COVID-19, State Power, and Civil Liberties: An Historical Perspective

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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.

 

 

Dean Reuter:  Welcome to The Federalist Society's Practice Group Teleforum Conference Call. Our call today, April 23, 2020, is titled, "COVID-19, State Power, and Civil Liberties: An Historical Perspective." I'm Dean Reuter, Vice President, and General Counsel and Director of the Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded and will be transcribed for use in the future.

 

      Today, we are very pleased to welcome what I think is a new guest to Teleforum, after all these years, Professor John Harrison. He is the James Madison Distinguished Professor of Law at the University of Virginia Law School.

 

He's going to give us opening remarks for 15 or 20 minutes, maybe just a little bit longer than that. But after that, we'll be turning to you, the audience, for questions so have those in mind for when we get to that portion of the program.

 

With that, Professor Harrison, the floor is yours.

 

Prof. John C. Harrison:  Thank you, Dean. What I'd like to do is talk first about the legal state of play relevant to these issues, or some of these issues, around the time of the Framing and then talk about how that dead into the new Constitution.

 

      So first about the way -- what the legal world would like the Anglo-American legal world would like with respect to health regulations and so forth in the 18th century. The first point I want to make is that quarantine laws were well known on both sides of the Atlantic. That is, restrictions on entry into a country either by vessels, by goods, or by individuals because of the possibility that they were carrying contagion, very, very common throughout Europe and European colonies and so known in Britain, known in the United States.

 

      Something else that may have been less common that I think there's evidence that this was known in serious contagion situations that people sometimes might be confined to their homes. This happened at least a few times in the American colonies in the 17th and 18th centuries. They knew a lot less about contagion, let's hope, than we do. I say let's hope -- let's hope we know more. But they knew enough to realize that people could be contagious and that isolating people could be an important public health measure. So that much, I think, is reasonably well-established.

 

      Next point I want to make is that those phenomena, quarantine, confining people, for example, fit into a larger body of law reflected larger and in particular two areas of law. One was just what we would call, and they use similar terminology at the time I think, what we would call health and safety regulation. That was a common function of government.

 

Something in particular on both sides of the Atlantic, I think especially on this side, was often managed by local governments. People were well aware at the time that when people lived in reasonably close proximity to one another, they generated various dangers for one another. So for example, certainly health and contagion were examples of that.

 

Again, the experience with the Great Fire of London reminded people that there's another form of contagion that lives in an early modern city. It could be completely disastrous, and that was contagion of fire. And so regulations to prevent that and measures to deal with it when it happened, well-known in the Anglo-American legal world. So, yeah, regulation of the health of people, regulation of the safety in a number of ways of people living in proximity to one another were reasonably well-known.

 

The other body of law I want to talk about a little bit, what you might think of as the law of natural liberty. By natural liberty, I mean just freedom of movement. Physical, the ability to go from one place to another, to go out in public, that sort of thing. The general principle, of course, of Anglo-American law about natural liberty was that people had it. But there were a number of well-established areas in which it could be restricted.

 

      One, of course, maybe the most prominent, involved the criminal law. The most obvious restriction on natural liberty that came from the criminal law was, of course, people could be sentenced to imprisonment if pursuant to it. And not surprisingly, because natural liberty is such an important interest, the rules about how people were criminally punished were regarded as extremely important.

 

      There was real concern, of course, that the Crown would persecute its enemies through the criminal process. And so the Bill of Rights, the English Bill of Rights and then the first state amendments to the United States Constitution concerned, to a substantial degree, with criminal procedure precisely because the criminal law, an important restriction on natural liberty, something that both people in Britain and in the United States were very concerned about and hence, a large body of law.

 

      Before written constitutions were in place, of course, those bodies of law were statutory and common law then they were often built into the constitutions when Americans started forming them and as I said, certainly as a substantial part of what we now call our Bill of Rights is specifically about that.

 

      So that was one body of law having to do with natural liberty. So was, and this is especially constitutionally important, so was the pre-trial process and in particular, the question whether people could be physically detained on the basis of criminal charges.

 

      Concerns about what the Executive Branch might do in that respect were especially common to be the ancestors of the Habeas Corpus Suspension Clause of the U.S. Constitution because, again, in response to abuses by the Executive Branch, Parliament and the Habeas Corpus Act limited what we would call pre-trial detention.

 

      Periodically, however, Parliament would pass a statute called a suspension of the Habeas Corpus Act in which they expanded a pre-trial detention authority. By the Crown, those acts were always, always temporary. They limited the authority, nevertheless.

 

      They gave it -- that process, the idea that habeas corpus could be suspended in that sense, as I say, that's the historical background to the Habeas Corpus Suspension Act. So a large body of law that started off as, again, statutory and common law about the criminal process because the criminal process is often about criminal confinement.

 

      Quarantine law, very much part of what I've been calling the body of law about natural liberty. That is the basic principle was people could move around freely as long as they respected one another's private property rights. But there were well-known areas in which freedom of movement could be restricted.

 

      Quarantine, people who talked about this topic in general were well aware, in the 18th century, were well aware that one restriction on freedom of movement was quarantine in the interest of health. They also knew about, for example, debtors' prison, another reason people could be physically confined.

 

The English draft, what they called impressment, both for the army and the navy, were part of the body of law about permissible restrictions on physical liberty. That was something that Parliament, not surprisingly in response to popular concerns, often legislated about when they authorized impressment, they would limit the extent to which that was authorized because they were concerned about natural liberty.

 

      Civil commitment was another part of that larger set of laws about this question. And so it's important, I think to see that quarantine laws, restrictions on freedom of movement, restrictions on bodily or natural liberty were well-known and were, I think, understood as part of this collection of grounds on which it was understood that the government could sometimes confine people's movements.

 

      So that's roughly speaking what the law looked like when the Constitution was adopted. Crucial feature of the Constitution, of course, is that it was largely about the new national government. Its primary function was to structure, to set out the authorities of the new national government, to impose restrictions on the new national government. There were some affirmative restrictions, of course, imposed in the original Constitution, mainly, in Article I Section 9. Then, of course, there was a reaction by opponents to the Constitution and a number of additional affirmative restrictions were added. But that was overwhelmingly about the new national government.

 

      The Constitution does have some affirmative restrictions on the States. Notice, of course, the States didn't need to get their power from the Constitution. They already had it. There were some affirmative restrictions. Those are in Article I, Section 10. Especially important as far as the draft of the Constitution were concerned was the Contracts Clause because they were concerned with debtor relief legislation that had been adopted in the 1780s.

 

      But by and large, the question of limiting the state constitutions was dealt with to only a very limited -- the state governments was dealt with only to a very limited extent by the national Constitution, both in its initial form and in the Bill of Rights. It was mainly about the new national government.

 

      Questions about quarantine, control of movement, thus, at the time of the Framing as far as most of the issues associated with the Constitution were concerned were questions about the power of the new national government.

 

      The most important powers concerned here, of course, would be the commerce powers. It's interesting to think that today, of course, the commerce powers, especially interstate commerce power, is seen as the source of an enormous amount of what Congress does, a great deal of which isn't readily classified as commerce and is attached to the commerce power mainly through the necessary and proper power through the idea that well, there are all sorts of activities that aren't really commerce that nevertheless affect commerce and because Congress and legislative are what affects commerce with the necessary and proper power, that they can legislate about all sorts of economic activity.

 

      But when it comes to contagion, quarantine, that sort of question, then the commerce power, the actual core of the commerce power and the commerce power without a lot of assistance from the necessary and proper power is being used precisely because the commerce power can be used to regulate movement from state to state and especially from the standpoint of quarantine movement into the country.

 

      Congress, fairly early, started to enact quarantine statutes, not about interstate movement but about entry into the country. And that was a very natural use of the commerce power. I think it's important to bear in mind that when Congress was using the commerce power to regulate in particular for health purposes, it was largely regulating not the people who were entering but rather the ocean-going vessels who were bringing them in.

 

And when Congress got more involved in this later in the Antebellum Period and started regulating the Atlantic trade in immigration, it did so largely in the interest of health and safety but did so by regulating the transporters, by regulating the people who were running the vessels. So that was an essential exercise of the commerce power that was relevant here. And certainly, it was relevant here. This was one of the things the power of the commerce could be used for.

 

There was then the important question in the early day, and it's still an important question today. In the early days, under the Constitution, all right, Congress has these powers over commerce and in particular, a power over foreign commerce that has important uses with respect to quarantine, health and safety. What are the implications of congressional power for state power that might also affect either interstate commerce or foreign commerce?

 

      That, of course, is one of the great questions of American constitutional law. It was a central question of American constitutional law in the 19th century, both before and after the Civil War. And so one of the questions, again, bearing on state power here, is to what extent did the grant of commerce power to the national government possibly inhibit the similar powers in the state governments?

 

      Again, the argument was, and people believed this and disbelieved this ever since the very early days under the Constitution, the argument was the federal commerce power is implicitly exclusive because it's not explicitly exclusive. And that imposes important limits on the States. That gives rise to what we sometimes somewhat confusingly call the dormant commerce clause. There can't really be a dormant commerce clause, but are there limitations on the States that are relevant here to the regulation of health and safety?

 

      One interesting thing about early discussion of this in the Supreme Court is that even the proponents of an exclusive federal commerce power generally believed that -- well, they all believed that the States still had the police power. Classic formulations in the 19th century of the police power included regulation in the interest of health and safety.

 

And in John Marshall, talking about what would be reserved to the States even if federal commerce power were exclusive said health laws of every kind are the kind that remain intact even if the federal commerce power is exclusive. He was somewhat cagey about that, but it's worth saying this was something that the Framers were well aware of, that the police power was in large measure about health and safety, as I said.

 

Purpose of the police power deal with the fact that when people live in close proximity to one another, they have various effects on one another. And hence, not surprising that health and safety would be in standard 19th century discussions of what the police power is for, front and center.

 

      So that recognized both that if there was some kind of dormant effect of the national commerce power, it very likely was not going to intrench on that aspect of the police power. And similarly, that regulation health and safety, including quarantines, that in everybody knew about, a well-known function of government.

 

      The last thing I'll say -- I have some thought about later in the 19th century, but the last thing I'll say about the Framing era, because this is a question that came up then, has been discussed recently, and since the topic of this call is civil liberties and natural liberty is, of course, you might say the first civil liberty, the ability to simply be able to move around freely. But there have been concerns, well, what about the application of restrictions on movement, restrictions on assembly to religious and political gatherings? Is that a constitutional question?

 

      What I want to say about that -- in good law professor fashion, I'm not going to answer it. But I am going to say something about it and say that it raises a question that we are now familiar with and that people were familiar with at the time of the Framing, which is -- and now, I'm going to use 21st century terminology but the problem and the concept were also known.

 

      What does the Constitution, when it protects political assembly, when it protects the free exercise of religion, how does it affect what in 21st century terminology are called general and neutral rules? That is to say, rules that apply to a wide category of conduct that are not specifically, and so are general in that sense, not specifically about religious exercise, for example, or political assembly but that may limit substantially political assembly or religious exercise. Again, we've seen examples like that.

 

      That is a hard problem and was, I think, seen as a hard problem at the time of the Framing precisely because the central application of protections of religious liberty, protections of political liberty was against laws that were directed at them. Well, what about general and neutral rules? And there's been a lot of thinking in scholarship, in part because of the Employment Division v. Smith case, with respect to the exercise clause on this issue in the last 20 or 30 years.

 

      Again, the last point I'm going to make is we encounter that issue again because, yeah, quarantine law, a restriction on movement in the interest of health, not directed at liberty but -- religious liberty, but what does that mean when it actually interferes with, for example, people going to church because there's an order in place pursuant to a state statute that says assemblies larger than a certain number of people are forbidden.

 

      So, as I said, I wanted to raise that issue without saying anything about it to make the point that there's a lot of continuity on those important topics from the time of the Framing down to right now. Thanks, Dean.

 

Dean Reuter:  Terrific. A lot on the table there, so let's go right to our audience with questions.

 

Caller 1:  Yes. Good afternoon and thank you, Professor, for the discussion today. You alluded to the conflicts between quarantine and health and safety regulations and being in conflict with rights like religious and political assembly being well-known at the time of the Framing. I'm wondering if you could give maybe some examples of some clashes that happened around that time that might illustrate that point.

 

Prof. John C. Harrison:  The best-known example of that is -- and this is going to be time of the Framing. Time of the Framing, although, meaning early 19th century, this is sort of a general and neutral common law principle, could a priest be required to testify regarding something that he had been told in confession?

 

      The general rule is people can be required to testify in criminal proceedings, that there's no general privilege against that. That then raised a -- this was in New York State, and as you can imagine when the possibility of a priest might be called to testify, that generated substantial debate among counsel.

 

      Some important early opinions on this topic and one of the questions that they had to deal with was -- and this is often discussed as the question should there be religious exemptions? And the reason they had to ask about it in terms of religious exemptions was because they understood that this was a rule that would apply to most people.

 

      And so the question was well, is there anything special about this religious practice that should cause it not to be covered by the rule that applies to most people?

 

Dean Reuter:  We’ve got three questions pending.

 

Mary Nixon:  I'd just like to ask you please if you think the National Vaccine Injury Act of 1986 is unconstitutional, and of course, that's not quarantine but looks like we're on the road towards forced vaccination. And that law prevented citizens from suing the manufacturers of vaccines and also from suing doctors. And it turned all of their distress and complaints to the special court that was setup by Congress.

 

Prof. John C. Harrison:  I've heard of that statute. I'm only slightly familiar with it, so I will say what I know about it, which is that I think that that's one of the situations where the important question—I talked about this a little bit—where the important question has to do with the scope of Congress's enumerated powers.

 

      Can legislative power in general regulate liability, for example, liability arising out of vaccination? Yes. There can always be questions about the retrospective use of legislative power in that respect, but the basic answer is yes.

 

      The harder question—and as I say, I know a little bit about that statute but only a little bit—the harder question is is that within federal power, given that in principle, the Constitution and enumerated powers, that Congress doesn't have general legislative authority. The state, I think, could do that sort of thing. But can Congress do it?

 

      And whether you think the answer to that is yes depends on what you think about the larger question of the dramatic expansion of a federal regulatory authority with respect to economic activity in the 20th and then into the 21st century.

 

      I will say that if you think that the Congress power and the necessary and proper power do give Congress very substantial authority to regulate the national economy, which is certainly what the Supreme Court cases have said now for some decades, a lot of people criticized them, then I think that regulation of this sort of thing clearly has substantial connection to the economy, to production, to commerce in vaccines.

 

      Of course, people differ as to whether they think the Supreme Court has been right in allowing Congress to exercise much more power over the economy in the last 70 or 80 years. But I think if those developments are all right, this does seem to me to be within the same line of reasoning that says the National [Labor] Relations Act, the Clean Air Act, statutes like that are constitutional, then probably this is too.

 

Dean Reuter:  We've still got three questions pending, as if by magic. Let's take another call.

 

Caller 3:  Professor, I wanted to ask you about President Trump's announcement that he could countermand an order from a governor to reopen a state. It seems to me like the governors have a general police power. The President has no general police power and that Congress has an enumerated power to regulate interstate commerce. Where would the President get the authority to countermand the government's order to reopen a state more quickly than he thought it should be reopened? 

 

Prof. John C. Harrison:  To the best of my knowledge, the President has no such authority. I think you're exactly right that that's fundamentally a question -- that's an issue that starts off as the question for the States. The States have overwhelmingly given their governors substantial authority to respond to health emergencies with orders like this.

 

      Congress, again, if you accept the expansion of congressional authority that's taken place in the last 70 or 80 years, Congress very likely could give the President that kind of power. They could, in effect, authorize the President to do what -- if Congress has that much power in general, they can do -- which is preempt what the States have done.

 

But, yeah, I don't -- I've wondered about this. And if anybody on the call knows, if there's an answer, I'd be interested in hearing what it is because the President clearly would require statutory authority to do that. There's nothing in just having the executive power that brings that kind of authority with it.

 

      And so when I saw the President had said that, I was wondering if he'd been advised this and if so, what's the statutory basis for it? Because I don't know of one, that's not to say there might not be any, but I certainly don't know of one.

 

Caller 3:  Well, good. Thank you very much.

 

Dean Reuter:  Still three questions pending, so let's turn to our next caller.

 

Caller 4:  Hello. I'm very concerned about the implications of this quarantine as it affects religious freedom and rights. While we here in California are told that we have to social distance, no gatherings of more than 10 people, synagogues and churches have been closed down completely, so we're not even allowed to use the 10-person rule in having our religious services.

 

Could you discuss if there is any guidance, either on the state or federal level, regarding the specific rights to freedom of religion and the [squelching] thereof during circumstances such as these?

 

Prof. John C. Harrison:  Couple of things, first, as to federal First Amendment doctrine, although in the last few years, the Supreme Court has, I think, to some extent limited the principle that general and neutral rules are permissible even when they have an adverse effect on religion. I think that still, for federal constitutional purposes, I think that's still the Supreme Court's starting point.

 

      The next thing I'd say about that—and I'm going to talk about a couple other aspects of this probably in a moment—the next thing I'll say about that is that the leading Supreme Court case Employment Division v. Smith that gives rise to the free exercise clause manifestation of the idea that general and neutral rules are okay even if they, say, affect speech or religion. Rejected from earlier Supreme Court cases, the earlier Supreme Court cases adopted something more of a balancing test with respect to when there was an adverse effect on religions.

 

      So in saying that the courts current trend with Smith is to say general and neutral rules are okay. I don't want to say that the most likely alternative to that would necessarily mean that restrictions on religious assembly are unconstitutional because if the Court were to shift back to what it used to do under cases like Sherbert v. Verner, probably what they do would be to do some kind of balancing test because there are clearly going to be some limits on what can be done. And so how a balancing test will end there is obviously an important interest here, and public health would come out, it's hard to say.

 

      The other thing I'll say is that there are, other than the federal First Amendment, there are parts of the law that protect religious exercise and protect it with a balancing test and without this permission for general and neutral rules. The federal Religious Freedom Restoration Act does that. It applies to federal statutes, that burden of religion and basically requires some kind of balancing test.

 

      I don't know about California. I know there are lots of states that have their own state-level statute that doesn’t just have the permission for the general and neutral rules. There are some states, and, again, I don’t know about California, there are some states whose courts have taken the position -- who have not followed the Supreme Court's general-neutral rule approach under that Smith case, and it said no, our state constitution is like what the Supreme Court used to say.

 

The federal Constitution is more alike where there's a burden that's imposed by a general law. There's a balancing test, and it infringes the interest in religious exercise. There's a balancing test to decide whether the law can apply.

 

      So there are a number of areas of law, and, again, I don't know that much about California, that certainly could call that into question. I think the one that least calls it into question is the Supreme Court's federal First Amendment doctrine as it currently exists. So as I say, I think in the last 5-10 years, they've suggested some willingness to rethink the Smith principle.

 

Dean Reuter:  We've got quite a few questions pending. We still have about a half an hour. Let me, if I could, Professor Harrison, slip in a question about the Second Amendment. And I've read about some states trying to impose some Second Amendment restrictions under the name of the COVID-Coronavirus emergency.

 

      What's your read on that? What's the state power there? If it's an emergency power, when does an emergency abate, more or less, and who gets to decide that? And how do powers return to the pre-emergency level?

 

Prof. John C. Harrison:  Yeah, first, I think here by and large, we're not dealing with general and neutral rules. That is, say, like a rule that says there can't be assemblies of more than 10 people, which then applies both to a concert and to a religious service.

 

I think what people have been talking about with the Second Amendment is the sort of thing that even under the approach that says general and neutral rules are okay does raise a problem under various forms of constitutional liberty, that is laws that are directed at the particular kind of activity. I think that's what people are talking about now about the Second Amendment. Those are good questions.

 

One of the things that has been happening since the Supreme Court re-vilified the Second Amendment is largely the lower courts, both the federal courts of appeals and the state courts, have been trying to flesh out how it works. And the Supreme Court has not given them a lot of guidance.

 

      What most of the cases that I'm familiar with do is try to fit this, sort of, into the Supreme Court's large structure and say Second Amendment generates intermediate scrutiny, known from both federal Equal Protection doctrine and there's some intermediate scrutiny in the federal First Amendment doctrine. And that's another -- and it's hard to say how it's going to be applied in any particular case because that's another balancing test.

 

And the idea is what intermediate scrutiny means is it's not just rational basis scrutiny which means almost anything goes. It's not strict scrutiny, which means almost nothing goes. There really is supposed to be meaningful balancing inquiry by the court in which it tries to ask just how severe is the restriction on the protected liberty? Here, it's the Second Amendment, keep and bear arms. How strong is the justification for it?

 

      And I will say on behalf of that as an interpretation of the Second Amendment that lots of proponents of the Second Amendment would say that's at least the appropriate way to address it because yes, there's a Second Amendment right, right general principle at the time of the Framing and now. People's rights are subject to reasonable regulation in the interest of health and safety.

 

      And I think this is one of those situations where one of the key questions a court would try to get at in intermediate scrutiny is figuring out is this really justified by the health interest? And so that, as you suggest, that would raise the question well, how long does it last? Or is it a pretext? Is it an attempt to use the health interest in order just to restrict the Second Amendment liberties and kind of get around the Second Amendment?

 

      And so that's what the means-ends analysis that courts use when they conduct this kind of scrutiny, how well is what the government is doing -- how well is it proportioned to the goal that they're allowed to have? If it really goes beyond that goal, maybe that suggests they're really trying to do something else. That's the sort of thing that courts who apply intermediate scrutiny are going to have to thrash out.

 

      And as I say, that's what intermediate scrutiny is for, is to decide is this really the appropriately narrowly focused thing derived from the health interest? Or is it something else?

 

Dean Reuter:  Very good. We've got quite a few questions pending, so without further ado, let's move on to our next caller.

 

Caller 5:  Okay, professor, I am involved in litigation in the State of Washington about particular religious restrictions. And the question I had for you was in looking back, particularly historically, across the country right now, a number of large-scale political protests have happened that are clearly in direct contravention of gubernatorial proclamations or executive orders on assembly.

 

      And yet, in Washington and other states as well, the governor is holding to the position that you can -- he permitted those and said yeah, I believe in free speech. They can come and assemble and have a political protest, but even two people cannot meet together for purposes of prayer or worship.

 

      And my question is historically, is there an example where you have seen different forms of either expressive assembly or expressive conduct being treated disparately? Because there's a pretty uniform application. I haven't seen any governors who have shut down a political protest and yet, they're taking police action against religious services throughout the country.

 

Prof. John C. Harrison:  Interesting question, and you're certainly right that disparate treatment of different kinds of assembly, a political protest as opposed to religion, raises a serious question, and, let me say, raises it even under the Supreme Court's Smith approach because one thing that the Court has also said in saying general and neutral rules are okay is they can't be applied disparately because they are aimed at religion. So it's not just the content of the rule that matters, it's also the way in which it's applied.

 

      I am not coming up with an example from the 18th or the early 19th century in which this configuration arose. That is to say, there was some kind of permission for political assembly and there was what looked like a discrimination against religious assembly. I don’t know of anything like that. That's not to say it didn't happen.

 

      It's certainly the case that assembly was generally understood as part of the exercise of religion and that laws that clearly forbade the exercise of religion often were directed at gathering together for religious purposes. So I think it was well understood at the time of the Framing that the free exercise of religion included some sort of a religious analog that to the right to assemble and petition for political purposes. But what you're talking about, I can't think of something like that.

 

Dean Reuter:  Very good. Thank you, caller. Let's move on to our next caller.

 

Caller 6:  Yes. Good afternoon, Professor. Turning to the question that the prior caller asked about presidential authority in this context, I wonder if perhaps what the President had in mind was the practical ability the administration has in terms of funding. The power of purse, obviously, not exclusively through Congress but as executed through the administration in terms of funding various activities that the States want.

 

I'm thinking in particular things like presidential disaster declarations for certain areas or things like extension of Title 32 authority to fund state national guards as opposed to the national guards that it could be funded from state coffers itself. I wonder if you had any comments about that approach.

 

Prof. John C. Harrison:  Thank you, because yeah, as I say, I have been wondering about what the sources of executive authority would be here. And although, again, yeah, as far as I know, there isn't a general power like the governor's power to control. In the interest of health, there are some other important authorities and routinely both Congress and the President, when Congress has given the President discretion, that can be used as leverage, often very strongly, to affect state decisions.

 

      The question I would then ask, and I have a rough familiarity with disaster declarations but not as much perhaps as I might, one thing that is certainly true -- basic case of principle of federal administrative law, is that when discretion is given, it is often given to be exercised for certain purposes and not for other purposes.

 

      So the availability of some presidential discretion here doesn't necessarily mean the presidential discretion is broad enough to reach those decisions. I will say there certainly are areas where statutes confer on the President effectively unfettered discretion. And in a situation like that, if he thinks he knows better than the governor about what they should be doing by way of these restrictions, the President can almost certainly use it for those purposes.

 

      But there are also a lot of situations, I suspect, like disaster relief where the discretion is there but is also to some extent cabined and can be used for some purposes and not for others. And so if I were trying to sort out one of these issues, that's the next thing I'd look at: exactly how much and what criteria can the President use and exercise with those authorities under those statutes?

 

Dean Reuter:  Very good. We've still got four questions pending, this fascinating discussion, so let's carry on.

 

Caller 7:  Professor, I was wondering if you would agree or disagree that when performing judicial review of a general and neutral law that substantially impairs a fundamental right, a court should require the Executive to demonstrate two things. The first being that the restriction logically advances a legitimate and compelling government interest and secondly, that the restriction is the least restrictive alternative available.

 

Prof. John C. Harrison:  Gee, I don't think so. But that sounds like the other approach and in particular, the least restrictive means requirement sounds to me like the other approach and it's -- as a general matter, laws don't have to rest on a compelling interest. They don't have to -- they can just rest on any interest the legislature thinks is right.

 

      So it seems to me that what you just describe is the more demanding way of looking at this problem that, as I said, the federal RFRA does that. Some states do that in their constitution. But I don't think that's how it works under Smith.

 

      And when I talk about Smith, let me also say the Supreme Court says similar but not quite identical things about regulation speech, that general and neutral rules that have negative impact on expression normally are okay and don't need the kind of very strong justification and narrow tailoring that a law that is directed specifically at expression or religion needs.

 

Dean Reuter:  We've got about 15 minutes remaining, four questions pending at this point.

 

Caller 8:  All right. So I was wondering, you talked about how there was a delegation of power by the individual states to the governors and that they have a wide latitude to declare these emergency measures. Where does that stop? Will we be able to see a governor say climate change is a pressing issue, and we're quarantining everybody, and they can't use cars or planes or anything of the like because there's this pressing issue?

 

Prof. John C. Harrison:  The right answer to that would require that I look more than I have done at the state statutes that give this kind of authority. My knowledge of those is limited, but what I know of them suggests that they are specifically about health and are triggered by contagion and so forth. And this would then be a question, an important question, of state administrative law, and it's parallel to something I was saying a few minutes ago in talking about presidential authority.

 

      One of the functions of courts when they do judicial review of executive and administrative action is to make sure that the action is in fact in pursuit of the goal that the agency is allowed to pursue. And what you're describing, yeah, sounds like the sort of thing somebody trying to -- some governor trying to grab the quarantine authority, the health abased authority to restrict movement to do something that almost certainly isn't authorized.

 

      And without looking at the state statutes, I would think that if state courts are applying standard principles of administrative law, they would find that that's beyond the authority that the statute has given and so would say no, you can't go that far.

 

      Now, if a legislature comes back and says we're going to give really, really, really broad authority to the governor, that's another matter. But I don't think, the statutes that I know just a little about, will function like that.

 

Dean Reuter:  Very good. Let's move to our next caller.

 

Sean Callahan(sp):  Hi, this is Sean Callahan, and I was actually just recently involved in some litigation down in Mississippi on the religious liberty question. I just have an idea. I just want to throw it out there, give you an abbreviated version, and see what you think because we've touched on it a little bit. Wisconsin v. Yoder, I checked regularly, and it's not overruled yet so still good law as far as I know.

 

      So talking about Smith, here's the idea. And I think this is related to this current issue, issues that are around the corner like Little Sisters. The idea is that we add another offramp to Smith. So we have Lukumi, we have, because of discrimination with Trinity Lutheran, add another offramp at the standard review stage.

 

So the rational basis that Smith instructs does not apply if the plaintiffs demonstrates that the challenged state action does not directly advance -- and that's the phrase I'm using, directly advanced, a legitimate state interest.

 

      And the reason I think that's important with the present issues, and you're talking about churches, we have really two different -- they're asserting the same right but factually, they're two different classes. One are the people who are driving in and listening to sermons on radios or with bullhorns. They might as well be in bubbles.

 

It's extremely hard to conceive that banning that kind of activity directly advances any state interest, meaning that for the interest to be advanced, there has to be some hypothesis that something happens that isn't clear like the people, well, they might get out of the car and we just don't know. Well, that's hypothetical interposition in the state's theory of how the challenged state action advances their interest.

 

      And then the other class of people are people who they want the same free exercise claim, but they want to be in proximity to one another to worship. And it's very conceivable how preventing that advances the interest in preventing transmission of a contagious virus.

 

      I guess that's -- I guess I could talk about Little Sisters too. Well, Lee, Bowen, and Yoder, I think, and I think you can play with that distinction too. Yoder, the Court said well, doesn’t matter these kids go to school because they're getting educated anyway. But when you're talking social security number, if you have a social security number, it's going to help us collect taxes. There's no hypothetical component to the theory of interest.

 

      So that's just my idea. And I just wonder what you think.

 

Prof. John C. Harrison:  Well, first, let me say, I think Smith is right. And I think general and neutral -- and I think that's true as to expression as well as free exercise. So I'm fine with general and neutral rules.

 

      But as I said, there's some indication that a lot of the justices are not, and it's interesting that this is one of those issues on which most of what we think of as the Liberals and the Conservatives may have some agreement.

 

      So if the question is what's -- if they decide they want to continue to back away from Smith, what would -- how might they go about it? And I think -- I don't know if I have much to add to what you said other than this. There are certainly several of the justices are strongly allergic to actually overruling any of their cases. The concept that they could make a mistake just horrifies them.

 

      And so the direction you were suggesting of trying to draw on earlier cases like Yoder that have not actually -- they've never said were wrongly decided, that probably would be the direction they would go. They would try to fit it in with existing cases because this is one of these situations where there's more than one axis at work.

 

      There's both the Smith do you believe in effects test axis and there are their views on stare decisis. And insofar as there are a number of them who really, really don't like to overrule, any path that would enable them to get to where they want to go without overruling, I think, is one they would be more likely to take.

 

Dean Reuter:  Professor, this is Dean. Just a quick clarification. You mentioned this allergic reaction to overruling previous cases, and I thought you were ascribing it only to cases they had been involved -- particular justices had been involved in --

 

Prof. John C. Harrison:  No, I mean, I think that's especially true, but, no, I mean in general. I think several of them, at least nominally, believe strongly in stare decisis. And by nominally, I mean that doesn’t mean they're not prepared to distinguish on doubtful grounds, but they much prefer to distinguish.

 

Dean Reuter:  Very good. Two questions left at this point. We've got about seven minutes, so I think we can clear the board here. Let's turn to our next caller.

 

Mary Nixon:  Hello, Mary Nixon again regarding the question of president's authority to overcome the governor. I think it's the National Emergency Act of 1976 which must've been the thing applied during Hurricane Katrine in 2005 where people were not being told to stay in their house. They were forced at gun point to leave. They all had to evacuate due to the floods.

 

      I won't say anything about the constitutionality of that, but at that point, you didn't have the governor of Louisiana saying get out of here, FEMA. We want to do what we want to do. It just all happened, and they came in. But I imagine the basis is the National Emergency Act.

 

Prof. John C. Harrison:  Could be, and I would need to do a little more research to say anything confident about that.

 

Dean Reuter:  Now, let's go to our next caller.

 

Caller 11:  Thank you, Professor. This has been very interesting. My question is to what extent do you think the federal Executive has inherent authority to decide not to enforce a regulatory scheme or statute during the crisis? Not because there's some sort of waiver authority that Congress has granted him but just because he thinks that enforcing certain compliance requirements are a bad idea and besides not to exercise enforcement discretion.

 

      First of all, do you think that the President has any authority to do that? And second of all, is there anything that courts can do to try to stop that? Or do you think that's an issue for the political branches?

 

Prof. John C. Harrison:  Yeah, on the first point, this is, of course, one of the very important and controversial issues having do to with the nature of executive power. My view is the President does not have, simple from the executive power, does not have any such discretion. That discretion whether to enforce is wholly a product of statute. So I don't think that the Constitution confers it.

 

      The next question, when can it be -- that sort of thing come into court, that is harder. It's not impossible. What's required for that to fit the Supreme Court's standing doctrine and related concepts these days is, I think, an individual who can show that non-enforcement is having the kind of concrete effect that the Supreme Court talks about in its Article III cases on that individual and that the statute, either explicitly or implicitly, requires the President to do something that benefits that individual and so in effect creates a particularized right in that person to some kind of enforcement conduct by the Executive.

 

      That doesn't often happen, but it does happen where from time to time the court sometimes find the statutes work that way. So I think that's what would be needed to bring the question before a court, at least a federal court following Article III principles. And, as I say, I would then say that there isn't any inherent authority, but not everybody agrees.

 

      I know, for example, that Justice Kavanaugh, when he was on the D.C. Circuit, said in talking about presidential discretion, he believes in some constitutionally mandated degree of prosecutorial discretion, at least in the criminal situations.

 

      Justice Scalia said similar things, so there are lots of people who believe in that out of the Constitution. I don't.

 

Dean Reuter:  Got a couple minutes remaining, two questions pending. Let's see if we can get through both of these questions. Go right ahead caller.

 

Caller 12:  You addressed the question of the state police stopping people from coming into state from another state.

 

Prof. John C. Harrison:  Yeah, I will address it briefly because there certainly is -- the Supreme Court says that -- and they're not entirely sure where it comes from in the Constitution but that U.S. Citizens, the federal Constitution authorizes them to move from one state to another. On the other hand, states certainly do have a lot of power with respect to health.

 

      One thing I would look at in a situation like that, and the dormant commerce clause cases work this way often, is what the states are doing at their border in some way similar to what they're doing inside the state trying to find people who are contagious. Because the less discriminatory whatever the state is doing, the more likely it is to be okay under both freedom of movement and dormant commerce principles.

 

      So that's one of the things where you need to know more about the details and that's in particular the fact I would be interested in finding out more about, how discriminatory is this?

 

Dean Reuter:  Very good. I asked the Professor at the outset if he had a few minutes in case we ran up against the end of our clock here. We have one question pending so with the understanding that you've got a couple minutes, let's take this final question. Go right ahead caller.

 

Caller 13:  I'm curious, assuming the governor -- the statutes, and constitution of the state are not in contradiction with what the governor does, what type of constitutional limits does the governor, if any, in terms of okay, we're shut. We think there's too much of a risk from this. We're saying everybody has to stay home.

 

You have some kind of arrangement for getting for to them but it's basically a complete lock down. And somebody says well, wait a minute, I have to do X, Y, or Z, and the governor says no, you don't. Is there any federal constitutional limitation on the governor's power in this particular area, other than whatever the state constitution and statutes provide?

 

Prof. John C. Harrison:  The answer is yes. There is, at least according to the Supreme Court's cases, there is some federal constitutional constraint on that. I think that putting aside things like religion, if you're just talking about ordinary freedom of movement, almost certainly, the Supreme Court's cases would put that in the we'll give that the least intrusive kind of judicial review.

 

      So as long as it's what they would call minimally rational, that a reasonable person could believe that that's appropriate, then it's very likely to be constitutional, at least under the Supreme Court's approach to this.

 

Dean Reuter:  I think we've had our final question, Professor. Let me give you a minute to wrap up if you have a final thought.

 

Prof. John C. Harrison:  Nothing in particular. I want to thank everybody for their questions. As you saw, there are some of these issues as to which my answer is I would like to know more about that. But it's been interesting, and thanks for the great questions.

 

Dean Reuter:  Thank you, Professor. On behalf of The Federalist Society and on my own behalf, thanks to Professor John Harrison. I also want to thank our audience for dialing in, for your thoughtful questions.

 

A reminder to the audience to check our website and check your emails for upcoming teleforum conference calls. They are more numerous now than ever. But until the next call, we are adjourned. Thank you very much, everyone.

 

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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.