Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. The coronavirus pandemic is fundamentally a public
Speaker 1: health challenge to us right now, but as we've seen
Speaker 1: in a series of special episodes that we've been running
Speaker 1: the last few weeks, that public health challenge has broad
Speaker 1: interaction with a whole bunch of other serious policy issues.
Speaker 1: One is the economy, and we've explored that in a
Speaker 1: recent episode. Another is the law itself, specifically constitutional law,
Speaker 1: the law that governs the question of where public health
Speaker 1: stops and your individual liberties begin. That's an issue that's
Speaker 1: only beginning to emerge as central in our public debate
Speaker 1: around governmental response the coronavirus. To talk about this issue,
Speaker 1: I had a conversation with Professor Richard Lazarus of Harvard
Speaker 1: Law School. Richard is one of the leading Supreme Court
Speaker 1: advocates in the country. His area of specialization is environmental
Speaker 1: and natural resources law, and that makes him truly expert
Speaker 1: on the question of how expertise in government judgment within
Speaker 1: government agencies interacts with the power of the federal government
Speaker 1: and the power of the courts. He's the author of
Speaker 1: a new book, The Rule of Five, Making Climate History
Speaker 1: at the Supreme Court, which gives you the inside story
Speaker 1: of the most significant environmental law case of recent decades. Okay, so, Richard,
Speaker 1: let's just start with Many government institutions are trying to
Speaker 1: respond to the Corona crisis, and the Supreme Court is
Speaker 1: now the latest to have announced some steps. What's your
Speaker 1: sense of what the Court has in fact done. Well,
Speaker 1: what the Court is done is they've decided to take
Speaker 1: the quite significant step of postponing oral argument. The Court
Speaker 1: was supposed here oral argument in the last week of March,
Speaker 1: beginning on Monday, March twenty third. The Court has announced
Speaker 1: that it's going to postpone the entire March or argument session,
Speaker 1: that's two weeks of argument, and then hold those cases
Speaker 1: instead for argument in April. And I expect as a
Speaker 1: good chance the Court may well hold argument in May.
Speaker 1: In addition to that, I mean, I understand they're leaving
Speaker 1: the door open for May, and we all hope that
Speaker 1: things have passed their worst end. But why would you
Speaker 1: think that things would be so different in May. I mean,
Speaker 1: I don't see anything from any epidemiologist that thinks that
Speaker 1: things are going to be better then, especially in Washington, DC,
Speaker 1: where in fact the cases have been relatively slow to
Speaker 1: surprisingly slow to get going. Yeah, I think the court
Speaker 1: is one acting in a hopeful, optimistic way, the way
Speaker 1: many people are right now. All the different kinds of
Speaker 1: orders are only for three or four or five weeks,
Speaker 1: even if people assume it may take long than that.
Speaker 1: So there's a chance this is a first step and
Speaker 1: the court may have to take further steps. But beyond that,
Speaker 1: the court can hear cases, and they can hear argument
Speaker 1: in ways that are not inconsistent with the measures being
Speaker 1: take to prevent the spread of the virus. I mean,
Speaker 1: like a FaceTime argument or a zoom argument. They can
Speaker 1: do a FaceTime market, they can do a zoom argument.
Speaker 1: They can have people only the lawyers in the courtroom,
Speaker 1: no one else, and the courtments have the lawyers and
Speaker 1: the justices, the marshal, and the clerk. They can have
Speaker 1: only those folks there. They can have them spread out
Speaker 1: pretty well in the courtroom, and the justice can also
Speaker 1: I mean, you know, it's it's an insult to say it.
Speaker 1: And the presence of such a great oral advocate at
Speaker 1: the scream court as you. But they could also decide
Speaker 1: cases without the benefit of oral argument. They do that
Speaker 1: all the time. Yeah, there's certainly no requirement they have
Speaker 1: oral argument. They can limit the number of cases for
Speaker 1: which they hear an argument. My guess is they'd only
Speaker 1: be hearing time sensitive cases anyway. In any case if
Speaker 1: they think really has no particular times sensitivity. If things
Speaker 1: get worse, those cases they can push in a heartbeat
Speaker 1: to October. It's only the case that see more time sensitive.
Speaker 1: I mean, give examples. The Trump subpoena cases are probably
Speaker 1: cases were more time sensitive. The McGann subpoena and the
Speaker 1: other electoral college cases, those are cases the Court needs
Speaker 1: to decide. Yeah, we need to know what the answer
Speaker 1: is to those before we actually have an election exactly,
Speaker 1: So I think they'll feel a need if push comes
Speaker 1: to shove, they can decide that oral argument. They can
Speaker 1: certainly decide them with only some justices in the room.
Speaker 1: The Court has already done that. I mean, there are justices.
Speaker 1: When Chief Justice Renquist was ill during the two thousand
Speaker 1: and four term, you know, fifteen years ago, he would
Speaker 1: vote on cases if his vote made a difference. By
Speaker 1: listening to the oral argument, something that you would listen
Speaker 1: to the tapes held listened to the tapes of the
Speaker 1: oral argument, and then he would vote. He otherwise wouldn't participate.
Speaker 1: So they can and the court, i believe is shutdown
Speaker 1: oral argument before during the pandemic in nineteen eighteen, the
Speaker 1: Spanish flew the court also, I'm pretty sure shut down
Speaker 1: oral argument. So it's not without precedent. There are other
Speaker 1: institutions will be much more hard pressed to figure out
Speaker 1: how to function. Congress we much more hard pressed to
Speaker 1: function than the United States Supreme Court, an ordinary federal
Speaker 1: district court, I think. I mean, the Supreme Court is
Speaker 1: much more it's much grander, it's a much more formalized process.
Speaker 1: There are a lot of you know, nine injustices sitting
Speaker 1: on every case, and they could do everything that they
Speaker 1: do in principle without oral argument because they have detailed
Speaker 1: written briefs. But not all of that will be true
Speaker 1: for every federal district court, and certainly not for local
Speaker 1: court houses around the country. Some parts of justice, like
Speaker 1: criminal trials exactly criminal constitutionally can't do them remotely. Probably
Speaker 1: that's right. I mean, it requires you know, in person
Speaker 1: at least we've already always understood it to require in
Speaker 1: person presence. Yeah, you're supposed to be able to see
Speaker 1: your witness, supposed to under the confrontation clause. I mean,
Speaker 1: they're all kind of constution gives you the right to
Speaker 1: confront the witnesses against you, and so far courts don't
Speaker 1: think that's good enough to confront them on FaceTime. That's right.
Speaker 1: So they're all kinds of challenges In other parts of
Speaker 1: the judiciary, it would be much more intense than the
Speaker 1: Supreme Court. Supreme Court can get its job done. For
Speaker 1: talking about the administration the criminal justice system of the
Speaker 1: United States at the local level, at the trial level,
Speaker 1: and by police and magistrates, I think the system will
Speaker 1: could quickly become overwhelmed in sort of a parallel to
Speaker 1: what's happening with the hospitals being overwhelmed. The Supreme Court
Speaker 1: it can accommodate this relatively easily, I think as an
Speaker 1: institutional matter. But the local administration of criminal justice it's
Speaker 1: going to be a challenge. They don't have the resources
Speaker 1: or the expertise to do things remotely. Universities like Harvard
Speaker 1: and the rest we can switch to figure it out, yeah, exactly,
Speaker 1: And it's a challenge for us, but you're not going
Speaker 1: to be able to see that happen at the local level,
Speaker 1: and they're going to face real issues in real time. Richard,
Speaker 1: what did it mean when the President said I'm declaring
Speaker 1: a national emerge? Well, to some extent, it meant a
Speaker 1: lot less than people might have thought. And they're much
Speaker 1: less unusual than people might think. We normally just don't
Speaker 1: hear about them. I mean, give you an example. I mean,
Speaker 1: there have been about forty eight formal declarations by the
Speaker 1: president United States of national emergencies in the last thirty
Speaker 1: plus years. President Trump has done a whole bunch in
Speaker 1: the last year itself. It's usually about six every four
Speaker 1: years of national emergencies declared by the president. President Trump
Speaker 1: has had. In twenty nineteen, there were about eighty declarations
Speaker 1: of disasters. So that by itself means a lot less
Speaker 1: than people might think, because normally the declaration of emergency
Speaker 1: or the declaration of disaster is a very limited sort
Speaker 1: of salience. You have something which is quite narrowly defined.
Speaker 1: We're upset about the Taliban, so we're gonna do export restrictions.
Speaker 1: That's a more classic declaration of national emergency, or there's
Speaker 1: been a flood disaster in a in state. That's a
Speaker 1: typical disaster declaration. This one is categorically different, which is
Speaker 1: why we know so much about it. But there's a
Speaker 1: result of that. It doesn't by itself mean that much.
Speaker 1: It can trigger a lot. So for instance, when the
Speaker 1: President lasts Friday, just March thirteenth, declared a national emergency,
Speaker 1: and he did that under the National Emergencies Act, that's
Speaker 1: an applet named statute, and he also did it under
Speaker 1: what's called the Stafford Disaster Act. Of the two declarations
Speaker 1: he made, the National Emergency Act by itself is a
Speaker 1: far less immediate legal consequence under the Stafford Act, by
Speaker 1: declaring it a disaster, that potentially frees up about forty
Speaker 1: five to fifty billion dollars which has already been authorized
Speaker 1: and allocated by Congress to be managed by the Federal
Speaker 1: Emergency Management Agency for natural disasters and other kinds of disasters,
Speaker 1: So that money is immediately freed up to some extent
Speaker 1: it can be spent by the federal government. But what
Speaker 1: really then allows is the states to respond to that
Speaker 1: declaration by in turn declaring a major disaster within their
Speaker 1: states within their borders and then requesting assistance from the
Speaker 1: federal government. And if you take a look, President Trump
Speaker 1: made his declaration on March thirteenth. Immediately after that, all
Speaker 1: the governors that I can see, all the governors of
Speaker 1: all the states made matching declarations of disasters within their
Speaker 1: state as the territories Guam, American, Samoa, Puerto Rico. Everyone did.
Speaker 1: Because what happens is that makes them eligible to receive
Speaker 1: that money to do all kinds of things to address
Speaker 1: the current crisis of the virus. Now note it doesn't
Speaker 1: allows them to get federal assistance, but is still by
Speaker 1: a formula. It's seventy five percent by the federal government
Speaker 1: and twenty five percent by the states. So it's not
Speaker 1: just free money. Now Congress could change that if they want.
Speaker 1: On the current formula it's twenty five but that's what's
Speaker 1: going to allow state, through all kinds of things, to
Speaker 1: shore up their public health resources. So now that you
Speaker 1: brought up the states, Richard, we're going to have to
Speaker 1: wade into one of the things that people around the
Speaker 1: world I think consider weirdest about the American system of government,
Speaker 1: and specifically about our response to Corona, and it's something
Speaker 1: where there's already I've already read some articles, not only
Speaker 1: from abroad, from within the US saying what are you
Speaker 1: people doing? And that is the question of the relationship
Speaker 1: between the federal government and the state governments or what
Speaker 1: you know we in our business called constitutional federalism. So
Speaker 1: in Europe, if a central government, if the government of
Speaker 1: France wants to declare a state of emergency and impost conditions,
Speaker 1: the central government does it. And every single government official,
Speaker 1: down to the most local public health official or the
Speaker 1: rat catcher, they all respond to the same central bureaucracy.
Speaker 1: It's a centralized system. Our system doesn't work that way.
Speaker 1: We've got fifty states, plus the territories, which are maybe
Speaker 1: a more complicated issue for federalism. We won't touch on
Speaker 1: them today, but we have fifty states, each of which
Speaker 1: has its own inherent constitutional authority to do a whole
Speaker 1: bunch of stuff, and especially stuff connected to public health
Speaker 1: in the news. The way that's been playing out is
Speaker 1: that the first handful of states are starting actually to
Speaker 1: issue orders that limit movement or that close schools, and
Speaker 1: that authority, I take it they can exercise entirely on
Speaker 1: their own without federal authority. Correct, that's absolutely right. It's
Speaker 1: sort of backwards people might think from other countries. First
Speaker 1: of all, the presidential declaration disaster into the STAFFORDAC would
Speaker 1: have be of limited significance if the states hadn't responded
Speaker 1: under the statute to say we agree there's a disaster here.
Speaker 1: The federal money couldn't be spent the way it was.
Speaker 1: That's one issue. But then you're right beyond the Staffordact
Speaker 1: to the extent that decisions are going to be made
Speaker 1: to close schools, to stop crowds of more than twenty
Speaker 1: five or more here in Massachusetts, to close restaurants in
Speaker 1: bars in other places for public gathering. That's not a
Speaker 1: power which it's clear that the president United States has
Speaker 1: in the first instance. Those are powers that state officials
Speaker 1: and local officials have in this country. What about restrictions
Speaker 1: on movement under conditions of quarantine, I mean, I think
Speaker 1: that it's straightforwardly the case that if states have laws
Speaker 1: on the books, which I think almost all states do,
Speaker 1: sometimes really old laws that authorize the governor or other
Speaker 1: public health officials in the state to issue quarantine laws,
Speaker 1: there doesn't seem to be any doubt that that's an
Speaker 1: inherent power of the states. Yeah, I think that's right.
Speaker 1: It's inherent power of the state. It's sort of a
Speaker 1: classic police power, and the states in local governments. The
Speaker 1: more one looks at this, they exercise those powers. The
Speaker 1: idea of a pandemic and contagion is incredibly unsettling to
Speaker 1: all of us, but it was more the kind of
Speaker 1: thing people knew about in the early part of the
Speaker 1: twentieth century in this nation's history. So this was classic
Speaker 1: statement the local governmental action under the police power. My
Speaker 1: guess is that the federal government could do a lot
Speaker 1: more than it does. So let's say, let's try to
Speaker 1: do a concrete scenario. I live in Massachusetts. For some reason,
Speaker 1: I need to cross the state line into Connecticut for something.
Speaker 1: I need to help a relative or you know, check
Speaker 1: in on a friend who needs special care, and then
Speaker 1: I want to come back across the border, and in
Speaker 1: the meantime, the governor of Massachusetts says, no one move
Speaker 1: in and out of our state. Realistically, it's not clear
Speaker 1: to me whether that would be something that would happen,
Speaker 1: but let's imagine that it did, and things like that
Speaker 1: are happening in other places around the world. Would the
Speaker 1: governor probably have the inherent authority just to say I'm
Speaker 1: putting the state cops at the border, and I'm saying, hey,
Speaker 1: even if you live in Massachusetts, show us your driver's license,
Speaker 1: show us where you live, you can't come back in.
Speaker 1: I mean, that sounds absolutely insane and crazy, but I
Speaker 1: think the governor would have that inherent authority. I think
Speaker 1: just a few weeks ago, maybe a few days ago,
Speaker 1: would have bristled at the idea. Maybe many people would now,
Speaker 1: But my guess is if the governor made such an
Speaker 1: order and backed it up with different kinds of scientific
Speaker 1: basis for what he did, I think you find right
Speaker 1: now that a court would be very wary in the
Speaker 1: midst of a public health crisis preventing the governor from
Speaker 1: doing that. We'll be back in just a moment. So
Speaker 1: let's talk about the courts, which are our backstop that
Speaker 1: we're used to relying on under circumstances where the government
Speaker 1: takes steps that violate what we think of as our
Speaker 1: ordinary liberties. And let's start with a state case where
Speaker 1: let's say I'm stuck at the border and I want
Speaker 1: to get back into the state, and I go to
Speaker 1: court and I say Hey, government, you can't just exclude
Speaker 1: me from getting back home. That's not within your ordinary powers.
Speaker 1: And let's imagine you were representing the state in court
Speaker 1: the same way you represented the federal government in the
Speaker 1: US Supreme Court many times. What would you argue to
Speaker 1: the court about why it was justified for the government
Speaker 1: to sustain that kind of an order. Well, I just
Speaker 1: basically I rely on two things. The first is the
Speaker 1: degree of the exigency, what the risks were of contagion,
Speaker 1: to spread of contagion. And the second is the time
Speaker 1: sensitivity of it, that this is a true emergency, that
Speaker 1: there's not time to stay, this to wait and think
Speaker 1: about it and study it more. The cost to the
Speaker 1: public health be too great for the court to do
Speaker 1: what it might normally do, which is enjoying something which
Speaker 1: looks like it might be overreaching in order to basically
Speaker 1: let a more deliberative process be used. I think here
Speaker 1: i'd credit stress. We don't have that, we don't have
Speaker 1: that luxury to do that. Now. I think the kind
Speaker 1: of government order that would be more suspect in a
Speaker 1: classic sense is it didn't seem neutral in its face.
Speaker 1: So if you had a government order which said every
Speaker 1: one of a certain ethnic origin, We're going to stop them.
Speaker 1: If it looked like it was deliberately targeting certain kinds
Speaker 1: of people and certain kinds of populations, then I can
Speaker 1: imagine a court might well step in. But akin to
Speaker 1: sort of a First Amendment regulation, it looks fairly neutral
Speaker 1: in terms of time, place, or manner, and really looks
Speaker 1: like on its face it's geared to deal with a
Speaker 1: public health emergency. I think a court would be very
Speaker 1: hard pressed, federal or state, to second guess the governor
Speaker 1: whose advice appeared to be based on real public health information,
Speaker 1: you know, and to go to the point that you
Speaker 1: were making about how it seems hard to imagine the
Speaker 1: state troopers stopping us at the state border. I wonder
Speaker 1: if we're not in some sort of gradually sliding scale
Speaker 1: of what seems weird to us. I mean, certainly the
Speaker 1: rumors which are are out there include constant rumors of
Speaker 1: the possibility if people being blocked from traveling at state borders.
Speaker 1: I heard from a group of students recently who were
Speaker 1: trying to figure out whether they if they left campus
Speaker 1: they could come back to campus, and one of the
Speaker 1: issues that they were talking about was well, gee, if
Speaker 1: we crossed the state borders, even within the United States,
Speaker 1: might we be blocked from coming back? And I give
Speaker 1: them exactly the response that you just made to me,
Speaker 1: which makes me feel a little better, namely that it
Speaker 1: seems hard to imagine the government doing that, but that
Speaker 1: it probably would be within the legal authority of the
Speaker 1: state under these conditions. And after saying it, I thought
Speaker 1: to myself, is it really so unimaginable now that I've
Speaker 1: said that? And it may be that just what seems
Speaker 1: unimaginable today may be less unimaginable tomorrow, and the next
Speaker 1: day and the next day. Well, that's certainly how I
Speaker 1: think we all feel. In the last three weeks. Everything
Speaker 1: we couldn't have imagined it has become imaginable in some way.
Speaker 1: I don't want to suggest without limit. So if let's
Speaker 1: talk about the limits, right, So, if three months ago
Speaker 1: a governor of a state had announced that he or
Speaker 1: she thought there was some extraordinary virus affecting the state
Speaker 1: and try to shut down the borders, I have no
Speaker 1: doubt that a federal court would have immediately struck that down.
Speaker 1: The reason I'm suggesting right now that we'd find greater
Speaker 1: willingness on the part of federal judges to defer not
Speaker 1: to second guests is what everyone's reading, what everyone's seeing.
Speaker 1: So it's not as though a public official governor can
Speaker 1: sort of will he nearly do this. There's enough evidence
Speaker 1: in the air right naturally at the moment to take
Speaker 1: judicial notice that I think a public health official and
Speaker 1: a governor of a state has instant credibility and this issue,
Speaker 1: at least to the extent the court is not going
Speaker 1: to enjoin, it is going to allow to proceed, and
Speaker 1: then may well hold a hearing to have backed up
Speaker 1: with a heavy presumption in favor of ruling in favor. Ultimately, though,
Speaker 1: especially if this takes place over a longer period of time,
Speaker 1: I can imagine that courts would gradually become less deferential
Speaker 1: as the crisis begins to be more managed and begins
Speaker 1: to recede, and might eventually require the state or the
Speaker 1: federal government to provide some clearer justification for why it's
Speaker 1: really necessary to block people's movement or to shut down
Speaker 1: businesses and so forth and so on. It isn't our
Speaker 1: protection ultimately from the courts. The idea that there's only
Speaker 1: government authority to block our liberties if there's a compelling
Speaker 1: reason to do so, like pandemic, and if the government
Speaker 1: methods for doing so are closely matched to what is necessary,
Speaker 1: even narrowly tailored, as we sometimes say in the law,
Speaker 1: to what is necessary. I mean, that's our ultimate protection.
Speaker 1: I take it. Yeah, at the end of the day,
Speaker 1: I mean, the courts themselves don't have armies, they don't
Speaker 1: have police forces. Even the federal government doesn't have necessarily
Speaker 1: unless they're going to bring in the army. It takes
Speaker 1: some level of public acquiescence. And this is going to
Speaker 1: test the patients, the American public. It's one thing to
Speaker 1: do this for a week, another thing to do for
Speaker 1: two weeks, But when businesses are shut down for potentially weeks,
Speaker 1: if not months, schools the rest, it's going to really
Speaker 1: try the spirit of America to see whether or not
Speaker 1: willing the acquiesce in these kinds of very very stringent measures.
Speaker 1: One of the issues around acquiescence that immediately struck me
Speaker 1: as criminal enforcement. So if the state has the power
Speaker 1: to make you not leave your house, then they have
Speaker 1: the power to arrest you and punish you criminally if
Speaker 1: you violate that rule. And ditto for the federal government.
Speaker 1: I mean, I discovered there is, in fact a federal
Speaker 1: statute that says that if the federal government is assisting
Speaker 1: the states and enforcing their quarantines or isolation orders, that
Speaker 1: violating the federal orders is itself a federal crime punishable
Speaker 1: by prison time. It's hard for me to picture the
Speaker 1: governor of the United States actually exercising the power to
Speaker 1: arrest people and punish them under these circumstances. But I
Speaker 1: guess if they were widespread violation, or if someone was
Speaker 1: violating that to make a profit or some other bad thing,
Speaker 1: it's there as a potential sanction. That's right. The federal
Speaker 1: government can step in criminally, just like the state and
Speaker 1: local governments can, and they can punish people at a
Speaker 1: huge cost to doing so. But the federal government found
Speaker 1: their authority being challenged, including maybe authority being challenged at
Speaker 1: some point by local authorities, we might well see the
Speaker 1: federal government step in and take action to make clear,
Speaker 1: as we all know, the federal law is supreme. What's
Speaker 1: the scenario you're describing there where a state pushed back. Well,
Speaker 1: you can imagine the federal government believes that a certain
Speaker 1: part of the country is posing a greater threat to
Speaker 1: the rest of the country. Like Boston. We have an
Speaker 1: early outbreak and we have a big outbreak here, and
Speaker 1: the federal government itself doesn't want people from Boston and
Speaker 1: Massachusetts to go to other parts of the country. People
Speaker 1: in Boston might well want to leave. They might well
Speaker 1: want to get out and get to other parts of
Speaker 1: the country. I certainly know people, maybe you know people.
Speaker 1: I know people are headed to Maine. I know people
Speaker 1: headed to Vermont, New Hampshire. They want to get out
Speaker 1: of an area which looks like it might be an epicenter,
Speaker 1: and it might well be. The federal government doesn't want that,
Speaker 1: but the residents of Massachusetts do want that. So you
Speaker 1: can imagine, in terms of the notion of isolation, the
Speaker 1: pressure will be from the rest of the country to
Speaker 1: isolate an area which as epicenter, and that area won't
Speaker 1: have that same incentive. Again, we're not there yet. That's
Speaker 1: a scenario. It may not be that far from it,
Speaker 1: but but right now, a lot of people don't want
Speaker 1: to see people from Seattle. They might not necessarily want
Speaker 1: People in neighboring states might not want people from Seattle
Speaker 1: coming into their rural areas. So here, you know, my
Speaker 1: civil liberties senses start to tangle, because you know, we
Speaker 1: said that the courts would be suspicious of a rule
Speaker 1: that targeted certain people. If it targets people from a
Speaker 1: certain area, then the courts might say, well, you know,
Speaker 1: maybe we need that. And our current president is not
Speaker 1: someone who I think would be at all worried about
Speaker 1: targeting people from areas that happen coincidentally enough not to
Speaker 1: be his political supports. And we've already seen him do that.
Speaker 1: It's under a litigation challenge right now, but we saw
Speaker 1: him do that when he said that New Yorkers could
Speaker 1: no longer get tsa PreCheck benefits because he was angry
Speaker 1: at the state government for the way they were interacting
Speaker 1: with the immigration authority. So we know that he's more
Speaker 1: than capable of targeting people from a state. So how
Speaker 1: would you imagine a court thinking about it if there
Speaker 1: were sort of a ban on people from Massachusetts but
Speaker 1: no ban on people from some red state that also
Speaker 1: had an outbreak, and someone went to court and said, well, look,
Speaker 1: you know this isn't really justified. You're just targeting us
Speaker 1: because we're in Massachusetts, and you the federal government don't
Speaker 1: like us, The president doesn't like us. I think what
Speaker 1: would happened is the courts in the first instance, we
Speaker 1: weary see immediate injunction in the context of public health crisis,
Speaker 1: meaning they might just let it. They might just say
Speaker 1: we're gonna we'll think about this. But for the meantime,
Speaker 1: this order is staying in place because of the public
Speaker 1: health games. I think you find a court very wary
Speaker 1: of doing an immediate and joining to stop the federal
Speaker 1: government order. Then I think you might well see courts
Speaker 1: step in. They'd want to see some real evidence. But
Speaker 1: you're right, there is a perversity here. President's Trump's support
Speaker 1: right now is not in the major urban areas in
Speaker 1: the United States. His support is much more geographically spread
Speaker 1: out in this country, in the rural areas. It's even
Speaker 1: possible this virus could present a rural versus urban rift.
Speaker 1: And this president does all kinds of unprecedented things. There
Speaker 1: are no norms that I found applicable to him. So
Speaker 1: the notion that he might well find the reasons not
Speaker 1: to do something extorting with perspect to urban area like
Speaker 1: Boston or the state of California, again, not a state
Speaker 1: which he has been sort of shy about disapproving of
Speaker 1: their actions undoudly not unrelated to the fact that he
Speaker 1: finds no political support there. It's not as far fetch
Speaker 1: as one might have hoped. The legal scenario where the
Speaker 1: president orders a national shutdown, where the president says, look
Speaker 1: more or less as governors have done in individual states,
Speaker 1: everybody now stay at home. Every business other than you know,
Speaker 1: a food services business shut down or and you know,
Speaker 1: gas stations shut down. Does that seem to you within
Speaker 1: the scope of the president's authority under the current statutory framework.
Speaker 1: I mean, it looks to me from looking at the statutes,
Speaker 1: like the Centers for Disease Control can order effectively quarantine
Speaker 1: or isolation features. So I think the president maybe couldn't
Speaker 1: just do it on his own. Maybe he would have
Speaker 1: to make sure the CDC was on board. But the
Speaker 1: CDC works for the president. And again this is not
Speaker 1: so crazy because it's half and in most other countries,
Speaker 1: does that look to you like within the realm of
Speaker 1: constitutional reason. I'd have to look at the statutes themselves,
Speaker 1: because the president's inherent authority or this area is different
Speaker 1: than it would be pretty minimal. Yeah, than in other countries,
Speaker 1: look to the statutes. See the CDC authority, See who
Speaker 1: exactly the Congress has allowed it, and see who Congress
Speaker 1: has delegated that authority too. Within the CDC, it's not
Speaker 1: going to refer to the President United States by name.
Speaker 1: It's going referred to certain people within the CDC is
Speaker 1: going to give them the authority and the first instance,
Speaker 1: And that by itself is a limiting factor. That's really important.
Speaker 1: Can we just drill down on that for one second,
Speaker 1: because the point you made is so significant. When Congress
Speaker 1: authorizes the federal government to do stuff like this in
Speaker 1: the public health interests or the public safety interest, it
Speaker 1: doesn't say typically the President of the United States may
Speaker 1: it says the Centers for Disease Control or the Environmental
Speaker 1: Protection Agency, or it gives the authority, usually to an
Speaker 1: expert agency to exercise its expertise to make the determination
Speaker 1: that this is genuinely required or necessary. But we have
Speaker 1: this three part system of government where in theory that
Speaker 1: agency is always under the command in some form or
Speaker 1: another of the president. So in real world terms, what
Speaker 1: limitation does that impose? What how does it limit the
Speaker 1: President's actions? When the statute authorizes someone who works for
Speaker 1: the president to make a decision like this, because we
Speaker 1: know this president will just want to say I did it.
Speaker 1: He will not want to say the CDC did it. Well,
Speaker 1: he has to get someone in position authority in that
Speaker 1: agency to take the action he requests, and if they
Speaker 1: decline to do it, which has happened, if they decline
Speaker 1: to do it, he can fire them and hire someone else,
Speaker 1: and hire somebody else. But that procedure by itself, if
Speaker 1: there are a whole series of resignations or firing and
Speaker 1: hiring an appointment of acting, that's going to then raise
Speaker 1: that kind of trigger concerns of federal judges in federal
Speaker 1: courts because they know there's a reason why Congress assigned
Speaker 1: that to the officer in the first instance. I know
Speaker 1: of only offhand one statute which actually assigns that kind
Speaker 1: of authority the President United States as opposed to an agency,
Speaker 1: and that's actually the Federal Superfund Law that hazards waste law,
Speaker 1: And the statute is written in terms of the President.
Speaker 1: And that's because Congress couldn't decide whether to give that
Speaker 1: authority to the head of EPA or the head of
Speaker 1: the US Army Corps Engineers to address hands to his waiste.
Speaker 1: So they compromise by giving it to the President in
Speaker 1: name in the statute. But that's highly unusual. And does
Speaker 1: that statute, that Superfund Statute, which is in your heart
Speaker 1: Latin of environmental law, does it require the president to
Speaker 1: make some factual findings of some kind before he exercises
Speaker 1: that authority. It does certain kinds of endangerment fundings. But
Speaker 1: the President has by executive order immediately delegated that to
Speaker 1: the head of EPA, the Environment Rejection Agency, So he
Speaker 1: has basically made it as though the statute did that,
Speaker 1: but didn't. The President United States could anytime take that away,
Speaker 1: but he can't do that for the CDC. And the
Speaker 1: CDC is a particular agency that it's obviously got a
Speaker 1: culture and a set of norms to it. So one
Speaker 1: could well imagine that a head of a CDC or
Speaker 1: an officer in the CDC would decline a directive from
Speaker 1: the President more than you could expect, you know, the
Speaker 1: Secretary State would, or the Secretary Defense Board, or the
Speaker 1: Secretary a Treasury would. And that's precisely why Congress when
Speaker 1: it passed those statutes and gave those kind of extraordinary
Speaker 1: authorities didn't just give it to the president United States,
Speaker 1: but gave it to the CDC. The structural issue here,
Speaker 1: which you know, I'm really fascinated by, and it's been
Speaker 1: under attacked throughout the Trump presidency, which is our background
Speaker 1: assumption of what protects our liberties in conditions where expertise
Speaker 1: is needed to limit our liberties, is this idea that
Speaker 1: there are professional bureaucrats who are as close to rational
Speaker 1: objective as is possible for humans, who are embedded in
Speaker 1: these different parts of the government, and that when Congress
Speaker 1: gives big authority to the executive branch, it's really trying
Speaker 1: to give it to those people, the people whom Donald
Speaker 1: Trump considers the deep state, you know, the people who
Speaker 1: are supposed to act based on rational judgment, cost benefit
Speaker 1: analysis and make decisions that are in everyone's interest. Trump
Speaker 1: has been so busy trying to erode and undercut that
Speaker 1: kind of authority and expertise that we really have had
Speaker 1: to think for the last you know, three plus years
Speaker 1: about just how strong that resistance power is. And I'm
Speaker 1: not using resistance in a capital our resistance to Trump,
Speaker 1: but just in the sense of what bureaucrats who are
Speaker 1: supposed to exercise their authority are doing. And it does
Speaker 1: seem to me, given everything he's said and done already
Speaker 1: during the Corona pandemic, that he will be very unsympathetic
Speaker 1: to the idea that there are professionals who exercise judgment
Speaker 1: and who have to kick in with their own judgment
Speaker 1: before heat tech steps. I can very easily picture him
Speaker 1: contradicting them in either direction, either to say I've said
Speaker 1: everyone has to stay home, and they have to stay home,
Speaker 1: or the other way when those officials say we think
Speaker 1: everyone should stay home, and you can imagine Trump saying, no,
Speaker 1: you know, I refuse to do that. And this is
Speaker 1: a case where, you know, all of our worries about
Speaker 1: the separation of powers that we've been talking about over
Speaker 1: the last three plus years, I mean, I've been talking
Speaker 1: a lot about it, you know, are sort of coming
Speaker 1: to a head in a situation where it could really matter.
Speaker 1: I think that's absolutely right now. I've actually found it
Speaker 1: someone unsettling in the past four weeks. I expect others
Speaker 1: have as well. To see the President United States surrounded
Speaker 1: by those public health officials and he seems to be
Speaker 1: trying to co opt them and to make them into
Speaker 1: public health in these sort of political spokes people for
Speaker 1: him to be. You know, they now congratulate him when
Speaker 1: they stand up and make comments on everything that he's doing.
Speaker 1: I'd like some separation there between the president United States
Speaker 1: and the public health officials and not make them seem
Speaker 1: like their mouthpieces political mouthpieces for the president. I do
Speaker 1: worry that he's a rooting that kind of trust we
Speaker 1: might otherwise have, which are so important right now in
Speaker 1: a moment of crisis. This deserves its own conversation, and
Speaker 1: maybe we'll be able to have it going forward. But
Speaker 1: I have a worry in the back of my mind,
Speaker 1: maybe not the back, maybe the middle of my mind
Speaker 1: about the elections. You know, there could be good public
Speaker 1: health reasons for justifying delays in some primaries, but that
Speaker 1: may not matter all that much, especially if the next
Speaker 1: few primaries end up leaving one of the Democratic challengers
Speaker 1: way ahead of the other. So maybe delaying those primaries
Speaker 1: isn't the end of the world. But the big worry,
Speaker 1: of course, is the presidential election. Nothing in the Constitution
Speaker 1: as I read it, would allow authorized or even contemplate
Speaker 1: delaying a presidential election, but individual states have a lot
Speaker 1: of discretion in how they could enable that election to happen.
Speaker 1: States could put in place mail in voting, They could
Speaker 1: experiment with various online methods, provided those are protected from
Speaker 1: Russian hacking efforts. But I think it might not be
Speaker 1: too soon to sort of put a marker down and
Speaker 1: say no, the President of the United States or Congress
Speaker 1: cannot delay a presidential election. Yeah. I think very little
Speaker 1: doubt that the President United States cannot do it on
Speaker 1: his own, that that would raise very serious constitutional issues.
Speaker 1: I don't think there's any worry that Congress would do
Speaker 1: it right now, given a democratic, democratic house. Here's the worry.
Speaker 1: The worry is the states, to the extent that the
Speaker 1: President directed to the States to do it, to the
Speaker 1: extent that we've seen sort, to my sense, a shocking
Speaker 1: acquiescence in the presence demands by a lot of Republican
Speaker 1: leadership in this country. I don't think it's beyond the pale.
Speaker 1: I hope it is beyond the pale. The President United
Speaker 1: States basically directed governors. I've not done a recent count
Speaker 1: of governors that are well by Republican, But if a
Speaker 1: sizable number of states responded to that by saying, we
Speaker 1: are not going to hold elections because of this disaster
Speaker 1: which inflicting us. And I'm sure we could find instances
Speaker 1: of fires, tornadoes, hurricanes, maybe even contagion in the past
Speaker 1: where elections were delayed not by order of the president
Speaker 1: United States, but by order of a local government official
Speaker 1: or a state government official. I'm hoping that doesn't happen,
Speaker 1: but at the very least I can say with this president,
Speaker 1: I can well see him making such a request. And
Speaker 1: then the question will be whether or not those Republican
Speaker 1: governors view themselves as independent actors or not. As usual, Richard,
Speaker 1: talking into you not only teaches me a huge amount,
Speaker 1: but it enables me to think through the structure and
Speaker 1: see the problems coming down the road. I think of
Speaker 1: you as the constitutional lawyers constitutional lawyer, you know, you're
Speaker 1: the person, as you know, whom I always come to
Speaker 1: it sometimes two in the morning to say, I'm trying
Speaker 1: to figure out this constitutional issue. Am I right? Am
Speaker 1: I wrong? How should I be thinking about it? And
Speaker 1: you've just been super, super helpful on all of these
Speaker 1: issues as we've been going through the Corona situation and
Speaker 1: in this conversation as well. Thank you very very much.
Speaker 1: As I talked to Richard, I gradually found myself getting
Speaker 1: more and more nervous about the possible civil liberties consequences
Speaker 1: of the coronavirus pandemic. It's not our primary worry right now.
Speaker 1: Our primary worry is staying safe, and in a moment
Speaker 1: of trying to stay safe, we do tend, as Richard said,
Speaker 1: to defer to the government's decisions. But as this pandemic continues,
Speaker 1: we should keep a close eye on how our civil
Speaker 1: liberties do end up being limited and constrained by the government,
Speaker 1: because those liberties are crucial to our human well being.
Speaker 1: They may not be as important as not being sick,
Speaker 1: but in the long run, they set the conditions for
Speaker 1: a healthy and free society. Deep Background is brought to
Speaker 1: you by Pushkin Industries. Our producer is Lydia gene Kott,
Speaker 1: with studio recording by Joseph Fridman and mastering by Jason
Speaker 1: Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our
Speaker 1: theme music is composed by Luis Gera special thanks to
Speaker 1: the Pushkin Brass Malcolm Goldwell, Jacob Weisberg, and Mia Lobel.
Speaker 1: I'm Noah Feldman. I also write a column for Bloomberg Opinion,
Speaker 1: which you can find at Bloomberg dot com Backslash Feldman.
Speaker 1: To discover Bloomberg's original slate of podcasts, go to Bloomberg
Speaker 1: dot com Backslash Podcasts. You can follow me on Twitter
Speaker 1: at Noah R. Feldman. This is deep background