1
00:00:00,480 --> 00:00:05,680
Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

2
00:00:05,960 --> 00:00:08,399
Speaker 1: It may now take more than a long car ride

3
00:00:08,440 --> 00:00:10,639
Speaker 1: to get you to your second home. It may now

4
00:00:10,720 --> 00:00:13,400
Speaker 1: take more than a long car ride to get to

5
00:00:13,480 --> 00:00:17,360
Speaker 1: your second home. In some states, it may take a lawsuit.

6
00:00:17,640 --> 00:00:20,319
Speaker 1: In Michigan, a state with some of the strictest stay

7
00:00:20,320 --> 00:00:23,560
Speaker 1: at home measures in the country, Governor Gretchen Whitmer has

8
00:00:23,640 --> 00:00:26,920
Speaker 1: also been traveled to second homes. The fact of the

9
00:00:26,920 --> 00:00:29,800
Speaker 1: matter is it's still too dangerous to have people just

10
00:00:29,920 --> 00:00:33,360
Speaker 1: out and about unnecessarily so, and so we have a

11
00:00:33,360 --> 00:00:36,479
Speaker 1: pretty strict to stay at home order. Michigan has the

12
00:00:36,560 --> 00:00:40,360
Speaker 1: third highest um number of deaths from COVID nineteen and

13
00:00:40,920 --> 00:00:44,080
Speaker 1: we're not the third biggest steak. Lawsuits have already been

14
00:00:44,120 --> 00:00:47,400
Speaker 1: filed by owners of second homes, claiming a violation of

15
00:00:47,440 --> 00:00:50,800
Speaker 1: their fundamental liberty and their rights to do process and

16
00:00:50,880 --> 00:00:54,240
Speaker 1: equal protection. My guest is David super, a professor at

17
00:00:54,240 --> 00:00:58,279
Speaker 1: Georgetown Law School. So can the governor forbid residents from

18
00:00:58,360 --> 00:01:02,080
Speaker 1: traveling to a second home. Generally yes. Governors have very

19
00:01:02,120 --> 00:01:05,640
Speaker 1: sweeping power to deal with public health emergencies, which this is.

20
00:01:05,920 --> 00:01:10,440
Speaker 1: State law varies from one place to another. But in general, states,

21
00:01:10,520 --> 00:01:14,720
Speaker 1: public health codes give the governor very broad authority to

22
00:01:14,760 --> 00:01:19,880
Speaker 1: respond to emergencies. Governors are the primary people responsible for

23
00:01:19,959 --> 00:01:24,600
Speaker 1: dealing with domestic health problems in our system, not the president,

24
00:01:24,840 --> 00:01:28,759
Speaker 1: and really more governors than mayors or county officials as well,

25
00:01:28,920 --> 00:01:32,400
Speaker 1: So in most states, the governor does have sweeping authority

26
00:01:32,440 --> 00:01:35,319
Speaker 1: to respond to a crisis like this. Some second home

27
00:01:35,480 --> 00:01:39,200
Speaker 1: owners have already filed suit against the governor's ban on

28
00:01:39,440 --> 00:01:42,360
Speaker 1: travel to their second homes. How strong are those claims.

29
00:01:42,840 --> 00:01:46,120
Speaker 1: I've read the complaint and I think it's extremely weak.

30
00:01:46,560 --> 00:01:49,520
Speaker 1: This is something that the Supreme Court has said public

31
00:01:49,560 --> 00:01:52,160
Speaker 1: officials have a lot of authority to do when there's

32
00:01:52,160 --> 00:01:55,440
Speaker 1: a genuine emergency, and there's no question that this is

33
00:01:55,480 --> 00:01:59,280
Speaker 1: a serious emergency. This isn't something the state does all

34
00:01:59,320 --> 00:02:02,400
Speaker 1: the time. I'm not aware that Michigan has ever done this,

35
00:02:03,120 --> 00:02:05,960
Speaker 1: so I think a court would give them wide lattitude.

36
00:02:06,240 --> 00:02:08,080
Speaker 1: Do they come out and say I need to rest

37
00:02:08,120 --> 00:02:11,240
Speaker 1: at my second home. Is there any substantial reason why

38
00:02:11,240 --> 00:02:14,200
Speaker 1: they have to go to the second home. No, they

39
00:02:14,320 --> 00:02:17,920
Speaker 1: say that it's a pleasant place to be, that it

40
00:02:17,960 --> 00:02:22,480
Speaker 1: provides rest, but from the hustle and bustle of law practice.

41
00:02:22,760 --> 00:02:25,440
Speaker 1: My guess is that for most lawyers, the hustle and

42
00:02:25,480 --> 00:02:29,800
Speaker 1: bustle has died down considerably. But they describe their second

43
00:02:29,800 --> 00:02:33,640
Speaker 1: homes as pleasant places. But they don't describe anything fundamental

44
00:02:33,680 --> 00:02:36,760
Speaker 1: about a need to go there or suggest that they're

45
00:02:36,800 --> 00:02:39,680
Speaker 1: being harmed in any deep way other than not getting

46
00:02:39,720 --> 00:02:42,840
Speaker 1: the benefit of their second homes and some other places

47
00:02:42,840 --> 00:02:45,400
Speaker 1: that they want to travel to. They complain, for example,

48
00:02:45,440 --> 00:02:48,440
Speaker 1: they're not allowed to go to gun stores. In most states,

49
00:02:48,760 --> 00:02:52,639
Speaker 1: gun stores are considered essential businesses. In fact, the n

50
00:02:52,760 --> 00:02:55,760
Speaker 1: r A is suing New York because it doesn't consider

51
00:02:55,880 --> 00:03:01,320
Speaker 1: gun stores essential, and Michigan apparently doesn't either. But again,

52
00:03:01,760 --> 00:03:07,639
Speaker 1: the Supreme Court has given state's enormous flexibility to respond

53
00:03:08,000 --> 00:03:12,440
Speaker 1: to pending emergencies, and indeed of upheld measures much more

54
00:03:12,520 --> 00:03:16,480
Speaker 1: stringent than these, if they were tailored to fit an emergency.

55
00:03:16,919 --> 00:03:20,040
Speaker 1: The fact that someone thinks the gun store is or

56
00:03:20,120 --> 00:03:23,400
Speaker 1: is not critical and and that state disagree on that

57
00:03:23,560 --> 00:03:26,760
Speaker 1: is not going to persuade a judge to second guess

58
00:03:26,800 --> 00:03:30,280
Speaker 1: the judgment of the elected officials of that state. Can

59
00:03:30,320 --> 00:03:32,600
Speaker 1: you tell us about the Supreme Court case that you're

60
00:03:32,680 --> 00:03:36,440
Speaker 1: talking about, Well, there are several of them. For example,

61
00:03:36,480 --> 00:03:40,960
Speaker 1: in one case, officials seized and destroyed someone's poultry that

62
00:03:41,000 --> 00:03:43,440
Speaker 1: they were planning to sell, and they claimed they were

63
00:03:43,440 --> 00:03:47,080
Speaker 1: deprived of property without due process of law, and the

64
00:03:47,160 --> 00:03:51,320
Speaker 1: Supreme Court said that the government officials believed that poultry

65
00:03:51,560 --> 00:03:54,880
Speaker 1: had dangerous bacteria on it, it would make people sick,

66
00:03:55,080 --> 00:03:58,800
Speaker 1: and it needed to be destroyed right away, and the

67
00:03:58,880 --> 00:04:02,720
Speaker 1: courts should differ or to experts on a crisis like that.

68
00:04:03,160 --> 00:04:06,880
Speaker 1: In another case, someone was selling pharmaceuticals that were apparently

69
00:04:07,120 --> 00:04:11,000
Speaker 1: defective and risk making people sick. We're killing them, and

70
00:04:11,080 --> 00:04:14,600
Speaker 1: the court again said, this is an emergency. We don't

71
00:04:14,600 --> 00:04:17,160
Speaker 1: have time for giving people hearings and doing a lot

72
00:04:17,200 --> 00:04:20,279
Speaker 1: of process. We need people in the government to keep

73
00:04:20,360 --> 00:04:24,360
Speaker 1: us safe and supported the action. Governor Cuomo of New

74
00:04:24,440 --> 00:04:28,719
Speaker 1: York said, the policies I communicated aren't worth the paper

75
00:04:28,839 --> 00:04:32,120
Speaker 1: that they're printed on unless people decide to follow them.

76
00:04:32,360 --> 00:04:35,160
Speaker 1: In Michigan, I'm wondering how could they even enforce this.

77
00:04:35,720 --> 00:04:39,640
Speaker 1: It's a difficult thing to do. Certainly, if people on

78
00:04:39,960 --> 00:04:43,919
Speaker 1: mass ignore it, then the government doesn't have the capacity

79
00:04:44,120 --> 00:04:46,720
Speaker 1: to pursue what The hope is that the vast majority

80
00:04:46,760 --> 00:04:50,960
Speaker 1: of people will understand that we are in a crisis

81
00:04:51,000 --> 00:04:53,320
Speaker 1: together and want to do their part to help by

82
00:04:53,400 --> 00:04:57,960
Speaker 1: following these rules, and the few outliers can be addressed

83
00:04:58,000 --> 00:05:02,320
Speaker 1: by law enforcement or by community pressure. Can a governor

84
00:05:02,760 --> 00:05:07,120
Speaker 1: forbid people from other states from coming into his or

85
00:05:07,120 --> 00:05:11,400
Speaker 1: her state? Generally not unless there's a sound of public

86
00:05:11,440 --> 00:05:14,840
Speaker 1: health reason for doing so. If a governor wanted it

87
00:05:14,920 --> 00:05:17,320
Speaker 1: to hold up in court, they'd need to get some

88
00:05:17,400 --> 00:05:21,720
Speaker 1: expert evidence that this is actually necessary, which I don't

89
00:05:21,720 --> 00:05:25,000
Speaker 1: think they'd be able to do. The governor of Florida,

90
00:05:25,320 --> 00:05:29,719
Speaker 1: Rhonda Santists, has imposed quarantines on people coming in from

91
00:05:29,760 --> 00:05:33,240
Speaker 1: New York fourteen day quarantines. Is that within his power?

92
00:05:33,600 --> 00:05:38,359
Speaker 1: I suspect it's not, because that's discriminating on peaceful coming

93
00:05:38,440 --> 00:05:41,680
Speaker 1: from one part of the country versus another. And the

94
00:05:41,720 --> 00:05:44,560
Speaker 1: whole point of being unified country is it states don't

95
00:05:44,560 --> 00:05:48,720
Speaker 1: get to do that. If he had strong scientific basis

96
00:05:48,800 --> 00:05:51,520
Speaker 1: for doing it, he might be able to. But this

97
00:05:51,680 --> 00:05:55,160
Speaker 1: disease is in every state in the Union, and someone

98
00:05:55,320 --> 00:05:58,719
Speaker 1: is just as sick if they have the infection whether

99
00:05:58,760 --> 00:06:01,200
Speaker 1: they come from New York or Wyoming. Part of the

100
00:06:01,279 --> 00:06:05,679
Speaker 1: point of being a single country, being the United States,

101
00:06:05,839 --> 00:06:08,679
Speaker 1: is that we are all in this together. Supreme Court

102
00:06:08,720 --> 00:06:12,000
Speaker 1: has said that the right to interstate travel is fundamental.

103
00:06:12,400 --> 00:06:15,400
Speaker 1: Thank you so much. That's David super, a professor at

104
00:06:15,440 --> 00:06:21,279
Speaker 1: Georgetown Law School. You're listening to Bloomberg Law with June

105
00:06:21,320 --> 00:06:26,360
Speaker 1: Grasso from Bloomberg Radio. President Trump says he has absolute

106
00:06:26,400 --> 00:06:30,000
Speaker 1: power to and the coronavirus shutdown. When somebody is the

107
00:06:30,040 --> 00:06:34,320
Speaker 1: president of the United States, the authority is total, and

108
00:06:34,320 --> 00:06:37,560
Speaker 1: that's what it's going to be. The Constitution says otherwise.

109
00:06:37,839 --> 00:06:41,640
Speaker 1: Joining me is Richard, professor at Columbia Law School. So,

110
00:06:41,880 --> 00:06:46,239
Speaker 1: rich what does the Constitution say about the president's claim

111
00:06:46,320 --> 00:06:49,680
Speaker 1: of absolute power over the States? Well, of course, the

112
00:06:49,680 --> 00:06:52,839
Speaker 1: Constitution doesn't address anything like that, and there's really nothing

113
00:06:52,839 --> 00:06:56,159
Speaker 1: in the Constitution that would support that. President is vested

114
00:06:56,160 --> 00:06:58,920
Speaker 1: with executive authority, but that's with respect to the federal

115
00:06:58,920 --> 00:07:02,360
Speaker 1: government present and has given really no direct powers over

116
00:07:02,400 --> 00:07:05,120
Speaker 1: the states at all, except to implement those kinds of

117
00:07:05,120 --> 00:07:08,160
Speaker 1: powers that Congress might give him. Obviously, the parent president

118
00:07:08,200 --> 00:07:11,400
Speaker 1: has power dealing with national security and foreign affairs, but

119
00:07:11,520 --> 00:07:13,800
Speaker 1: for the kind of domestic things that the states are doing.

120
00:07:14,240 --> 00:07:16,280
Speaker 1: Our local business is going to be open, our local

121
00:07:16,320 --> 00:07:18,480
Speaker 1: school is going to be open. That's the kind of

122
00:07:18,520 --> 00:07:21,840
Speaker 1: thing that has traditionally a matter for the states to decide,

123
00:07:21,880 --> 00:07:24,760
Speaker 1: as they've been doing over the past month, because it's

124
00:07:24,880 --> 00:07:28,600
Speaker 1: the public health. Do the states have a particular purview

125
00:07:28,760 --> 00:07:31,760
Speaker 1: over the public health? Yes, I mean, I think the

126
00:07:31,800 --> 00:07:34,000
Speaker 1: better way to put it, and this is the position

127
00:07:34,040 --> 00:07:37,760
Speaker 1: that conservatives have always emphasized, is that the federal government

128
00:07:37,880 --> 00:07:40,520
Speaker 1: is a government of limited powers. It does have this

129
00:07:40,640 --> 00:07:43,480
Speaker 1: power to regulate commerce, and of course, obviously coronavirus has

130
00:07:43,480 --> 00:07:46,120
Speaker 1: a big impact on commerce, but that all the basic

131
00:07:46,160 --> 00:07:49,640
Speaker 1: powers of government, including power over public health and public safety,

132
00:07:49,800 --> 00:07:52,680
Speaker 1: are powers that are wielded at the state level until

133
00:07:52,920 --> 00:07:55,840
Speaker 1: perhaps Congress it is used its commerce power might take

134
00:07:55,880 --> 00:07:59,360
Speaker 1: something away. But the assumption that's basically all the governing

135
00:07:59,400 --> 00:08:02,760
Speaker 1: power and states starts at the state level. Somethings can

136
00:08:02,800 --> 00:08:05,040
Speaker 1: be moved up by Congress at the national level. Some

137
00:08:05,080 --> 00:08:07,240
Speaker 1: things have been delegated by the states to their cities.

138
00:08:07,280 --> 00:08:09,400
Speaker 1: But the key assumption of our system is that the

139
00:08:09,440 --> 00:08:13,080
Speaker 1: states are the basic blocks of government. Trump declared a

140
00:08:13,160 --> 00:08:17,560
Speaker 1: national emergency. Explain why that doesn't give him the powers

141
00:08:17,600 --> 00:08:20,560
Speaker 1: he's trying to claim, and what powers it does give him.

142
00:08:20,760 --> 00:08:23,560
Speaker 1: The national emergency is something that basically is something pursuing

143
00:08:23,920 --> 00:08:27,480
Speaker 1: various acts of Congress that gives the president certain emergency powers.

144
00:08:27,560 --> 00:08:31,080
Speaker 1: With perspective areas in the federal system we allocate sons

145
00:08:31,120 --> 00:08:33,600
Speaker 1: to call into play the Events Production Act, it does

146
00:08:33,640 --> 00:08:36,320
Speaker 1: give him various powers, and even in this setting, it

147
00:08:36,400 --> 00:08:38,559
Speaker 1: might have provided some authority. You know, or when he

148
00:08:38,679 --> 00:08:41,480
Speaker 1: shut down in international air travel or you opposed restrictions

149
00:08:41,480 --> 00:08:44,439
Speaker 1: international air travel. I mean, Congress can get the president

150
00:08:44,559 --> 00:08:47,360
Speaker 1: power to deal with emergencies. The irony here is I

151
00:08:47,400 --> 00:08:49,520
Speaker 1: think the president might have been in a better position

152
00:08:49,600 --> 00:08:52,640
Speaker 1: to use emergency powers to shut things down. It's not

153
00:08:52,720 --> 00:08:55,079
Speaker 1: clear he has any particular power to order things up.

154
00:08:55,440 --> 00:08:57,360
Speaker 1: I mean, if his state decides it wants to close

155
00:08:57,400 --> 00:09:00,360
Speaker 1: its school system, the president has no power to say

156
00:09:00,440 --> 00:09:02,800
Speaker 1: it's got to be open. One of the state decides

157
00:09:02,840 --> 00:09:05,320
Speaker 1: it wants to close its government offices, the president has

158
00:09:05,320 --> 00:09:08,280
Speaker 1: no power. In the states, is issuing orders to businesses

159
00:09:08,360 --> 00:09:10,480
Speaker 1: that you want to close, the President doesn't have the

160
00:09:10,520 --> 00:09:13,480
Speaker 1: power to say, no, you have to be open. In fact,

161
00:09:13,520 --> 00:09:16,920
Speaker 1: he didn't even push several Republican governors who were slow

162
00:09:16,960 --> 00:09:20,120
Speaker 1: to issues stay at home orders. But he seems to

163
00:09:20,160 --> 00:09:22,720
Speaker 1: be trying to save face yesterday he said he was

164
00:09:22,880 --> 00:09:28,320
Speaker 1: authorizing the governors to decide for themselves, when govern could

165
00:09:28,360 --> 00:09:31,640
Speaker 1: easily respond, we don't need your authorization. The governors can

166
00:09:31,679 --> 00:09:33,720
Speaker 1: pretty much do what they want. I mean, it is

167
00:09:33,760 --> 00:09:37,200
Speaker 1: true that the president has ways of making governors do

168
00:09:37,280 --> 00:09:40,120
Speaker 1: what he wants, but not through orders so much. Obviously,

169
00:09:40,160 --> 00:09:42,240
Speaker 1: the president or Secretary of the Treasury now under the

170
00:09:42,240 --> 00:09:45,560
Speaker 1: CARES Act, has control over huge amounts of money in

171
00:09:45,640 --> 00:09:49,040
Speaker 1: terms of allocation of funding for public health emergencies are

172
00:09:49,080 --> 00:09:51,679
Speaker 1: other things the president and this president has not been

173
00:09:51,679 --> 00:09:54,720
Speaker 1: shy about that can manipulate who gets the funding, who

174
00:09:54,720 --> 00:09:57,439
Speaker 1: gets the ventilators, who gets the PPE, and the masks

175
00:09:57,840 --> 00:10:01,920
Speaker 1: in ways that favor governors who are cooperative and disfavor

176
00:10:01,960 --> 00:10:03,760
Speaker 1: those who are not. So it's not that the president

177
00:10:03,800 --> 00:10:06,520
Speaker 1: has no power. What the president doesn't have is the

178
00:10:06,559 --> 00:10:10,240
Speaker 1: power to treat governors as subordinates. The president can try

179
00:10:10,240 --> 00:10:13,280
Speaker 1: and persuade them, the president can try and pressure them,

180
00:10:13,360 --> 00:10:16,520
Speaker 1: but what the president can't do is actually give them orders.

181
00:10:16,559 --> 00:10:18,600
Speaker 1: They treat them as if they were junior members of

182
00:10:18,640 --> 00:10:22,320
Speaker 1: his government. That is simply not our system. We did

183
00:10:22,360 --> 00:10:25,360
Speaker 1: hear the president a few weeks ago, is it a

184
00:10:25,360 --> 00:10:27,560
Speaker 1: few weeks ago? I don't know, it's this seems like

185
00:10:27,600 --> 00:10:31,120
Speaker 1: it's going on. It could have been days ago exactly.

186
00:10:31,480 --> 00:10:35,240
Speaker 1: So he did say that the governors who are nice

187
00:10:35,280 --> 00:10:37,560
Speaker 1: to him, who are going to be the ones that

188
00:10:37,720 --> 00:10:41,120
Speaker 1: get what they need, which seems to be just an

189
00:10:41,160 --> 00:10:44,720
Speaker 1: anathema to the way our system is supposed to work. Well,

190
00:10:44,720 --> 00:10:47,640
Speaker 1: that's certainly true. It shouldn't be a case where political

191
00:10:47,760 --> 00:10:53,400
Speaker 1: or ideological favoritism or todaism influences where valuable funds, critical

192
00:10:53,440 --> 00:10:56,280
Speaker 1: public health equipment and supplies where they're sent, they should

193
00:10:56,280 --> 00:10:59,960
Speaker 1: be sent based on need, not based on the governor's

194
00:11:00,000 --> 00:11:02,880
Speaker 1: saying nice things about the president. But in a way

195
00:11:02,880 --> 00:11:05,320
Speaker 1: that though that statement also illustrates the whole point, which

196
00:11:05,360 --> 00:11:07,920
Speaker 1: is they don't work for him. He used the phrase,

197
00:11:07,960 --> 00:11:10,240
Speaker 1: I think it was yesterday, the day before that mutiny,

198
00:11:10,400 --> 00:11:12,120
Speaker 1: like you know, the mutiny on the bounty when the

199
00:11:12,160 --> 00:11:15,680
Speaker 1: crew doesn't obey the captain. Well, that's not this. He's

200
00:11:15,720 --> 00:11:17,959
Speaker 1: not the captain, or, as Governor Colma said, he's not

201
00:11:18,000 --> 00:11:21,760
Speaker 1: the king. It's not mutiny. It's disagreement. It's disagreement amongst

202
00:11:21,760 --> 00:11:24,000
Speaker 1: people who have the key power in this area. He

203
00:11:24,040 --> 00:11:26,040
Speaker 1: can give reasons, he can try and persuade he can

204
00:11:26,040 --> 00:11:28,960
Speaker 1: suggest why he can even direct funds in certain ways

205
00:11:29,000 --> 00:11:32,360
Speaker 1: to try and persuade or coerce, but he can't order

206
00:11:32,720 --> 00:11:34,679
Speaker 1: in the way that the head of the department can

207
00:11:34,800 --> 00:11:37,320
Speaker 1: order a junior in an apartment to do something. In

208
00:11:37,360 --> 00:11:40,600
Speaker 1: his presidency, he's already said that Article two allows me

209
00:11:40,640 --> 00:11:43,920
Speaker 1: to do whatever I want. Now. When he was asked

210
00:11:43,920 --> 00:11:46,640
Speaker 1: at a press conference the other day, who said that

211
00:11:46,679 --> 00:11:50,320
Speaker 1: you have these absolute powers? He didn't say, but I

212
00:11:50,440 --> 00:11:54,200
Speaker 1: wonder is it Attorney General Bill Barr, with his theories

213
00:11:54,240 --> 00:11:57,160
Speaker 1: of executive power, well, and one has the impression that

214
00:11:57,240 --> 00:11:59,839
Speaker 1: the president just sometimes makes these things up. I think

215
00:11:59,840 --> 00:12:02,640
Speaker 1: the president is his strongest claim, and even then there's

216
00:12:02,679 --> 00:12:04,640
Speaker 1: a lot of doubt about it that he can do

217
00:12:04,679 --> 00:12:08,000
Speaker 1: anything he wants within the federal government. You know, everybody

218
00:12:08,160 --> 00:12:10,920
Speaker 1: in the executive branch. Even then he can't command Congress.

219
00:12:11,320 --> 00:12:13,760
Speaker 1: The theory that a lot of people, the Attorney General

220
00:12:14,040 --> 00:12:16,400
Speaker 1: to some extent others have the spouse is the so

221
00:12:16,520 --> 00:12:20,160
Speaker 1: called unitary executive that everybody in the executive branch works

222
00:12:20,160 --> 00:12:22,320
Speaker 1: for the president, and you can't have entities like an

223
00:12:22,320 --> 00:12:26,079
Speaker 1: independent council, where you can't have truly independent executive agencies.

224
00:12:26,120 --> 00:12:29,240
Speaker 1: And that's debated, but there's no theory that says that

225
00:12:29,480 --> 00:12:32,319
Speaker 1: the governor's work for the president, or that the states

226
00:12:32,400 --> 00:12:34,800
Speaker 1: can be commanded by the president to do whatever he

227
00:12:34,840 --> 00:12:39,880
Speaker 1: wants them to do. Has Congress basically, through many, many years,

228
00:12:40,520 --> 00:12:44,480
Speaker 1: been allowing the president to exert more powers, been building

229
00:12:44,559 --> 00:12:49,040
Speaker 1: up the executive branch to the detriment of Congress. I

230
00:12:49,080 --> 00:12:51,439
Speaker 1: think that's a fair point. That Congress has delegated a

231
00:12:51,480 --> 00:12:53,640
Speaker 1: lot of authority to the presidents over the years, a

232
00:12:53,679 --> 00:12:56,520
Speaker 1: lot of there's a lot of emergency legislation, a lot

233
00:12:56,559 --> 00:12:59,360
Speaker 1: of wartime legislation that never got repealed, a lot of

234
00:12:59,360 --> 00:13:01,600
Speaker 1: what the president did earlier in the administration in terms

235
00:13:01,600 --> 00:13:05,600
Speaker 1: of imposing tariffs against products in various countries, including our allies,

236
00:13:06,080 --> 00:13:11,080
Speaker 1: he's using delegated authority that Congress gave him. I mean,

237
00:13:11,120 --> 00:13:13,640
Speaker 1: in theory, these were supposed to be based on national security,

238
00:13:13,679 --> 00:13:18,360
Speaker 1: and he's pretty much stretched national security. Congress has given

239
00:13:18,400 --> 00:13:23,599
Speaker 1: the president a lot of authority through relatively unchecked delegations.

240
00:13:24,120 --> 00:13:26,240
Speaker 1: But even here it's not clear that the Congress could

241
00:13:26,240 --> 00:13:28,600
Speaker 1: give president of the authority to give the state's orders.

242
00:13:29,360 --> 00:13:33,400
Speaker 1: Supreme Court, in cases going back several decades now, has

243
00:13:33,440 --> 00:13:36,960
Speaker 1: developed this doctrine that as the anti commandeering doctrine, which

244
00:13:36,960 --> 00:13:39,400
Speaker 1: says that the federal government cannot come and dear the

245
00:13:39,480 --> 00:13:42,520
Speaker 1: states to carry out federal commands. The leading case on

246
00:13:42,520 --> 00:13:45,360
Speaker 1: that was actually a case involving gun control, the Brady Bill,

247
00:13:45,440 --> 00:13:49,800
Speaker 1: which purported to require local sheriffs to enforce waiting periods

248
00:13:49,840 --> 00:13:53,520
Speaker 1: and background checks. The Supreme Court said, Congress is free

249
00:13:53,520 --> 00:13:56,000
Speaker 1: to adopt requirements like this, but they can't impose them

250
00:13:56,160 --> 00:13:59,080
Speaker 1: on local officials or on state officials. The Congress can't

251
00:13:59,400 --> 00:14:01,839
Speaker 1: come and do your governments to carry out their will,

252
00:14:01,920 --> 00:14:04,920
Speaker 1: and the presidents certainly can't commend your state governments. Is

253
00:14:04,920 --> 00:14:11,040
Speaker 1: this Supreme Court more inclined to support executive power. It

254
00:14:11,120 --> 00:14:13,800
Speaker 1: certainly has. But I think all the fights that we've

255
00:14:13,840 --> 00:14:18,120
Speaker 1: seen until now have been the president versus Congress, or

256
00:14:18,120 --> 00:14:22,720
Speaker 1: the president versus outside people, citizens or groups or people

257
00:14:22,720 --> 00:14:26,040
Speaker 1: trying to enforce legal requirements against the president. It hasn't

258
00:14:26,080 --> 00:14:27,960
Speaker 1: actually come up that. I'm more if the president has

259
00:14:27,960 --> 00:14:31,120
Speaker 1: gone against has tried to impose something on states, and

260
00:14:31,160 --> 00:14:33,040
Speaker 1: that would be a different set of issues. The Court

261
00:14:33,200 --> 00:14:36,440
Speaker 1: is very deferential to the president and has done so

262
00:14:36,720 --> 00:14:39,560
Speaker 1: in several liberties issues like the so called Musli traveled,

263
00:14:39,560 --> 00:14:42,160
Speaker 1: and the court has been deferential to the president. In

264
00:14:42,200 --> 00:14:45,920
Speaker 1: other areas, states have sometimes tried to enforce federal requirements

265
00:14:45,960 --> 00:14:47,880
Speaker 1: against the president, but I don't think we've seen a

266
00:14:47,920 --> 00:14:50,400
Speaker 1: case in which the presidents tried to enforce something into

267
00:14:50,440 --> 00:14:53,880
Speaker 1: the States. I'm wondering about the cases that are before

268
00:14:53,920 --> 00:14:56,240
Speaker 1: the court. It's a little bit of a detour. But

269
00:14:56,400 --> 00:14:59,760
Speaker 1: the cases that are before the court on Trump's subpoenas. Yeah,

270
00:15:00,040 --> 00:15:02,560
Speaker 1: I mean, what's your take on that? It's hard to say.

271
00:15:02,600 --> 00:15:04,480
Speaker 1: I mean, that is one where I could see the

272
00:15:05,080 --> 00:15:07,880
Speaker 1: court being protective. What's unusual is that this is a

273
00:15:07,880 --> 00:15:10,800
Speaker 1: case where the president is arguing kind of the immunity

274
00:15:10,840 --> 00:15:13,600
Speaker 1: of the president, not as an executive, not as kind

275
00:15:13,600 --> 00:15:16,680
Speaker 1: of institutional president, but the president is a person meet

276
00:15:16,720 --> 00:15:19,840
Speaker 1: Donald Trump, rather than the president United States. That argument

277
00:15:19,920 --> 00:15:23,320
Speaker 1: failed terribly. The PAULA. Jones lawsuit against the president went

278
00:15:23,400 --> 00:15:25,960
Speaker 1: where he basically said, because I'm the president, I'm too

279
00:15:25,960 --> 00:15:27,960
Speaker 1: busy and this case should be held off until I

280
00:15:28,040 --> 00:15:30,600
Speaker 1: leave office. He lost that case, but some people have

281
00:15:30,640 --> 00:15:33,600
Speaker 1: felt that there was more justice to his argument than

282
00:15:33,880 --> 00:15:36,480
Speaker 1: the court recognized. But even then, these cases, a lot

283
00:15:36,520 --> 00:15:39,760
Speaker 1: of them are actually not against the president. But against say,

284
00:15:39,800 --> 00:15:42,920
Speaker 1: his accounting firm to produce documents. So that even though

285
00:15:42,960 --> 00:15:45,560
Speaker 1: though the President has gotten into the case, it's not

286
00:15:45,680 --> 00:15:47,760
Speaker 1: clear that it's going to cost him any time or

287
00:15:47,800 --> 00:15:50,520
Speaker 1: distraction to respond to the subpoenas the subpoena that his

288
00:15:50,560 --> 00:15:52,520
Speaker 1: account that has to respond to. So you know, if

289
00:15:52,560 --> 00:15:55,640
Speaker 1: one looks at President, the president as pretty weak grounds here.

290
00:15:55,680 --> 00:15:57,720
Speaker 1: But you know, no, it's always hard to predict the

291
00:15:57,720 --> 00:16:00,040
Speaker 1: Supreme Court. I want to turn for a moment to

292
00:16:00,120 --> 00:16:04,440
Speaker 1: the Defense Production Act, because he invoked it and said,

293
00:16:04,480 --> 00:16:07,320
Speaker 1: you know, to alex Aser, okay, use this to get

294
00:16:07,360 --> 00:16:09,880
Speaker 1: a GM, but it doesn't seem as if he's really

295
00:16:10,440 --> 00:16:12,640
Speaker 1: used it with the force that he could. For the

296
00:16:12,640 --> 00:16:15,080
Speaker 1: Defense Production Act, I think goes back to the Korean

297
00:16:15,080 --> 00:16:18,040
Speaker 1: War and reflects practice of the curser in World War Two,

298
00:16:18,080 --> 00:16:19,560
Speaker 1: although I don't think it was on the book stand,

299
00:16:19,680 --> 00:16:22,200
Speaker 1: in which the president has during a case of wartime

300
00:16:22,440 --> 00:16:26,360
Speaker 1: or a national emergency, president has power to direct major

301
00:16:26,400 --> 00:16:30,440
Speaker 1: manufacturers to stop making consumer goods uh and to divert

302
00:16:30,480 --> 00:16:33,800
Speaker 1: their their capacities to making war material. Would have been

303
00:16:33,840 --> 00:16:36,560
Speaker 1: you know, uh, tanks instead of cars. In this case,

304
00:16:36,600 --> 00:16:40,880
Speaker 1: it would be to produce um ventilators. Or other other

305
00:16:41,040 --> 00:16:44,080
Speaker 1: valuable equipment that hospital needs to deal with the car crisis.

306
00:16:44,920 --> 00:16:47,560
Speaker 1: UM president for city what he didn't want to do it,

307
00:16:47,640 --> 00:16:49,760
Speaker 1: and then he finally got pushed and as I as

308
00:16:49,800 --> 00:16:52,200
Speaker 1: far as I understand, he basically as and you're right,

309
00:16:52,240 --> 00:16:54,600
Speaker 1: he's asked. He himself doesn't get didn't give an order.

310
00:16:54,600 --> 00:16:56,320
Speaker 1: He gave an order to his one of his cabinet

311
00:16:56,320 --> 00:16:58,560
Speaker 1: members dave an order. My understanding is that the one

312
00:16:58,600 --> 00:17:01,400
Speaker 1: thing he ordered, they were already do ink uh and

313
00:17:01,480 --> 00:17:04,359
Speaker 1: so they had already said they were retooling to start

314
00:17:04,400 --> 00:17:08,240
Speaker 1: producing eventilators and other equipment. So it's not clearly he's

315
00:17:08,280 --> 00:17:10,280
Speaker 1: I mean, he makes um kind of made a big

316
00:17:10,280 --> 00:17:12,880
Speaker 1: show of that at the time, but I don't think

317
00:17:12,920 --> 00:17:16,240
Speaker 1: what he did actually had any significance other than maybe

318
00:17:16,280 --> 00:17:21,600
Speaker 1: symbolically explain the difference between what a president can do

319
00:17:21,640 --> 00:17:25,800
Speaker 1: on the Defense Production Act and what Harry Truman tried

320
00:17:25,880 --> 00:17:29,480
Speaker 1: to do during the Korean War with the steel mills, right.

321
00:17:29,760 --> 00:17:33,800
Speaker 1: Um So, the so called steel seizure was a situation

322
00:17:34,280 --> 00:17:37,840
Speaker 1: where um so, during during the Korean War, uh and

323
00:17:38,040 --> 00:17:41,159
Speaker 1: there was a dispute actually between them steel manufacturers and

324
00:17:41,160 --> 00:17:45,880
Speaker 1: the unions. UH and they reached the stalemate, and uh Truman,

325
00:17:45,920 --> 00:17:48,560
Speaker 1: I think, basically to being somewhat sympathetic to the unions

326
00:17:48,560 --> 00:17:51,080
Speaker 1: in that situation, basically said he was he was going

327
00:17:51,160 --> 00:17:54,600
Speaker 1: to steal seize the steel mills um as a matter

328
00:17:54,600 --> 00:17:57,359
Speaker 1: of his wartime authority because it's the Korean War, and

329
00:17:57,520 --> 00:18:00,200
Speaker 1: to avoid a strike, to avoid right that the area

330
00:18:00,280 --> 00:18:03,560
Speaker 1: was that um that if the negotiations between the manufact

331
00:18:03,600 --> 00:18:05,280
Speaker 1: the employers and the union broke down, there would be

332
00:18:05,280 --> 00:18:07,359
Speaker 1: a strike, and we couldn't afford a strike during the

333
00:18:07,359 --> 00:18:09,080
Speaker 1: middle of the Korean War. So his plan was to

334
00:18:09,119 --> 00:18:12,760
Speaker 1: seize the mills um in order to make a settlement

335
00:18:12,760 --> 00:18:14,720
Speaker 1: with the unions to avoid a strike. And that was

336
00:18:14,760 --> 00:18:18,480
Speaker 1: the basic idea, and that was challenged by the steel companies,

337
00:18:18,680 --> 00:18:21,200
Speaker 1: and ultimately the Supreme Court said the president lacked the

338
00:18:21,200 --> 00:18:23,919
Speaker 1: power to do this. This is this that it was

339
00:18:24,080 --> 00:18:27,320
Speaker 1: Congress had not given him this this power and and

340
00:18:27,400 --> 00:18:30,000
Speaker 1: sort of not even close. They said there were certain

341
00:18:30,040 --> 00:18:33,080
Speaker 1: things where Congress has explicitly given powers, there were certa

342
00:18:33,080 --> 00:18:35,160
Speaker 1: things where maybe it's implicit and what Congress has done,

343
00:18:35,280 --> 00:18:36,959
Speaker 1: and there are certain things where there's just no support

344
00:18:37,000 --> 00:18:39,640
Speaker 1: for it. And basically the president just simply did not

345
00:18:39,720 --> 00:18:43,720
Speaker 1: have this does not have that inherent authority, uh, to

346
00:18:43,760 --> 00:18:46,200
Speaker 1: see steel mills. The president maybe the commander in chief,

347
00:18:46,680 --> 00:18:48,440
Speaker 1: but that doesn't make him the commander in chief of

348
00:18:48,480 --> 00:18:52,359
Speaker 1: the domestic economy. Um. And you need to have some

349
00:18:52,720 --> 00:18:56,240
Speaker 1: clear or at least implied authority from Congress to do this.

350
00:18:56,560 --> 00:19:00,280
Speaker 1: For the Events Production Act does give some authority, um

351
00:19:00,359 --> 00:19:03,919
Speaker 1: and so UM it might be and he, you know,

352
00:19:04,000 --> 00:19:06,159
Speaker 1: he he can in book it for certain purposes and

353
00:19:06,200 --> 00:19:09,280
Speaker 1: that would be the basis for it. But the court

354
00:19:09,440 --> 00:19:11,120
Speaker 1: I guess at the time of the steel seizure case,

355
00:19:11,760 --> 00:19:14,080
Speaker 1: the president was not relying on the authority. And also

356
00:19:14,640 --> 00:19:18,760
Speaker 1: here in the Defense Production Actor, president isn't seizing general motors,

357
00:19:18,760 --> 00:19:22,160
Speaker 1: auto plants. He's basically telling them to redirect what they're doing.

358
00:19:22,240 --> 00:19:25,040
Speaker 1: So it's a less or he's asking, he's asking them

359
00:19:25,040 --> 00:19:28,160
Speaker 1: asking somewhere been asking and telling. It's it's a less

360
00:19:28,240 --> 00:19:32,640
Speaker 1: dramatic intervention than what Truman did. Thanks rich that's Richard Drafal,

361
00:19:33,040 --> 00:19:36,359
Speaker 1: Professor at Columbia Law School. Thanks for listening to the

362
00:19:36,359 --> 00:19:39,720
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

363
00:19:39,760 --> 00:19:43,680
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

364
00:19:43,760 --> 00:19:47,919
Speaker 1: slash podcast. I'm June Brasso, This is Bloomberg,