0:15

Pushkin from

0:19

Pushkin Industries. This is Deep Background,

0:22

the show where we explore the stories behind

0:25

the stories in the news. I'm

0:27

Noah Feldman. The coronavirus

0:29

pandemic is fundamentally

0:32

a public health challenge to us right now,

0:34

but as we've seen in a series of special episodes

0:37

that we've been running the last few weeks, that

0:39

public health challenge has broad

0:41

interaction with a whole bunch of

0:44

other serious policy issues.

0:46

One is the economy, and we've explored

0:49

that in a recent episode. Another is

0:51

the law itself, specifically

0:54

constitutional law, the law that governs

0:56

the question of where public health

0:58

stops and your individual liberties

1:01

begin. That's an issue that's only

1:03

beginning to emerge as central

1:05

in our public debate around governmental

1:07

response the coronavirus. To talk

1:09

about this issue, I had a conversation

1:12

with Professor Richard Lazarus of Harvard

1:14

Law School. Richard is one of

1:16

the leading Supreme Court advocates in the country.

1:19

His area of specialization is environmental

1:22

and natural resources law, and that

1:24

makes him truly expert on the question

1:26

of how expertise in government

1:29

judgment within government agencies

1:31

interacts with the power of the federal government

1:34

and the power of the courts.

1:37

He's the author of a new book, The Rule of Five,

1:40

Making Climate History at the Supreme Court,

1:42

which gives you the inside story of the most

1:44

significant environmental law case of

1:46

recent decades. Okay,

1:50

so, Richard, let's just start with Many

1:53

government institutions are trying to respond

1:55

to the Corona crisis, and the

1:57

Supreme Court is now the latest to

1:59

have announced some steps.

2:01

What's your sense of what the Court has in fact done.

2:04

Well, what the Court is done is

2:06

they've decided to take the quite

2:09

significant step of postponing oral

2:11

argument. The Court was supposed here oral argument

2:13

in the last week of March, beginning on Monday,

2:16

March twenty third. The Court has announced

2:18

that it's going to postpone the

2:20

entire March or argument session, that's

2:23

two weeks of argument, and then hold

2:25

those cases instead for argument

2:28

in April. And I expect as a

2:30

good chance the Court may well hold

2:32

argument in May. In addition

2:34

to that, I mean, I understand they're leaving the door

2:36

open for May, and we all hope

2:39

that things have passed their worst end. But why

2:41

would you think that things would be so different in

2:43

May. I mean, I don't see anything from any epidemiologist

2:46

that thinks that things are going to be better then,

2:48

especially in Washington, DC, where in fact

2:50

the cases have been relatively slow to surprisingly

2:53

slow to get going. Yeah, I think the

2:55

court is one acting in a hopeful,

2:57

optimistic way, the way many people are right

2:59

now. All the different kinds of orders

3:02

are only for three or four or five weeks,

3:04

even if people assume it may take long than

3:07

that. So there's a chance this is a first step

3:09

and the court may have to take further steps. But

3:11

beyond that, the court can hear

3:14

cases, and they can hear

3:16

argument in ways that

3:18

are not inconsistent with the

3:21

measures being take to prevent the spread

3:23

of the virus. I mean, like a FaceTime

3:25

argument or a zoom argument. They can do a FaceTime

3:27

market, they can do a zoom argument. They can have people

3:30

only the lawyers in the

3:32

courtroom, no one else, and the courtments

3:34

have the lawyers and the justices, the marshal,

3:37

and the clerk. They can have only those

3:40

folks there. They can have them spread out

3:42

pretty well in the courtroom, and the

3:44

justice can also I mean, you know, it's it's

3:46

an insult to say it. And the presence of such a

3:48

great oral advocate at the scream court as you.

3:51

But they could also decide cases without

3:53

the benefit of oral argument. They

3:55

do that all the time. Yeah, there's certainly no requirement

3:58

they have oral argument. They can limit the number of cases

4:00

for which they hear an argument. My guess is they'd

4:02

only be hearing time sensitive cases

4:05

anyway. In any case

4:07

if they think really has no particular times sensitivity.

4:09

If things get worse, those cases they can

4:12

push in a heartbeat to

4:14

October. It's only the case that see

4:16

more time sensitive. I mean, give examples. The

4:18

Trump subpoena cases are probably

4:20

cases were more time sensitive. The McGann

4:23

subpoena and the other electoral college

4:25

cases, those are cases the Court

4:27

needs to decide. Yeah, we need to know what the answer is

4:29

to those before we actually have an election exactly,

4:31

So I think they'll feel a need if

4:33

push comes to shove, they can decide that

4:35

oral argument. They can certainly decide them

4:38

with only some justices in the room. The Court

4:40

has already done that. I mean, there are justices.

4:42

When Chief Justice Renquist was

4:44

ill during the two thousand and four term,

4:47

you know, fifteen years ago, he

4:50

would vote on cases if his vote made

4:52

a difference. By listening to the

4:54

oral argument, something that you would listen to the tapes

4:56

held listened to the tapes of the oral argument, and then he would vote.

4:58

He otherwise wouldn't participate. So they

5:00

can and the court, i believe is shutdown

5:03

oral argument before during the pandemic

5:06

in nineteen eighteen, the Spanish flew the

5:09

court also, I'm pretty sure shut

5:11

down oral argument. So it's not without precedent.

5:13

There are other institutions will be much more hard

5:16

pressed to figure out how to function. Congress

5:18

we much more hard pressed to function than

5:20

the United States Supreme Court, an

5:23

ordinary federal district court, I think. I mean,

5:25

the Supreme Court is much more it's much

5:27

grander, it's a much more formalized process.

5:29

There are a lot of you know, nine injustices sitting on

5:31

every case, and they could do

5:34

everything that they do in principle without

5:36

oral argument because they have detailed written briefs.

5:38

But not all of that will be true for every federal

5:41

district court, and certainly not for local court houses

5:43

around the country. Some parts of justice,

5:46

like criminal trials exactly criminal constitutionally

5:48

can't do them remotely. Probably that's

5:51

right. I mean, it requires you know, in person

5:53

at least we've already always understood it to require

5:55

in person presence. Yeah, you're supposed to be

5:57

able to see your witness, supposed to under the confrontation

6:00

clause. I mean, they're all kind of constution gives

6:02

you the right to confront the witnesses against you, and so far

6:05

courts don't think that's good enough to confront

6:07

them on FaceTime. That's right. So they're all kinds

6:09

of challenges In other parts of the judiciary,

6:11

it would be much more intense than the Supreme

6:14

Court. Supreme Court can get its job done.

6:16

For talking about the administration the criminal justice

6:18

system of the United States at

6:21

the local level, at the

6:23

trial level, and by police and

6:26

magistrates, I think the system

6:29

will could quickly become overwhelmed in

6:31

sort of a parallel to what's happening with

6:34

the hospitals being overwhelmed.

6:36

The Supreme Court it can accommodate

6:38

this relatively easily,

6:42

I think as an institutional matter.

6:45

But the local administration of criminal

6:47

justice it's going to be a challenge. They

6:49

don't have the resources or the expertise

6:51

to do things remotely. Universities

6:54

like Harvard and the rest we can switch

6:56

to figure it out, yeah, exactly, And it's

6:58

a challenge for us, but you're not going to be able to see

7:00

that happen at the local level, and they're going to face

7:03

real issues in real time. Richard,

7:05

what did it mean when the President said I'm

7:08

declaring a national emerge? Well, to some

7:10

extent, it meant a lot less than people

7:12

might have thought. And they're much

7:14

less unusual than people might

7:17

think. We normally just don't hear about them. I

7:19

mean, give you an example. I mean, there have been

7:21

about forty eight formal declarations

7:23

by the president United States of national emergencies

7:26

in the last thirty plus years.

7:29

President Trump has done a whole bunch

7:32

in the last year itself. It's

7:34

usually about six every four years

7:36

of national emergencies declared by

7:38

the president. President Trump has had. In

7:40

twenty nineteen, there were about eighty

7:43

declarations of disasters. So

7:46

that by itself means a lot less

7:48

than people might think, because normally the

7:51

declaration of emergency or the declaration

7:53

of disaster is a very limited

7:56

sort of salience. You have

7:58

something which is quite narrowly defined. We're

8:00

upset about the Taliban, so we're gonna do export

8:02

restrictions. That's a more classic declaration

8:05

of national emergency, or there's been a

8:07

flood disaster in a in state. That's

8:09

a typical disaster declaration.

8:12

This one is categorically

8:14

different, which is why we know so much

8:17

about it. But there's a result of that.

8:19

It doesn't by itself mean

8:21

that much. It can trigger a lot.

8:24

So for instance, when the President lasts

8:26

Friday, just March thirteenth, declared

8:29

a national emergency, and he did that under the National

8:32

Emergencies Act, that's an applet

8:34

named statute, and he also did it

8:36

under what's called the Stafford Disaster Act.

8:38

Of the two declarations he made, the

8:41

National Emergency Act by itself is

8:43

a far less immediate legal consequence

8:45

under the Stafford Act, by declaring it a

8:47

disaster, that potentially frees

8:50

up about forty five to fifty billion

8:52

dollars which has already been authorized

8:54

and allocated by Congress

8:57

to be managed by the Federal Emergency Management

8:59

Agency for natural disasters and other

9:01

kinds of disasters, So that money is

9:03

immediately freed up to some extent

9:06

it can be spent by the federal government.

9:08

But what really then allows is the states

9:11

to respond to that declaration by

9:14

in turn declaring a major

9:16

disaster within their states within their borders

9:19

and then requesting assistance from the federal

9:21

government. And if you take a look, President

9:23

Trump made his declaration on March thirteenth.

9:26

Immediately after that, all the governors

9:28

that I can see, all the governors of all the states

9:31

made matching declarations of

9:33

disasters within their state as the territories

9:36

Guam, American, Samoa, Puerto

9:39

Rico. Everyone did. Because what happens

9:41

is that makes them eligible to receive

9:44

that money to do all kinds

9:46

of things to address the

9:48

current crisis of the

9:50

virus. Now note it doesn't allows

9:53

them to get federal assistance, but

9:55

is still by a formula. It's seventy

9:57

five percent by the federal

9:59

government and twenty five percent by

10:02

the states. So it's not just free

10:04

money. Now Congress could change that if they want.

10:06

On the current formula it's twenty

10:08

five but that's what's going to allow

10:11

state, through all kinds of things,

10:13

to shore up their public health resources.

10:15

So now that you brought up the states, Richard,

10:18

we're going to have to wade into one of the things

10:20

that people around the world I think consider weirdest

10:22

about the American system of government,

10:24

and specifically about our response to Corona,

10:26

and it's something where there's already

10:29

I've already read some articles, not only from

10:31

abroad, from within the US saying what are you

10:33

people doing? And that is the question of the relationship

10:36

between the federal government and the state

10:38

governments or what you know we in

10:40

our business called constitutional federalism.

10:43

So in Europe, if a

10:45

central government, if the government of France wants to declare

10:47

a state of emergency and impost conditions, the

10:49

central government does it. And every

10:51

single government official, down to

10:53

the most local public health official

10:56

or the rat catcher, they all respond

10:58

to the same central bureaucracy. It's a centralized

11:01

system. Our system doesn't work that way.

11:03

We've got fifty states, plus the territories,

11:05

which are maybe a more complicated issue for federalism. We

11:07

won't touch on them today, but we have fifty

11:09

states, each of which has its own inherent

11:12

constitutional authority to do a whole bunch of stuff,

11:14

and especially stuff connected to public

11:18

health in the news. The way

11:20

that's been playing out is that the first handful

11:22

of states are starting actually

11:24

to issue orders that limit movement

11:27

or that close schools, and

11:31

that authority, I take it they

11:33

can exercise entirely

11:35

on their own without federal authority.

11:38

Correct, that's absolutely right. It's sort

11:40

of backwards people might think from other countries.

11:42

First of all, the presidential declaration disaster

11:44

into the STAFFORDAC would have be of limited

11:47

significance if the states hadn't responded

11:49

under the statute to say we agree

11:51

there's a disaster here. The

11:54

federal money couldn't be spent the way it was. That's

11:56

one issue. But then you're right beyond the

11:58

Staffordact to the extent that decisions

12:00

are going to be made to close schools, to

12:03

stop crowds of more than twenty five or more

12:06

here in Massachusetts, to close restaurants

12:09

in bars in other places for public gathering.

12:11

That's not a power which it's

12:14

clear that the president United States has

12:16

in the first instance. Those are powers

12:19

that state officials and local officials

12:21

have in this country. What about

12:23

restrictions on movement under

12:25

conditions of quarantine, I mean, I

12:28

think that it's straightforwardly the

12:30

case that if states have laws on the books, which

12:32

I think almost all states do, sometimes really old

12:34

laws that authorize the

12:37

governor or other public health officials in

12:39

the state to issue quarantine laws, there doesn't

12:41

seem to be any doubt that that's an inherent power

12:43

of the states. Yeah, I think that's right. It's inherent

12:45

power of the state. It's sort of a classic police

12:48

power, and the states in local

12:50

governments. The more one looks at this, they exercise those

12:52

powers. The idea of a

12:54

pandemic and contagion is

12:56

incredibly unsettling to all of us, but

12:59

it was more the kind of thing people knew

13:01

about in the early part of

13:03

the twentieth century in this nation's history.

13:05

So this was classic statement the local

13:07

governmental action under the police power.

13:10

My guess is that the federal government

13:12

could do a lot more than

13:15

it does. So let's

13:17

say, let's try to do a concrete scenario.

13:20

I live in Massachusetts. For some reason,

13:22

I need to cross the state line into

13:24

Connecticut for something. I need to help

13:26

a relative or you know, check in on a

13:29

friend who needs special care, and

13:31

then I want to come back across the border, and

13:34

in the meantime, the governor of Massachusetts

13:36

says, no one move in and out of

13:38

our state. Realistically,

13:40

it's not clear to me whether that

13:43

would be something that would happen, but

13:45

let's imagine that it did, and things like

13:47

that are happening in other places

13:49

around the world. Would the governor

13:51

probably have the inherent authority just

13:54

to say I'm putting the state cops at the

13:56

border, and I'm saying, hey, even if

13:58

you live in Massachusetts, show us your driver's license, show

14:00

us where you live, you can't come back in. I mean,

14:02

that sounds absolutely insane and

14:04

crazy, but I think the governor

14:06

would have that inherent authority. I think just

14:09

a few weeks ago, maybe a few days ago,

14:12

would have bristled at the idea.

14:14

Maybe many people would now, But my

14:16

guess is if the governor made such an order

14:19

and backed it up with different

14:21

kinds of scientific basis for what he did, I

14:24

think you find right now that

14:26

a court would be very wary

14:29

in the midst of a public health crisis preventing

14:31

the governor from doing that. We'll be back

14:34

in just a moment. So

14:45

let's talk about the courts, which are our

14:47

backstop that we're used to relying on under

14:49

circumstances where the government takes steps

14:52

that violate what we think of as our ordinary liberties.

14:55

And let's start with a state case where

14:57

let's say I'm stuck at the border and I want to get back

14:59

into the state, and I go to court

15:02

and I say Hey, government,

15:04

you can't just exclude me from getting

15:07

back home. That's not within your ordinary

15:09

powers. And let's imagine

15:11

you were representing the state in court

15:13

the same way you represented the federal government in the US

15:15

Supreme Court many times. What

15:18

would you argue to the court about why it was justified

15:21

for the government to sustain that

15:23

kind of an order. Well, I just basically

15:25

I rely on two things. The

15:28

first is the degree of the exigency,

15:30

what the risks were of

15:33

contagion, to spread of contagion. And

15:35

the second is the time

15:37

sensitivity of it, that this is a

15:39

true emergency, that there's not time to

15:42

stay, this to wait and think about

15:44

it and study it more. The cost

15:46

to the public health be too great for

15:48

the court to do what it might normally do, which

15:51

is enjoying something which looks like it

15:53

might be overreaching in order to basically

15:56

let a more deliberative process

15:59

be used. I think here i'd credit stress. We don't

16:01

have that, we don't have that luxury to

16:04

do that. Now. I think the kind of

16:06

government order that would be more

16:09

suspect in a classic sense

16:11

is it didn't seem neutral in its face. So

16:14

if you had a government order which said every

16:16

one of a certain ethnic origin, We're

16:18

going to stop them. If it looked

16:20

like it was deliberately targeting

16:23

certain kinds of people and

16:25

certain kinds of populations, then

16:28

I can imagine a court might

16:30

well step in. But akin

16:32

to sort of a First Amendment regulation, it looks fairly

16:35

neutral in terms of time,

16:37

place, or manner, and

16:39

really looks like on its face it's

16:42

geared to deal with a public health emergency.

16:45

I think a court would be very hard pressed, federal

16:47

or state, to second guess the

16:49

governor whose advice appeared

16:51

to be based on real public

16:53

health information, you know, and to go to the point

16:55

that you were making about how it seems hard to imagine

16:58

the state troopers stopping us at the state

17:00

border. I wonder if we're not in some

17:02

sort of gradually sliding scale

17:04

of what seems weird to us. I mean, certainly

17:07

the rumors which are are out

17:09

there include constant rumors

17:11

of the possibility if people being blocked from

17:14

traveling at state borders. I

17:16

heard from a group of students recently who

17:18

were trying to figure out whether they if they left campus

17:21

they could come back to campus, and

17:24

one of the issues that they were talking about was

17:27

well, gee, if we crossed the state borders, even within

17:29

the United States, might we be

17:31

blocked from coming back? And I give

17:33

them exactly the response that you just made to me, which

17:35

makes me feel a little better, namely that it seems

17:38

hard to imagine the government doing

17:40

that, but that it probably would be within the

17:42

legal authority of the state under these conditions.

17:44

And after saying it, I thought to myself, is

17:46

it really so unimaginable now that

17:49

I've said that? And it may be that just what seems

17:51

unimaginable today may be less

17:53

unimaginable tomorrow, and the next day and the

17:55

next day. Well, that's certainly how I think we

17:57

all feel. In the last three weeks. Everything

18:00

we couldn't have imagined it has become imaginable in some

18:02

way. I don't want to suggest without limit. So

18:04

if let's talk about the limits, right, So, if

18:06

three months ago a governor

18:09

of a state had announced that

18:12

he or she thought there

18:14

was some extraordinary virus

18:16

affecting the state and try to shut

18:18

down the borders, I have no doubt that

18:21

a federal court would have immediately struck

18:23

that down. The reason I'm suggesting

18:25

right now that we'd find greater willingness

18:28

on the part of federal judges to

18:30

defer not to second guests is what

18:32

everyone's reading, what everyone's seeing. So

18:34

it's not as though a public official

18:37

governor can sort of will he nearly do

18:39

this. There's enough evidence in the air

18:42

right naturally at the moment to take judicial

18:44

notice that I think a public

18:46

health official and a governor of a

18:48

state has instant credibility

18:51

and this issue, at least to the extent the

18:53

court is not going to enjoin, it

18:56

is going to allow to proceed, and then

18:58

may well hold a hearing to have backed

19:00

up with a heavy presumption in favor

19:03

of ruling in favor. Ultimately,

19:05

though, especially if this takes place over

19:07

a longer period of time, I

19:09

can imagine that courts would gradually

19:12

become less deferential as

19:14

the crisis begins to be more managed

19:16

and begins to recede, and might eventually

19:18

require the state or the federal

19:21

government to provide some clearer

19:23

justification for why it's really necessary

19:25

to block people's movement or to shut

19:28

down businesses and so forth and so

19:30

on. It isn't our protection ultimately from

19:32

the courts. The idea that there's only

19:35

government authority to block our liberties

19:37

if there's a compelling reason to do

19:39

so, like pandemic, and if

19:41

the government methods for doing so

19:44

are closely matched to

19:46

what is necessary, even narrowly tailored,

19:48

as we sometimes say in the law, to what is necessary.

19:51

I mean, that's our ultimate protection. I take

19:53

it. Yeah, at the end of the day, I mean, the

19:55

courts themselves don't have armies,

19:58

they don't have police forces. Even

20:02

the federal government doesn't have necessarily

20:04

unless they're going to bring in the army. It takes

20:06

some level of public acquiescence. And

20:09

this is going to test the patients, the

20:11

American public. It's one thing to do

20:13

this for a week, another thing

20:16

to do for two weeks, But when businesses

20:18

are shut down for potentially weeks,

20:20

if not months, schools

20:23

the rest, it's going to really try

20:26

the spirit of America to see

20:28

whether or not willing the acquiesce in these kinds

20:30

of very very stringent measures. One

20:32

of the issues around acquiescence that immediately struck

20:35

me as criminal enforcement. So

20:37

if the state has the power to

20:39

make you not leave your house, then they have the power to

20:42

arrest you and punish you criminally if

20:44

you violate that rule. And ditto

20:46

for the federal government. I mean, I discovered there

20:48

is, in fact a federal statute that says

20:51

that if the federal government is assisting the

20:53

states and enforcing their quarantines or

20:55

isolation orders, that violating

20:58

the federal orders is itself

21:00

a federal crime punishable by prison

21:02

time. It's hard for me to picture the governor

21:04

of the United States actually exercising

21:07

the power to arrest people and punish them

21:09

under these circumstances. But I guess if they were widespread

21:12

violation, or if someone was violating that to make a

21:14

profit or some other bad thing,

21:17

it's there as a potential sanction.

21:19

That's right. The federal

21:21

government can step in criminally, just like the state

21:23

and local governments can, and they can

21:25

punish people at a huge cost

21:28

to doing so. But the

21:30

federal government found their authority being challenged,

21:33

including maybe authority being challenged

21:35

at some point by local authorities, we

21:37

might well see the federal government

21:40

step in and take action to make

21:42

clear, as we all know, the federal law

21:44

is supreme. What's the scenario you're describing

21:46

there where a state pushed back. Well, you

21:48

can imagine the federal government believes that a certain

21:51

part of the country is posing a greater threat to

21:53

the rest of the country. Like Boston.

21:55

We have an early outbreak and we

21:57

have a big outbreak here, and the federal government

22:00

itself doesn't want people

22:02

from Boston and Massachusetts

22:04

to go to other parts of the country. People

22:06

in Boston might well want to leave. They

22:08

might well want to get out and get

22:10

to other parts of the country. I certainly know people, maybe

22:13

you know people. I know people are headed to Maine.

22:15

I know people headed to Vermont, New Hampshire. They

22:17

want to get out of an area which looks

22:19

like it might be an epicenter, and it

22:22

might well be. The federal government doesn't want that,

22:24

but the residents of Massachusetts do

22:26

want that. So you can imagine,

22:29

in terms of the notion of isolation, the

22:31

pressure will be from

22:34

the rest of the country to isolate an area

22:36

which as epicenter, and that area won't

22:39

have that same incentive. Again,

22:41

we're not there yet. That's a scenario. It

22:43

may not be that far from it, but but right

22:46

now, a lot of people don't want to see

22:48

people from Seattle. They might not necessarily

22:50

want People in neighboring states might

22:52

not want people from Seattle coming

22:55

into their rural areas. So here,

22:57

you know, my civil liberties senses

23:00

start to tangle, because you

23:03

know, we said that the courts would

23:05

be suspicious of a rule that targeted

23:08

certain people. If it targets people

23:10

from a certain area, then the courts

23:12

might say, well, you know, maybe we need that. And

23:14

our current president is not someone

23:17

who I think would be at all worried

23:19

about targeting people from areas that happen

23:22

coincidentally enough not to be his

23:24

political supports. And we've already seen him

23:26

do that. It's under a litigation challenge

23:28

right now, but we saw him do that when he said that

23:31

New Yorkers could no longer get

23:33

tsa PreCheck benefits

23:35

because he was angry at the state government

23:38

for the way they were interacting with the immigration

23:40

authority. So we know that he's more than capable

23:42

of targeting people from a state. So

23:45

how would you imagine a court thinking

23:47

about it if there were sort of a ban on people

23:49

from Massachusetts but no ban on people

23:52

from some red state

23:54

that also had an outbreak, and

23:56

someone went to court and said, well, look, you know

23:58

this isn't really justified. You're just targeting us because we're

24:00

in Massachusetts, and you the federal government don't like us,

24:02

The president doesn't like us. I think

24:04

what would happened is the courts in the first instance,

24:07

we weary see immediate injunction

24:10

in the context of public health crisis, meaning they

24:12

might just let it. They might just say we're gonna we'll

24:15

think about this. But for the meantime, this

24:17

order is staying in place because of the public health games. I

24:19

think you find a court very wary of doing

24:21

an immediate and joining to

24:23

stop the federal government order. Then

24:25

I think you might well see courts step

24:28

in. They'd want to see some real evidence.

24:30

But you're right, there is a perversity here. President's

24:32

Trump's support right now is not in

24:34

the major urban areas in the United States. His

24:37

support is much more geographically spread

24:40

out in this country, in the rural

24:42

areas. It's even possible this virus

24:45

could present a rural versus

24:47

urban rift. And this

24:49

president does all kinds of unprecedented

24:52

things. There are no norms that

24:54

I found applicable to him. So

24:57

the notion that he might well find

25:00

the reasons not to do

25:02

something extorting with perspect to urban area like Boston

25:05

or the state of California,

25:07

again, not a state which

25:10

he has been sort of shy about

25:13

disapproving of their actions

25:16

undoudly not unrelated to the

25:18

fact that he finds no political support there.

25:20

It's not as far fetch as one might have hoped.

25:23

The legal scenario where the president

25:25

orders a national shutdown,

25:29

where the president says, look more or less

25:31

as governors have done in individual states, everybody

25:34

now stay at home. Every

25:37

business other than you know, a food services

25:39

business shut down or and you

25:41

know, gas stations shut down. Does

25:43

that seem to you within the scope of the

25:46

president's authority under

25:48

the current statutory framework.

25:50

I mean, it looks to me from looking at the statutes, like

25:52

the Centers for Disease Control can

25:55

order effectively quarantine

25:57

or isolation features. So I

25:59

think the president maybe couldn't just do it on his own. Maybe

26:01

he would have to make sure the CDC was

26:03

on board. But the CDC works for the president.

26:06

And again this is not so crazy because it's half

26:09

and in most other countries, does

26:11

that look to you like within the realm of constitutional

26:14

reason. I'd have to look at the statutes

26:16

themselves, because the

26:19

president's inherent authority or this area

26:21

is different than it would be pretty minimal.

26:23

Yeah, than in other countries, look to the statutes.

26:25

See the CDC authority,

26:28

See who exactly the Congress has allowed it, and

26:30

see who Congress has delegated that authority

26:33

too. Within the CDC, it's

26:35

not going to refer to the President United States by

26:37

name. It's going referred to certain people

26:39

within the CDC is going

26:42

to give them the authority and the first instance,

26:44

And that by itself is a limiting factor.

26:47

That's really important. Can we just drill down on that for

26:49

one second, because the point you made is so significant.

26:52

When Congress authorizes the federal government

26:54

to do stuff like this in the public

26:56

health interests or the public safety interest, it

26:59

doesn't say typically

27:01

the President of the United States may it

27:03

says the Centers for Disease Control or

27:05

the Environmental Protection Agency, or it

27:07

gives the authority, usually to an expert

27:10

agency to exercise its

27:12

expertise to make the determination

27:14

that this is genuinely required

27:17

or necessary. But we have

27:19

this three part system of government where in theory that

27:21

agency is always under the command in

27:23

some form or another of the president. So

27:26

in real world terms, what limitation

27:29

does that impose? What how does it limit

27:31

the President's actions? When the

27:33

statute authorizes someone who works for the president

27:36

to make a decision like this, because we know this president

27:38

will just want to say I did it. He will not want

27:40

to say the CDC did it. Well, he

27:42

has to get someone in position authority in

27:45

that agency to take the action he requests,

27:48

and if they decline to

27:50

do it, which has happened, if

27:52

they decline to do it, he can fire

27:54

them and hire someone else, and hire somebody

27:57

else. But that procedure

27:59

by itself, if there are a whole series

28:02

of resignations or

28:05

firing and hiring an appointment

28:07

of acting, that's going to then raise that

28:10

kind of trigger concerns of federal judges in

28:12

federal courts because they know there's a reason why Congress

28:14

assigned that to the officer

28:17

in the first instance. I know of only offhand

28:19

one statute which actually assigns

28:21

that kind of authority the President United States

28:24

as opposed to an agency, and that's actually the Federal

28:26

Superfund Law that hazards waste

28:28

law, And the statute is written

28:31

in terms of the President. And that's

28:33

because Congress couldn't decide whether

28:35

to give that authority to the head of EPA

28:37

or the head of the US Army Corps Engineers to address

28:40

hands to his waiste. So they compromise by

28:42

giving it to the President in name in

28:44

the statute. But that's highly unusual. And

28:46

does that statute, that Superfund Statute, which is in your

28:48

heart Latin of environmental law, does it require

28:50

the president to make some factual findings

28:53

of some kind before he exercises that authority.

28:55

It does certain kinds of endangerment fundings.

28:58

But the President has by executive order immediately

29:00

delegated that to the head of

29:02

EPA, the Environment Rejection Agency, So

29:05

he has basically made it as though

29:07

the statute did that, but didn't.

29:09

The President United States could anytime take

29:12

that away, but he can't do that for the CDC.

29:15

And the CDC is a particular

29:17

agency that it's obviously got a

29:20

culture and a set of norms

29:22

to it. So one could well imagine that

29:26

a head of a CDC or

29:28

an officer in the CDC would

29:30

decline a directive from the President

29:33

more than you could expect, you know, the Secretary

29:35

State would, or the Secretary Defense Board, or

29:37

the Secretary a Treasury would. And

29:40

that's precisely why Congress when it passed

29:42

those statutes and gave those kind of extraordinary

29:44

authorities didn't just give it to

29:46

the president United States, but gave

29:48

it to the CDC. The

29:51

structural issue here, which you know, I'm really fascinated

29:53

by, and it's been under attacked throughout the Trump presidency,

29:56

which is our background assumption of what protects our

29:58

liberties in conditions where expertise

30:01

is needed to limit our liberties, is

30:03

this idea that there are professional bureaucrats

30:06

who are as close to rational

30:08

objective as is possible for humans,

30:11

who are embedded in these different parts of the government,

30:13

and that when Congress gives big authority to the executive

30:15

branch, it's really trying to give it to those people,

30:18

the people whom Donald Trump considers the deep state,

30:20

you know, the people who are supposed to act based on rational

30:23

judgment, cost benefit analysis and

30:25

make decisions that are in everyone's

30:28

interest. Trump has been so busy

30:30

trying to erode and undercut that

30:32

kind of authority and expertise that

30:35

we really have had to think for the last you know,

30:37

three plus years about just how

30:39

strong that resistance power is. And I'm

30:41

not using resistance in a capital our

30:43

resistance to Trump, but just in the sense of

30:46

what bureaucrats who are supposed to exercise their authority

30:48

are doing. And it does seem to me, given

30:51

everything he's said and done already during the

30:53

Corona pandemic, that he

30:55

will be very unsympathetic to the idea that

30:57

there are professionals who exercise judgment

31:00

and who have to kick in with

31:02

their own judgment before heat tech steps. I

31:05

can very easily picture him contradicting

31:07

them in either direction, either to

31:09

say I've said everyone has to stay home, and they have to stay home, or

31:11

the other way when those officials say we think everyone should

31:13

stay home, and you can imagine Trump saying, no, you

31:16

know, I refuse to do that. And

31:19

this is a case where, you know, all of

31:21

our worries about the separation of powers that we've

31:23

been talking about over the last three plus years,

31:25

I mean, I've been talking a lot about it,

31:29

you know, are sort of coming to a head

31:31

in a situation where it could really matter.

31:34

I think that's absolutely right now. I've actually found

31:36

it someone unsettling in the past

31:38

four weeks. I expect others have as well.

31:40

To see the President United States surrounded by

31:42

those public health officials and

31:45

he seems to be trying to co opt them and

31:47

to make them into public health in

31:49

these sort of political spokes people

31:51

for him to be. You know, they now

31:53

congratulate him when they stand

31:56

up and make comments on everything that

31:58

he's doing. I'd like some separation

32:00

there between the president United States

32:03

and the public health officials and not make them

32:05

seem like their mouthpieces political mouthpieces

32:08

for the president. I do worry that he's a rooting

32:11

that kind of trust we might otherwise have,

32:13

which are so important right now in a moment of

32:15

crisis. This deserves

32:17

its own conversation, and maybe we'll be able to have it

32:20

going forward. But I have a

32:22

worry in the back of my mind, maybe

32:24

not the back, maybe the middle of my mind about

32:28

the elections. You

32:30

know, there could be good public health reasons for justifying

32:33

delays in some primaries, but

32:35

that may not matter all that much, especially

32:38

if the next few primaries end

32:40

up leaving one of the Democratic

32:43

challengers way ahead of the other. So

32:45

maybe delaying those primaries isn't the end of the world.

32:48

But the big worry, of course,

32:51

is the presidential election. Nothing

32:54

in the Constitution as I read it, would

32:57

allow authorized or even contemplate

32:59

delaying a presidential election, but

33:02

individual states have a lot of discretion

33:04

in how they could enable that election

33:07

to happen. States could put in place mail

33:09

in voting, They could experiment

33:11

with various online methods, provided

33:14

those are protected from Russian hacking efforts.

33:17

But I think it might not be too soon to sort

33:19

of put a marker down and say no,

33:21

the President of the United States or Congress

33:24

cannot delay a presidential

33:26

election. Yeah. I think

33:29

very little doubt that the President

33:31

United States cannot do it on

33:33

his own, that that would raise

33:36

very serious constitutional issues. I don't

33:38

think there's any worry that Congress would

33:40

do it right now, given a democratic,

33:43

democratic house. Here's the worry.

33:45

The worry is the states, to

33:48

the extent that the

33:50

President directed to the

33:52

States to do it,

33:55

to the extent that we've seen sort,

33:57

to my sense, a shocking acquiescence

34:00

in the presence demands

34:02

by a lot of Republican leadership

34:05

in this country. I don't think it's beyond

34:08

the pale. I hope it is beyond the pale.

34:10

The President United States basically

34:12

directed governors. I've

34:14

not done a recent count of

34:17

governors that are well

34:19

by Republican, But if a sizable

34:21

number of states responded

34:24

to that by saying, we

34:26

are not going to hold elections because

34:29

of this disaster which inflicting

34:32

us. And I'm sure we could find instances

34:35

of fires, tornadoes, hurricanes,

34:37

maybe even contagion in the past

34:40

where elections were delayed not by

34:42

order of the president United States, but by order of a

34:44

local government official or a state government

34:47

official. I'm hoping that doesn't happen,

34:50

but at the very least I can say with

34:52

this president, I

34:55

can well see him making

34:57

such a request. And

34:59

then the question will be whether or not those

35:02

Republican governors view themselves

35:04

as independent actors or not.

35:07

As usual, Richard, talking into you not

35:10

only teaches me a huge amount, but it enables

35:12

me to think through the structure and

35:14

see the problems coming down the road. I think of

35:16

you as the constitutional lawyers constitutional

35:18

lawyer, you know, you're the person, as you know, whom I always

35:21

come to it sometimes two in the morning to say, I'm

35:23

trying to figure out this constitutional issue. Am I right?

35:25

Am I wrong? How should I be thinking about it? And you've just

35:27

been super, super helpful on

35:29

all of these issues as we've been going

35:31

through the Corona situation and in this conversation

35:33

as well. Thank you very very much. As

35:37

I talked to Richard, I gradually found myself

35:39

getting more and more nervous about

35:41

the possible civil liberties consequences

35:44

of the coronavirus pandemic. It's

35:47

not our primary worry right now. Our primary

35:49

worry is staying safe, and in a moment

35:51

of trying to stay safe, we do tend,

35:53

as Richard said, to defer to the

35:55

government's decisions. But as

35:58

this pandemic continues, we

36:00

should keep a close eye on how

36:02

our civil liberties do end up being

36:05

limited and constrained by the government, because

36:07

those liberties are crucial

36:09

to our human well being. They may

36:11

not be as important as not being sick, but

36:14

in the long run, they set the conditions

36:16

for a healthy and free society. Deep

36:23

Background is brought to you by Pushkin Industries.

36:26

Our producer is Lydia gene Kott, with

36:28

studio recording by Joseph Fridman and

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mastering by Jason Gambrell and Martin

36:33

Gonzalez. Our showrunner

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is Sophie mckibbon. Our theme music

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is composed by Luis Gera special

36:39

thanks to the Pushkin Brass Malcolm Goldwell,

36:42

Jacob Weisberg, and Mia Lobel. I'm

36:44

Noah Feldman. I also write a column

36:47

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Bloomberg dot com Backslash Feldman.

36:52

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