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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: Last week, President Trump pardoned his former National security advisor,

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Speaker 1: Michael Flynn, who had pleaded guilty to lyne to the

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Speaker 1: FBI about his communications with Russia. Now speculation is swirling

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Speaker 1: about who else the president will pardon before he leaves office,

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Speaker 1: and whether Trump will even pardon himself. In eighteen Trump

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Speaker 1: tweeted that he has the absolute right to pardon himself,

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Speaker 1: but many constitutional scholars say that's not correct. It's something

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Speaker 1: that's never been tested in the courts because no president

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Speaker 1: has ever tried to pardon himself. Richard Nixon left office

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Speaker 1: and waited for his former vice president Gerald Ford to

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Speaker 1: pardon him. My guest is Frank Bowman, a professor at

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Speaker 1: the University of Missouri School of Law. As far as

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Speaker 1: pardoning other people, is there any limitation on a president's

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Speaker 1: power to pardon someone. Let's say they're seen as a

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Speaker 1: co conspiritor and they haven't been charged yet. Is there

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Speaker 1: any limitation? I think the answer is no, there's no limitation. Now,

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Speaker 1: there are some people who disagree with me on that point,

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Speaker 1: and I respect their views. I think that at least

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Speaker 1: as a matter of the original interpretation of the pardon clause.

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Speaker 1: The Framers thought about that quite expressively. Their debate focused

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Speaker 1: on the fact that has written the pardon clause extends

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Speaker 1: to any crime, including treason, and a number of the Framers,

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Speaker 1: both at the Philadelphia convention and in the ratifying conventions

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Speaker 1: in the States, objected to the breadth of that because

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Speaker 1: they said, wait a minute, if a president can pardon

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Speaker 1: even treason, imagine as the president himself has been engaging

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Speaker 1: in treason as activities and his co conspirators, although they

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Speaker 1: didn't use exactly that we're we're caught or were suspected,

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Speaker 1: he could pardon them for treason and to VMP to

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Speaker 1: discovery of his own guilt. And the framer's discussion pretty

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Speaker 1: much assumed that that's undesirable, of course, but he is

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Speaker 1: included within the pardon power. Has the pardon power ever

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Speaker 1: been tested in court? Well, if you know that there

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Speaker 1: were people who tried to challenge that you are Pio

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Speaker 1: pardon you remember, back at the beginning of the Trump's presidency,

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Speaker 1: I think it was in two thousand and seventeen. Your Pio,

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Speaker 1: a former sheriff of Americo County in Arizona had been

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Speaker 1: charged with convicted of contempt of court arising out of

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Speaker 1: a civil rights lawsuit to which he was a party.

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Speaker 1: He had been convicted of criminal contempt before he could

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Speaker 1: be sentenced, Trump pardoned, and there was a an effort

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Speaker 1: to dispute that pardon on a couple of different grounds

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Speaker 1: that were specific to the law criminal contempt, but they

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Speaker 1: never really got anywhere, and that the pardons stood. You know,

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Speaker 1: there have been efforts to limit certain aspects of pardons,

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Speaker 1: but there has certainly never been a court case that

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Speaker 1: successfully overturned a presidential part Now, so just give us

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Speaker 1: the broad framework of where the pardon power comes from

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Speaker 1: and why the Framers gave the president to pardon power. Well,

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Speaker 1: the pardoner comes from a very specific provision in the

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Speaker 1: in the Constitution, which grants the president to pardon all

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Speaker 1: offenses read federal criminal offenses, except impeachments. So essentially, if

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Speaker 1: a president could not, by use of the pardon, undo

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Speaker 1: a congressional impeachment and conviction of any federal official or

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Speaker 1: indeed of himself, that's clear. So the Framers wrote that

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Speaker 1: specifically into the Constitution, specifically into the Article two Powers

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Speaker 1: of the President United states. Where it comes from is

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Speaker 1: that back into deep time, I suppose, is the British

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Speaker 1: practice whereby the crown was entitled pardon people. That British

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Speaker 1: ideas sort of emerged from the notion that, at least

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Speaker 1: in early British legal theory, the law was largely, not exclusively,

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Speaker 1: kind of an emanation of the will of the king,

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Speaker 1: and there perfect sense that legal guilt was really violation

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Speaker 1: of the law, which was an emanation of the will

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Speaker 1: of the king, that the king could in reverse, that

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Speaker 1: could undo, it could reach down and reverse what the

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Speaker 1: king thought to be unfair or unjust excessive applications of

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Speaker 1: the law. Now, that became more refined over time. But

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Speaker 1: there were also pardons pardon power written into the constitutions

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Speaker 1: of the early American States from seventeen seventy six to

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Speaker 1: when the Constitution was ratified, and there had been a

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Speaker 1: long tradition of the ability of generally speaking the executive branch,

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Speaker 1: but sometimes legislatures and sometimes the two working together to

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Speaker 1: reach in to undo excessive, unfair, unjust applications of the

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Speaker 1: criminal law. Nothing straining your unusual about that. There was

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Speaker 1: a debate in the Philadelphia Convention about whether or not

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Speaker 1: the part and power for American constitutional purposes, it ought

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Speaker 1: to rest exclusively in the president, or whether it ought

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Speaker 1: to be shared with component of the legislature, particularly the Senate,

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Speaker 1: either generally or in relationship to partners for treason. And

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Speaker 1: they kicked it back and forth, and they decided at

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Speaker 1: the end of the day that it made better sense

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Speaker 1: to leave this power in the hands of the single executives,

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Speaker 1: partly because they thought that there would be occasions when

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Speaker 1: it ought to be used expeditiously in it not not

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Speaker 1: to be tied up into legislative delay. And they also

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Speaker 1: thought of the part and power as intense a kind

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Speaker 1: of inter branch check by the executive on excesses to

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Speaker 1: the legislature excess is of the judiciary. You can see

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Speaker 1: an example of that kind of use of the part

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Speaker 1: in power in President Obama's program to reduce the sentences

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Speaker 1: of of non violent drug offenders, where he pardoned some

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Speaker 1: you know, somewhere a thousand and two thousand first time

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Speaker 1: drug offenders towards the end of his term, and that

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Speaker 1: was the use of the executive part in power is

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Speaker 1: the kind of systematic, systematic response or systemic response to

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Speaker 1: the fact the fact that Congress has passed these long

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Speaker 1: manager a minimum sentences that applied even to people who

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Speaker 1: are non violent drug offenders. And so that's the classic

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Speaker 1: example of that of that use of the pardon. Explain

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Speaker 1: why constitutional scholars disagree about whether a president can pardon

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Speaker 1: himself series of reasons. First, it's never ever been done.

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Speaker 1: No executive branch official, whether king, president, or governor, ever

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Speaker 1: attempted to purge themselves, and you can see why that

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Speaker 1: would not be so. The pardon power, whether British or American,

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Speaker 1: is designed for the chief executive to make a judgment

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Speaker 1: about the behavior of others and to conclude either that

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Speaker 1: they were adjusted, convicted or or excessively punished, perhaps rehabilitated

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Speaker 1: themselves after a period of time. And just by its

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Speaker 1: nature that idea doesn't involve making a judgment about yourself.

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Speaker 1: We've always thought that making that kind of judgment about

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Speaker 1: oneself is plainly going to be something that uh is

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Speaker 1: subject to abuse, and so it's never been done. That's

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Speaker 1: the That's the thing that's really contrary to the dial theory.

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Speaker 1: Second thing, without getting a lot of detail, there are

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Speaker 1: a number of debates in that happened during the gratification

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Speaker 1: of the Constitution. That made clear that although the Framers

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Speaker 1: didn't specifically talk about the self pardon, it's pretty clear

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Speaker 1: that they also didn't imagine that such a thing would

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Speaker 1: be possible. They just didn't conceive it as being something

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Speaker 1: that to be done. They conceived the partners necessarily involving

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Speaker 1: two parties. And they also wrote both the pardon clause

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Speaker 1: and the impeachment clauses in a way that made it

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Speaker 1: clear that they assumed that there were really three ways

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Speaker 1: in the Constitution to check a criminally misbehaving president. The

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Speaker 1: first peace was elections, of course, and they originally were

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Speaker 1: kicking around the idea that perhaps elections would be enough

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Speaker 1: to restrain in the really seriously misbehaving executives. They ultimately

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Speaker 1: decided that wouldn't be enough, so they then instituted the

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Speaker 1: idea of in teachment, which itself as an old British idea,

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Speaker 1: But they went a little further than that, and when

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Speaker 1: they wrote the impeachment clauses, they wrote a limitation on

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Speaker 1: the consequences of impeachment. I mean, the American Constitution, if

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Speaker 1: you're impeached and convicted by the Senate, the only consequences

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Speaker 1: that happened directly as a results of that, or you

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Speaker 1: lose your office, and if the Senate takes a second vote,

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Speaker 1: you can also be barred from future office holding. But

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Speaker 1: in addition, they were very careful to say that although

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Speaker 1: you can't be criminally punished directly, in other words, you

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Speaker 1: can't be sent to prison, you can't be fined, you

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Speaker 1: can't be executed directly as a result of being impeached

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Speaker 1: in by the House and expected by the Senate. Each

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Speaker 1: person remains subject to criminal punishment by the normal action

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Speaker 1: of the court. That's written right into the impeachment clause.

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Speaker 1: So what I think you see here is that the

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Speaker 1: framers imagine that there were these three ways of dealing

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Speaker 1: with the criminal president, elections, impeachment, and the possibility of

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Speaker 1: criminal prosecution. Now, if a president can simply pardon himself

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Speaker 1: or anything, then the possibility of criminal prosecution for clonal

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Speaker 1: misbehavior while in office essentially goes proof because it could

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Speaker 1: be taken completely off the board. It would eliminate one

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Speaker 1: of the three constitutional checks on presidential miss Let's just

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Speaker 1: say President Trump decides he's going to pardon himself. How

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Speaker 1: would that even be tested in court? Would it take

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Speaker 1: a federal prosecution charging him with a crime to test

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Speaker 1: whether he had the power to pardon himself. That would

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Speaker 1: be the principal way that it would happen, presumably the

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Speaker 1: members of Biden Justice partner would do. In a criminal investigation,

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Speaker 1: they would conclude at looking at all the evidence that

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Speaker 1: indeed the behavior merited in indictment. The indictment is returned

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Speaker 1: by the grand jury, and the President would move to

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Speaker 1: caution the indictment based on his own pardoner in the

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Speaker 1: Department of Justice would resist that motion, claiming as the

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Speaker 1: president has no such power. Now I think, frankly, that

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Speaker 1: Trump is likely to try this, even though you know

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Speaker 1: it's constitutionally doubtful, because he might win. Maybe the Spreme

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Speaker 1: Court would disagree with me, and other people don't think

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Speaker 1: self pardners are possible. But he could also use the

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Speaker 1: self pardon to slow things down tremendously. Not only could

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Speaker 1: he invoke his own pardoner himself if the department indicted him,

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Speaker 1: but I suspect what he has lawyers to try to

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Speaker 1: do is that as soon as it became evident that

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Speaker 1: they were engaging in a criminal investigation of them, that

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Speaker 1: he tried to stop at least important components of the

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Speaker 1: investigation likes Penis, the witnesses Penis for documents by moving

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Speaker 1: to quash him on the ground that they were being

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Speaker 1: issued in order to put together a prosecution, which wouldn't

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Speaker 1: be possible because he pardoned himself. Now, I don't necessarily

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Speaker 1: think that would be ultimately successful, but he could slow

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Speaker 1: things down because to resist that claim, the government would

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Speaker 1: have to resist the motion to quash. That would have

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Speaker 1: to be decided at the trial court, then the Intermediate

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Speaker 1: Court of Fields in the Supreme Court, and all that

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Speaker 1: takes time. So I think he's likely to try to

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Speaker 1: do this because it certainly it seems that he's worried

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Speaker 1: about at least criminal investigations of himself and others, and

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Speaker 1: at a minimum, a self pardon is going to provide

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Speaker 1: another avenue for delay. And as we know anything about

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Speaker 1: Donald Trump and his approach to litigation over his long

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Speaker 1: business and political is that he uses delay as a

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Speaker 1: major tactic to try or resist the legal efforts of

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Speaker 1: his opponents. So if the Biden Justice Department decides not

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Speaker 1: to prosecute Trump, then his self pardon will remain untested.

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Speaker 1: That's true, although again I suspect Trump if you pardon himself,

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Speaker 1: would be tempted at least to try to use the

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Speaker 1: pardon to slow down not only any criminal investigation of him,

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Speaker 1: but also potential civil or administrative investigations. I don't think

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Speaker 1: that attempt would be successful, but I think he might

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Speaker 1: try it, and therefore there might be other venues for

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Speaker 1: challenging it. But here's the thing. One of the perverse

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Speaker 1: effects of Trump pardoning himself might be that a Biden

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Speaker 1: Justice Department would feel obliged to pursue the matter. It's

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Speaker 1: awfully tough, I think for an honest Justice Department to

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Speaker 1: let that precedent stand, because it then if I'm challenged,

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Speaker 1: it starts to gather force as something that presidents can do.

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Speaker 1: And if he becomes even sort of generally accepted that

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Speaker 1: that's a possibility. Consider where we are. We already know,

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Speaker 1: because it was a big issue during the Moller investigation

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Speaker 1: that the Office of Legal Counsel within the Justice Department

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Speaker 1: has long held the opinion that sitting presidents cannot be

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Speaker 1: indicted while in office. Now I think that's constitutionally wrong,

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Speaker 1: but as a practical matter, it's not something to be

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Speaker 1: challenged because memos buying the Justice Department. Of the Justice

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Speaker 1: Department won't prosecute a sitting president. He can't be prosecuted,

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Speaker 1: So that means that practically speaking, at present moment, a

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Speaker 1: sitting president is not subject to federal criminal prosecution while

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Speaker 1: he's there. If he can also self partner, that means

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Speaker 1: he's never subject criminal prosecution. And given the potential breadth

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Speaker 1: of a partner which can't extend to any federal crime

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Speaker 1: whatsoever and need all federals, and which at least potentially

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Speaker 1: could be granted to one's self as president for periods

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Speaker 1: extending before your presidents were You're talking about is creating

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Speaker 1: a de facto regime in which, once somebody becomes president

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Speaker 1: and at its states combined operation of the OLC. Metlin

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Speaker 1: myself pardon makes that person permanently immune from criminal consequences,

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Speaker 1: at least in the federal courts, for anything he's done

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Speaker 1: during his entire life. And a person who has that

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Speaker 1: kind of immunity effectively assumes one of the attributes of monarchy.

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Speaker 1: One of the things that is true or was true

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Speaker 1: actually remains true about British kings and queens if they

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Speaker 1: are not subject to the operation of the ordinary courts

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Speaker 1: criminal or civil of Great Britain, they are effectively immune

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Speaker 1: from the law. One thing we know, if anything, about

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Speaker 1: the framers of the Constitution, is that they did not

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Speaker 1: intend to create in a president somebody who was the

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Speaker 1: de factl equivalent of King. If. If, if the president

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Speaker 1: can can essentially pardon himself out of all criminal liability

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Speaker 1: for everything in his entire life, we've created at least

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Speaker 1: a kind of monarch. Just before, um, I let you go,

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Speaker 1: would you just explain why the president cannot? There's no

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Speaker 1: chance that the president can pardon himself from state crimes

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Speaker 1: like those that the Manhattan District Attorney is investigating. The

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Speaker 1: pardon power in the Constitution is very broad, indeed, but

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Speaker 1: it has some implicit limitations. One of them is that

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Speaker 1: it applies only to federal offenses, so it doesn't relate

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Speaker 1: to state crimes at all. Another implicit limitation is that

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Speaker 1: it can only cover crimes that have already occurred at

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Speaker 1: the time of the issuance to part. So that means

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Speaker 1: um that Trump, even if in theory self pardons are available,

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Speaker 1: um could not pardon himself or offenses that are committed

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Speaker 1: after he leaves office. And indeed he probably can't pardon

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Speaker 1: himself or any ongoing offense that started before he pardons himself,

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Speaker 1: quarantined anyone else, and continues after that pardon. So there

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Speaker 1: are limitations, um, but at least as federal criminal offense

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Speaker 1: before the assurance, the pardon, pardon towers very well. Thanks Frank.

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Speaker 1: That's Professor Frank Bowman of the University of Missouri Law School.

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Speaker 1: The number of Americans hospitalized with COVID nineteen climbed to

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Speaker 1: a record Sunday, a sign that the virus is still raging,

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Speaker 1: but good news on the vaccine front. Today, Maderna announced

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Speaker 1: plans to request clearance for its coronavirus vaccine the US

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Speaker 1: and Europe after a new analysis showed the vaccine was

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Speaker 1: highly effective in preventing COVID nineteen with no serious safety problems.

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Speaker 1: At this pivotal time, states are not only facing decisions

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Speaker 1: on how to manage the pandemic, but also on how

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Speaker 1: to distribute a vaccine. Joining me discuss this is Mark Houston,

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Speaker 1: who has a healthcare regulatory and lobbying practice at Farrell Fritz. Normally,

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Speaker 1: a governor is empowered to make decisions about lockdowns, but

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Speaker 1: we've seen that the Supreme court recently has blocked Governor

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Speaker 1: Andrew Cromo from re Impoe, saying strict capacity limits on

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Speaker 1: New York City synagogues and Catholic churches. So tell us

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Speaker 1: about how broad the governor's authority is and how it

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Speaker 1: can be restricted. In general, governors have very broad authority

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Speaker 1: in regard to disaster emergencies. Every state has language that

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Speaker 1: says in the event of a disaster emergency of any kind,

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Speaker 1: including a public health emergency, generally the executive is granted

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Speaker 1: extraordinary powers to do all kinds of things that the

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Speaker 1: executive normally cannot do. However, even though those statutes that

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Speaker 1: grant uh that authority are are very broad, they are

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Speaker 1: still subject to limitations imposed by the state constitution and

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Speaker 1: by the federal Constitution. And that's what was that issue

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Speaker 1: in the case in in regard to New York State,

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Speaker 1: where you had a situation where the governor's police power

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Speaker 1: for public health purposes was pitted squarely against questions of

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Speaker 1: religious rights. Uh, and uh, you know that always puts

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Speaker 1: the court in a difficult position to try to figure out, um,

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Speaker 1: you know, which which set of rights wins in a

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Speaker 1: particular disagreement. And in this case, what they decided was

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Speaker 1: UH that for a variety of reasons, UH, the UH

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Speaker 1: the order as related to churches UH and synagogue in

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Speaker 1: New York State needed to be enjoined and could not,

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Speaker 1: in fact be enforced. So now, Mayor du Blasio and

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Speaker 1: Governor Cuomo have clashed several times during the coronavirus pandemic,

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Speaker 1: particularly about whether or not schools should be operational. Who

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Speaker 1: has the authority in that battle? Ultimately, UH, the decision

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Speaker 1: regarding schools, any decision regarding schools in New York State

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Speaker 1: is the responsibility of the governors. How are in regard

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Speaker 1: to New York City schools, the mayor does have expansive

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Speaker 1: authority um. And in this case, the issue turned on

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Speaker 1: a rule that was set earlier that once the infection

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Speaker 1: rate top three, schools would once again eliminate in person instruction. UH.

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Speaker 1: And you know the ultimately the disagreement turned on whether

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Speaker 1: that was a good rule or not. And UH, you know,

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Speaker 1: the the governor made the argument that, based on the

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Speaker 1: most recent UH scientific information we had, maybe you didn't

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Speaker 1: need to to abide by by such a bright line rule.

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Speaker 1: And it sounds like the Mayor is ultimately agreeing. And

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Speaker 1: this is illustrates. I think part of the the the

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Speaker 1: problem in a pandemic situation, right. Um. You know we

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Speaker 1: I mentioned earlier the broad authority of governors UH in

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Speaker 1: regard to disaster emergencies. I think part of the problem

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Speaker 1: is those statutes that grant that our our premised on

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Speaker 1: sort of typical disasters things like hurricanes, earthquakes, tornadoes, and

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Speaker 1: not something that occurs over such a sustained period of time.

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Speaker 1: And you know, as the pandemic has been evolving, our

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Speaker 1: understanding of it has evolved, so we get new scientific

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Speaker 1: information over time. UH. And that I think properly has

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Speaker 1: driven some some changes UH in in in the approach

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Speaker 1: to two particular issues, and that question of in person

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Speaker 1: schooling is absolutely one of them. So let's say that

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Speaker 1: the mayor said that schools will remain closed. Does anyone

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Speaker 1: have an ability to appeal that decision? Is it something

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Speaker 1: that you would take to court? Sure, you certainly could, um.

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Speaker 1: The UM. You know they're have courts have absolutely found

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Speaker 1: a right to education UM. And you know there has been,

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Speaker 1: certainly in New York a considerable amount of litigation around

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Speaker 1: that UM. And so you you have essentially another situation

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Speaker 1: similar to the situation regarding churches and synagogues where uh,

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Speaker 1: you know, you have this this right to education pitted

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Speaker 1: against the police power of the states, So you you

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Speaker 1: could absolutely make the argument. I mean, that's one of

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Speaker 1: the great things about our system is you can always

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Speaker 1: make the argument. What the courts will say are a

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Speaker 1: different matter. I think as far as the masks mask wearing,

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Speaker 1: are there any states or cities who have really gotten

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Speaker 1: serious about finding people who are not wearing masks? You know,

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Speaker 1: you always hear sort of anecdotes about how how particular

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Speaker 1: places are responding. Mask wearing is one of those things

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Speaker 1: that folls on this continuum where you know, there's there's

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Speaker 1: plenty of laws that everyone sort of recognizes and accepts about,

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Speaker 1: you know, governing people's clothing. You know, we have indecent

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Speaker 1: exposure laws, for instance. But on the other hand, there

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Speaker 1: is a natural and understandable concern about government mandating what

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Speaker 1: you can wear and what you can't wear. In other situations,

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Speaker 1: the key is always one of intention, and you know,

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Speaker 1: a mask wearing statute accompanied by a fine, I think

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Speaker 1: under the current circumstances would probably survive judicial route. How

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Speaker 1: will the federal government determine what states get the vaccine,

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Speaker 1: how much of the vaccine they get, and which vaccine

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Speaker 1: they get. Who makes that determination is the federal government.

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Speaker 1: So that is one of those questions that UM is

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Speaker 1: in some ways up in the air. Uh. The federal

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Speaker 1: government has issued a vaccine distribution plan, but it is

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Speaker 1: expressed in very general terms, and I think mostly talks

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Speaker 1: about how they're going to go about making those decisions,

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Speaker 1: as opposed to what those decisions will be UM. States. Uh,

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Speaker 1: you know I have already started to engage on that

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Speaker 1: question themselves. Uh. And for instance here in New York. UM,

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Speaker 1: you know, there is a I think a much more

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Speaker 1: detailed plan as to what how those decisions are going

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Speaker 1: to be made. UM. There's not you know, a hard

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Speaker 1: and fast existing rule driving that decision. Now, like so

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Speaker 1: many things during the pandemic, UM, you know, Uh, the

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Speaker 1: the decision makers are in a position where they can,

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Speaker 1: uh they have a lot of leeway in how they

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Speaker 1: make those decisions. And UH, I think you see the

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Speaker 1: decision really turning on on two different things. Right. There

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Speaker 1: is the decision about uh, you know, what is an

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Speaker 1: essential worker. UM. There's a general recognition that essential workers

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Speaker 1: should probably have uh First priority or at least a

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Speaker 1: high priority UM, and that generally involves workers who are

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Speaker 1: involved in addressing the disease. And also UM sort of

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Speaker 1: the second poll I think that uh, decision makers are

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Speaker 1: are are aiming towards is workers essential to keeping the

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Speaker 1: economy going. So that's sort of one set, and then

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Speaker 1: the other set is, uh, you know, populations that are

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Speaker 1: disproportionately impacted by the disease. And there's a lot of

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Speaker 1: overlap there, right, essential workers, uh you know, for instance,

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Speaker 1: workers and hospitals who are supposed to the disease every day, uh,

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Speaker 1: you know, are probably more likely to contract it. But

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Speaker 1: there's there's other populations where you know, they wouldn't necessarily

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Speaker 1: qualify as essential workers and yet still are disproportionately impacted,

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Speaker 1: and and there is a sense that you then need

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Speaker 1: to to put them high on the priority list for

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Speaker 1: receiving the vaccipation. Tomorrow, a panel of advisors at the

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Speaker 1: c d C is going to meet to determine how

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Speaker 1: to allocate the initial supplies of the vaccine. Is it

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Speaker 1: up to the c d C or is it up

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Speaker 1: to the president or someone in the cabinet. Everyone recognizes

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Speaker 1: that the seat you see has primary responsibility for I

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Speaker 1: think evaluating the science and making recommendations. What happens after that,

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Speaker 1: uh is an interesting question, right because certainly some amount

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Speaker 1: of decision making could happen on the federal level. Traditionally

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Speaker 1: public health related decision making has occurred though on the

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Speaker 1: state level. UM So, I think this becomes a very

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Speaker 1: interesting question, right where if if you face a situation

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Speaker 1: where the federal government says one thing, in the state

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Speaker 1: says something very different. Um. Uh. And I think you know,

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Speaker 1: if push came to shove from a legal point of view,

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Speaker 1: I would guess the state would win. But uh, you

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Speaker 1: know that a lot of that will depend on where

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Speaker 1: the controversy arrises. So will there be groups lobbying about

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Speaker 1: who gets the vaccine first or which vaccine they get

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Speaker 1: because the vaccines seem to have different efficacies so far. Certainly,

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Speaker 1: I mean that that's that's the one thing you can

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Speaker 1: count on, particularly in an environment like this, when government

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Speaker 1: takes and necessarily has such a significant decision making role. Um.

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Speaker 1: You know, it's not like uh it was before the pandemic,

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Speaker 1: when you know the private sector could largely do what

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Speaker 1: it wanted. I think there's a general recognition that government

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Speaker 1: is making a lot of uh, the most important decisions here,

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Speaker 1: if not the most important decisions, and um, you need

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Speaker 1: to engage with government in order to uh, you know,

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Speaker 1: at least make sure your perspective is hurt. Uh. And

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Speaker 1: by the way, this is yet another First Amendment right,

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Speaker 1: the right to petition your government for redressive grievances. Uh.

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Speaker 1: And that's that's something that you know is continues even

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Speaker 1: in a in a COVID environment. So we've seen the

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Speaker 1: problems with people not wanting to get the vaccine from measles,

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Speaker 1: and I would anticipate that they're going to be a

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Speaker 1: lot of people who don't want to get the vaccine

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Speaker 1: for COVID. What can the state do? Can the state

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Speaker 1: do anything to compel people to get the vaccine? It's

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Speaker 1: a great question. Uh. The there is generally a a

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Speaker 1: I think strong hesitation to compel medical treatment, which is

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Speaker 1: why historically, for instance, when it comes to things like vaccination, UM,

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Speaker 1: you won't see a flat out uh compulsion. There even

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Speaker 1: sort of the Seminal case before the Supreme Court from

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Speaker 1: involved in Massachusetts law where um there was a compulsive

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Speaker 1: smallpox vaccination, but you could you could buy your way

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Speaker 1: out of it, you could pay a fine and and

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Speaker 1: not get the vaccination. Um. And I think that that

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Speaker 1: makes sense, right because there is you know that that

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Speaker 1: sort of violation of bodily integrity, I think is something

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Speaker 1: that uh, government across the board, you know, courts, executive

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Speaker 1: and legislature all recognizes something that is significant and you know,

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Speaker 1: should only be done in the most extreme cases. But

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Speaker 1: that said, um, you know, the there it is recognize

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Speaker 1: that the state has an interest in in protecting the

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Speaker 1: citizenry against disease. And so in general, courts have been

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Speaker 1: very liberal in allowing government to make decisions that effectively

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Speaker 1: compel it, for instance, requiring vaccination in order to attend school.

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Speaker 1: So I think you would probably see something like that. Um.

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Speaker 1: You you would definitely see people who are not going

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Speaker 1: to take it. Uh. And then and the question becomeslicate,

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Speaker 1: what what our government's options? Then? Can they you know,

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Speaker 1: issue a fine? Can they imposed the fine for not

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Speaker 1: doing that? Um? And I guess it will probably ultimately

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Speaker 1: depend on the numbers. Right if if they feel like

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Speaker 1: enough people are getting the vaccination, irrespective of the people

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Speaker 1: that refuse to do so, you might not see a

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Speaker 1: lot done. Um. If they see widespread rejection of the vaccines,

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Speaker 1: then government is going to have to take a harder

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Speaker 1: look at it and maybe look towards, uh, you know,

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Speaker 1: more serious measures. Thanks for being on the Bloomberg Glass Show. Mark,

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Speaker 1: that's Mark Houston of Farrell Fritz. I'm June Grosso. Thanks

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00:29:38,080 --> 00:29:40,600
Speaker 1: so much for listening, and please tune into The Bloomberg

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00:29:40,640 --> 00:29:43,160
Speaker 1: Glass Show every week night at ten dam Eastern on

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Speaker 1: Bloomberg Radio.