Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: Last week, President Trump pardoned his former National security advisor,
Speaker 1: Michael Flynn, who had pleaded guilty to lyne to the
Speaker 1: FBI about his communications with Russia. Now speculation is swirling
Speaker 1: about who else the president will pardon before he leaves office,
Speaker 1: and whether Trump will even pardon himself. In eighteen Trump
Speaker 1: tweeted that he has the absolute right to pardon himself,
Speaker 1: but many constitutional scholars say that's not correct. It's something
Speaker 1: that's never been tested in the courts because no president
Speaker 1: has ever tried to pardon himself. Richard Nixon left office
Speaker 1: and waited for his former vice president Gerald Ford to
Speaker 1: pardon him. My guest is Frank Bowman, a professor at
Speaker 1: the University of Missouri School of Law. As far as
Speaker 1: pardoning other people, is there any limitation on a president's
Speaker 1: power to pardon someone. Let's say they're seen as a
Speaker 1: co conspiritor and they haven't been charged yet. Is there
Speaker 1: any limitation? I think the answer is no, there's no limitation. Now,
Speaker 1: there are some people who disagree with me on that point,
Speaker 1: and I respect their views. I think that at least
Speaker 1: as a matter of the original interpretation of the pardon clause.
Speaker 1: The Framers thought about that quite expressively. Their debate focused
Speaker 1: on the fact that has written the pardon clause extends
Speaker 1: to any crime, including treason, and a number of the Framers,
Speaker 1: both at the Philadelphia convention and in the ratifying conventions
Speaker 1: in the States, objected to the breadth of that because
Speaker 1: they said, wait a minute, if a president can pardon
Speaker 1: even treason, imagine as the president himself has been engaging
Speaker 1: in treason as activities and his co conspirators, although they
Speaker 1: didn't use exactly that we're we're caught or were suspected,
Speaker 1: he could pardon them for treason and to VMP to
Speaker 1: discovery of his own guilt. And the framer's discussion pretty
Speaker 1: much assumed that that's undesirable, of course, but he is
Speaker 1: included within the pardon power. Has the pardon power ever
Speaker 1: been tested in court? Well, if you know that there
Speaker 1: were people who tried to challenge that you are Pio
Speaker 1: pardon you remember, back at the beginning of the Trump's presidency,
Speaker 1: I think it was in two thousand and seventeen. Your Pio,
Speaker 1: a former sheriff of Americo County in Arizona had been
Speaker 1: charged with convicted of contempt of court arising out of
Speaker 1: a civil rights lawsuit to which he was a party.
Speaker 1: He had been convicted of criminal contempt before he could
Speaker 1: be sentenced, Trump pardoned, and there was a an effort
Speaker 1: to dispute that pardon on a couple of different grounds
Speaker 1: that were specific to the law criminal contempt, but they
Speaker 1: never really got anywhere, and that the pardons stood. You know,
Speaker 1: there have been efforts to limit certain aspects of pardons,
Speaker 1: but there has certainly never been a court case that
Speaker 1: successfully overturned a presidential part Now, so just give us
Speaker 1: the broad framework of where the pardon power comes from
Speaker 1: and why the Framers gave the president to pardon power. Well,
Speaker 1: the pardoner comes from a very specific provision in the
Speaker 1: in the Constitution, which grants the president to pardon all
Speaker 1: offenses read federal criminal offenses, except impeachments. So essentially, if
Speaker 1: a president could not, by use of the pardon, undo
Speaker 1: a congressional impeachment and conviction of any federal official or
Speaker 1: indeed of himself, that's clear. So the Framers wrote that
Speaker 1: specifically into the Constitution, specifically into the Article two Powers
Speaker 1: of the President United states. Where it comes from is
Speaker 1: that back into deep time, I suppose, is the British
Speaker 1: practice whereby the crown was entitled pardon people. That British
Speaker 1: ideas sort of emerged from the notion that, at least
Speaker 1: in early British legal theory, the law was largely, not exclusively,
Speaker 1: kind of an emanation of the will of the king,
Speaker 1: and there perfect sense that legal guilt was really violation
Speaker 1: of the law, which was an emanation of the will
Speaker 1: of the king, that the king could in reverse, that
Speaker 1: could undo, it could reach down and reverse what the
Speaker 1: king thought to be unfair or unjust excessive applications of
Speaker 1: the law. Now, that became more refined over time. But
Speaker 1: there were also pardons pardon power written into the constitutions
Speaker 1: of the early American States from seventeen seventy six to
Speaker 1: when the Constitution was ratified, and there had been a
Speaker 1: long tradition of the ability of generally speaking the executive branch,
Speaker 1: but sometimes legislatures and sometimes the two working together to
Speaker 1: reach in to undo excessive, unfair, unjust applications of the
Speaker 1: criminal law. Nothing straining your unusual about that. There was
Speaker 1: a debate in the Philadelphia Convention about whether or not
Speaker 1: the part and power for American constitutional purposes, it ought
Speaker 1: to rest exclusively in the president, or whether it ought
Speaker 1: to be shared with component of the legislature, particularly the Senate,
Speaker 1: either generally or in relationship to partners for treason. And
Speaker 1: they kicked it back and forth, and they decided at
Speaker 1: the end of the day that it made better sense
Speaker 1: to leave this power in the hands of the single executives,
Speaker 1: partly because they thought that there would be occasions when
Speaker 1: it ought to be used expeditiously in it not not
Speaker 1: to be tied up into legislative delay. And they also
Speaker 1: thought of the part and power as intense a kind
Speaker 1: of inter branch check by the executive on excesses to
Speaker 1: the legislature excess is of the judiciary. You can see
Speaker 1: an example of that kind of use of the part
Speaker 1: in power in President Obama's program to reduce the sentences
Speaker 1: of of non violent drug offenders, where he pardoned some
Speaker 1: you know, somewhere a thousand and two thousand first time
Speaker 1: drug offenders towards the end of his term, and that
Speaker 1: was the use of the executive part in power is
Speaker 1: the kind of systematic, systematic response or systemic response to
Speaker 1: the fact the fact that Congress has passed these long
Speaker 1: manager a minimum sentences that applied even to people who
Speaker 1: are non violent drug offenders. And so that's the classic
Speaker 1: example of that of that use of the pardon. Explain
Speaker 1: why constitutional scholars disagree about whether a president can pardon
Speaker 1: himself series of reasons. First, it's never ever been done.
Speaker 1: No executive branch official, whether king, president, or governor, ever
Speaker 1: attempted to purge themselves, and you can see why that
Speaker 1: would not be so. The pardon power, whether British or American,
Speaker 1: is designed for the chief executive to make a judgment
Speaker 1: about the behavior of others and to conclude either that
Speaker 1: they were adjusted, convicted or or excessively punished, perhaps rehabilitated
Speaker 1: themselves after a period of time. And just by its
Speaker 1: nature that idea doesn't involve making a judgment about yourself.
Speaker 1: We've always thought that making that kind of judgment about
Speaker 1: oneself is plainly going to be something that uh is
Speaker 1: subject to abuse, and so it's never been done. That's
Speaker 1: the That's the thing that's really contrary to the dial theory.
Speaker 1: Second thing, without getting a lot of detail, there are
Speaker 1: a number of debates in that happened during the gratification
Speaker 1: of the Constitution. That made clear that although the Framers
Speaker 1: didn't specifically talk about the self pardon, it's pretty clear
Speaker 1: that they also didn't imagine that such a thing would
Speaker 1: be possible. They just didn't conceive it as being something
Speaker 1: that to be done. They conceived the partners necessarily involving
Speaker 1: two parties. And they also wrote both the pardon clause
Speaker 1: and the impeachment clauses in a way that made it
Speaker 1: clear that they assumed that there were really three ways
Speaker 1: in the Constitution to check a criminally misbehaving president. The
Speaker 1: first peace was elections, of course, and they originally were
Speaker 1: kicking around the idea that perhaps elections would be enough
Speaker 1: to restrain in the really seriously misbehaving executives. They ultimately
Speaker 1: decided that wouldn't be enough, so they then instituted the
Speaker 1: idea of in teachment, which itself as an old British idea,
Speaker 1: But they went a little further than that, and when
Speaker 1: they wrote the impeachment clauses, they wrote a limitation on
Speaker 1: the consequences of impeachment. I mean, the American Constitution, if
Speaker 1: you're impeached and convicted by the Senate, the only consequences
Speaker 1: that happened directly as a results of that, or you
Speaker 1: lose your office, and if the Senate takes a second vote,
Speaker 1: you can also be barred from future office holding. But
Speaker 1: in addition, they were very careful to say that although
Speaker 1: you can't be criminally punished directly, in other words, you
Speaker 1: can't be sent to prison, you can't be fined, you
Speaker 1: can't be executed directly as a result of being impeached
Speaker 1: in by the House and expected by the Senate. Each
Speaker 1: person remains subject to criminal punishment by the normal action
Speaker 1: of the court. That's written right into the impeachment clause.
Speaker 1: So what I think you see here is that the
Speaker 1: framers imagine that there were these three ways of dealing
Speaker 1: with the criminal president, elections, impeachment, and the possibility of
Speaker 1: criminal prosecution. Now, if a president can simply pardon himself
Speaker 1: or anything, then the possibility of criminal prosecution for clonal
Speaker 1: misbehavior while in office essentially goes proof because it could
Speaker 1: be taken completely off the board. It would eliminate one
Speaker 1: of the three constitutional checks on presidential miss Let's just
Speaker 1: say President Trump decides he's going to pardon himself. How
Speaker 1: would that even be tested in court? Would it take
Speaker 1: a federal prosecution charging him with a crime to test
Speaker 1: whether he had the power to pardon himself. That would
Speaker 1: be the principal way that it would happen, presumably the
Speaker 1: members of Biden Justice partner would do. In a criminal investigation,
Speaker 1: they would conclude at looking at all the evidence that
Speaker 1: indeed the behavior merited in indictment. The indictment is returned
Speaker 1: by the grand jury, and the President would move to
Speaker 1: caution the indictment based on his own pardoner in the
Speaker 1: Department of Justice would resist that motion, claiming as the
Speaker 1: president has no such power. Now I think, frankly, that
Speaker 1: Trump is likely to try this, even though you know
Speaker 1: it's constitutionally doubtful, because he might win. Maybe the Spreme
Speaker 1: Court would disagree with me, and other people don't think
Speaker 1: self pardners are possible. But he could also use the
Speaker 1: self pardon to slow things down tremendously. Not only could
Speaker 1: he invoke his own pardoner himself if the department indicted him,
Speaker 1: but I suspect what he has lawyers to try to
Speaker 1: do is that as soon as it became evident that
Speaker 1: they were engaging in a criminal investigation of them, that
Speaker 1: he tried to stop at least important components of the
Speaker 1: investigation likes Penis, the witnesses Penis for documents by moving
Speaker 1: to quash him on the ground that they were being
Speaker 1: issued in order to put together a prosecution, which wouldn't
Speaker 1: be possible because he pardoned himself. Now, I don't necessarily
Speaker 1: think that would be ultimately successful, but he could slow
Speaker 1: things down because to resist that claim, the government would
Speaker 1: have to resist the motion to quash. That would have
Speaker 1: to be decided at the trial court, then the Intermediate
Speaker 1: Court of Fields in the Supreme Court, and all that
Speaker 1: takes time. So I think he's likely to try to
Speaker 1: do this because it certainly it seems that he's worried
Speaker 1: about at least criminal investigations of himself and others, and
Speaker 1: at a minimum, a self pardon is going to provide
Speaker 1: another avenue for delay. And as we know anything about
Speaker 1: Donald Trump and his approach to litigation over his long
Speaker 1: business and political is that he uses delay as a
Speaker 1: major tactic to try or resist the legal efforts of
Speaker 1: his opponents. So if the Biden Justice Department decides not
Speaker 1: to prosecute Trump, then his self pardon will remain untested.
Speaker 1: That's true, although again I suspect Trump if you pardon himself,
Speaker 1: would be tempted at least to try to use the
Speaker 1: pardon to slow down not only any criminal investigation of him,
Speaker 1: but also potential civil or administrative investigations. I don't think
Speaker 1: that attempt would be successful, but I think he might
Speaker 1: try it, and therefore there might be other venues for
Speaker 1: challenging it. But here's the thing. One of the perverse
Speaker 1: effects of Trump pardoning himself might be that a Biden
Speaker 1: Justice Department would feel obliged to pursue the matter. It's
Speaker 1: awfully tough, I think for an honest Justice Department to
Speaker 1: let that precedent stand, because it then if I'm challenged,
Speaker 1: it starts to gather force as something that presidents can do.
Speaker 1: And if he becomes even sort of generally accepted that
Speaker 1: that's a possibility. Consider where we are. We already know,
Speaker 1: because it was a big issue during the Moller investigation
Speaker 1: that the Office of Legal Counsel within the Justice Department
Speaker 1: has long held the opinion that sitting presidents cannot be
Speaker 1: indicted while in office. Now I think that's constitutionally wrong,
Speaker 1: but as a practical matter, it's not something to be
Speaker 1: challenged because memos buying the Justice Department. Of the Justice
Speaker 1: Department won't prosecute a sitting president. He can't be prosecuted,
Speaker 1: So that means that practically speaking, at present moment, a
Speaker 1: sitting president is not subject to federal criminal prosecution while
Speaker 1: he's there. If he can also self partner, that means
Speaker 1: he's never subject criminal prosecution. And given the potential breadth
Speaker 1: of a partner which can't extend to any federal crime
Speaker 1: whatsoever and need all federals, and which at least potentially
Speaker 1: could be granted to one's self as president for periods
Speaker 1: extending before your presidents were You're talking about is creating
Speaker 1: a de facto regime in which, once somebody becomes president
Speaker 1: and at its states combined operation of the OLC. Metlin
Speaker 1: myself pardon makes that person permanently immune from criminal consequences,
Speaker 1: at least in the federal courts, for anything he's done
Speaker 1: during his entire life. And a person who has that
Speaker 1: kind of immunity effectively assumes one of the attributes of monarchy.
Speaker 1: One of the things that is true or was true
Speaker 1: actually remains true about British kings and queens if they
Speaker 1: are not subject to the operation of the ordinary courts
Speaker 1: criminal or civil of Great Britain, they are effectively immune
Speaker 1: from the law. One thing we know, if anything, about
Speaker 1: the framers of the Constitution, is that they did not
Speaker 1: intend to create in a president somebody who was the
Speaker 1: de factl equivalent of King. If. If, if the president
Speaker 1: can can essentially pardon himself out of all criminal liability
Speaker 1: for everything in his entire life, we've created at least
Speaker 1: a kind of monarch. Just before, um, I let you go,
Speaker 1: would you just explain why the president cannot? There's no
Speaker 1: chance that the president can pardon himself from state crimes
Speaker 1: like those that the Manhattan District Attorney is investigating. The
Speaker 1: pardon power in the Constitution is very broad, indeed, but
Speaker 1: it has some implicit limitations. One of them is that
Speaker 1: it applies only to federal offenses, so it doesn't relate
Speaker 1: to state crimes at all. Another implicit limitation is that
Speaker 1: it can only cover crimes that have already occurred at
Speaker 1: the time of the issuance to part. So that means
Speaker 1: um that Trump, even if in theory self pardons are available,
Speaker 1: um could not pardon himself or offenses that are committed
Speaker 1: after he leaves office. And indeed he probably can't pardon
Speaker 1: himself or any ongoing offense that started before he pardons himself,
Speaker 1: quarantined anyone else, and continues after that pardon. So there
Speaker 1: are limitations, um, but at least as federal criminal offense
Speaker 1: before the assurance, the pardon, pardon towers very well. Thanks Frank.
Speaker 1: That's Professor Frank Bowman of the University of Missouri Law School.
Speaker 1: The number of Americans hospitalized with COVID nineteen climbed to
Speaker 1: a record Sunday, a sign that the virus is still raging,
Speaker 1: but good news on the vaccine front. Today, Maderna announced
Speaker 1: plans to request clearance for its coronavirus vaccine the US
Speaker 1: and Europe after a new analysis showed the vaccine was
Speaker 1: highly effective in preventing COVID nineteen with no serious safety problems.
Speaker 1: At this pivotal time, states are not only facing decisions
Speaker 1: on how to manage the pandemic, but also on how
Speaker 1: to distribute a vaccine. Joining me discuss this is Mark Houston,
Speaker 1: who has a healthcare regulatory and lobbying practice at Farrell Fritz. Normally,
Speaker 1: a governor is empowered to make decisions about lockdowns, but
Speaker 1: we've seen that the Supreme court recently has blocked Governor
Speaker 1: Andrew Cromo from re Impoe, saying strict capacity limits on
Speaker 1: New York City synagogues and Catholic churches. So tell us
Speaker 1: about how broad the governor's authority is and how it
Speaker 1: can be restricted. In general, governors have very broad authority
Speaker 1: in regard to disaster emergencies. Every state has language that
Speaker 1: says in the event of a disaster emergency of any kind,
Speaker 1: including a public health emergency, generally the executive is granted
Speaker 1: extraordinary powers to do all kinds of things that the
Speaker 1: executive normally cannot do. However, even though those statutes that
Speaker 1: grant uh that authority are are very broad, they are
Speaker 1: still subject to limitations imposed by the state constitution and
Speaker 1: by the federal Constitution. And that's what was that issue
Speaker 1: in the case in in regard to New York State,
Speaker 1: where you had a situation where the governor's police power
Speaker 1: for public health purposes was pitted squarely against questions of
Speaker 1: religious rights. Uh, and uh, you know that always puts
Speaker 1: the court in a difficult position to try to figure out, um,
Speaker 1: you know, which which set of rights wins in a
Speaker 1: particular disagreement. And in this case, what they decided was
Speaker 1: UH that for a variety of reasons, UH, the UH
Speaker 1: the order as related to churches UH and synagogue in
Speaker 1: New York State needed to be enjoined and could not,
Speaker 1: in fact be enforced. So now, Mayor du Blasio and
Speaker 1: Governor Cuomo have clashed several times during the coronavirus pandemic,
Speaker 1: particularly about whether or not schools should be operational. Who
Speaker 1: has the authority in that battle? Ultimately, UH, the decision
Speaker 1: regarding schools, any decision regarding schools in New York State
Speaker 1: is the responsibility of the governors. How are in regard
Speaker 1: to New York City schools, the mayor does have expansive
Speaker 1: authority um. And in this case, the issue turned on
Speaker 1: a rule that was set earlier that once the infection
Speaker 1: rate top three, schools would once again eliminate in person instruction. UH.
Speaker 1: And you know the ultimately the disagreement turned on whether
Speaker 1: that was a good rule or not. And UH, you know,
Speaker 1: the the governor made the argument that, based on the
Speaker 1: most recent UH scientific information we had, maybe you didn't
Speaker 1: need to to abide by by such a bright line rule.
Speaker 1: And it sounds like the Mayor is ultimately agreeing. And
Speaker 1: this is illustrates. I think part of the the the
Speaker 1: problem in a pandemic situation, right. Um. You know we
Speaker 1: I mentioned earlier the broad authority of governors UH in
Speaker 1: regard to disaster emergencies. I think part of the problem
Speaker 1: is those statutes that grant that our our premised on
Speaker 1: sort of typical disasters things like hurricanes, earthquakes, tornadoes, and
Speaker 1: not something that occurs over such a sustained period of time.
Speaker 1: And you know, as the pandemic has been evolving, our
Speaker 1: understanding of it has evolved, so we get new scientific
Speaker 1: information over time. UH. And that I think properly has
Speaker 1: driven some some changes UH in in in the approach
Speaker 1: to two particular issues, and that question of in person
Speaker 1: schooling is absolutely one of them. So let's say that
Speaker 1: the mayor said that schools will remain closed. Does anyone
Speaker 1: have an ability to appeal that decision? Is it something
Speaker 1: that you would take to court? Sure, you certainly could, um.
Speaker 1: The UM. You know they're have courts have absolutely found
Speaker 1: a right to education UM. And you know there has been,
Speaker 1: certainly in New York a considerable amount of litigation around
Speaker 1: that UM. And so you you have essentially another situation
Speaker 1: similar to the situation regarding churches and synagogues where uh,
Speaker 1: you know, you have this this right to education pitted
Speaker 1: against the police power of the states, So you you
Speaker 1: could absolutely make the argument. I mean, that's one of
Speaker 1: the great things about our system is you can always
Speaker 1: make the argument. What the courts will say are a
Speaker 1: different matter. I think as far as the masks mask wearing,
Speaker 1: are there any states or cities who have really gotten
Speaker 1: serious about finding people who are not wearing masks? You know,
Speaker 1: you always hear sort of anecdotes about how how particular
Speaker 1: places are responding. Mask wearing is one of those things
Speaker 1: that folls on this continuum where you know, there's there's
Speaker 1: plenty of laws that everyone sort of recognizes and accepts about,
Speaker 1: you know, governing people's clothing. You know, we have indecent
Speaker 1: exposure laws, for instance. But on the other hand, there
Speaker 1: is a natural and understandable concern about government mandating what
Speaker 1: you can wear and what you can't wear. In other situations,
Speaker 1: the key is always one of intention, and you know,
Speaker 1: a mask wearing statute accompanied by a fine, I think
Speaker 1: under the current circumstances would probably survive judicial route. How
Speaker 1: will the federal government determine what states get the vaccine,
Speaker 1: how much of the vaccine they get, and which vaccine
Speaker 1: they get. Who makes that determination is the federal government.
Speaker 1: So that is one of those questions that UM is
Speaker 1: in some ways up in the air. Uh. The federal
Speaker 1: government has issued a vaccine distribution plan, but it is
Speaker 1: expressed in very general terms, and I think mostly talks
Speaker 1: about how they're going to go about making those decisions,
Speaker 1: as opposed to what those decisions will be UM. States. Uh,
Speaker 1: you know I have already started to engage on that
Speaker 1: question themselves. Uh. And for instance here in New York. UM,
Speaker 1: you know, there is a I think a much more
Speaker 1: detailed plan as to what how those decisions are going
Speaker 1: to be made. UM. There's not you know, a hard
Speaker 1: and fast existing rule driving that decision. Now, like so
Speaker 1: many things during the pandemic, UM, you know, Uh, the
Speaker 1: the decision makers are in a position where they can,
Speaker 1: uh they have a lot of leeway in how they
Speaker 1: make those decisions. And UH, I think you see the
Speaker 1: decision really turning on on two different things. Right. There
Speaker 1: is the decision about uh, you know, what is an
Speaker 1: essential worker. UM. There's a general recognition that essential workers
Speaker 1: should probably have uh First priority or at least a
Speaker 1: high priority UM, and that generally involves workers who are
Speaker 1: involved in addressing the disease. And also UM sort of
Speaker 1: the second poll I think that uh, decision makers are
Speaker 1: are are aiming towards is workers essential to keeping the
Speaker 1: economy going. So that's sort of one set, and then
Speaker 1: the other set is, uh, you know, populations that are
Speaker 1: disproportionately impacted by the disease. And there's a lot of
Speaker 1: overlap there, right, essential workers, uh you know, for instance,
Speaker 1: workers and hospitals who are supposed to the disease every day, uh,
Speaker 1: you know, are probably more likely to contract it. But
Speaker 1: there's there's other populations where you know, they wouldn't necessarily
Speaker 1: qualify as essential workers and yet still are disproportionately impacted,
Speaker 1: and and there is a sense that you then need
Speaker 1: to to put them high on the priority list for
Speaker 1: receiving the vaccipation. Tomorrow, a panel of advisors at the
Speaker 1: c d C is going to meet to determine how
Speaker 1: to allocate the initial supplies of the vaccine. Is it
Speaker 1: up to the c d C or is it up
Speaker 1: to the president or someone in the cabinet. Everyone recognizes
Speaker 1: that the seat you see has primary responsibility for I
Speaker 1: think evaluating the science and making recommendations. What happens after that,
Speaker 1: uh is an interesting question, right because certainly some amount
Speaker 1: of decision making could happen on the federal level. Traditionally
Speaker 1: public health related decision making has occurred though on the
Speaker 1: state level. UM So, I think this becomes a very
Speaker 1: interesting question, right where if if you face a situation
Speaker 1: where the federal government says one thing, in the state
Speaker 1: says something very different. Um. Uh. And I think you know,
Speaker 1: if push came to shove from a legal point of view,
Speaker 1: I would guess the state would win. But uh, you
Speaker 1: know that a lot of that will depend on where
Speaker 1: the controversy arrises. So will there be groups lobbying about
Speaker 1: who gets the vaccine first or which vaccine they get
Speaker 1: because the vaccines seem to have different efficacies so far. Certainly,
Speaker 1: I mean that that's that's the one thing you can
Speaker 1: count on, particularly in an environment like this, when government
Speaker 1: takes and necessarily has such a significant decision making role. Um.
Speaker 1: You know, it's not like uh it was before the pandemic,
Speaker 1: when you know the private sector could largely do what
Speaker 1: it wanted. I think there's a general recognition that government
Speaker 1: is making a lot of uh, the most important decisions here,
Speaker 1: if not the most important decisions, and um, you need
Speaker 1: to engage with government in order to uh, you know,
Speaker 1: at least make sure your perspective is hurt. Uh. And
Speaker 1: by the way, this is yet another First Amendment right,
Speaker 1: the right to petition your government for redressive grievances. Uh.
Speaker 1: And that's that's something that you know is continues even
Speaker 1: in a in a COVID environment. So we've seen the
Speaker 1: problems with people not wanting to get the vaccine from measles,
Speaker 1: and I would anticipate that they're going to be a
Speaker 1: lot of people who don't want to get the vaccine
Speaker 1: for COVID. What can the state do? Can the state
Speaker 1: do anything to compel people to get the vaccine? It's
Speaker 1: a great question. Uh. The there is generally a a
Speaker 1: I think strong hesitation to compel medical treatment, which is
Speaker 1: why historically, for instance, when it comes to things like vaccination, UM,
Speaker 1: you won't see a flat out uh compulsion. There even
Speaker 1: sort of the Seminal case before the Supreme Court from
Speaker 1: involved in Massachusetts law where um there was a compulsive
Speaker 1: smallpox vaccination, but you could you could buy your way
Speaker 1: out of it, you could pay a fine and and
Speaker 1: not get the vaccination. Um. And I think that that
Speaker 1: makes sense, right because there is you know that that
Speaker 1: sort of violation of bodily integrity, I think is something
Speaker 1: that uh, government across the board, you know, courts, executive
Speaker 1: and legislature all recognizes something that is significant and you know,
Speaker 1: should only be done in the most extreme cases. But
Speaker 1: that said, um, you know, the there it is recognize
Speaker 1: that the state has an interest in in protecting the
Speaker 1: citizenry against disease. And so in general, courts have been
Speaker 1: very liberal in allowing government to make decisions that effectively
Speaker 1: compel it, for instance, requiring vaccination in order to attend school.
Speaker 1: So I think you would probably see something like that. Um.
Speaker 1: You you would definitely see people who are not going
Speaker 1: to take it. Uh. And then and the question becomeslicate,
Speaker 1: what what our government's options? Then? Can they you know,
Speaker 1: issue a fine? Can they imposed the fine for not
Speaker 1: doing that? Um? And I guess it will probably ultimately
Speaker 1: depend on the numbers. Right if if they feel like
Speaker 1: enough people are getting the vaccination, irrespective of the people
Speaker 1: that refuse to do so, you might not see a
Speaker 1: lot done. Um. If they see widespread rejection of the vaccines,
Speaker 1: then government is going to have to take a harder
Speaker 1: look at it and maybe look towards, uh, you know,
Speaker 1: more serious measures. Thanks for being on the Bloomberg Glass Show. Mark,
Speaker 1: that's Mark Houston of Farrell Fritz. I'm June Grosso. Thanks
Speaker 1: so much for listening, and please tune into The Bloomberg
Speaker 1: Glass Show every week night at ten dam Eastern on
Speaker 1: Bloomberg Radio.