Arizona COVID Litigation: A Challenge to Executive Authority

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum Conference call as today, July 28, 2020, will be discussion on "Arizona COVID Litigation: A Challenge to Executive Authority."

      My name is Nick Marr. I am Assistant Director of Practice Groups at The Federalist Society.

 

      And as always, please note that all expressions of opinion are those of the experts we have on today's call.

 

      I'll be introducing our Moderator before she introduces our main speaker. And we're fortunate to have with us today Judge Jennifer Perkins of the Arizona Court of Appeals. I'll hand the floor off to you, Judge, in just a moment, but briefly, for the audience, a note. We'll get to audience questions about halfway through the hour. So be thinking of those and have them in mind for when we get to that portion of the call.

 

So with that, Judge Perkins, the floor is yours.  

 

Hon. Jennifer Perkins:  Thank you, Nick. I am real excited to be here with our expert today, Professor Ilan Wurman, who is an Associate Professor of Law at the Sandra Day O'Connor College of Law at the Arizona State University here in Arizona. He teaches and specializes in administrative law and constitutional law, rights, quite prolifically, to be honest, on administrative law, separation of powers, constitutionalism, and other related topics.

 

      His writing has appeared -- will appear shortly in the late Yale Law Journal, the Stanford Law Review, the University of Chicago Law Review, the University of Pennsylvania Law Review, the Duke Law Journal, and the Texas Law Review.

 

      So in short, he is the expert on this call. I'm just here to maybe facilitate this [inaudible 01:58] sitting currently in Arizona [inaudible 02:01] the Professor an opportunity to just very briefly describe the background, the circumstances in Arizona that led to filing the petition for special action that he filed.

 

Prof. Ilan Wurman:  Hey. Okay. Thanks everyone for having me. Judge Perkins, you were going a bit in and out there so I'll take your first question but just so you know.

 

      So I'll start from the top because I assume most of the callers here or the listeners here are not from Arizona, although I assume some of you are. But just like the rest of the country, Arizona basically shut down second week of March or so until the end of April. And at the end of April, the Governor here issued a new executive order expanding or extending the initial lockdown. And he got some political blowback for that.

 

      He initially extended it for about two weeks, but after a week, probably under the influence of some interest groups in Arizona, he let the restaurants open up early. And then he ultimately let that initial order expire in the middle of May, around May 16.

 

      Well, fast forward to the end of June to June 27. As you know, cases across the country were increasing, and on June 27, the Governor orders a new executive order that specifically shuts down bars, gyms, and two other groups, I think water parks and then one other group that I can't remember at the moment.

 

I'm representing the bars. I'm not representing gyms. I'm not representing water parks. I'm representing bar owners. And how that came about is actually a story of happenstance. I was up in Prescott for the Fourth of July weekend, and we had a friend who was showing us around. And we were on the famous Whiskey Row, across the Yavapai County Courthouse. For those of you who know Prescott, Arizona, it’s actually where Barry Goldwater launched his presidential campaign in 1964.

 

And all the bars are basically shuttered. And my friend from Prescott, she was talking to some of the people she knows and they were all talking about how they were hurting. And she turns to me and says well, he's a lawyer. In fact, he's a law professor and he's been thinking about these issues for a long time. So maybe you all should talk to him.

 

And before you know it, we were all on a call with 50 people the next day. And we filed this case directly in the Arizona Supreme Court a few days later.

 

Hon. Jennifer Perkins:  Great. And I apologize. It sounds like my line might not be as great as I thought. So I'm going to keep going, but if I'm cutting out, I hope Ilan will just jump in.

 

      So you filed, as you indicated, directly in the Arizona Supreme Court. And what you filed is known here as a special action, which allowed you to file directly in the Supreme Court under certain circumstances.

 

      There are a number of legal challenges that have been filed to Governor Ducey's executive orders. Could you talk a little bit about why you decided to pursue this avenue of relief, which notably involves only discretionary review by the Court.

 

Prof. Ilan Wurman:  Yes. I think there are two aspects to this. The first is if you've been following this type of litigation across the country, tons and tons of cases have been filed in federal court. And essentially, all have lost, right, unless there were some really weird situation where the governor didn't specifically make the factual findings that he had to under the statute. I think that was in Kentucky, something like that happened, or of course, there were some religious discrimination cases. But for the most part, these cases are filed in federal court, and they lose because they're under these dubious Fourteenth Amendment claims, substantive due process, equal protection. We all know that under those clauses, economic regulation especially in an emergency, it's the most deferential review possible. And so all of those cases have lost.

 

      So we took a different avenue. We're pursuing principally two claims under state law. Although those claims do translate to other jurisdictions and even ultimately the federal government, right, but we're trying to distinguish our case by focusing on state constitutional law claims. So we're making a state nondelegation doctrine claim, and in short, we'll get into that. And we're doing a state Privileges or Immunities Clause claim.

 

      Arizona has a clause, just like many states do, that's a bit more specific even than the Fourteenth Amendment's Privileges or Immunities Clause. It basically requires equality in the privileges and immunities of citizenship. And so those are the claims we're pursuing.

 

      So we had to file in state court. And the reason we chose to file in the state supreme court is because we saw where things were going in the superior courts, takes a very bold superior court judge to issue a temporary restraining order against a state governor, especially in circumstances such as these. And so we decided to take a shot directly in the Supreme Court because these are legal questions. They're important questions. They affect lots of cases. And we meet all of the criteria for special action, as they're called.

 

      So the Supreme Court can, of course, decline to exercise jurisdiction over our case. And then we're back in the trial court where we'll file for a TRO and probably lose, right, until we pursue the case further and so on. But I think we meet all the requirements. This is the case to watch. Six amicus briefs have been filed in support of the Governor in this case.

 

      So they clearly are worried about this case. They think it's the case to watch. And I think that the Supreme Court understands that people need legal clarity. They need answers to these questions. A lot of these bars that I'm representing, they don't have much time left before they go under. And, obviously, these are important separation of powers questions. So I think there's a good chance they'll hear the case.

 

Hon. Jennifer Perkins:  Okay. One last procedural point before we jump into the legal arguments, as I understand it, you mention amicus briefs. Those have been filed. You filed your petition. The Governor has already responded. And your reply brief is due Thursday, two days from today. Is that correct, and are there any remaining deadlines before the Court could issue something indicating whether it intends to exercise its discretion and take the case?

 

Prof. Ilan Wurman:  Yeah. This Thursday is the last deadline. So the amicus schedule has come and passed, as you said. I like that six amicus briefs were filed in for the Governor. And I get to reply to the Governor's response and those briefs this Thursday. And then, I suppose that day or any day after, the Supreme Court can decide whether to hear the case.

 

      And if they do, that they usually, they don't have to, grant one round of supplemental briefing, which is usually simultaneous. So hopefully -- the earliest we can get an answer on the merits, assuming they hear the case, is probably second or third week of August, and that's if they move fast. But we hope they do, and we think we've keyed up pretty successfully or certainly by the time we file a reply brief, we will have teed up some pretty good and important legal questions. So hopefully they can move quickly on it.

 

Hon. Jennifer Perkins:  Well, with that background, let's dive in and talk legal arguments. You mentioned that you're relying really primarily on two sort of strange legal argument. One was for nondelegation. And the second was regarding the Privileges or Immunities Clause. There are both under the Arizona Constitution. Can you just walk us through briefly what you're arguing?

 

Prof. Ilan Wurman:  Yeah. So starting with the nondelegation argument, and I've been writing on the nondelegation doctrine for a few years. I have four law review articles on it, so I've been sort of thinking about these orders and the situation here in Arizona through the lens of that for a while. And my next book is on the Fourteenth Amendment, as you know, and it's an argument about the Privileges or Immunities Clause specifically.

 

      And I think the Fourteenth Amendment's Privileges or Immunities Clause is informed by a lot of the state equivalents from the antebellum period and Arizona has taken from that. So those are the two principal arguments.

 

      As for the nondelegation argument, basically, the statute pursuant to which the governor has purported to promulgate these executive orders is a statute here. If you're following along at home, we can call it 303E1. It's ARS 26-303E1. It purports to give the governor the entire police power of the state in the event of an emergency, which includes pandemics, right? There is a definition of emergencies.

 

      Now, of course, there are some standards in the statute, right, that certainly the governor can take actions to alleviate but the statute says it's extreme peril to safety of persons and property. The statute authorizes mitigation measures, response -- these certain sort of responses, and all of those are defined.

 

But our argument is effectively this is a naked delegation of legislative power. We think the standards are insufficient. But in any event, we think the ultimate test of the nondelegation doctrine, and we saw this a bit in the Gundy dissent in the Supreme Court at the United States Supreme Court. And I think Arizona cases have never rejected this. They have language along these lines. The true test of the nondelegation doctrine, I think and I've argued in my scholarship, and again, some of the justices have written in Gundy, is whether the state legislature or Congress has decided the important subjects or the important policy questions.

 

This goes back to a distinction in Wayman v. Southard in which Chief Justice Marshall said there's this category of exclusive legislative power over the important subjects, right, that only Congress can decide and exercise. And there's this other category of what I call nonexclusive legislative power to fill up the details pursuant to a more general legislative provision. So Congress could always or the state legislature could always flush out legislation in more detail. But at some point, it can stop and give the Executive mere details to fill. And that's the language in the Arizona cases as well.

 

      And we basically argue how can you possibly say that the Legislature here has resolved the important questions, right? So I'll just focus -- I know I'm going on a bit long, Judge Perkins, so let me just focus on the nondelegation argument for now.

 

      This is what it boils down to. The Governor has had a number of press conferences where he says that this will go on for the foreseeable future. There's no end in sight. This is the new normal. Okay, keep that in mind. That's point one.

 

      Point two, our Legislature's able to meet, right? It doesn't go into session until January, but the Governor can call them in a special session, right. So this is going on indefinitely for the foreseeable future. The Legislature is able to meet. And the response to the coronavirus involves important and contested policy questions.

 

      So our position is how can it be the case if those three things are true that a single person gets to resolve and decide for him or herself the answers to these important and contested policy questions. So that's the nondelegation argument that we're trying to tee up.

 

      Now, it's important to recognize that often, the intelligible principle test, or in Arizona, this sufficient basic guidance test, will often resolve a lot of the important questions, right. The statute here also contemplates emergency situations in which there are these catastrophic fires, earthquakes, floods, catastrophic rioting, and so on. Well, that's obviously very different, right?

 

I think the standards in the statute are sufficient in those kinds of emergencies to say the Legislature has resolved the important questions, right? And the Legislature can't even meet. The governor can order houses and forests cut down to prevent a forest fire, can build shelters, can provide humanitarian relief, all those things are sort of obvious.

 

      But here, the wide-ranging policy response the Governor has purported to take all sorts of actions to prohibit price gouging, to allow restaurants, contrary to existing regulations, to serve alcohol, to sell alcohol for off premise consumption. The Governor has purported to exercise to decide what businesses are essential, to order people to stay home, to delay the enforcement of eviction actions, to prohibit commercial evictions, to delay the start of the school year, right?

 

      There are all sorts of contested and important policy questions here. And so our position is if this goes on for the indefinite future, the Legislature's able to meet, and these are important and contested policy questions, it can't be in a government of law, in a representative government that a single person, the Governor, gets to decide those important uncontested policy questions for the foreseeable future.

 

      Okay. I'll stop there. Obviously, I'd like to go into the privileges or immunities argument, but Judge Perkins, if you have some thoughts on that, I go back to you -- take it back to you.

 

Hon. Jennifer Perkins:  Well, thanks, Professor. I guess I would have one question there. Looking at the Governor's brief, and we may get a little bit more into the responses in a moment, but the Governor and his counsel point out that the legislature, A, did act by passing the statute it issued, which does purport to grant all police powers. It's a fairly broad grant of authority. So that's the text of the statute and the legislature enacted that.

 

      And the Legislature, as I understand it, retains the authority to end the emergency declaration. That authority is not fully remaining with the Governor. So are those two aspects of the law sufficient to defeat your nondelegation arguments?

 

Prof. Ilan Wurman:  So the first one is patently insufficient, right? The fact that the Legislature chose to delegate or wanted to delegate is always going to be true in a nondelegation challenge, right. I mean similarly, if the Legislature doesn't want to meet, if it prefers to pass the buck, it doesn't want to decide these tough policy questions, that also doesn't defeat the nondelegation argument. The legislatures may not want to decide these policy questions, but it's still their power and their duty to do so, right.

 

      It's classic public choice theory that delegations have become more and more pervasive precisely because it's a win-win for the political or for the state legislatures. They can all vote for broad things like save us in an emergency or we want clean air. And then on the back end when the regulators actually have to decide who suffers the consequences of the actual policy choices that have to be made, the legislatures can come back and say well, I just wanted clean air. I didn’t know they would tell you you had to stop polluting or had to lay off people or had to do X, Y, and Z.

 

      And so it's a win-win for them on the front end and the back end. So surely, that can't be sufficient that the legislature wants to delegate. It's public choice theory 101 that they want to delegate power. So I don't think that's insufficient.

 

      As for this concurrent resolution to terminate, we think it falls flat because the Governor has no apparent plans to call the Legislature into session. And he has that power and otherwise, they won't be in session until January of 2021, which is a long, long time away. But also, this statute was enacted in 1971. And the Governor's response brief points to a New Jersey case upholding a similar termination provision prior to 1982.

 

      Of course, the problem here is both of these were decided -- or enacted, I should say, prior to 1983. What happened in 1983? Well, the Supreme Court of the United States decided INS v. Chadha, which basically said that legislative vetoes are unconstitutional under the separation of powers, which I think apply equally to the Arizona Constitution.

 

      After all, if the Governor here is exercising executive power, which is what I think his position is, well the Legislature can't retain a back-end check on exercise of executive power. The Legislature can't veto executive exercises of executive power. The Legislature can only change the law and that requires bicameralism and presentment. So if anything, the legislative veto provision compounds the constitutional infirmity here.

 

Hon. Jennifer Perkins:  We didn’t talk about the privileges or immunities. I guess I want to give you an opportunity to talk briefly about the Governor's response brief, if you'd like to. There's two -- I would break it up into two parts. And the first part, which I think is going to be critical, is this serious jurisdictional issue, whether and under what circumstances our state supreme court should take case of first impression where there's been no opportunity to develop a factual record and so forth. Can you talk a little bit about that jurisdictional hill that you have to climb?

 

Prof. Ilan Wurman:  Yeah, sure. So the Governor's, I think, main focus on that point was well, doesn't this require factual development? The Governor should have an opportunity to develop a record proving that he had a rational basis to distinguish bars, etc., etc. And I think that's all a bunch of nonsense for a few reasons.

 

      One, nondelegation challenges, of course, don't depend on the facts, really. They depend on statutory interpretation, the words of the statute, and the authority the Governor has purported to exercise on it. So certainly, the nondelegation challenge doesn't require special fact finding. It can be determined on the face of the statute, how its words are interpreted, and the face of the executive orders that have been promulgated.

 

      As for the privileges or immunities claim, well, we say here, again, there are cases in Arizona and elsewhere that say sometimes discrimination is evident from the face of the statute or the face of the orders in this case and their natural and probably effects, right. The Supreme Court doesn't have to close its eyes to matters of general cognizance, right.

 

      But more than that, what we're telling the Court and certainly on Thursday, we're going to tell them, right, is the Governor presumably had a rationale when the Governor acted. Certainly, he's now had some weeks to invent a rationale and no special fact finding in a superior court is necessary to discover what the Governor already knows and can already tell the court, right. So we're happy to submit the case on that. And the Governor has submitted evidence with the brief from a scientific declarance. Dr. Cara Christ, the Head of our Department of Health Services, filed her own brief. And we think that this case can be decided on the basis of that.

 

      And maybe to explain more about that, if I may, I'll go into the privileges or immunities argument because we're teeing up what I think is one of the best privileges or immunities argument that the Court will have had the opportunity to hear in a while.

 

Now, in our opening brief, and we maintain this, our position is any business that has the opportunity and ability to meet the same reasonable health measures as any other should be allowed to do so. But at a minimum, at a minimum, right, the Governor's order discriminates against Series 6 and 7 licensees. If you have a Series 6 and 7 license, you are a bar. Basically, you're purely a bar in a way. You might have some food, but you're predominantly in the business of serving alcohol.

 

      So Series 6 and 7 licensees are shut down by the order. But Series 12, restaurants that serve alcohol, are not. And by the way, one wonders whether that correlates to the political power of the industry. It's common knowledge that the Arizona Restaurant Association is extremely powerful. Why did restaurants get to open a week earlier than everybody else? Why did restaurants not close on June 27?

 

      Just a few weeks ago, the Governor issued a new executive order reducing them to 50 percent. They're not shut down. And on top of that, micro-breweries, which are Series 3, hotel bars, Series 11, private clubs, Series 24, wineries, Series 13 licensees, you have distilleries, and you have also tasting groups. All of these groups can stay open. They're a different series of licenses. But all of them are subject to the exact same concerns involving potentially cramped spaces, people have to take off their masks to eat and drink. Well, that's true in a restaurant just as it's true in a bar, right.

 

      So although our position is that any business that's able to meet these requirements, reasonable sanitary health measures, someone should be able to do so, certainly, on the face of the order, on the face of Arizona's liquor licensing scheme, it is clear arbitrary discrimination to single out Series 6 and 7 licensees. Many of whom, by the way --

 

It is common knowledge that bars come in all different shapes and sizes, just like restaurants come in all different shapes and sizes. Some restaurants are incredibly cramped. Some restaurants have loud music and dancing, right. And some bars, including my favorite here in Downtown Phoenix, Sazerac, which is a client of mine now in this case, they have huge amounts of table seating. They have a patio that's one and a half times bigger than their inside space, right, clearly can meet all the health requirements, social distancing requirement. We had to wear a mask when we went up to the bar even to order a drink and so on.

 

      So it is on the face of the order, right, and just the Court can take judicial notice of the licensing scheme, right. That's Arizona law. You can't reasonably be questioned here. We think this tees up a perfect privileges or immunities claim under the Arizona Constitution. And we submit that no special fact finding is required to see this discrimination, especially in light of the Governor's submissions, which, again, don't really distinguish among bars and those other types of groups.

 

      It's interesting for the proposition that just after the previous order expired, reports began to come in of people ignoring social distancing at bars. It was actually a restaurant, and the article says restaurant. So why are restaurants open? Maybe it has to do with the political power of the Arizona Restaurant Association. And we submit that that's a classic privileges or immunities violation.

 

      So I'll leave it there for now.

 

Hon. Jennifer Perkins:  I think that's a good robust discussion of legal issues. And I hope that folks are thinking about questions that they may have to tee up to challenge -- to delve further into that. But before we jump to audience questions, I did want to give Professor Wurman an opportunity to talk about one issue that's out there and I think we need to address.

 

      These orders have come about during a time when positive case numbers in Arizona increased substantially. There's no question, as you, Professor, acknowledge in the petition that COVID-19 is a serious disease. It's an infectious virus. It's led to death. It's led to substantial physical peril, at least for some percentage of the population. What do you say to those who question your decision to bring this case?

 

Prof. Ilan Wurman:  Yeah. So thanks for asking that question. And I guess this takes us into sort of PR mode here. I mean, a lot of this I don't talk about in the legal briefing, and I don't think I should or need to talk about it, but it's an important point, like why do we think that this is important, right?

 

      And the first thing to say is, again, no one denies that the coronavirus is here. It's real. It's a threat. In fact, it can be a deadly threat. No one wants more people to die, right. From the bar owner's perspective, the problem is all of these measures aimed at preventing coronavirus aren't cost free.

 

So on the one hand, there's the economic devastation, right, that some of these -- it's not just that these bar owners can go on unemployment insurance. Their employees will go on unemployment insurance and many have, but for them, they have two of everything to pay whether it's two electricity bills, water bills, mortgages and rents, right. They're going to go out of business. They're going to shutter forever if this goes on any longer. And then that's 50 more people that never will have employment, the 50 employees that one of my clients had to let go. So there's the economic devastation, right, on the one hand.

 

But also, there's other -- and, you know, again, this is outside the scope of the briefing and my legal expertise, right. But we know from listening to the press conferences that there are also health consequences, right. Dr. Cara Christ in the press briefings has said well, there have been an increase of suicides, overdoes, mental health problems, but an increase of suicides from the baseline normal.

 

Well, I want to know how many? And again, I'm speaking outside my legal expertise here, but we've had -- now or at the time of the briefing, we had 2,500 deaths in Arizona, maybe 3,000 now. And, of course, a lot of them are in nursing homes, which are unrelated to whether people are at bars or not. It's just that's a separate policy question, right.

 

So when you take those numbers out and then you reduce it by the number of other deaths that have resulted from these policies, the question then becomes is a few hundred deaths, even a few thousand, worth the economic devastation? And I don't know what the answer to that is.

 

My only point is the answer to that question is an important and contested policy matter. And that is something the Legislature should then get to decide because people have different views on it. People have different views on it, and how that economic damage should be distributed? Again, that's something that the Legislature that can take all of these voices into account, that can advocate for their constituents, can take account, and in the legislative process.

 

So that's all we're saying. No one wants more people to die. My clients insist that they are able to meet the sanitary requirements and sanitary measures. One of them bought Plexiglass to separate between tables, by the way. And, again, like my favorite bar here, Sazerac, we went when they were still open before this latest order. And, again, hugely spacious outdoor seating. Everyone social distanced apart. It was better than most restaurants that I've since been to, even at this 50 percent capacity that goes on now, right.

 

So all we want is a chance to have a voice in the legislative process where these important and contested policy issues really should be debated.

 

Hon. Jennifer Perkins:  That seems like a good note, Nick, if you want to open up the question line. Hopefully, we've got some folks that have already been thinking about their questions.

 

Nick Marr:  Great. We'll go to audience questions now.

 

Hon. Jennifer Perkins:  Maybe while we're waiting to see --

 

Nick Marr:  -- [Inaudible 27:52].

 

Hon. Jennifer Perkins:  Sorry. Do we have a question?

 

Nick Marr:  Not yet. I was just about to say to give our callers a chance to line up, maybe you'll have another question? 

 

Hon. Jennifer Perkins:  Sure. Sure. I'll ask, Professor, one question I've been thinking about. The Governor made the point that all the facts, at least those that he points to in his brief, demonstrate he's been exercising his authority in firm reliance on public health experts and advice. Doesn't that support that this is a proper exercise of this delegation of police power?

 

Prof. Ilan Wurman:  Well, okay. I'm really glad you asked that. And I think the answer is no for two reasons. First, I poured over the Governor's submissions. I poured over Dr. Cara Christ's submissions and so on. None of them actually answers the question at issue -- what I think is the question at issue in the privileges or immunities claim which is the reason to discriminate against bars and not impose the same onerous shutdown don't even try to open your doors requirement on similarly situated businesses, those other licensees, those Series 12 restaurants. At a minimum, right, the direct competitors.

 

      So it's one thing to say there's a reason to close down bars, fine. But what they really need is evidence that there's a reason to close down bars and not apply the same onerous requirement on other similarly situated businesses. That's what I think is at the heart of the privileges or immunities claim.

 

      And the Governor, again, has had several weeks to think about his argument and his rationale and of all the submissions to the Court, I think there was one ipse dixit statement without support saying well, restaurants can more easily implement safety measures. Well, common knowledge tells us that that's not true, that restaurants come in all different shapes and sizes, that bars come in all different shapes and sizes. So we literally have no relevant evidence for the actual issue which is the discrimination, treating Series 6 and 7 licensees different than these other licensees.

 

      But the other thing I'll say is this whole purported reliance on the CDC, the White House guidelines even, there are these public health guidelines from other states. Well, that's just immaterial because none of those entities is bound by the Arizona Constitution. None of those entities have to take into consideration the Arizona Privileges or Immunities Clause when making these recommendations.

 

      And, of course, I think the Governor's reliance on those authorities is selective anyway. After all, casinos are open in Arizona. Those are in the higher risk category and so on. And restaurants and bars are treated equally by the CDC in most of their documents. But, again, the key point is none is bound by the requirements of the Arizona Constitution when making policies.

 

      So that's just not enough. It's not enough for them to rely on that.

 

Nick Marr:  Seeing as we don't have any audience questions yet --

 

Prof. Ilan Wurman:  Maybe -- maybe everyone is overwhelmed by the power of the argument that I provided. Seriously, I would love to hear push back because we're going to have to hear push back eventually from anyone on the line.

 

Nick Marr:  We do have one question now, actually. We'll go to it now.

 

Caller 1:  Professor Wurman, my hesitation in commenting has been, as you initially stated, I am actually territorial. I'm in Missouri, and I really want to talk off the facts of your case, just about COVID in general. And maybe others are feeling equally reluctant. Do I have any latitude to talk more broadly?

 

Prof. Ilan Wurman:  You're welcome to ask anything you want. I don't promise to answer it, right? But you can try, you can try me.

 

Caller 1:  All right, great. Yeah, that's fair. Fundamentally, where I am constantly hitting against the wall is since when have unsupported allegations been sufficient in a court of law? And it just seems that there is entire months since maybe middle of April, months of contrary data to the current positions by many of the executive channels in various states. We have study after study contrary to the current position.

 

      So I'm a biologist and an attorney. When will empiricism return to the golden standard? And really, it's a broad question but I just cannot believe that the current position is being propagated in face of almost exclusively evidence to the contrary in all matters related to COVID. That's a broad question, but I'll leave it there.

 

Prof. Ilan Wurman:  Yeah. Well, so what I will say, I mean, it's -- I won't directly answer it, but it does tee up this difference between substantive due process arguments and privileges or immunities argument. So substantive due process and even equal protection analysis or economic regulations, you kind of just need -- this is Williamson v. Lee Optical. You just kind of need a rational basis, really, in any conceivable basis. If the Court comes up with any conceivable basis that might have justified the legislature's decision, then they will uphold it.

 

      And so I'm staying away from all of that precisely because I'm not an empiricist. I'm not a biologist. And so what I'm not is a public health expert, but what I am is a lawyer, a constitutional lawyer, a constitutional law professor. And what I do know is for a privileges or immunities claim, you have to show more. You have to show reason for the particular discrimination, and that require more.

 

      And that's what I think makes this case different from the substantive due process cases. By the way, in terms of deference to scientists and public health experts, I find it interesting. I'm not sure that any cases actually resolve the question, whether the executive acting alone pursuant to a broad delegation of power gets the same minimal scrutiny, the same minimal deference that a legislature gets.

 

A lot of these cases from Texas to Arizona and elsewhere have cited this case from 1905. I think it's Jacobsen v. Massachusetts where they said in an emergency, you can infringe rights and you get broad deference and so on. Even that case dealt with a compulsory vaccination law, a law enacted by the state legislature. That doesn’t, to me, it doesn't seem to answer the question of whether an executive acting alone pursuant to a broad delegation gets the same sort of minimal scrutiny on things like public health and so on.

 

      But, again, I think all of those are sharpened in the context of a privileges or immunities claim where you have pretty patent and overt discrimination amongst similarly situated entities. So that's all my way of saying I think I'm sympathetic to your general point, but I'm not an expert. Unfortunately, I don't really have to answer that or rely on that kind of thought to answer the legal questions here.

 

Nick Marr:  I'll send it back to you, Judge, if you have any more questions since we don't have any questions from the audience right now.

 

Hon. Jennifer Perkins:  Sure. Thanks. I guess one other area -- and you touched on this a little bit, Professor, but just to kind of maybe tease it out a bit more. This is a temporary conferral of power. Does the temporary nature impact your analysis at all? Why or why not? How would you talk about that temporary nature?

 

Prof. Ilan Wurman:  Yeah. The Governor does spend a lot of time on that in his brief saying it's a temporary emergency. These are temporary authorities. But I think it's only temporary in the sense that everything is ephemeral, right. Everything eventually passes and therefore temporary. How is that consistent with what the Governor has repeated in multiple press conferences now that there is no end in sight. This is the new normal, right, for the foreseeable future. So you bet ya we're citing those press conferences in our reply brief, which we're filing it tomorrow or the day after.

 

      It's just inconsistent with this notion of temporary authority. And I guess I do want to revisit this point. I know I mentioned this, but again, some emergencies and the emergency authority truly is temporary and immediate or imminent, right. Sometimes a catastrophic wildfire can be raging. There can be a catastrophic flood, a catastrophic earthquake, right. Those are immediate, truly temporary. We know exactly when the sort of end is going to be.

 

And I don't want to say that there are no situations in which a pandemic can be so deadly and move so quickly that it's similarly immediate, and maybe the governor would have authority. But certainly, when it comes to resolving these important policy questions for the next two years even or the next eight months, even though it involves these wide-ranging and contested policy questions, I think makes it a whole other sort of beast.

 

And so we're not necessarily trying to invalidate 303E1 as a whole but certainly 303E1 as applied to an epidemic possibly or even it's -- could be considered in as applied challenge. But that in this case, if the Governor indeed had the authority he's purported to exercise, then the statute violates the nondelegation doctrine.

 

      So I guess this actually reminds me of one other thing I want to say. We're actually making a constitutional avoidance argument as well. And this is something that other litigators should consider. What we're basically -- it's actually a two -- the nondelegation part of this is actually a two-step attack.

 

      The first attack is look, if the Governor indeed has this authority that he's purported to exercise, that's an unconstitutional delegation of legislative power. But we think the constitutional question can be avoided because the statute can actually be narrowly construed. How can it be narrowly construed in Arizona's case? Well, there is an entire two chapters of Title 36 involving public health control. This is different than the emergency chapter which is Title 26.

 

      In Title 36, there are two entire chapters specifically dealing with authorities in the event of a contagious disease epidemic, to combat contagious diseases. And in fact, one of the provisions cross-references back to a declaration of emergency under 26-303(E)(1), right, in the event of an epidemic.

 

      So what we say is look, the Governor has ample authority. And in fact, there's this whole other regime for handling contagious diseases. This allows the governor to order the quarantine and isolation of individuals who are confirmed to have the disease or are known to have been exposed. County Health Board and the like can issue sanitary measures, right. But we say none of that gives them authority to close down businesses. In fact, the only authority to close down businesses is specifically given to local government where the peace and order of the -- where it's necessary for the peace and order of the citizenry.

 

      So that's like massive riots and you have to order businesses shutdown that are in the path of the riots or something like that, right. And so we say this is ample authority to deal with contagious diseases, but it doesn't give the governor authority to close down businesses.

 

      So really, the whole constitutional problem can be avoided by saying we think the Governor's authority, while ample, is limited to those he can find in Title 36. Does that mean the Governor can order that rents don't have to be paid and mortgages don’t have to paid? I think the Legislature can do that, but I don't know if the Governor can do that under those existing authority.

 

      So that's where we are in that part of the argument.

 

      And there's one thing I also want to say about municipal governments and their authority but only if there is no question at the moment waiting.

 

Nick Marr:  We do have one audience question waiting, and we'll go to it now.

 

Caller 2:  Hey, Professor. Thanks for the interesting discussion. I want to ask a question about the nondelegation argument, and it's a two-part question. First, have you identified any recent Arizona cases finding a nondelegation violation? I know they're few and far between at the federal level, but I was wondering at a state level if you've identified any cases.

 

      And the second question is is there a distinction to be made between the Governor suspending existing positive law and suspending and replacing law with only the latter, meaning the traditional definition of legislating. I'll go offline now.

 

Prof. Ilan Wurman:  Yeah, no. Those are two excellent questions. And the second one is particularly thoughtful. So in terms of the Arizona cases, well, as you might not be surprised, there aren't many cases striking things down as delegations -- unlawful delegations of legislative power. At the federal level, there were only two under the same statute in 1935, right, Schechter Poultry and Panama Refining. 

 

      Jason Iuliano and Keith Whittington do have this extensive article where they show that about 17 percent of state cases prior to 1944 struck down a statute as being invalidated. I think that's a robust nondelegation doctrine there.

 

      In Arizona, the case hasn't arisen very much. There is a case from 1949, which they basically actually rejected a delegation of authority to a municipal government, which I actually don't know if that was right in terms -- and I can get into this. I think delegation to municipal corporations can be much broader, and that's an issue in this case because there's a Spanish pandemic Spanish flu case about delegations to municipal corporations.

 

      But there was a municipal delegation that was struck down as a delegation of legislative power because regulated -- they purported to regulate future conduct and fix rights, duties, and obligations pertaining to a business pursuit. Like, okay, I don't know that's actually the right answer in the case of a municipal corporation. I think in that case, they were just exercising authority beyond what the statute actually granted them. So maybe, if again, a kind of a constitutional avoidance case, but that case is certainly helpful one.

 

      But this emergency statute has only been enacted -- was only enacted in 1971, and it has not been challenged until now. So there's some helpful authority, but it's similar to other states where most delegation challenges didn't arise very much at all until the 20th century. And then most were upheld but not quite all were upheld.

 

      As to your second question, I'm not sure about suspending -- repealing versus repealing and replacing. I'm not sure -- certainly replacing as the Governor has done here, he's not just repealed regulations but added new rules and things like that. That seems more legislative to me, but then again, I think the founders were aware of what's historically called -- now I'm talking about the federal level of course, the suspending and dispensing powers, the Bill of Rights of 1689, just after the Glorious Revolution prohibits the dispensing and suspending power.

 

The suspending power was the power of the king to just suspend a -- to suspend laws, that the king has a prerogative, I guess, to suspend laws. And this was understood as a legislative prerogative, and so it was prohibited in 1689. And the dispensing power was like the waiver power, that you can dispense the requirements of the law in a particular case.

 

      These are specifically prohibited in the Bill of Rights of 1689. And arguably, the grant of legislative power to Congress in Article I of the U.S. Constitution includes -- it's their power to suspend, certainly, to suspend. So I consider the suspending power as a legislative power historically. That is certainly something I'll have to put more thought to, and that's an excellent question.

 

      Well --

 

Nick Marr:  For now --

 

Prof. Ilan Wurman:  Oh, go ahead.

 

Nick Marr:  No. Go ahead. I was going to send it back to whoever wanted the floor. So go ahead until we -- I'll jump in if we get another question.

 

Prof. Ilan Wurman:  Wait. So I will say one last thing on municipal corporations, the delegations to them. So a lot of the amicus briefs that were filed in this case and also the Governor's response focuses a lot of the attention on a case, the Globe case, what's it called?  Globe School District No. 1 of Globe v. Board of Health of City of Globe from 1919.

 

And this involved the delegation of pretty broad authority to a city health board to confront the Spanish flu epidemic. So the City of Globe basically closed down schools and also movie theaters and things -- very similar to what's going on here except it was localized. And they rely -- the Governor relies on this. A lot of the amicus briefs rely on this.

 

      And I'm sure there are cases across the country where governors are purporting to rely on these delegations to municipal corporations. I think the case is inapposite. I don't think that case has anything to do with this case and I think for two reasons.

 

      The first reason I kind of lay out in my forthcoming Yale Law Journal piece on nondelegation of the founding where there were lots of these what we might call a vertical delegation, right. Congress often delegated legislative power to the territories over territorial matters. And it delegated legislative power over local matters to the District of Columbia.

 

Why was that okay, right? Because again, there were delegations of actual legislative power over territorial matters or local matters, right. But it wasn't the legislative power of the United States that was being delegated. It was the legislative power of the territories that was given to them. The local legislative power was again given or delegated to the District of Columbia.

 

And that's okay because at any time, the people on top of this vertical delegation, Congress and the president or the Legislature and the Executive and the governor can get together and revoke that delegation, right. If they don’t like how the power's being exercised, they can take back the delegation and there's nothing the territory can do about it. There's nothing DC can do about it if they -- the Home Rule Act were appealed. There's nothing the City of Globe could do about it or the City of Phoenix if the Legislature and the Executive took back some of the powers that they've delegated.

 

So this vertical delegation actually historically was okay. It's very different what we have here, which is a horizontal delegation of authority to the Executive. Why is it different? Well, because historically, and this is a statement that John Randolph made in 1803 when territorial -- the government of the Louisiana Territory was basically delegated entirely to Thomas Jefferson. Thomas Jefferson, as President, could basically govern the territory however he wanted.

 

And he said if we give this power, John Randolph said, if we give this power out of our hands, it will be basically impossible to reclaim it because the President can just veto any attempts to reclaim and it just takes one-third of either House to sustain a veto. It'd be almost impossible to reclaim legislative power once it's given to the Executive. So this horizontal delegation is very different. And that's why the first reason I think the Globe case is just sort of inapposite in these delegations to municipal corporations is inapposite.

 

The other reason is based on some historical research that I did, and you can look it up. It's a paper called, "The Origins of Substantive Process," in the Chicago law Review, which I published earlier this year, where I looked a lot of antebellum police power cases. And the vast majority of them involved courts rigorously reviewing municipal corporations when they exercised their delegated police power. They were rigorously reviewed for reasonableness to ensure they weren't monopolistic and to ensure they weren't in restraint of trade.

 

So basically, there was this whole set of legal rules that if the legislature delegated authority to municipal governments, the courts would be able to review the exercises of those powers on the part of the municipalities to ensure they were faithful to the delegation and to ensure that they were reasonable and not in restraint of trade and not monopolistic.

 

So the delegation to municipal corporations is governed by a whole other set of legal rules and legal protections, right. And a delegation to the Executive, not only is it a horizontal and not a vertical delegation, but it's missing that extra component of judicial review. So I think the cases are just inapposite. And if the Legislature or the city governments, maybe they already have some of this power, if Phoenix wants to close down bars, fine. That might actually make sense. But what about Payson or Globe or Show Low?

 

I don't know if you know Arizona, but Arizona's widespread. You have a lot of rural small towns. Do you have to destroy someone's bar and business in Show Low or in Tombstone, right, because there are lots of cases in Phoenix or lots of cases on the Native American tribe reservations? There's something to be said for the state-based federalism, delegations to municipal corporations where they can do what's best for their local conditions and so on.

 

And so I think those delegations are governed by an entirely different set of legal rules. If there aren't any questions, Nick, by the way, I'm happy wrapping up with a concluding thought.

 

Nick Marr:  Yes, that's perfect. We don’t have any more audience questions. So, Professor and Judge Perkins, I'll offer you a chance for closing remarks, and then we'll finish up this afternoon.

 

Prof. Ilan Wurman:  So the --

 

Hon. Jennifer Perkins:  I'll leave the closing to the Professor. Sorry about that. Go ahead, Ilan.

 

Prof. Ilan Wurman:  No, thanks, Judge Perkins. And thanks for moderating and your questions earlier today, which were very helpful.

 

      What I would say is there's this -- I don't know where I heard this so maybe it's apocryphal or maybe I'm making it up but there are some joke or aphorism where it's don't make every schoolyard dispute into a federal lawsuit, something like that. So not exactly on point here, but again, not everything has to be a federal lawsuit. Lots and lots -- I wish Judge Sutton from the Sixth Circuit were listening. This is sort of his jam, but not everything is the stuff of a federal lawsuit, even if you have diversity jurisdiction or whatever.

 

Lots of people are suing in federal court. Lots of people are making these dubious substantive due process claims, these dubious equal protection claims. And sometimes, protection can be better found under the state constitutions, in our case, the state nondelegation doctrine and the state Privileges or Immunities Clause. Do I think the doctrines and tests that we're elaborating in this case have implications for other states and even the federal nondelegation doctrine? And if the Privileges or Immunities Clause under the Fourteenth Amendment were resurrected, am I articulating something that could apply there? I think so, right.

 

      But the point is states don’t have to follow the federal government. They have their federal constitution interpretation. They have their own constitutions. Some of them are more protective in certain situations, as I think here, Arizona's constitution is more protective. And so to the extent people have governors that are doing very discriminatory orders and very rational orders, don't always run to equal protection and substantive due process. It might be better to look first to your state constitutions. And that's all I got.

 

Nick Marr:  Great. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today and to the audience for calling in this afternoon. A note, we welcome listener feedback by email at [email protected].

 

Be checking our online schedule and your emails for announcements about upcoming Teleforum calls. We have two tomorrow. The first one will be at 10:30 am Eastern Time, and it's a book discussion between Professors John Yoo and Sai Prakash on the limits of executive power. So thank you all for joining us this afternoon. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.