 00:04:10,476 --> 00:04:13,516 Speaker 1: get worse, those cases they can push in a heartbeat 70 00:04:14,076 --> 00:04:17,436 Speaker 1: to October. It's only the case that see more time sensitive. 71 00:04:17,476 --> 00:04:20,916 Speaker 1: I mean, give examples. The Trump subpoena cases are probably 72 00:04:20,916 --> 00:04:24,076 Speaker 1: cases were more time sensitive. The McGann subpoena and the 73 00:04:24,076 --> 00:04:27,676 Speaker 1: other electoral college cases, those are cases the Court needs 74 00:04:27,676 --> 00:04:29,396 Speaker 1: to decide. Yeah, we need to know what the answer 75 00:04:29,436 --> 00:04:31,636 Speaker 1: is to those before we actually have an election exactly, 76 00:04:31,676 --> 00:04:34,276 Speaker 1: So I think they'll feel a need if push comes 77 00:04:34,276 --> 00:04:37,116 Speaker 1: to shove, they can decide that oral argument. They can 78 00:04:37,156 --> 00:04:40,236 Speaker 1: certainly decide them with only some justices in the room. 79 00:04:40,236 --> 00:04:42,716 Speaker 1: The Court has already done that. I mean, there are justices. 80 00:04:42,716 --> 00:04:46,436 Speaker 1: When Chief Justice Renquist was ill during the two thousand 81 00:04:46,476 --> 00:04:50,316 Speaker 1: and four term, you know, fifteen years ago, he would 82 00:04:50,396 --> 00:04:53,516 Speaker 1: vote on cases if his vote made a difference. By 83 00:04:53,556 --> 00:04:55,956 Speaker 1: listening to the oral argument, something that you would listen 84 00:04:55,996 --> 00:04:57,396 Speaker 1: to the tapes held listened to the tapes of the 85 00:04:57,476 --> 00:05:00,116 Speaker 1: oral argument, and then he would vote. He otherwise wouldn't participate. 86 00:05:00,396 --> 00:05:02,956 Speaker 1: So they can and the court, i believe is shutdown 87 00:05:03,076 --> 00:05:07,236 Speaker 1: oral argument before during the pandemic in nineteen eighteen, the 88 00:05:07,316 --> 00:05:11,556 Speaker 1: Spanish flew the court also, I'm pretty sure shut down 89 00:05:11,676 --> 00:05:14,476 Speaker 1: oral argument. So it's not without precedent. There are other 90 00:05:14,516 --> 00:05:17,196 Speaker 1: institutions will be much more hard pressed to figure out 91 00:05:17,196 --> 00:05:19,596 Speaker 1: how to function. Congress we much more hard pressed to 92 00:05:19,716 --> 00:05:23,956 Speaker 1: function than the United States Supreme Court, an ordinary federal 93 00:05:23,996 --> 00:05:26,156 Speaker 1: district court, I think. I mean, the Supreme Court is 94 00:05:26,236 --> 00:05:29,876 Speaker 1: much more it's much grander, it's a much more formalized process. 95 00:05:29,876 --> 00:05:31,836 Speaker 1: There are a lot of you know, nine injustices sitting 96 00:05:31,836 --> 00:05:34,796 Speaker 1: on every case, and they could do everything that they 97 00:05:34,836 --> 00:05:37,916 Speaker 1: do in principle without oral argument because they have detailed 98 00:05:37,916 --> 00:05:40,196 Speaker 1: written briefs. But not all of that will be true 99 00:05:40,276 --> 00:05:43,156 Speaker 1: for every federal district court, and certainly not for local 100 00:05:43,156 --> 00:05:46,276 Speaker 1: court houses around the country. Some parts of justice, like 101 00:05:46,356 --> 00:05:50,556 Speaker 1: criminal trials exactly criminal constitutionally can't do them remotely. Probably 102 00:05:50,916 --> 00:05:53,356 Speaker 1: that's right. I mean, it requires you know, in person 103 00:05:53,436 --> 00:05:55,676 Speaker 1: at least we've already always understood it to require in 104 00:05:55,716 --> 00:05:58,156 Speaker 1: person presence. Yeah, you're supposed to be able to see 105 00:05:58,156 --> 00:06:00,796 Speaker 1: your witness, supposed to under the confrontation clause. I mean, 106 00:06:00,836 --> 00:06:02,796 Speaker 1: they're all kind of constution gives you the right to 107 00:06:02,796 --> 00:06:05,676 Speaker 1: confront the witnesses against you, and so far courts don't 108 00:06:05,716 --> 00:06:08,476 Speaker 1: think that's good enough to confront them on FaceTime. That's right. 109 00:06:08,516 --> 00:06:10,756 Speaker 1: So they're all kinds of challenges In other parts of 110 00:06:10,756 --> 00:06:13,676 Speaker 1: the judiciary, it would be much more intense than the 111 00:06:13,676 --> 00:06:16,396 Speaker 1: Supreme Court. Supreme Court can get its job done. For 112 00:06:16,556 --> 00:06:19,516 Speaker 1: talking about the administration the criminal justice system of the 113 00:06:19,596 --> 00:06:24,356 Speaker 1: United States at the local level, at the trial level, 114 00:06:24,636 --> 00:06:29,396 Speaker 1: and by police and magistrates, I think the system will 115 00:06:29,676 --> 00:06:32,556 Speaker 1: could quickly become overwhelmed in sort of a parallel to 116 00:06:32,596 --> 00:06:37,516 Speaker 1: what's happening with the hospitals being overwhelmed. The Supreme Court 117 00:06:37,836 --> 00:06:43,476 Speaker 1: it can accommodate this relatively easily, I think as an 118 00:06:43,476 --> 00:06:48,516 Speaker 1: institutional matter. But the local administration of criminal justice it's 119 00:06:48,556 --> 00:06:50,756 Speaker 1: going to be a challenge. They don't have the resources 120 00:06:50,916 --> 00:06:54,876 Speaker 1: or the expertise to do things remotely. Universities like Harvard 121 00:06:54,876 --> 00:06:58,076 Speaker 1: and the rest we can switch to figure it out, yeah, exactly, 122 00:06:58,396 --> 00:07:00,276 Speaker 1: And it's a challenge for us, but you're not going 123 00:07:00,316 --> 00:07:02,436 Speaker 1: to be able to see that happen at the local level, 124 00:07:02,436 --> 00:07:05,716 Speaker 1: and they're going to face real issues in real time. Richard, 125 00:07:05,836 --> 00:07:08,436 Speaker 1: what did it mean when the President said I'm declaring 126 00:07:08,436 --> 00:07:11,396 Speaker 1: a national emerge? Well, to some extent, it meant a 127 00:07:11,396 --> 00:07:14,596 Speaker 1: lot less than people might have thought. And they're much 128 00:07:14,676 --> 00:07:18,076 Speaker 1: less unusual than people might think. We normally just don't 129 00:07:18,116 --> 00:07:20,716 Speaker 1: hear about them. I mean, give you an example. I mean, 130 00:07:20,756 --> 00:07:23,836 Speaker 1: there have been about forty eight formal declarations by the 131 00:07:23,876 --> 00:07:27,916 Speaker 1: president United States of national emergencies in the last thirty 132 00:07:28,356 --> 00:07:32,156 Speaker 1: plus years. President Trump has done a whole bunch in 133 00:07:32,276 --> 00:07:36,156 Speaker 1: the last year itself. It's usually about six every four 134 00:07:36,236 --> 00:07:40,356 Speaker 1: years of national emergencies declared by the president. President Trump 135 00:07:40,396 --> 00:07:44,276 Speaker 1: has had. In twenty nineteen, there were about eighty declarations 136 00:07:44,316 --> 00:07:48,396 Speaker 1: of disasters. So that by itself means a lot less 137 00:07:48,396 --> 00:07:52,316 Speaker 1: than people might think, because normally the declaration of emergency 138 00:07:52,636 --> 00:07:56,556 Speaker 1: or the declaration of disaster is a very limited sort 139 00:07:56,556 --> 00:08:00,396 Speaker 1: of salience. You have something which is quite narrowly defined. 140 00:08:00,396 --> 00:08:03,516 Speaker 1: We're upset about the Taliban, so we're gonna do export restrictions. 141 00:08:03,596 --> 00:08:07,116 Speaker 1: That's a more classic declaration of national emergency, or there's 142 00:08:07,116 --> 00:08:09,836 Speaker 1: been a flood disaster in a in state. That's a 143 00:08:09,876 --> 00:08:15,716 Speaker 1: typical disaster declaration. This one is categorically different, which is 144 00:08:15,996 --> 00:08:18,396 Speaker 1: why we know so much about it. But there's a 145 00:08:18,396 --> 00:08:22,396 Speaker 1: result of that. It doesn't by itself mean that much. 146 00:08:22,636 --> 00:08:25,156 Speaker 1: It can trigger a lot. So for instance, when the 147 00:08:25,196 --> 00:08:30,556 Speaker 1: President lasts Friday, just March thirteenth, declared a national emergency, 148 00:08:30,556 --> 00:08:33,836 Speaker 1: and he did that under the National Emergencies Act, that's 149 00:08:33,836 --> 00:08:36,716 Speaker 1: an applet named statute, and he also did it under 150 00:08:36,756 --> 00:08:40,236 Speaker 1: what's called the Stafford Disaster Act. Of the two declarations 151 00:08:40,276 --> 00:08:43,516 Speaker 1: he made, the National Emergency Act by itself is a 152 00:08:43,556 --> 00:08:46,956 Speaker 1: far less immediate legal consequence under the Stafford Act, by 153 00:08:46,996 --> 00:08:50,996 Speaker 1: declaring it a disaster, that potentially frees up about forty 154 00:08:51,036 --> 00:08:54,956 Speaker 1: five to fifty billion dollars which has already been authorized 155 00:08:54,956 --> 00:08:58,556 Speaker 1: and allocated by Congress to be managed by the Federal 156 00:08:58,596 --> 00:09:03,196 Speaker 1: Emergency Management Agency for natural disasters and other kinds of disasters, 157 00:09:03,236 --> 00:09:06,116 Speaker 1: So that money is immediately freed up to some extent 158 00:09:06,156 --> 00:09:09,236 Speaker 1: it can be spent by the federal government. But what 159 00:09:09,396 --> 00:09:12,636 Speaker 1: really then allows is the states to respond to that 160 00:09:12,756 --> 00:09:17,356 Speaker 1: declaration by in turn declaring a major disaster within their 161 00:09:17,396 --> 00:09:20,996 Speaker 1: states within their borders and then requesting assistance from the 162 00:09:20,996 --> 00:09:23,996 Speaker 1: federal government. And if you take a look, President Trump 163 00:09:23,996 --> 00:09:27,836 Speaker 1: made his declaration on March thirteenth. Immediately after that, all 164 00:09:27,876 --> 00:09:30,076 Speaker 1: the governors that I can see, all the governors of 165 00:09:30,116 --> 00:09:34,756 Speaker 1: all the states made matching declarations of disasters within their 166 00:09:34,796 --> 00:09:40,156 Speaker 1: state as the territories Guam, American, Samoa, Puerto Rico. Everyone did. 167 00:09:40,196 --> 00:09:43,956 Speaker 1: Because what happens is that makes them eligible to receive 168 00:09:44,116 --> 00:09:48,116 Speaker 1: that money to do all kinds of things to address 169 00:09:48,636 --> 00:09:52,636 Speaker 1: the current crisis of the virus. Now note it doesn't 170 00:09:52,956 --> 00:09:56,396 Speaker 1: allows them to get federal assistance, but is still by 171 00:09:56,436 --> 00:10:00,276 Speaker 1: a formula. It's seventy five percent by the federal government 172 00:10:00,476 --> 00:10:03,676 Speaker 1: and twenty five percent by the states. So it's not 173 00:10:03,756 --> 00:10:06,356 Speaker 1: just free money. Now Congress could change that if they want. 174 00:10:06,596 --> 00:10:10,516 Speaker 1: On the current formula it's twenty five but that's what's 175 00:10:10,516 --> 00:10:13,396 Speaker 1: going to allow state, through all kinds of things, to 176 00:10:13,396 --> 00:10:16,196 Speaker 1: shore up their public health resources. So now that you 177 00:10:16,276 --> 00:10:19,116 Speaker 1: brought up the states, Richard, we're going to have to 178 00:10:19,156 --> 00:10:21,236 Speaker 1: wade into one of the things that people around the 179 00:10:21,276 --> 00:10:24,876 Speaker 1: world I think consider weirdest about the American system of government, 180 00:10:24,916 --> 00:10:27,516 Speaker 1: and specifically about our response to Corona, and it's something 181 00:10:27,596 --> 00:10:31,236 Speaker 1: where there's already I've already read some articles, not only 182 00:10:31,276 --> 00:10:33,476 Speaker 1: from abroad, from within the US saying what are you 183 00:10:33,556 --> 00:10:36,076 Speaker 1: people doing? And that is the question of the relationship 184 00:10:36,196 --> 00:10:39,756 Speaker 1: between the federal government and the state governments or what 185 00:10:39,916 --> 00:10:43,516 Speaker 1: you know we in our business called constitutional federalism. So 186 00:10:43,636 --> 00:10:46,636 Speaker 1: in Europe, if a central government, if the government of 187 00:10:46,636 --> 00:10:49,316 Speaker 1: France wants to declare a state of emergency and impost conditions, 188 00:10:49,596 --> 00:10:53,076 Speaker 1: the central government does it. And every single government official, 189 00:10:53,516 --> 00:10:56,676 Speaker 1: down to the most local public health official or the 190 00:10:56,756 --> 00:11:00,396 Speaker 1: rat catcher, they all respond to the same central bureaucracy. 191 00:11:00,396 --> 00:11:03,436 Speaker 1: It's a centralized system. Our system doesn't work that way. 192 00:11:03,556 --> 00:11:06,196 Speaker 1: We've got fifty states, plus the territories, which are maybe 193 00:11:06,196 --> 00:11:08,396 Speaker 1: a more complicated issue for federalism. We won't touch on 194 00:11:08,436 --> 00:11:10,996 Speaker 1: them today, but we have fifty states, each of which 195 00:11:11,196 --> 00:11:13,796 Speaker 1: has its own inherent constitutional authority to do a whole 196 00:11:13,796 --> 00:11:18,356 Speaker 1: bunch of stuff, and especially stuff connected to public health 197 00:11:18,916 --> 00:11:21,316 Speaker 1: in the news. The way that's been playing out is 198 00:11:21,316 --> 00:11:24,956 Speaker 1: that the first handful of states are starting actually to 199 00:11:25,356 --> 00:11:30,876 Speaker 1: issue orders that limit movement or that close schools, and 200 00:11:31,316 --> 00:11:35,956 Speaker 1: that authority, I take it they can exercise entirely on 201 00:11:35,996 --> 00:11:39,956 Speaker 1: their own without federal authority. Correct, that's absolutely right. It's 202 00:11:40,036 --> 00:11:42,476 Speaker 1: sort of backwards people might think from other countries. First 203 00:11:42,476 --> 00:11:46,076 Speaker 1: of all, the presidential declaration disaster into the STAFFORDAC would 204 00:11:46,076 --> 00:11:49,516 Speaker 1: have be of limited significance if the states hadn't responded 205 00:11:49,796 --> 00:11:53,276 Speaker 1: under the statute to say we agree there's a disaster here. 206 00:11:53,916 --> 00:11:55,876 Speaker 1: The federal money couldn't be spent the way it was. 207 00:11:56,076 --> 00:11:59,076 Speaker 1: That's one issue. But then you're right beyond the Staffordact 208 00:11:59,356 --> 00:12:01,676 Speaker 1: to the extent that decisions are going to be made 209 00:12:01,676 --> 00:12:05,236 Speaker 1: to close schools, to stop crowds of more than twenty 210 00:12:05,236 --> 00:12:09,436 Speaker 1: five or more here in Massachusetts, to close restaurants in 211 00:12:09,516 --> 00:12:12,636 Speaker 1: bars in other places for public gathering. That's not a 212 00:12:12,836 --> 00:12:16,396 Speaker 1: power which it's clear that the president United States has 213 00:12:16,396 --> 00:12:20,276 Speaker 1: in the first instance. Those are powers that state officials 214 00:12:20,396 --> 00:12:24,396 Speaker 1: and local officials have in this country. What about restrictions 215 00:12:24,396 --> 00:12:28,436 Speaker 1: on movement under conditions of quarantine, I mean, I think 216 00:12:28,476 --> 00:12:31,716 Speaker 1: that it's straightforwardly the case that if states have laws 217 00:12:31,716 --> 00:12:33,516 Speaker 1: on the books, which I think almost all states do, 218 00:12:33,676 --> 00:12:38,116 Speaker 1: sometimes really old laws that authorize the governor or other 219 00:12:38,156 --> 00:12:40,636 Speaker 1: public health officials in the state to issue quarantine laws, 220 00:12:40,836 --> 00:12:42,556 Speaker 1: there doesn't seem to be any doubt that that's an 221 00:12:42,556 --> 00:12:44,876 Speaker 1: inherent power of the states. Yeah, I think that's right. 222 00:12:44,916 --> 00:12:46,636 Speaker 1: It's inherent power of the state. It's sort of a 223 00:12:46,676 --> 00:12:50,716 Speaker 1: classic police power, and the states in local governments. The 224 00:12:50,756 --> 00:12:53,516 Speaker 1: more one looks at this, they exercise those powers. The 225 00:12:53,556 --> 00:12:57,996 Speaker 1: idea of a pandemic and contagion is incredibly unsettling to 226 00:12:58,076 --> 00:13:00,596 Speaker 1: all of us, but it was more the kind of 227 00:13:00,636 --> 00:13:03,636 Speaker 1: thing people knew about in the early part of the 228 00:13:03,636 --> 00:13:06,716 Speaker 1: twentieth century in this nation's history. So this was classic 229 00:13:06,756 --> 00:13:10,396 Speaker 1: statement the local governmental action under the police power. My 230 00:13:10,516 --> 00:13:13,556 Speaker 1: guess is that the federal government could do a lot 231 00:13:13,636 --> 00:13:18,436 Speaker 1: more than it does. So let's say, let's try to 232 00:13:18,476 --> 00:13:22,396 Speaker 1: do a concrete scenario. I live in Massachusetts. For some reason, 233 00:13:22,716 --> 00:13:25,836 Speaker 1: I need to cross the state line into Connecticut for something. 234 00:13:26,116 --> 00:13:28,556 Speaker 1: I need to help a relative or you know, check 235 00:13:28,596 --> 00:13:31,956 Speaker 1: in on a friend who needs special care, and then 236 00:13:31,996 --> 00:13:34,156 Speaker 1: I want to come back across the border, and in 237 00:13:34,196 --> 00:13:37,916 Speaker 1: the meantime, the governor of Massachusetts says, no one move 238 00:13:38,116 --> 00:13:41,556 Speaker 1: in and out of our state. Realistically, it's not clear 239 00:13:41,596 --> 00:13:44,676 Speaker 1: to me whether that would be something that would happen, 240 00:13:45,076 --> 00:13:47,516 Speaker 1: but let's imagine that it did, and things like that 241 00:13:47,876 --> 00:13:51,316 Speaker 1: are happening in other places around the world. Would the 242 00:13:51,396 --> 00:13:54,876 Speaker 1: governor probably have the inherent authority just to say I'm 243 00:13:54,916 --> 00:13:57,876 Speaker 1: putting the state cops at the border, and I'm saying, hey, 244 00:13:57,916 --> 00:14:00,036 Speaker 1: even if you live in Massachusetts, show us your driver's license, 245 00:14:00,076 --> 00:14:02,076 Speaker 1: show us where you live, you can't come back in. 246 00:14:02,196 --> 00:14:06,276 Speaker 1: I mean, that sounds absolutely insane and crazy, but I 247 00:14:06,276 --> 00:14:08,796 Speaker 1: think the governor would have that inherent authority. I think 248 00:14:09,516 --> 00:14:11,676 Speaker 1: just a few weeks ago, maybe a few days ago, 249 00:14:12,196 --> 00:14:15,596 Speaker 1: would have bristled at the idea. Maybe many people would now, 250 00:14:16,156 --> 00:14:18,516 Speaker 1: But my guess is if the governor made such an 251 00:14:18,596 --> 00:14:22,676 Speaker 1: order and backed it up with different kinds of scientific 252 00:14:22,756 --> 00:14:25,436 Speaker 1: basis for what he did, I think you find right 253 00:14:25,476 --> 00:14:29,676 Speaker 1: now that a court would be very wary in the 254 00:14:29,676 --> 00:14:32,636 Speaker 1: midst of a public health crisis preventing the governor from 255 00:14:32,636 --> 00:14:45,396 Speaker 1: doing that. We'll be back in just a moment. So 256 00:14:45,476 --> 00:14:48,156 Speaker 1: let's talk about the courts, which are our backstop that 257 00:14:48,196 --> 00:14:51,436 Speaker 1: we're used to relying on under circumstances where the government 258 00:14:51,476 --> 00:14:53,676 Speaker 1: takes steps that violate what we think of as our 259 00:14:53,756 --> 00:14:57,356 Speaker 1: ordinary liberties. And let's start with a state case where 260 00:14:57,476 --> 00:14:59,196 Speaker 1: let's say I'm stuck at the border and I want 261 00:14:59,236 --> 00:15:01,516 Speaker 1: to get back into the state, and I go to 262 00:15:01,596 --> 00:15:06,076 Speaker 1: court and I say Hey, government, you can't just exclude 263 00:15:06,156 --> 00:15:09,916 Speaker 1: me from getting back home. That's not within your ordinary powers. 264 00:15:10,276 --> 00:15:13,636 Speaker 1: And let's imagine you were representing the state in court 265 00:15:13,636 --> 00:15:15,556 Speaker 1: the same way you represented the federal government in the 266 00:15:15,636 --> 00:15:19,356 Speaker 1: US Supreme Court many times. What would you argue to 267 00:15:19,396 --> 00:15:21,756 Speaker 1: the court about why it was justified for the government 268 00:15:21,756 --> 00:15:25,196 Speaker 1: to sustain that kind of an order. Well, I just 269 00:15:25,516 --> 00:15:29,276 Speaker 1: basically I rely on two things. The first is the 270 00:15:29,316 --> 00:15:33,596 Speaker 1: degree of the exigency, what the risks were of contagion, 271 00:15:33,636 --> 00:15:37,356 Speaker 1: to spread of contagion. And the second is the time 272 00:15:37,836 --> 00:15:40,836 Speaker 1: sensitivity of it, that this is a true emergency, that 273 00:15:40,876 --> 00:15:43,876 Speaker 1: there's not time to stay, this to wait and think 274 00:15:43,916 --> 00:15:47,036 Speaker 1: about it and study it more. The cost to the 275 00:15:47,036 --> 00:15:49,676 Speaker 1: public health be too great for the court to do 276 00:15:49,716 --> 00:15:52,756 Speaker 1: what it might normally do, which is enjoying something which 277 00:15:52,756 --> 00:15:56,196 Speaker 1: looks like it might be overreaching in order to basically 278 00:15:56,956 --> 00:16:00,796 Speaker 1: let a more deliberative process be used. I think here 279 00:16:00,796 --> 00:16:03,316 Speaker 1: i'd credit stress. We don't have that, we don't have 280 00:16:03,356 --> 00:16:06,436 Speaker 1: that luxury to do that. Now. I think the kind 281 00:16:06,596 --> 00:16:10,316 Speaker 1: of government order that would be more suspect in a 282 00:16:10,356 --> 00:16:13,196 Speaker 1: classic sense is it didn't seem neutral in its face. 283 00:16:14,196 --> 00:16:16,476 Speaker 1: So if you had a government order which said every 284 00:16:16,476 --> 00:16:19,516 Speaker 1: one of a certain ethnic origin, We're going to stop them. 285 00:16:20,156 --> 00:16:24,396 Speaker 1: If it looked like it was deliberately targeting certain kinds 286 00:16:24,516 --> 00:16:28,356 Speaker 1: of people and certain kinds of populations, then I can 287 00:16:28,396 --> 00:16:32,956 Speaker 1: imagine a court might well step in. But akin to 288 00:16:33,036 --> 00:16:35,476 Speaker 1: sort of a First Amendment regulation, it looks fairly neutral 289 00:16:36,236 --> 00:16:40,316 Speaker 1: in terms of time, place, or manner, and really looks 290 00:16:40,316 --> 00:16:43,116 Speaker 1: like on its face it's geared to deal with a 291 00:16:43,156 --> 00:16:46,356 Speaker 1: public health emergency. I think a court would be very 292 00:16:46,396 --> 00:16:50,036 Speaker 1: hard pressed, federal or state, to second guess the governor 293 00:16:50,596 --> 00:16:54,476 Speaker 1: whose advice appeared to be based on real public health information, 294 00:16:54,836 --> 00:16:55,996 Speaker 1: you know, and to go to the point that you 295 00:16:55,996 --> 00:16:58,516 Speaker 1: were making about how it seems hard to imagine the 296 00:16:58,596 --> 00:17:01,716 Speaker 1: state troopers stopping us at the state border. I wonder 297 00:17:01,756 --> 00:17:04,956 Speaker 1: if we're not in some sort of gradually sliding scale 298 00:17:04,956 --> 00:17:07,476 Speaker 1: of what seems weird to us. I mean, certainly the 299 00:17:07,596 --> 00:17:11,836 Speaker 1: rumors which are are out there include constant rumors of 300 00:17:11,876 --> 00:17:15,356 Speaker 1: the possibility if people being blocked from traveling at state borders. 301 00:17:16,076 --> 00:17:18,796 Speaker 1: I heard from a group of students recently who were 302 00:17:18,836 --> 00:17:21,036 Speaker 1: trying to figure out whether they if they left campus 303 00:17:21,596 --> 00:17:24,836 Speaker 1: they could come back to campus, and one of the 304 00:17:24,836 --> 00:17:27,636 Speaker 1: issues that they were talking about was well, gee, if 305 00:17:27,636 --> 00:17:30,036 Speaker 1: we crossed the state borders, even within the United States, 306 00:17:30,796 --> 00:17:33,356 Speaker 1: might we be blocked from coming back? And I give 307 00:17:33,396 --> 00:17:35,316 Speaker 1: them exactly the response that you just made to me, 308 00:17:35,636 --> 00:17:37,876 Speaker 1: which makes me feel a little better, namely that it 309 00:17:37,876 --> 00:17:41,316 Speaker 1: seems hard to imagine the government doing that, but that 310 00:17:41,356 --> 00:17:43,476 Speaker 1: it probably would be within the legal authority of the 311 00:17:43,516 --> 00:17:46,036 Speaker 1: state under these conditions. And after saying it, I thought 312 00:17:46,036 --> 00:17:49,236 Speaker 1: to myself, is it really so unimaginable now that I've 313 00:17:49,276 --> 00:17:51,236 Speaker 1: said that? And it may be that just what seems 314 00:17:51,316 --> 00:17:55,116 Speaker 1: unimaginable today may be less unimaginable tomorrow, and the next 315 00:17:55,156 --> 00:17:57,276 Speaker 1: day and the next day. Well, that's certainly how I 316 00:17:57,276 --> 00:17:59,876 Speaker 1: think we all feel. In the last three weeks. Everything 317 00:18:00,116 --> 00:18:02,476 Speaker 1: we couldn't have imagined it has become imaginable in some way. 318 00:18:02,756 --> 00:18:05,116 Speaker 1: I don't want to suggest without limit. So if let's 319 00:18:05,116 --> 00:18:07,596 Speaker 1: talk about the limits, right, So, if three months ago 320 00:18:08,116 --> 00:18:12,476 Speaker 1: a governor of a state had announced that he or 321 00:18:12,556 --> 00:18:18,236 Speaker 1: she thought there was some extraordinary virus affecting the state 322 00:18:18,236 --> 00:18:19,956 Speaker 1: and try to shut down the borders, I have no 323 00:18:20,036 --> 00:18:23,996 Speaker 1: doubt that a federal court would have immediately struck that down. 324 00:18:24,476 --> 00:18:27,276 Speaker 1: The reason I'm suggesting right now that we'd find greater 325 00:18:27,316 --> 00:18:31,116 Speaker 1: willingness on the part of federal judges to defer not 326 00:18:31,156 --> 00:18:34,316 Speaker 1: to second guests is what everyone's reading, what everyone's seeing. 327 00:18:34,796 --> 00:18:38,196 Speaker 1: So it's not as though a public official governor can 328 00:18:38,276 --> 00:18:41,076 Speaker 1: sort of will he nearly do this. There's enough evidence 329 00:18:41,076 --> 00:18:43,756 Speaker 1: in the air right naturally at the moment to take 330 00:18:43,836 --> 00:18:47,876 Speaker 1: judicial notice that I think a public health official and 331 00:18:47,956 --> 00:18:52,316 Speaker 1: a governor of a state has instant credibility and this issue, 332 00:18:52,316 --> 00:18:54,676 Speaker 1: at least to the extent the court is not going 333 00:18:54,716 --> 00:18:58,116 Speaker 1: to enjoin, it is going to allow to proceed, and 334 00:18:58,156 --> 00:19:01,036 Speaker 1: then may well hold a hearing to have backed up 335 00:19:01,516 --> 00:19:05,876 Speaker 1: with a heavy presumption in favor of ruling in favor. Ultimately, though, 336 00:19:06,116 --> 00:19:08,956 Speaker 1: especially if this takes place over a longer period of time, 337 00:19:09,636 --> 00:19:13,476 Speaker 1: I can imagine that courts would gradually become less deferential 338 00:19:14,076 --> 00:19:17,156 Speaker 1: as the crisis begins to be more managed and begins 339 00:19:17,156 --> 00:19:20,756 Speaker 1: to recede, and might eventually require the state or the 340 00:19:20,796 --> 00:19:24,836 Speaker 1: federal government to provide some clearer justification for why it's 341 00:19:24,876 --> 00:19:28,316 Speaker 1: really necessary to block people's movement or to shut down 342 00:19:28,316 --> 00:19:31,196 Speaker 1: businesses and so forth and so on. It isn't our 343 00:19:31,276 --> 00:19:34,916 Speaker 1: protection ultimately from the courts. The idea that there's only 344 00:19:35,036 --> 00:19:38,876 Speaker 1: government authority to block our liberties if there's a compelling 345 00:19:39,036 --> 00:19:42,436 Speaker 1: reason to do so, like pandemic, and if the government 346 00:19:42,516 --> 00:19:47,436 Speaker 1: methods for doing so are closely matched to what is necessary, 347 00:19:47,556 --> 00:19:49,716 Speaker 1: even narrowly tailored, as we sometimes say in the law, 348 00:19:49,956 --> 00:19:52,956 Speaker 1: to what is necessary. I mean, that's our ultimate protection. 349 00:19:53,076 --> 00:19:54,956 Speaker 1: I take it. Yeah, at the end of the day, 350 00:19:54,996 --> 00:19:59,156 Speaker 1: I mean, the courts themselves don't have armies, they don't 351 00:19:59,156 --> 00:20:04,596 Speaker 1: have police forces. Even the federal government doesn't have necessarily 352 00:20:04,636 --> 00:20:06,636 Speaker 1: unless they're going to bring in the army. It takes 353 00:20:06,676 --> 00:20:10,236 Speaker 1: some level of public acquiescence. And this is going to 354 00:20:10,396 --> 00:20:13,756 Speaker 1: test the patients, the American public. It's one thing to 355 00:20:13,836 --> 00:20:16,556 Speaker 1: do this for a week, another thing to do for 356 00:20:16,596 --> 00:20:20,916 Speaker 1: two weeks, But when businesses are shut down for potentially weeks, 357 00:20:20,956 --> 00:20:24,636 Speaker 1: if not months, schools the rest, it's going to really 358 00:20:24,676 --> 00:20:28,676 Speaker 1: try the spirit of America to see whether or not 359 00:20:28,676 --> 00:20:32,196 Speaker 1: willing the acquiesce in these kinds of very very stringent measures. 360 00:20:32,716 --> 00:20:35,276 Speaker 1: One of the issues around acquiescence that immediately struck me 361 00:20:35,316 --> 00:20:39,516 Speaker 1: as criminal enforcement. So if the state has the power 362 00:20:39,596 --> 00:20:41,436 Speaker 1: to make you not leave your house, then they have 363 00:20:41,476 --> 00:20:44,236 Speaker 1: the power to arrest you and punish you criminally if 364 00:20:44,236 --> 00:20:47,556 Speaker 1: you violate that rule. And ditto for the federal government. 365 00:20:47,556 --> 00:20:49,636 Speaker 1: I mean, I discovered there is, in fact a federal 366 00:20:49,716 --> 00:20:53,076 Speaker 1: statute that says that if the federal government is assisting 367 00:20:53,116 --> 00:20:56,956 Speaker 1: the states and enforcing their quarantines or isolation orders, that 368 00:20:57,236 --> 00:21:02,036 Speaker 1: violating the federal orders is itself a federal crime punishable 369 00:21:02,076 --> 00:21:04,436 Speaker 1: by prison time. It's hard for me to picture the 370 00:21:04,476 --> 00:21:07,516 Speaker 1: governor of the United States actually exercising the power to 371 00:21:07,636 --> 00:21:10,956 Speaker 1: arrest people and punish them under these circumstances. But I 372 00:21:10,956 --> 00:21:13,516 Speaker 1: guess if they were widespread violation, or if someone was 373 00:21:13,596 --> 00:21:16,516 Speaker 1: violating that to make a profit or some other bad thing, 374 00:21:17,036 --> 00:21:21,276 Speaker 1: it's there as a potential sanction. That's right. The federal 375 00:21:21,316 --> 00:21:23,476 Speaker 1: government can step in criminally, just like the state and 376 00:21:23,556 --> 00:21:26,916 Speaker 1: local governments can, and they can punish people at a 377 00:21:26,996 --> 00:21:31,316 Speaker 1: huge cost to doing so. But the federal government found 378 00:21:31,316 --> 00:21:35,676 Speaker 1: their authority being challenged, including maybe authority being challenged at 379 00:21:35,676 --> 00:21:39,396 Speaker 1: some point by local authorities, we might well see the 380 00:21:39,396 --> 00:21:42,436 Speaker 1: federal government step in and take action to make clear, 381 00:21:42,476 --> 00:21:45,276 Speaker 1: as we all know, the federal law is supreme. What's 382 00:21:45,316 --> 00:21:48,236 Speaker 1: the scenario you're describing there where a state pushed back. Well, 383 00:21:48,516 --> 00:21:50,756 Speaker 1: you can imagine the federal government believes that a certain 384 00:21:51,076 --> 00:21:53,156 Speaker 1: part of the country is posing a greater threat to 385 00:21:53,196 --> 00:21:56,356 Speaker 1: the rest of the country. Like Boston. We have an 386 00:21:56,356 --> 00:21:58,916 Speaker 1: early outbreak and we have a big outbreak here, and 387 00:21:58,956 --> 00:22:03,716 Speaker 1: the federal government itself doesn't want people from Boston and 388 00:22:03,876 --> 00:22:06,556 Speaker 1: Massachusetts to go to other parts of the country. People 389 00:22:06,596 --> 00:22:09,356 Speaker 1: in Boston might well want to leave. They might well 390 00:22:09,396 --> 00:22:11,596 Speaker 1: want to get out and get to other parts of 391 00:22:11,596 --> 00:22:13,676 Speaker 1: the country. I certainly know people, maybe you know people. 392 00:22:13,836 --> 00:22:15,996 Speaker 1: I know people are headed to Maine. I know people 393 00:22:15,996 --> 00:22:18,996 Speaker 1: headed to Vermont, New Hampshire. They want to get out 394 00:22:19,036 --> 00:22:21,516 Speaker 1: of an area which looks like it might be an epicenter, 395 00:22:21,836 --> 00:22:24,196 Speaker 1: and it might well be. The federal government doesn't want that, 396 00:22:24,596 --> 00:22:28,436 Speaker 1: but the residents of Massachusetts do want that. So you 397 00:22:28,436 --> 00:22:31,996 Speaker 1: can imagine, in terms of the notion of isolation, the 398 00:22:31,996 --> 00:22:35,236 Speaker 1: pressure will be from the rest of the country to 399 00:22:35,356 --> 00:22:39,036 Speaker 1: isolate an area which as epicenter, and that area won't 400 00:22:39,036 --> 00:22:43,036 Speaker 1: have that same incentive. Again, we're not there yet. That's 401 00:22:43,036 --> 00:22:44,756 Speaker 1: a scenario. It may not be that far from it, 402 00:22:44,876 --> 00:22:48,076 Speaker 1: but but right now, a lot of people don't want 403 00:22:48,116 --> 00:22:50,916 Speaker 1: to see people from Seattle. They might not necessarily want 404 00:22:50,956 --> 00:22:54,556 Speaker 1: People in neighboring states might not want people from Seattle 405 00:22:54,796 --> 00:22:58,436 Speaker 1: coming into their rural areas. So here, you know, my 406 00:22:58,796 --> 00:23:03,476 Speaker 1: civil liberties senses start to tangle, because you know, we 407 00:23:03,556 --> 00:23:06,636 Speaker 1: said that the courts would be suspicious of a rule 408 00:23:06,676 --> 00:23:10,356 Speaker 1: that targeted certain people. If it targets people from a 409 00:23:10,396 --> 00:23:13,076 Speaker 1: certain area, then the courts might say, well, you know, 410 00:23:13,196 --> 00:23:16,556 Speaker 1: maybe we need that. And our current president is not 411 00:23:16,676 --> 00:23:19,996 Speaker 1: someone who I think would be at all worried about 412 00:23:20,196 --> 00:23:23,836 Speaker 1: targeting people from areas that happen coincidentally enough not to 413 00:23:23,876 --> 00:23:26,716 Speaker 1: be his political supports. And we've already seen him do that. 414 00:23:27,156 --> 00:23:29,116 Speaker 1: It's under a litigation challenge right now, but we saw 415 00:23:29,196 --> 00:23:32,276 Speaker 1: him do that when he said that New Yorkers could 416 00:23:32,276 --> 00:23:36,716 Speaker 1: no longer get tsa PreCheck benefits because he was angry 417 00:23:36,756 --> 00:23:39,316 Speaker 1: at the state government for the way they were interacting 418 00:23:39,356 --> 00:23:42,076 Speaker 1: with the immigration authority. So we know that he's more 419 00:23:42,076 --> 00:23:45,916 Speaker 1: than capable of targeting people from a state. So how 420 00:23:45,956 --> 00:23:48,556 Speaker 1: would you imagine a court thinking about it if there 421 00:23:48,596 --> 00:23:51,036 Speaker 1: were sort of a ban on people from Massachusetts but 422 00:23:51,076 --> 00:23:54,676 Speaker 1: no ban on people from some red state that also 423 00:23:54,756 --> 00:23:57,876 Speaker 1: had an outbreak, and someone went to court and said, well, look, 424 00:23:58,196 --> 00:24:00,116 Speaker 1: you know this isn't really justified. You're just targeting us 425 00:24:00,116 --> 00:24:02,196 Speaker 1: because we're in Massachusetts, and you the federal government don't 426 00:24:02,196 --> 00:24:04,716 Speaker 1: like us, The president doesn't like us. I think what 427 00:24:04,716 --> 00:24:07,996 Speaker 1: would happened is the courts in the first instance, we 428 00:24:07,996 --> 00:24:12,476 Speaker 1: weary see immediate injunction in the context of public health crisis, 429 00:24:12,476 --> 00:24:14,356 Speaker 1: meaning they might just let it. They might just say 430 00:24:14,396 --> 00:24:16,716 Speaker 1: we're gonna we'll think about this. But for the meantime, 431 00:24:17,276 --> 00:24:18,996 Speaker 1: this order is staying in place because of the public 432 00:24:19,036 --> 00:24:21,316 Speaker 1: health games. I think you find a court very wary 433 00:24:21,316 --> 00:24:24,516 Speaker 1: of doing an immediate and joining to stop the federal 434 00:24:24,516 --> 00:24:27,396 Speaker 1: government order. Then I think you might well see courts 435 00:24:27,756 --> 00:24:30,636 Speaker 1: step in. They'd want to see some real evidence. But 436 00:24:30,676 --> 00:24:33,636 Speaker 1: you're right, there is a perversity here. President's Trump's support 437 00:24:33,996 --> 00:24:35,956 Speaker 1: right now is not in the major urban areas in 438 00:24:35,996 --> 00:24:40,116 Speaker 1: the United States. His support is much more geographically spread 439 00:24:40,116 --> 00:24:43,276 Speaker 1: out in this country, in the rural areas. It's even 440 00:24:43,356 --> 00:24:48,636 Speaker 1: possible this virus could present a rural versus urban rift. 441 00:24:49,076 --> 00:24:53,436 Speaker 1: And this president does all kinds of unprecedented things. There 442 00:24:53,476 --> 00:24:57,636 Speaker 1: are no norms that I found applicable to him. So 443 00:24:57,676 --> 00:25:01,556 Speaker 1: the notion that he might well find the reasons not 444 00:25:02,196 --> 00:25:04,556 Speaker 1: to do something extorting with perspect to urban area like 445 00:25:04,636 --> 00:25:09,436 Speaker 1: Boston or the state of California, again, not a state 446 00:25:09,796 --> 00:25:14,796 Speaker 1: which he has been sort of shy about disapproving of 447 00:25:14,916 --> 00:25:18,876 Speaker 1: their actions undoudly not unrelated to the fact that he 448 00:25:18,956 --> 00:25:21,636 Speaker 1: finds no political support there. It's not as far fetch 449 00:25:21,716 --> 00:25:24,996 Speaker 1: as one might have hoped. The legal scenario where the 450 00:25:25,036 --> 00:25:30,676 Speaker 1: president orders a national shutdown, where the president says, look 451 00:25:31,036 --> 00:25:33,356 Speaker 1: more or less as governors have done in individual states, 452 00:25:33,876 --> 00:25:38,396 Speaker 1: everybody now stay at home. Every business other than you know, 453 00:25:38,436 --> 00:25:41,636 Speaker 1: a food services business shut down or and you know, 454 00:25:41,716 --> 00:25:45,076 Speaker 1: gas stations shut down. Does that seem to you within 455 00:25:45,156 --> 00:25:50,396 Speaker 1: the scope of the president's authority under the current statutory framework. 456 00:25:50,436 --> 00:25:52,356 Speaker 1: I mean, it looks to me from looking at the statutes, 457 00:25:52,396 --> 00:25:57,516 Speaker 1: like the Centers for Disease Control can order effectively quarantine 458 00:25:57,596 --> 00:26:00,796 Speaker 1: or isolation features. So I think the president maybe couldn't 459 00:26:00,796 --> 00:26:02,356 Speaker 1: just do it on his own. Maybe he would have 460 00:26:02,396 --> 00:26:04,916 Speaker 1: to make sure the CDC was on board. But the 461 00:26:04,956 --> 00:26:07,916 Speaker 1: CDC works for the president. And again this is not 462 00:26:07,956 --> 00:26:10,516 Speaker 1: so crazy because it's half and in most other countries, 463 00:26:11,116 --> 00:26:13,276 Speaker 1: does that look to you like within the realm of 464 00:26:13,596 --> 00:26:17,316 Speaker 1: constitutional reason. I'd have to look at the statutes themselves, 465 00:26:18,196 --> 00:26:22,356 Speaker 1: because the president's inherent authority or this area is different 466 00:26:22,596 --> 00:26:25,076 Speaker 1: than it would be pretty minimal. Yeah, than in other countries, 467 00:26:25,116 --> 00:26:29,116 Speaker 1: look to the statutes. See the CDC authority, See who 468 00:26:29,156 --> 00:26:31,516 Speaker 1: exactly the Congress has allowed it, and see who Congress 469 00:26:31,516 --> 00:26:35,236 Speaker 1: has delegated that authority too. Within the CDC, it's not 470 00:26:35,276 --> 00:26:38,116 Speaker 1: going to refer to the President United States by name. 471 00:26:38,116 --> 00:26:41,916 Speaker 1: It's going referred to certain people within the CDC is 472 00:26:41,916 --> 00:26:44,476 Speaker 1: going to give them the authority and the first instance, 473 00:26:44,676 --> 00:26:48,196 Speaker 1: And that by itself is a limiting factor. That's really important. 474 00:26:48,196 --> 00:26:49,876 Speaker 1: Can we just drill down on that for one second, 475 00:26:49,916 --> 00:26:53,196 Speaker 1: because the point you made is so significant. When Congress 476 00:26:53,236 --> 00:26:56,236 Speaker 1: authorizes the federal government to do stuff like this in 477 00:26:56,276 --> 00:26:59,236 Speaker 1: the public health interests or the public safety interest, it 478 00:26:59,316 --> 00:27:03,316 Speaker 1: doesn't say typically the President of the United States may 479 00:27:03,516 --> 00:27:06,396 Speaker 1: it says the Centers for Disease Control or the Environmental 480 00:27:06,396 --> 00:27:09,516 Speaker 1: Protection Agency, or it gives the authority, usually to an 481 00:27:09,596 --> 00:27:14,876 Speaker 1: expert agency to exercise its expertise to make the determination 482 00:27:14,956 --> 00:27:19,356 Speaker 1: that this is genuinely required or necessary. But we have 483 00:27:19,396 --> 00:27:21,636 Speaker 1: this three part system of government where in theory that 484 00:27:21,756 --> 00:27:24,356 Speaker 1: agency is always under the command in some form or 485 00:27:24,356 --> 00:27:28,356 Speaker 1: another of the president. So in real world terms, what 486 00:27:28,476 --> 00:27:31,796 Speaker 1: limitation does that impose? What how does it limit the 487 00:27:31,836 --> 00:27:35,636 Speaker 1: President's actions? When the statute authorizes someone who works for 488 00:27:35,676 --> 00:27:37,796 Speaker 1: the president to make a decision like this, because we 489 00:27:37,836 --> 00:27:39,676 Speaker 1: know this president will just want to say I did it. 490 00:27:39,876 --> 00:27:42,476 Speaker 1: He will not want to say the CDC did it. Well, 491 00:27:42,476 --> 00:27:45,356 Speaker 1: he has to get someone in position authority in that 492 00:27:45,436 --> 00:27:48,596 Speaker 1: agency to take the action he requests, and if they 493 00:27:48,676 --> 00:27:52,916 Speaker 1: decline to do it, which has happened, if they decline 494 00:27:52,956 --> 00:27:56,116 Speaker 1: to do it, he can fire them and hire someone else, 495 00:27:56,436 --> 00:28:01,076 Speaker 1: and hire somebody else. But that procedure by itself, if 496 00:28:01,116 --> 00:28:06,156 Speaker 1: there are a whole series of resignations or firing and 497 00:28:06,396 --> 00:28:09,076 Speaker 1: hiring an appointment of acting, that's going to then raise 498 00:28:09,836 --> 00:28:12,996 Speaker 1: that kind of trigger concerns of federal judges in federal 499 00:28:13,036 --> 00:28:15,356 Speaker 1: courts because they know there's a reason why Congress assigned 500 00:28:15,396 --> 00:28:18,596 Speaker 1: that to the officer in the first instance. I know 501 00:28:18,636 --> 00:28:22,196 Speaker 1: of only offhand one statute which actually assigns that kind 502 00:28:22,196 --> 00:28:25,716 Speaker 1: of authority the President United States as opposed to an agency, 503 00:28:25,716 --> 00:28:29,116 Speaker 1: and that's actually the Federal Superfund Law that hazards waste law, 504 00:28:29,756 --> 00:28:32,676 Speaker 1: And the statute is written in terms of the President. 505 00:28:32,916 --> 00:28:36,236 Speaker 1: And that's because Congress couldn't decide whether to give that 506 00:28:36,316 --> 00:28:38,356 Speaker 1: authority to the head of EPA or the head of 507 00:28:38,356 --> 00:28:40,916 Speaker 1: the US Army Corps Engineers to address hands to his waiste. 508 00:28:41,156 --> 00:28:43,756 Speaker 1: So they compromise by giving it to the President in 509 00:28:43,916 --> 00:28:46,636 Speaker 1: name in the statute. But that's highly unusual. And does 510 00:28:46,636 --> 00:28:48,756 Speaker 1: that statute, that Superfund Statute, which is in your heart 511 00:28:48,796 --> 00:28:51,516 Speaker 1: Latin of environmental law, does it require the president to 512 00:28:51,596 --> 00:28:54,996 Speaker 1: make some factual findings of some kind before he exercises 513 00:28:54,996 --> 00:28:58,076 Speaker 1: that authority. It does certain kinds of endangerment fundings. But 514 00:28:58,116 --> 00:29:02,156 Speaker 1: the President has by executive order immediately delegated that to 515 00:29:02,196 --> 00:29:05,276 Speaker 1: the head of EPA, the Environment Rejection Agency, So he 516 00:29:05,316 --> 00:29:08,556 Speaker 1: has basically made it as though the statute did that, 517 00:29:08,596 --> 00:29:12,836 Speaker 1: but didn't. The President United States could anytime take that away, 518 00:29:12,956 --> 00:29:15,716 Speaker 1: but he can't do that for the CDC. And the 519 00:29:15,836 --> 00:29:20,036 Speaker 1: CDC is a particular agency that it's obviously got a 520 00:29:20,116 --> 00:29:23,556 Speaker 1: culture and a set of norms to it. So one 521 00:29:23,556 --> 00:29:28,356 Speaker 1: could well imagine that a head of a CDC or 522 00:29:28,396 --> 00:29:32,396 Speaker 1: an officer in the CDC would decline a directive from 523 00:29:32,396 --> 00:29:35,156 Speaker 1: the President more than you could expect, you know, the 524 00:29:35,236 --> 00:29:37,996 Speaker 1: Secretary State would, or the Secretary Defense Board, or the 525 00:29:37,996 --> 00:29:41,956 Speaker 1: Secretary a Treasury would. And that's precisely why Congress when 526 00:29:41,996 --> 00:29:44,676 Speaker 1: it passed those statutes and gave those kind of extraordinary 527 00:29:44,716 --> 00:29:48,156 Speaker 1: authorities didn't just give it to the president United States, 528 00:29:48,636 --> 00:29:52,276 Speaker 1: but gave it to the CDC. The structural issue here, 529 00:29:52,316 --> 00:29:54,236 Speaker 1: which you know, I'm really fascinated by, and it's been 530 00:29:54,276 --> 00:29:57,676 Speaker 1: under attacked throughout the Trump presidency, which is our background 531 00:29:57,676 --> 00:30:01,316 Speaker 1: assumption of what protects our liberties in conditions where expertise 532 00:30:01,396 --> 00:30:04,396 Speaker 1: is needed to limit our liberties, is this idea that 533 00:30:04,436 --> 00:30:08,556 Speaker 1: there are professional bureaucrats who are as close to rational 534 00:30:08,596 --> 00:30:11,996 Speaker 1: objective as is possible for humans, who are embedded in 535 00:30:12,036 --> 00:30:14,596 Speaker 1: these different parts of the government, and that when Congress 536 00:30:14,596 --> 00:30:16,956 Speaker 1: gives big authority to the executive branch, it's really trying 537 00:30:16,996 --> 00:30:18,996 Speaker 1: to give it to those people, the people whom Donald 538 00:30:18,996 --> 00:30:21,356 Speaker 1: Trump considers the deep state, you know, the people who 539 00:30:21,396 --> 00:30:24,796 Speaker 1: are supposed to act based on rational judgment, cost benefit 540 00:30:24,796 --> 00:30:29,596 Speaker 1: analysis and make decisions that are in everyone's interest. Trump 541 00:30:29,636 --> 00:30:32,596 Speaker 1: has been so busy trying to erode and undercut that 542 00:30:32,676 --> 00:30:36,276 Speaker 1: kind of authority and expertise that we really have had 543 00:30:36,316 --> 00:30:38,716 Speaker 1: to think for the last you know, three plus years 544 00:30:38,756 --> 00:30:41,756 Speaker 1: about just how strong that resistance power is. And I'm 545 00:30:41,796 --> 00:30:44,636 Speaker 1: not using resistance in a capital our resistance to Trump, 546 00:30:44,676 --> 00:30:47,396 Speaker 1: but just in the sense of what bureaucrats who are 547 00:30:47,396 --> 00:30:50,076 Speaker 1: supposed to exercise their authority are doing. And it does 548 00:30:50,156 --> 00:30:53,316 Speaker 1: seem to me, given everything he's said and done already 549 00:30:53,396 --> 00:30:57,156 Speaker 1: during the Corona pandemic, that he will be very unsympathetic 550 00:30:57,156 --> 00:31:00,236 Speaker 1: to the idea that there are professionals who exercise judgment 551 00:31:00,556 --> 00:31:03,516 Speaker 1: and who have to kick in with their own judgment 552 00:31:03,556 --> 00:31:06,596 Speaker 1: before heat tech steps. I can very easily picture him 553 00:31:06,596 --> 00:31:09,756 Speaker 1: contradicting them in either direction, either to say I've said 554 00:31:09,756 --> 00:31:11,236 Speaker 1: everyone has to stay home, and they have to stay home, 555 00:31:11,356 --> 00:31:13,196 Speaker 1: or the other way when those officials say we think 556 00:31:13,196 --> 00:31:15,436 Speaker 1: everyone should stay home, and you can imagine Trump saying, no, 557 00:31:16,116 --> 00:31:19,556 Speaker 1: you know, I refuse to do that. And this is 558 00:31:19,596 --> 00:31:21,956 Speaker 1: a case where, you know, all of our worries about 559 00:31:21,956 --> 00:31:24,156 Speaker 1: the separation of powers that we've been talking about over 560 00:31:24,156 --> 00:31:26,396 Speaker 1: the last three plus years, I mean, I've been talking 561 00:31:26,436 --> 00:31:30,756 Speaker 1: a lot about it, you know, are sort of coming 562 00:31:30,836 --> 00:31:33,716 Speaker 1: to a head in a situation where it could really matter. 563 00:31:34,196 --> 00:31:36,316 Speaker 1: I think that's absolutely right now. I've actually found it 564 00:31:36,396 --> 00:31:39,756 Speaker 1: someone unsettling in the past four weeks. I expect others 565 00:31:39,996 --> 00:31:42,796 Speaker 1: have as well. To see the President United States surrounded 566 00:31:42,796 --> 00:31:45,676 Speaker 1: by those public health officials and he seems to be 567 00:31:45,716 --> 00:31:48,156 Speaker 1: trying to co opt them and to make them into 568 00:31:48,276 --> 00:31:51,756 Speaker 1: public health in these sort of political spokes people for 569 00:31:51,836 --> 00:31:55,556 Speaker 1: him to be. You know, they now congratulate him when 570 00:31:55,596 --> 00:31:58,876 Speaker 1: they stand up and make comments on everything that he's doing. 571 00:31:59,396 --> 00:32:02,956 Speaker 1: I'd like some separation there between the president United States 572 00:32:03,196 --> 00:32:05,916 Speaker 1: and the public health officials and not make them seem 573 00:32:05,956 --> 00:32:09,436 Speaker 1: like their mouthpieces political mouthpieces for the president. I do 574 00:32:09,556 --> 00:32:12,476 Speaker 1: worry that he's a rooting that kind of trust we 575 00:32:12,556 --> 00:32:15,396 Speaker 1: might otherwise have, which are so important right now in 576 00:32:15,436 --> 00:32:18,956 Speaker 1: a moment of crisis. This deserves its own conversation, and 577 00:32:18,996 --> 00:32:21,076 Speaker 1: maybe we'll be able to have it going forward. But 578 00:32:21,916 --> 00:32:23,716 Speaker 1: I have a worry in the back of my mind, 579 00:32:24,596 --> 00:32:26,756 Speaker 1: maybe not the back, maybe the middle of my mind 580 00:32:27,396 --> 00:32:32,116 Speaker 1: about the elections. You know, there could be good public 581 00:32:32,156 --> 00:32:36,036 Speaker 1: health reasons for justifying delays in some primaries, but that 582 00:32:36,076 --> 00:32:39,196 Speaker 1: may not matter all that much, especially if the next 583 00:32:39,196 --> 00:32:43,876 Speaker 1: few primaries end up leaving one of the Democratic challengers 584 00:32:43,956 --> 00:32:47,196 Speaker 1: way ahead of the other. So maybe delaying those primaries 585 00:32:47,196 --> 00:32:49,596 Speaker 1: isn't the end of the world. But the big worry, 586 00:32:50,076 --> 00:32:55,236 Speaker 1: of course, is the presidential election. Nothing in the Constitution 587 00:32:55,276 --> 00:32:59,516 Speaker 1: as I read it, would allow authorized or even contemplate 588 00:32:59,916 --> 00:33:04,076 Speaker 1: delaying a presidential election, but individual states have a lot 589 00:33:04,156 --> 00:33:07,556 Speaker 1: of discretion in how they could enable that election to happen. 590 00:33:07,636 --> 00:33:11,156 Speaker 1: States could put in place mail in voting, They could 591 00:33:11,196 --> 00:33:15,196 Speaker 1: experiment with various online methods, provided those are protected from 592 00:33:15,356 --> 00:33:18,436 Speaker 1: Russian hacking efforts. But I think it might not be 593 00:33:18,516 --> 00:33:20,596 Speaker 1: too soon to sort of put a marker down and 594 00:33:20,636 --> 00:33:24,076 Speaker 1: say no, the President of the United States or Congress 595 00:33:24,716 --> 00:33:29,716 Speaker 1: cannot delay a presidential election. Yeah. I think very little 596 00:33:29,796 --> 00:33:33,516 Speaker 1: doubt that the President United States cannot do it on 597 00:33:33,596 --> 00:33:37,836 Speaker 1: his own, that that would raise very serious constitutional issues. 598 00:33:37,876 --> 00:33:40,636 Speaker 1: I don't think there's any worry that Congress would do 599 00:33:40,676 --> 00:33:45,316 Speaker 1: it right now, given a democratic, democratic house. Here's the worry. 600 00:33:45,796 --> 00:33:50,556 Speaker 1: The worry is the states, to the extent that the 601 00:33:50,636 --> 00:33:55,756 Speaker 1: President directed to the States to do it, to the 602 00:33:55,796 --> 00:33:59,076 Speaker 1: extent that we've seen sort, to my sense, a shocking 603 00:33:59,116 --> 00:34:04,236 Speaker 1: acquiescence in the presence demands by a lot of Republican 604 00:34:04,356 --> 00:34:08,476 Speaker 1: leadership in this country. I don't think it's beyond the pale. 605 00:34:08,516 --> 00:34:11,396 Speaker 1: I hope it is beyond the pale. The President United 606 00:34:11,436 --> 00:34:16,156 Speaker 1: States basically directed governors. I've not done a recent count 607 00:34:17,116 --> 00:34:21,436 Speaker 1: of governors that are well by Republican, But if a 608 00:34:21,516 --> 00:34:26,476 Speaker 1: sizable number of states responded to that by saying, we 609 00:34:26,556 --> 00:34:30,596 Speaker 1: are not going to hold elections because of this disaster 610 00:34:31,196 --> 00:34:35,076 Speaker 1: which inflicting us. And I'm sure we could find instances 611 00:34:35,116 --> 00:34:39,636 Speaker 1: of fires, tornadoes, hurricanes, maybe even contagion in the past 612 00:34:40,036 --> 00:34:42,716 Speaker 1: where elections were delayed not by order of the president 613 00:34:42,796 --> 00:34:45,196 Speaker 1: United States, but by order of a local government official 614 00:34:45,596 --> 00:34:49,156 Speaker 1: or a state government official. I'm hoping that doesn't happen, 615 00:34:50,276 --> 00:34:53,396 Speaker 1: but at the very least I can say with this president, 616 00:34:55,116 --> 00:34:59,436 Speaker 1: I can well see him making such a request. And 617 00:34:59,516 --> 00:35:02,636 Speaker 1: then the question will be whether or not those Republican 618 00:35:02,676 --> 00:35:08,836 Speaker 1: governors view themselves as independent actors or not. As usual, Richard, 619 00:35:08,876 --> 00:35:11,596 Speaker 1: talking into you not only teaches me a huge amount, 620 00:35:11,596 --> 00:35:14,276 Speaker 1: but it enables me to think through the structure and 621 00:35:14,316 --> 00:35:16,356 Speaker 1: see the problems coming down the road. I think of 622 00:35:16,436 --> 00:35:19,276 Speaker 1: you as the constitutional lawyers constitutional lawyer, you know, you're 623 00:35:19,316 --> 00:35:21,436 Speaker 1: the person, as you know, whom I always come to 624 00:35:21,516 --> 00:35:23,356 Speaker 1: it sometimes two in the morning to say, I'm trying 625 00:35:23,356 --> 00:35:25,556 Speaker 1: to figure out this constitutional issue. Am I right? Am 626 00:35:25,556 --> 00:35:27,076 Speaker 1: I wrong? How should I be thinking about it? And 627 00:35:27,116 --> 00:35:29,916 Speaker 1: you've just been super, super helpful on all of these 628 00:35:29,916 --> 00:35:32,916 Speaker 1: issues as we've been going through the Corona situation and 629 00:35:32,956 --> 00:35:35,316 Speaker 1: in this conversation as well. Thank you very very much. 630 00:35:37,196 --> 00:35:40,036 Speaker 1: As I talked to Richard, I gradually found myself getting 631 00:35:40,116 --> 00:35:44,516 Speaker 1: more and more nervous about the possible civil liberties consequences 632 00:35:44,556 --> 00:35:48,876 Speaker 1: of the coronavirus pandemic. It's not our primary worry right now. 633 00:35:48,916 --> 00:35:51,716 Speaker 1: Our primary worry is staying safe, and in a moment 634 00:35:51,756 --> 00:35:54,876 Speaker 1: of trying to stay safe, we do tend, as Richard said, 635 00:35:54,996 --> 00:36:00,316 Speaker 1: to defer to the government's decisions. But as this pandemic continues, 636 00:36:00,636 --> 00:36:03,436 Speaker 1: we should keep a close eye on how our civil 637 00:36:03,436 --> 00:36:06,756 Speaker 1: liberties do end up being limited and constrained by the government, 638 00:36:07,276 --> 00:36:10,996 Speaker 1: because those liberties are crucial to our human well being. 639 00:36:11,516 --> 00:36:13,516 Speaker 1: They may not be as important as not being sick, 640 00:36:13,916 --> 00:36:16,556 Speaker 1: but in the long run, they set the conditions for 641 00:36:16,636 --> 00:36:24,396 Speaker 1: a healthy and free society. Deep Background is brought to 642 00:36:24,396 --> 00:36:28,036 Speaker 1: you by Pushkin Industries. Our producer is Lydia gene Kott, 643 00:36:28,396 --> 00:36:31,836 Speaker 1: with studio recording by Joseph Fridman and mastering by Jason 644 00:36:31,916 --> 00:36:36,756 Speaker 1: Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our 645 00:36:36,836 --> 00:36:40,116 Speaker 1: theme music is composed by Luis Gera special thanks to 646 00:36:40,156 --> 00:36:43,956 Speaker 1: the Pushkin Brass Malcolm Goldwell, Jacob Weisberg, and Mia Lobel. 647 00:36:44,516 --> 00:36:48,036 Speaker 1: I'm Noah Feldman. I also write a column for Bloomberg Opinion, 648 00:36:48,196 --> 00:36:51,476 Speaker 1: which you can find at Bloomberg dot com Backslash Feldman. 649 00:36:52,036 --> 00:36:55,756 Speaker 1: To discover Bloomberg's original slate of podcasts, go to Bloomberg 650 00:36:55,876 --> 00:36:59,356 Speaker 1: dot com Backslash Podcasts. You can follow me on Twitter 651 00:36:59,556 --> 00:37:02,876 Speaker 1: at Noah R. Feldman. This is deep background