Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: It may now take more than a long car ride
Speaker 1: to get you to your second home. It may now
Speaker 1: take more than a long car ride to get to
Speaker 1: your second home. In some states, it may take a lawsuit.
Speaker 1: In Michigan, a state with some of the strictest stay
Speaker 1: at home measures in the country, Governor Gretchen Whitmer has
Speaker 1: also been traveled to second homes. The fact of the
Speaker 1: matter is it's still too dangerous to have people just
Speaker 1: out and about unnecessarily so, and so we have a
Speaker 1: pretty strict to stay at home order. Michigan has the
Speaker 1: third highest um number of deaths from COVID nineteen and
Speaker 1: we're not the third biggest steak. Lawsuits have already been
Speaker 1: filed by owners of second homes, claiming a violation of
Speaker 1: their fundamental liberty and their rights to do process and
Speaker 1: equal protection. My guest is David super, a professor at
Speaker 1: Georgetown Law School. So can the governor forbid residents from
Speaker 1: traveling to a second home. Generally yes. Governors have very
Speaker 1: sweeping power to deal with public health emergencies, which this is.
Speaker 1: State law varies from one place to another. But in general, states,
Speaker 1: public health codes give the governor very broad authority to
Speaker 1: respond to emergencies. Governors are the primary people responsible for
Speaker 1: dealing with domestic health problems in our system, not the president,
Speaker 1: and really more governors than mayors or county officials as well,
Speaker 1: So in most states, the governor does have sweeping authority
Speaker 1: to respond to a crisis like this. Some second home
Speaker 1: owners have already filed suit against the governor's ban on
Speaker 1: travel to their second homes. How strong are those claims.
Speaker 1: I've read the complaint and I think it's extremely weak.
Speaker 1: This is something that the Supreme Court has said public
Speaker 1: officials have a lot of authority to do when there's
Speaker 1: a genuine emergency, and there's no question that this is
Speaker 1: a serious emergency. This isn't something the state does all
Speaker 1: the time. I'm not aware that Michigan has ever done this,
Speaker 1: so I think a court would give them wide lattitude.
Speaker 1: Do they come out and say I need to rest
Speaker 1: at my second home. Is there any substantial reason why
Speaker 1: they have to go to the second home. No, they
Speaker 1: say that it's a pleasant place to be, that it
Speaker 1: provides rest, but from the hustle and bustle of law practice.
Speaker 1: My guess is that for most lawyers, the hustle and
Speaker 1: bustle has died down considerably. But they describe their second
Speaker 1: homes as pleasant places. But they don't describe anything fundamental
Speaker 1: about a need to go there or suggest that they're
Speaker 1: being harmed in any deep way other than not getting
Speaker 1: the benefit of their second homes and some other places
Speaker 1: that they want to travel to. They complain, for example,
Speaker 1: they're not allowed to go to gun stores. In most states,
Speaker 1: gun stores are considered essential businesses. In fact, the n
Speaker 1: r A is suing New York because it doesn't consider
Speaker 1: gun stores essential, and Michigan apparently doesn't either. But again,
Speaker 1: the Supreme Court has given state's enormous flexibility to respond
Speaker 1: to pending emergencies, and indeed of upheld measures much more
Speaker 1: stringent than these, if they were tailored to fit an emergency.
Speaker 1: The fact that someone thinks the gun store is or
Speaker 1: is not critical and and that state disagree on that
Speaker 1: is not going to persuade a judge to second guess
Speaker 1: the judgment of the elected officials of that state. Can
Speaker 1: you tell us about the Supreme Court case that you're
Speaker 1: talking about, Well, there are several of them. For example,
Speaker 1: in one case, officials seized and destroyed someone's poultry that
Speaker 1: they were planning to sell, and they claimed they were
Speaker 1: deprived of property without due process of law, and the
Speaker 1: Supreme Court said that the government officials believed that poultry
Speaker 1: had dangerous bacteria on it, it would make people sick,
Speaker 1: and it needed to be destroyed right away, and the
Speaker 1: courts should differ or to experts on a crisis like that.
Speaker 1: In another case, someone was selling pharmaceuticals that were apparently
Speaker 1: defective and risk making people sick. We're killing them, and
Speaker 1: the court again said, this is an emergency. We don't
Speaker 1: have time for giving people hearings and doing a lot
Speaker 1: of process. We need people in the government to keep
Speaker 1: us safe and supported the action. Governor Cuomo of New
Speaker 1: York said, the policies I communicated aren't worth the paper
Speaker 1: that they're printed on unless people decide to follow them.
Speaker 1: In Michigan, I'm wondering how could they even enforce this.
Speaker 1: It's a difficult thing to do. Certainly, if people on
Speaker 1: mass ignore it, then the government doesn't have the capacity
Speaker 1: to pursue what The hope is that the vast majority
Speaker 1: of people will understand that we are in a crisis
Speaker 1: together and want to do their part to help by
Speaker 1: following these rules, and the few outliers can be addressed
Speaker 1: by law enforcement or by community pressure. Can a governor
Speaker 1: forbid people from other states from coming into his or
Speaker 1: her state? Generally not unless there's a sound of public
Speaker 1: health reason for doing so. If a governor wanted it
Speaker 1: to hold up in court, they'd need to get some
Speaker 1: expert evidence that this is actually necessary, which I don't
Speaker 1: think they'd be able to do. The governor of Florida,
Speaker 1: Rhonda Santists, has imposed quarantines on people coming in from
Speaker 1: New York fourteen day quarantines. Is that within his power?
Speaker 1: I suspect it's not, because that's discriminating on peaceful coming
Speaker 1: from one part of the country versus another. And the
Speaker 1: whole point of being unified country is it states don't
Speaker 1: get to do that. If he had strong scientific basis
Speaker 1: for doing it, he might be able to. But this
Speaker 1: disease is in every state in the Union, and someone
Speaker 1: is just as sick if they have the infection whether
Speaker 1: they come from New York or Wyoming. Part of the
Speaker 1: point of being a single country, being the United States,
Speaker 1: is that we are all in this together. Supreme Court
Speaker 1: has said that the right to interstate travel is fundamental.
Speaker 1: Thank you so much. That's David super, a professor at
Speaker 1: Georgetown Law School. You're listening to Bloomberg Law with June
Speaker 1: Grasso from Bloomberg Radio. President Trump says he has absolute
Speaker 1: power to and the coronavirus shutdown. When somebody is the
Speaker 1: president of the United States, the authority is total, and
Speaker 1: that's what it's going to be. The Constitution says otherwise.
Speaker 1: Joining me is Richard, professor at Columbia Law School. So,
Speaker 1: rich what does the Constitution say about the president's claim
Speaker 1: of absolute power over the States? Well, of course, the
Speaker 1: Constitution doesn't address anything like that, and there's really nothing
Speaker 1: in the Constitution that would support that. President is vested
Speaker 1: with executive authority, but that's with respect to the federal
Speaker 1: government present and has given really no direct powers over
Speaker 1: the states at all, except to implement those kinds of
Speaker 1: powers that Congress might give him. Obviously, the parent president
Speaker 1: has power dealing with national security and foreign affairs, but
Speaker 1: for the kind of domestic things that the states are doing.
Speaker 1: Our local business is going to be open, our local
Speaker 1: school is going to be open. That's the kind of
Speaker 1: thing that has traditionally a matter for the states to decide,
Speaker 1: as they've been doing over the past month, because it's
Speaker 1: the public health. Do the states have a particular purview
Speaker 1: over the public health? Yes, I mean, I think the
Speaker 1: better way to put it, and this is the position
Speaker 1: that conservatives have always emphasized, is that the federal government
Speaker 1: is a government of limited powers. It does have this
Speaker 1: power to regulate commerce, and of course, obviously coronavirus has
Speaker 1: a big impact on commerce, but that all the basic
Speaker 1: powers of government, including power over public health and public safety,
Speaker 1: are powers that are wielded at the state level until
Speaker 1: perhaps Congress it is used its commerce power might take
Speaker 1: something away. But the assumption that's basically all the governing
Speaker 1: power and states starts at the state level. Somethings can
Speaker 1: be moved up by Congress at the national level. Some
Speaker 1: things have been delegated by the states to their cities.
Speaker 1: But the key assumption of our system is that the
Speaker 1: states are the basic blocks of government. Trump declared a
Speaker 1: national emergency. Explain why that doesn't give him the powers
Speaker 1: he's trying to claim, and what powers it does give him.
Speaker 1: The national emergency is something that basically is something pursuing
Speaker 1: various acts of Congress that gives the president certain emergency powers.
Speaker 1: With perspective areas in the federal system we allocate sons
Speaker 1: to call into play the Events Production Act, it does
Speaker 1: give him various powers, and even in this setting, it
Speaker 1: might have provided some authority. You know, or when he
Speaker 1: shut down in international air travel or you opposed restrictions
Speaker 1: international air travel. I mean, Congress can get the president
Speaker 1: power to deal with emergencies. The irony here is I
Speaker 1: think the president might have been in a better position
Speaker 1: to use emergency powers to shut things down. It's not
Speaker 1: clear he has any particular power to order things up.
Speaker 1: I mean, if his state decides it wants to close
Speaker 1: its school system, the president has no power to say
Speaker 1: it's got to be open. One of the state decides
Speaker 1: it wants to close its government offices, the president has
Speaker 1: no power. In the states, is issuing orders to businesses
Speaker 1: that you want to close, the President doesn't have the
Speaker 1: power to say, no, you have to be open. In fact,
Speaker 1: he didn't even push several Republican governors who were slow
Speaker 1: to issues stay at home orders. But he seems to
Speaker 1: be trying to save face yesterday he said he was
Speaker 1: authorizing the governors to decide for themselves, when govern could
Speaker 1: easily respond, we don't need your authorization. The governors can
Speaker 1: pretty much do what they want. I mean, it is
Speaker 1: true that the president has ways of making governors do
Speaker 1: what he wants, but not through orders so much. Obviously,
Speaker 1: the president or Secretary of the Treasury now under the
Speaker 1: CARES Act, has control over huge amounts of money in
Speaker 1: terms of allocation of funding for public health emergencies are
Speaker 1: other things the president and this president has not been
Speaker 1: shy about that can manipulate who gets the funding, who
Speaker 1: gets the ventilators, who gets the PPE, and the masks
Speaker 1: in ways that favor governors who are cooperative and disfavor
Speaker 1: those who are not. So it's not that the president
Speaker 1: has no power. What the president doesn't have is the
Speaker 1: power to treat governors as subordinates. The president can try
Speaker 1: and persuade them, the president can try and pressure them,
Speaker 1: but what the president can't do is actually give them orders.
Speaker 1: They treat them as if they were junior members of
Speaker 1: his government. That is simply not our system. We did
Speaker 1: hear the president a few weeks ago, is it a
Speaker 1: few weeks ago? I don't know, it's this seems like
Speaker 1: it's going on. It could have been days ago exactly.
Speaker 1: So he did say that the governors who are nice
Speaker 1: to him, who are going to be the ones that
Speaker 1: get what they need, which seems to be just an
Speaker 1: anathema to the way our system is supposed to work. Well,
Speaker 1: that's certainly true. It shouldn't be a case where political
Speaker 1: or ideological favoritism or todaism influences where valuable funds, critical
Speaker 1: public health equipment and supplies where they're sent, they should
Speaker 1: be sent based on need, not based on the governor's
Speaker 1: saying nice things about the president. But in a way
Speaker 1: that though that statement also illustrates the whole point, which
Speaker 1: is they don't work for him. He used the phrase,
Speaker 1: I think it was yesterday, the day before that mutiny,
Speaker 1: like you know, the mutiny on the bounty when the
Speaker 1: crew doesn't obey the captain. Well, that's not this. He's
Speaker 1: not the captain, or, as Governor Colma said, he's not
Speaker 1: the king. It's not mutiny. It's disagreement. It's disagreement amongst
Speaker 1: people who have the key power in this area. He
Speaker 1: can give reasons, he can try and persuade he can
Speaker 1: suggest why he can even direct funds in certain ways
Speaker 1: to try and persuade or coerce, but he can't order
Speaker 1: in the way that the head of the department can
Speaker 1: order a junior in an apartment to do something. In
Speaker 1: his presidency, he's already said that Article two allows me
Speaker 1: to do whatever I want. Now. When he was asked
Speaker 1: at a press conference the other day, who said that
Speaker 1: you have these absolute powers? He didn't say, but I
Speaker 1: wonder is it Attorney General Bill Barr, with his theories
Speaker 1: of executive power, well, and one has the impression that
Speaker 1: the president just sometimes makes these things up. I think
Speaker 1: the president is his strongest claim, and even then there's
Speaker 1: a lot of doubt about it that he can do
Speaker 1: anything he wants within the federal government. You know, everybody
Speaker 1: in the executive branch. Even then he can't command Congress.
Speaker 1: The theory that a lot of people, the Attorney General
Speaker 1: to some extent others have the spouse is the so
Speaker 1: called unitary executive that everybody in the executive branch works
Speaker 1: for the president, and you can't have entities like an
Speaker 1: independent council, where you can't have truly independent executive agencies.
Speaker 1: And that's debated, but there's no theory that says that
Speaker 1: the governor's work for the president, or that the states
Speaker 1: can be commanded by the president to do whatever he
Speaker 1: wants them to do. Has Congress basically, through many, many years,
Speaker 1: been allowing the president to exert more powers, been building
Speaker 1: up the executive branch to the detriment of Congress. I
Speaker 1: think that's a fair point. That Congress has delegated a
Speaker 1: lot of authority to the presidents over the years, a
Speaker 1: lot of there's a lot of emergency legislation, a lot
Speaker 1: of wartime legislation that never got repealed, a lot of
Speaker 1: what the president did earlier in the administration in terms
Speaker 1: of imposing tariffs against products in various countries, including our allies,
Speaker 1: he's using delegated authority that Congress gave him. I mean,
Speaker 1: in theory, these were supposed to be based on national security,
Speaker 1: and he's pretty much stretched national security. Congress has given
Speaker 1: the president a lot of authority through relatively unchecked delegations.
Speaker 1: But even here it's not clear that the Congress could
Speaker 1: give president of the authority to give the state's orders.
Speaker 1: Supreme Court, in cases going back several decades now, has
Speaker 1: developed this doctrine that as the anti commandeering doctrine, which
Speaker 1: says that the federal government cannot come and dear the
Speaker 1: states to carry out federal commands. The leading case on
Speaker 1: that was actually a case involving gun control, the Brady Bill,
Speaker 1: which purported to require local sheriffs to enforce waiting periods
Speaker 1: and background checks. The Supreme Court said, Congress is free
Speaker 1: to adopt requirements like this, but they can't impose them
Speaker 1: on local officials or on state officials. The Congress can't
Speaker 1: come and do your governments to carry out their will,
Speaker 1: and the presidents certainly can't commend your state governments. Is
Speaker 1: this Supreme Court more inclined to support executive power. It
Speaker 1: certainly has. But I think all the fights that we've
Speaker 1: seen until now have been the president versus Congress, or
Speaker 1: the president versus outside people, citizens or groups or people
Speaker 1: trying to enforce legal requirements against the president. It hasn't
Speaker 1: actually come up that. I'm more if the president has
Speaker 1: gone against has tried to impose something on states, and
Speaker 1: that would be a different set of issues. The Court
Speaker 1: is very deferential to the president and has done so
Speaker 1: in several liberties issues like the so called Musli traveled,
Speaker 1: and the court has been deferential to the president. In
Speaker 1: other areas, states have sometimes tried to enforce federal requirements
Speaker 1: against the president, but I don't think we've seen a
Speaker 1: case in which the presidents tried to enforce something into
Speaker 1: the States. I'm wondering about the cases that are before
Speaker 1: the court. It's a little bit of a detour. But
Speaker 1: the cases that are before the court on Trump's subpoenas. Yeah,
Speaker 1: I mean, what's your take on that? It's hard to say.
Speaker 1: I mean, that is one where I could see the
Speaker 1: court being protective. What's unusual is that this is a
Speaker 1: case where the president is arguing kind of the immunity
Speaker 1: of the president, not as an executive, not as kind
Speaker 1: of institutional president, but the president is a person meet
Speaker 1: Donald Trump, rather than the president United States. That argument
Speaker 1: failed terribly. The PAULA. Jones lawsuit against the president went
Speaker 1: where he basically said, because I'm the president, I'm too
Speaker 1: busy and this case should be held off until I
Speaker 1: leave office. He lost that case, but some people have
Speaker 1: felt that there was more justice to his argument than
Speaker 1: the court recognized. But even then, these cases, a lot
Speaker 1: of them are actually not against the president. But against say,
Speaker 1: his accounting firm to produce documents. So that even though
Speaker 1: though the President has gotten into the case, it's not
Speaker 1: clear that it's going to cost him any time or
Speaker 1: distraction to respond to the subpoenas the subpoena that his
Speaker 1: account that has to respond to. So you know, if
Speaker 1: one looks at President, the president as pretty weak grounds here.
Speaker 1: But you know, no, it's always hard to predict the
Speaker 1: Supreme Court. I want to turn for a moment to
Speaker 1: the Defense Production Act, because he invoked it and said,
Speaker 1: you know, to alex Aser, okay, use this to get
Speaker 1: a GM, but it doesn't seem as if he's really
Speaker 1: used it with the force that he could. For the
Speaker 1: Defense Production Act, I think goes back to the Korean
Speaker 1: War and reflects practice of the curser in World War Two,
Speaker 1: although I don't think it was on the book stand,
Speaker 1: in which the president has during a case of wartime
Speaker 1: or a national emergency, president has power to direct major
Speaker 1: manufacturers to stop making consumer goods uh and to divert
Speaker 1: their their capacities to making war material. Would have been
Speaker 1: you know, uh, tanks instead of cars. In this case,
Speaker 1: it would be to produce um ventilators. Or other other
Speaker 1: valuable equipment that hospital needs to deal with the car crisis.
Speaker 1: UM president for city what he didn't want to do it,
Speaker 1: and then he finally got pushed and as I as
Speaker 1: far as I understand, he basically as and you're right,
Speaker 1: he's asked. He himself doesn't get didn't give an order.
Speaker 1: He gave an order to his one of his cabinet
Speaker 1: members dave an order. My understanding is that the one
Speaker 1: thing he ordered, they were already do ink uh and
Speaker 1: so they had already said they were retooling to start
Speaker 1: producing eventilators and other equipment. So it's not clearly he's
Speaker 1: I mean, he makes um kind of made a big
Speaker 1: show of that at the time, but I don't think
Speaker 1: what he did actually had any significance other than maybe
Speaker 1: symbolically explain the difference between what a president can do
Speaker 1: on the Defense Production Act and what Harry Truman tried
Speaker 1: to do during the Korean War with the steel mills, right.
Speaker 1: Um So, the so called steel seizure was a situation
Speaker 1: where um so, during during the Korean War, uh and
Speaker 1: there was a dispute actually between them steel manufacturers and
Speaker 1: the unions. UH and they reached the stalemate, and uh Truman,
Speaker 1: I think, basically to being somewhat sympathetic to the unions
Speaker 1: in that situation, basically said he was he was going
Speaker 1: to steal seize the steel mills um as a matter
Speaker 1: of his wartime authority because it's the Korean War, and
Speaker 1: to avoid a strike, to avoid right that the area
Speaker 1: was that um that if the negotiations between the manufact
Speaker 1: the employers and the union broke down, there would be
Speaker 1: a strike, and we couldn't afford a strike during the
Speaker 1: middle of the Korean War. So his plan was to
Speaker 1: seize the mills um in order to make a settlement
Speaker 1: with the unions to avoid a strike. And that was
Speaker 1: the basic idea, and that was challenged by the steel companies,
Speaker 1: and ultimately the Supreme Court said the president lacked the
Speaker 1: power to do this. This is this that it was
Speaker 1: Congress had not given him this this power and and
Speaker 1: sort of not even close. They said there were certain
Speaker 1: things where Congress has explicitly given powers, there were certa
Speaker 1: things where maybe it's implicit and what Congress has done,
Speaker 1: and there are certain things where there's just no support
Speaker 1: for it. And basically the president just simply did not
Speaker 1: have this does not have that inherent authority, uh, to
Speaker 1: see steel mills. The president maybe the commander in chief,
Speaker 1: but that doesn't make him the commander in chief of
Speaker 1: the domestic economy. Um. And you need to have some
Speaker 1: clear or at least implied authority from Congress to do this.
Speaker 1: For the Events Production Act does give some authority, um
Speaker 1: and so UM it might be and he, you know,
Speaker 1: he he can in book it for certain purposes and
Speaker 1: that would be the basis for it. But the court
Speaker 1: I guess at the time of the steel seizure case,
Speaker 1: the president was not relying on the authority. And also
Speaker 1: here in the Defense Production Actor, president isn't seizing general motors,
Speaker 1: auto plants. He's basically telling them to redirect what they're doing.
Speaker 1: So it's a less or he's asking, he's asking them
Speaker 1: asking somewhere been asking and telling. It's it's a less
Speaker 1: dramatic intervention than what Truman did. Thanks rich that's Richard Drafal,
Speaker 1: Professor at Columbia Law School. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Brasso, This is Bloomberg,