Federalism, COVID-19, and the Administrative State

[Music]

 

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 a special Executive Branch Review Week edition of The Federalist Society’s Practice Group Teleforum conference call as today, April 29, 2020, we host a teleforum entitled “Federalism, COVID-19, and the Administrative State.” I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      Please note that, as always, all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed. It’s also open to the public and open to the press.

 

      We’re very pleased to welcome back, really in a series of their own, two returning guests. We’re going to hear from each of them. They’ll have a lot of back and forth, questions, and back and forth between the two of them. But as always, ultimately, we’ll turn to the audience to your questions so please have those in mind for when we get to that portion of the program.

 

      Professor John C. Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. He’s also the author of several books, including the upcoming book Defender in Chief: Donald Trump’s Fight for Presidential Power. That is due out on July 28th this year, so about three months from today, almost. But you can pre-order it now on Amazon. Its, again, Defender in Chief: Donald Trump’s Fight for Presidential Power.

 

      We’ll also be joined of course by John Malcolm. He’s Vice President, Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, all at the The Heritage Foundation.

 

      With that, gentlemen, welcome. I’ll turn it over to John Yoo.

 

Prof. John C. Yoo:  Dean, thanks a lot. And thanks to The Federalist Society for having us back. I’m proud to be part of the Executive Branch Review sessions. As I understand, there’ve been great attendance and participation, and I hope we can continue that in today’s session. It’s also great to be back with my partner-in-crime, John Malcolm. I think this must be the seventh or eighth series in the series on executive power. I think we started back more than a year ago talking about this—it seems like ancient history—the Mueller Report.

 

[Laughter]

 

      And then, there was this thing called impeachment. And now, the pandemic.

 

John G. Malcolm:  The virus, right. [Laughter]

 

Prof. John C. Yoo:  One thing that’s consistent is the presidential power in President Trump throughout all of this. So why don’t get just get right into it and talk about, I think, the issue involving presidential power, Congress, the states. [Something] that has been on a lot of peoples’ minds has been “Does the President have the authority to either lockdown or reopen the economy?” John, why don’t you start? What do you think?

 

John G. Malcolm:  Well, I was just thinking as Dean was making this announcement that your book coming out about the President and you’re trying to get constitutional authority was very well timed.

 

      You know, I think there’s sort of a different analysis in terms of locking things down and opening things up. So as a general matter, the President, through acts of Congress or through his inherent authority, has a lot of control over foreign travel and interstate travel. So he’s using that in part to also stop immigration. We can talk about that too. But he has certainly slowed foreign travel to a crawl. And of course he has the authority to stop people whom he suspects may have coronavirus and order them to be quarantined. He has plenary authority there. He has not stopped anybody from travelling interstate but a lot of governors have done that.

 

      He hasn’t yet tried to stop commerce flowing interstate because of supply lines and not being affected with coronavirus, but he would certainly have some authority to do that. Most of the locking down that has been going on has been with guidance, obviously, from the CDC, Drs. Fauci and Birx. But it’s been being done by the governors, and I think at first, people were understanding of this and largely compliant. There were a few mega churches that wanted to continue to hold meetings and things that caused a bit of a problem. But they locking down was mostly being done by the governors.

 

      Now, as the virus is starting -- we’re past peak and starting to recede, hopefully permanently, but who knows, the pressure is going in the other direction about opening up the economy. And, again, I think the governors control a lot of that but not exclusively. So one thing I thought was really, really interesting -- so Attorney General Bill Barr on Monday put out a memo that was sent around to all 94 of his U.S. attorneys, talking about being on the lookout for allegations that governors and other state and local authorities have gone too far in terms of impinging on people’s civil liberties and constitutional rights. And one of the things that he said was not only about legal -- restrictions that discriminate against religious institutions or religious believers and not only about instances in which disfavored speech is somehow being squelched, but he also highlighted governors and state and local officials who engage in, “undue interference with the national economy.” Which surprised me. It’s sort of a clear reference to the Dormant Commerce Clause. And we will see whether the Department of Justice takes action there.

 

      So I think the President clearly would have the authority, for instance, to order the military, federal officials, to go back to work. I don't think governors could interfere with that at all. There’s the Supremacy Clause, other precedent going all the way back to McCulloch v. Maryland, and other cases like Geier v. American Honda Motor Co that says that state officials can’t interfere with federal officials implementing federal policy.

 

      Beyond that, it’s a little tougher to tell. So there’s the Defense Production Act. Some people, like David Rivkin, have argued that this gives the President more authority. And I’ll go this far: the findings -- the congressional findings at the beginning of the Defense Production Act talk about the need to keep critical infrastructure supply lines open in response to a natural or man-caused disaster. A virus can certainly be a natural disaster. And it also talks about foreign threats to the security of the United States. A little strange to think of a virus as a foreign threat, but it’s certainly a virus that emanated overseas.

 

      So it sort of points in the direction of the President being able to use the Defense Production Act to open up the economy, at least when it comes to critical infrastructure. But one, then it becomes a question of how broad do you go in terms of defining domestic, critical infrastructure? And also, that’s the findings that lead to the Defense Production Act but there’s nothing in the Defense Production Act itself that says that once a governor has ordered a business closed, the federal government can order that it be opened. So we’ll see.

 

Prof. John C. Yoo:  I think that’s interesting. I would break it down similarly, although I might add some differences on the few of the finer points. So first with the economic lockdown and reopening, I quite agree that the President has the authority to do something to effect a lockdown: control over entry over the borders, travel across the borders -- again, this is not the President’s constitutional authority. This is a power that Congress has given through delegation in a statute. The foreign travel would be through the Immigration Naturalization Act. President Trump has halted, temporarily, much immigration into the United States.

 

      As you said, John, interstate travel hasn’t been blocked. The President’s authority there would come from the law, the federal regulatory authority over airlines, over the trains. Not really sure if there’s any over highways. But then the broader powers in the Public Health Services Act, which gives HHS the power to detain or stop the movement of people across state borders, or about to cross into state borders, who may -- essentially the phrase is “reasonably be believed to have the communicable disease.”

 

      The interesting thing is whether that power could be converted into, as you said John, a kind of quarantine of a state. Could President Trump limited movement into and out of New York City based on that? Could you say this power to block people, individuals, reasonably thought to have the disease convert into just a general quarantine, including the 80 or 90 percent of people who we know don’t have the disease. That would be an interesting question.

 

      And then in terms -- and then the primary answer in terms of the shut down and the reopening is that the states still have the police power that the -- it is the state governments that have the primary responsibility for public health and safety. And they have the control, general regulatory control, over all individuals and businesses within their borders, and they're primarily the ones who can control the intrastate movement necessary to have these shelter-in-place orders that almost all states in the country have.

 

      It’s interesting, you could say this is a separation of powers issue because the interesting question is could Congress have given the President power to lockdown and reopen businesses? At least it’s a separation of powers question I think we can agree that Congress has it. There is no statute as far as I’m aware that would go as far as, say, Gonzalez v. Raich which allows the federal government to prosecute all sales of illicit drugs, even the ones that are done four blocks from my office here in Berkley where someone grew the marijuana and gave it to her neighbor. That was within the Commerce Clause power. Or say the Title VII cases, which said that businesses just because they buy and sell into interstate commerce, or they buy and sell to people who travel interstate commerce come within the Commerce Clause, in cases like Katzenbach and so on and the famous Ollie’s Barbeque case, which is a favorite of mine. But it’s a separation of powers issue because even if we could play with the outer extent of the Commerce Clause and ask how far it could go before it infringes on state police power, Congress has not chosen to give President Trump, or any president, that power.

 

      I think let me start with, again, what powers are available before we talk about the individual rights issues, which I think are interesting, prompted by the Barr memo to the Justice Department to look out for cases of individual rights infringements. I agree the Defense Production Act, I think that’s a real stretch. I can’t see, if you look at the statute, how that would allow the President to order the opening of really the businesses that were talking about here that are under the jurisdiction of the states: small businesses, restaurants, movie theaters, entertainment, sports, things like this.

 

      The Defense Production Act, the text has very broad findings, but then Congress was pretty careful on the powers it delegated to the President. And they're primarily designed, as the President has used it so far, primarily designed to allow the federal government to force private businesses to prioritize defense needs. For example, if you needed more tests, or even swabs, or even the order yesterday to keep the meat production open. That’s really what the Defense Production Act is. There’s certain goods that the national defense requires. The Defense Production Act allows the President to come in—again, at Congress’ authority—to come in and say. “You have to fulfill the defense needs first over and above any existing contracts you have.”

 

      I don't see how, with all respect to our friend, David Rivkin, I don't see how that converts into this general power to reopen. Maybe -- I don't even know if it allows for you to say -- the President to say, “The Defense Production Act allows me to order all businesses that cross state lines to just do what they do.” It seems to me you have to have some kind of federal requisition of some kind of defense-related need that has to be produced.

 

      So I don't see how, for example, you can use the Defense Production Act to say, “Carnival Cruise Lines, start holding your cruises again. And make sure all of the singers and dancers and blackjack dealers are back.” [Laughter] Now, I think that might be an individual rights issue on my part as someone who likes to gamble. But I don't think the Defense Production Act gets you there.

 

      You know, you could say the other area that hasn’t really been explored by Trump, which we could talk about, what if Trump started using the spending power to try to get states to reopen earlier than the governors want? One of the things that’s going on here is that the federal government, first through the Stafford Act, $40 billion declare a national emergency, can start sending money to support disaster relief. That seems like a minuscule drop in the bucket compared to the huge stimulus programs that have been passed in the last two go arounds: the CARES Act and then the recent act that just refilled the coffers of the CARES Act. Imagine what if the President started saying, “Well, I’m going to be conscience of what states are doing with their reopenings, and I’m going to start funneling all this trillions of dollars to the states based on whether they’ve been cooperative with federal priorities.” That would be really interesting. That would raise the issue of the spending power being used in a way that eventually becomes coercive because too much money’s at stake, as the Supreme Court would remind us when the struck down part of the Obamacare act.

     

      That’s something that, as far as, I know the White House has no proposed to do yet. But that might be its greatest tool, as it often is in domestic cases of the Spending Clause.

 

      Go ahead, John.

 

John G. Malcolm:  So I agree with pretty much everything you just said, although it would be coercive if they were taking away grants that had been previously made by changing the conditions of the grants. But if they're all of the sudden talking about new money or you're talking about “you agree with me. You get ventilators. If you don’t agree with me, you don’t get ventilators.” I think you certainly use the bully pulpit. The President uses the bully pulpit all the time. And I don't think there’s a constitutional problem with any of that at all. There may be a political problem, but this President, of course, has political problems often.

 

      I think you're right. I agree with you that I don't think the Defense Production Act gets him there. And I also think that Congress could, if it wanted to, pass a law that would require all of these businesses to open up. The Commerce Clause has done away with -- certainly through Gonzalez v. Raich, Wickard v. Filburn, has done away with any distinction between interstate commerce, and for all intents and purposes, intrastate commerce. The only line that’s been drawn is that they can’t force somebody to engage in commerce in order to regulate it. That was NFIB v. Sebelius. But here, these are commercial businesses that are -- they're clearly engaging in commerce. But Congress hasn’t done that, and I don't think they're going to.

 

      There is one authority that I forgot to mention that the President could’ve done, not with respect so much to open up businesses but to lockdown a state. There is a regulation in Title 42 that deals specifically with regulations to control communicable diseases. And it does say that the Surgeon General, with the approval of the Secretary of HHS, “is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions or from one state or possession into any other state or possession”—and possessions, of course, being the Indian territories. See, this is an authority that’s there, so the President I think could direct Alex Azar to do this. But he hasn’t done it, and I don't think at this point he’s going to do it,

 

Prof. John C. Yoo:  Yeah, that’s an interesting question of statutory interpretation because that same provision -- the provision you cited is part of the Public Health Services Act, and then it has this later provision—the one I cited—about that regulation, that power includes the power to block people from moving back and forth. It’s an interesting question whether you can then say -- I think courts would defer in the middle of an emergency and not block any kind of quarantine order based on that reading that you just gave. That’s really interesting.

 

      However, the spending powers, I just don’t know if it’s something Trump has thought of, or they thought they can’t get away with. As you know, you're quite right. The Sebelius case in Obamacare was about taking away money that was already—and this was your Medicare and Medicaid grants that states were already reliant on. But remember, the overall constitutional test is is it coercive? So the interesting thing is what if the President said, “Okay, I’ve got a trillion dollars. Basically Congress said shovel the money out as fast as possible. There’s very few conditions on it. What if I just said, well, those states that are going to open early, they're going to need the money more because they might have a resurgence of the virus. So I'm going to say the money will go more than the per capita average to Virginia -- certainly not Virginia -- Florida, Texas, you know, the states that are going to open up early I'm going to send the money --

 

John G. Malcolm:  -- Or your swing states. [Laughter]

 

Prof. John C. Yoo:  Exactly. California, New York, yeah, you're not going to get that much money because you don’t need it. You're all locked down anyway, so what do you need the money for? You can’t reopen, right? And blame it on the state governors. I think it’s any interesting thing I think could -- whether the Court—this is the next step after Sebelius—could say the withholding of new money is sufficiently coercive in the way just as taking away old money would be coercive.

 

      But let me ask you one question to the topic you raised, which I think is really interesting. You referenced this Barr memo. Do you think, John, the states could be challenged on lockdown orders? There’s two cases going forward now. There’s one in Pennsylvania [and] a bunch of cases in California. The Pennsylvania case is already at the Supreme Court on cert, a petition for cert. That challenge is primarily the lockdown is a violation of due process and equal protection because the lockdowns are arbitrary and capricious. The cases in California, most of them are about free speech for protestors, Second Amendment for gun sales, First Amendment for people who want to go to church. What do you think about these kind of lawsuits and their chances for success?

 

John G. Malcolm:  Well, I think if they are, in fact, making arbitrary distinctions, then there may be a basis to challenge. However, it’s tough to prove that these are going to be arbitrary distinctions. So for instance, people are able to go takeout in restaurants or to go to pharmacies or to go grocery stores because they’ve got to eat; they’ve got to get their medications; or doctor’s appointments because they have a health reason. There’s going to be some reason for making these distinctions. So I think those lawsuits are going to be tough. It doesn’t mean -- look, some of these distinctions are really stupid. I mean, there’s some governors that will prevent people from going fishing when they're by themselves in the middle of a lake. Or prevent a father and son, or father and daughter—I’m not meaning to be sexist—from having a catch with their kid in an empty park. Just stupid distinctions. But proving that they're arbitrary, unless it’s something like that, will be difficult.

 

      I do think, though, that when you're talking about touching upon a clear constitutional right, like free exercise of their religion, that then the calculus will shift, not so much that mega churches are going to be allowed to open up to everybody. But you're seeing these cases, for instance, in these drive-by church services. First an opinion was issued by Justin Walker, a district court judge in North Carolina who’s Trump’s nominee to the D.C. Circuit. But you're getting others like in Michigan where these sorts of challenges if what you're going to say -- you can’t -- if we’re going to comply with safety restrictions, therefore, you, the government, you may have a compelling interest in preventing the spread of this disease, but you have less restrictive alternatives to meet that compelling interest that do not interfere with our ability to exercise a religion.

 

      So there it’s less about arbitrary power then it is as being used in a discriminatory manner. Or it’s an attempt to stop activity that is subject to strict scrutiny because it has a special constitutional protection. Those lawsuits I think may very well start to see some success. But the idea of, gee, we’re tired of being inside, and therefore we’d like to gather in a large group so that we can let you know how unhappy we are, I think those types of lawsuits are going to have a more difficult time.

 

Prof. John C. Yoo:  I agree. I think the people who are claiming straight out arbitrary and capriciousness, as we know the Court hasn’t held economic regulation to be arbitrary and capricious since the New Deal revolution, except for the single case of gay marriage. So it’s hard to see, even though I think there are ways to show that these decisions are arbitrary and capricious, like why are golf courses closed or open compared to other things? But courts, I think, especially in an emergency, are pretty deferential.

 

      I agree. I think the better lawsuits are the ones where you’ve already got a clear constitutional right and you can offer, alright, this is a narrow tailoring test, or you can offer less restrictive ways -- less restrictive policies the government should obey that would allow you to still exercise your religion and the state to meet its goals. So as you say, having churches where people sit six feet apart in the pew or stay in their cars.

 

      Or notably, California just announced it will not allow any protests or demonstrations at all on the state capitol grounds. I would think that if the protesters say “We’ll wear masks and gloves and stand six feet apart,” -- you know, that just sounds like a protest in California anyway. [Laughter] But you can say we’re obeying the social distancing guidelines exactly the same ones, perhaps even better, than what’s going on in Costcos and Walmart around the state. How can the state get away with saying, “No protest or demonstration?” It seems almost like a law school hypothetical for an unconstitutional state regulation of speech.

 

      There was a little -- maybe this’ll be the last thing to talk about because we’re almost at the end of our half hour. Let me ask you this interesting quirk in one of the cases. Actually, they’re cases both in California and Pennsylvania that both raised this issue, which is people who are running for office are challenging the lockdowns because the lockdowns apply to campaign offices. And so the case -- I love this case. It’s part of the Pennsylvania case. The challenger’s name is—I love this—is Danny DeVito. I didn’t know Danny DeVito moved to Pennsylvania and was running—my home state—and running for the state legislature. He ought to win just so Danny DeVito’s in the state legislature. I assume it’s another Danny DeVito.

 

      Anyway, so Mr. DeVito says that the lockdowns infringe his right of assembly and petition and free speech because he’s running for office. He’s a major party nominee. Whereas the incumbent, since I believe it’s a she, she is already a state legislator. Her office is open. And so the lockdowns give an inherent political advantage to incumbents.

 

      And there’s another case out here in California that makes this same claim. The courts I think so far have rejected it at the trial levels and then the Pennsylvania Supreme Court. What do you think of that?

 

John G. Malcolm:  Well, that’s really interesting. I would’ve thought that being an incumbent these days that was enforcing a lockdown when it’s becoming -- at a time when it is now starting to become politically unpopular would be a danger to their incumbency. [Laughter] Perhaps if they can keep their opponents on the racks so that they’re doing Biden-esque interviews from their living room that it might be an incumbency protection measure. --

 

Prof. John C. Yoo:  -- They have to stay open so they can take constituent complaints about the lockdown, right? That’s how government works. [Laughter]

 

John G. Malcolm:  I still think, for the reasons that you said, I mean, at the time of a crisis in which nobody really knows how many people have had this virus, what the likelihood of it coming back are going to be, I just think they're going to be so unduly deferential -- they're going to be deferential whether it’s unduly or not we’ll leave for others to decide -- they're going to be very, very deferential decisions of these public health officials. I know there are judges who occasionally leap in and say, “I can do a better job legislating than you can.” Like the Sixth Circuit has just decided to take over public schools to provide basic, minimum guarantees of education. They think they can do a better job than policymakers.

 

      I don't know too many judges, yet, who think they're better than doctors and people who specialize in the spread of viruses. I think they're going to tread extra carefully there.

 

Prof. John C. Yoo:  Yeah. It’s an interesting question. One thing is I'm sure the politicians say, “Well, my campaign office is closed, but my office to serve the constituents can remain open, and that’s not content-based restrictions or anything.” But the court, they wanted to make sure campaigns are free and fair and open, and I would’ve thought a sensible state would’ve at least allowed an exception for what’s an essential service, which is running for a political office. I think it’s an interesting challenge. I'm not sure how the courts will come out, but I agree during the midst of the pandemic, it’s unlikely -- courts are unlikely to step in.

 

      But as the curve is flattening and the infection rates are going down, mortality rates are going down, you're going to see a lot more of these challenges. There’re important signals -- it’s interesting. It’s a challenge to executive power at the state level, not executive power -- this is -- and then let’s turn it over to Dean for questions. The interesting thing is you have the use of the executive through the Barr memo and the Justice Department. The federal executive is trying to use his powers to constrain the powers of state executives, which is an interesting dynamic. Often you see them in cooperation and here you see them in conflict.

 

John G. Malcolm:  Well, I think that the Barr memo, it’s hard to tell just how much on the defensive they're going to go. I think what they're very clearly doing is saying, “We’re going to see what kind of lawsuits get filed, and we will, if we think it’s appropriate, file notices of interest and attempt to intervene in those cases.” So they’ll take a backseat until others proceed.

 

      And I think in terms of these other lawsuits, look, now we’re starting to get widespread testing. We’re starting to figure out that there’ve been way more people who’ve been exposed to this virus than before. And so while -- 50,000 more people have died now from this virus in the last four months than died in the entirety of the Vietnam War, so I'm not meaning to minimize this. But in terms of the numbers of people who’ve actually been exposed to this virus who are dying, the numbers are much lower than at least we thought even a week or two ago. And so as we get more and more information, the calculus may change both in terms of how politicians view this and also how courts view this.

 

Prof. John C. Yoo:  Great. So with that, let’s turn it over to Dean and thanks a lot for the time. And we welcome the questions and comments from people who’ve called in. Dean, take it away.

 

Dean Reuter:  Well, thank you gentlemen. That was a great opening round of remarks there. We've got -- it looks like we're approaching a couple hundred callers. Let's go right to the floor. And while we're waiting to see who rings in here, I'll ask: In some of these lawsuits, do you see the court ever going behind stated reasons for government actions, as they did in the census case where there was a purported reason by the administration to do something and the Court, I think—correct me if I'm wrong—sort of came to the conclusion that the administration had other reasons for doing what it's doing.

 

      It's the first time I'm aware—and that was an Administrative Procedure Act, the agency question—but you see anything like that on the horizon?

 

Prof. John C. Yoo:  So that's interesting. So the, and they sort of flipped. I agree with you that they did that in the census citizenship question. And it was John Roberts that was—he wrote that Trump v. Hawaii, the travel-ban case, in which he basically said, "Well, so long as it's a facially legitimate reason for doing this, we're not going to look behind the Executive Branch's 'true motive,'" and he flipped in the census case.

 

I don't know is the answer to the question, but I suspect that there you might start to see a difference of who's the executive. If you are questioning governors' reasons for doing things, courts may be a little bit less deferential than if it's the President doing something, but it's a very interesting question.

 

John G. Malcolm:  Yeah, that is very interesting. We maybe didn't spend as much time and attention to the Administrative Procedure Act element of things, or administrative law aspect.

 

Generally, the court doesn't look at motivation or pretext when it reviews administrative action. And certainly, as John just mentioned, doesn't when it comes to executive orders and seems, I think, less likely when it comes to emergencies because of the press of time and resources. Not even clear to me some of the things that are being done would fall subject to the Administrative Procedure Act; things like declaration of a national emergency.

 

      You know, there's this interesting question, actually, that has really just sort of been overlooked in all this, which is kind of an Administrative Procedure Act issue. I mean, maybe not even administrative law issue which is, as we know, these declarations of emergency trigger the Stafford Act.

 

      The Stafford Act talks about two kinds: one is for natural disasters, and it gives lists, examples, which are like hurricanes and earthquakes, things like that. And then, emergencies for which lie within the federal government's powers. So there, you think of foreign affairs and so on.

 

There's a plausible argument that the pandemic falls in between the cracks there. And that you would say well, it's not a natural disaster of the kind that that statute talks about, but it's also not one of those specific federal government-only issues.

 

      But I think, again, courts are just going to defer to that, even though, I think, Congress, when they wrote the Stafford Act, really wasn't thinking about pandemics. That kind of case would raise all those issues. Chevron deference would be the most obvious one because you do have an ambiguity in the statute here, and the Executive Branch—not just this one, but several executive branches—have interpreted it to allow the triggering of a national emergency for a pandemic. But actually, the statute doesn't obviously include it.

 

Prof. John C. Yoo:  Your point's an interesting one. Although, since it opened the floodgates of money to every state since there's now been a national emergency declared to every state, no one was about to complain about that potential crack in the law. Dean, we got any questions?

 

Dean Reuter:  Go ahead, caller.

 

Mike Daugherty:  It's Mike Daugherty. How are you guys? All right, so I'm down here in Destin, Florida. Lots of NMDC, and so I have a lot of rental properties.

 

Again, the way I've observed over the last month and a half, it's like, "Take my civil rights, please." And if you don't take them, then you're a terrible person. There's that whole crowd of that.

 

      And then you see in the Panhandle, which is a very conservative Republican red part of Florida, you have this muscle from, not the government, but from the police officers and these working-level people and managers of buildings that have said -- seriously, the HOA of one building said, "You can't have guests in your condo. You can't go on your private beach."

 

And this is moving so fast. The speed of the unknown is what concerns me, and I'd like your comment on this, is that we just didn't know. And we used the fact that we didn't know as an excuse to just strip everything. And how is that going to work out in a judicial ruling about, "Well, if you don't know, you've got worst case scenario," and -- it's kind of like the day after 9/11, you know, to hell with civil rights.

 

      And now, I see it coming back a little bit and we have more time to see that this isn't as extreme as we thought, but I'm seeing anyone wanting us to let anyone back into business. So that excuse that's being used out of non-government people is -- and there's no law that's really worth anything. No one's going to push back. And what are you going to do? Sue your HOA board with that kind of money?

 

I hope in there is a question about your general opinions about this whole "flying so fast, working worst-case scenario and strip your rights" thing.

 

John G. Malcolm:  So your question raises a lot of different questions, or sub questions, Mike. So, one, is I think that people were willing to go along with this, at least at the beginning, because there were incredible unknowns. I mean, again, we've had more people die in the last four months than in the entirety of the Vietnam War.

 

      But originally, we were thinking this was going to be a minimum, if you'll recall, a minimum of 150,000 people and quite possibly as high as 2.3 million people. And, I think, that under those circumstances, people were prepared to say, "All right. These are extraordinary times, and desperate times call for desperate measures." And people were willing to go along with it because they literally -- the thing we fear the most as a general matter is death, and everybody was afraid of dying.

 

      That, at least for the moment—and we'll see what happens in the fall and winter—is starting to recede and people are less tolerant and more itchy to get out of their homes. With respect to the police enforcement of these powers, everybody now is hearing examples of just sheer stupidity of law enforcement officers who, quite frankly, have a very tough job under the best of circumstances and these are not the best of circumstances.

 

But law enforcement officers using horrendously bad judgement and, instead of trying to calm people's nerves by reasoning with them, perhaps giving them warning, telling them to move along, are handcuffing people, arresting people, fining people. And all they're doing is enflaming people's concerns and tensions and exacerbating what is already a very, very bad situation.

 

      What's unclear to me -- you raise 9/11, and it is certainly true that after 9/11, people's views about security and the inconveniences and, in some cases, downright curtailments of civil liberties, has changed. So we put up with a lot more cameras, and we have invasive searches by TSA when we go to the airport, and it's much more difficult to enter into a federal building.

 

And we've somehow become acclimated to that, and it's going to be very interesting to me to see how things change in terms of whether we become more acclimated to these sorts of invasive procedures after this crisis. And there's still more coming. And you're getting -- Apple and Google are now developing things like contract tracing technologies. How is that going to be deployed, and how is that going to change the calculus about what we're willing to put up with?

 

      It raises all kinds of interesting questions. It's very unclear what's going to happen there.

 

Prof. John C. Yoo:  I think I don't see a lot of hope in using the law to generally attack the lockdowns—although, they are the most intrusive things we've seen on individual movement in this century—if only because the federal courts have given up trying to review economic regulation or social regulation.

 

That's why I think the real claims that you could bring would really have to be rooted in the individual constitutional rights. The most obvious ones here would be a Takings Clause. If the government is seizing property or using it, or prohibiting use of a property so much that there's just no economic value to it. This is sort of like Lucas, the Lucas Takings case, although, the Lake Tahoe case the court said it was willing to tolerate temporary restrictions on property that might deprive much value for the property.

 

I think the lockdowns will be challenged, and I think that the lawsuits actually provide this broader political purpose, which is that even if there is no judicial review over these things, the sheer irrationality—and I think this is what John's referring to—the irrationality of the distinctions of what's essential and not essential; the irrationality of enforcement where you're seeing, for example, a guy in Colorado being arrested for playing t-ball in a park with his daughter.

 

Those lawsuits are going to be good at identifying these irrationalities and building political opposition to them and demand that they be overturned. But I'm not that hope -- now, that's just federal law. States, as you know, are free to adopt much broader protections for individual rights.

 

And, I think, here in California, actually, you're seeing, at least at the trial level, several courts are more open to blocking some of these lockdown orders because they, for example -- they close down gun stores, but they allow Costco and Walmart to be open. That's the kind of thing, I think, where you will see much more development and protection of individual rights will be at the state level and state courts.

 

Dean Reuter:  We've got five questions—

 

John G. Malcolm:  It does raise a—

 

Dean Reuter:  Go ahead, John.

 

John G. Malcolm:  Just one thing. The whole -- two things. One is, with respect to takings, you're seeing all of these temporary non-eviction orders or temporary rent freezes. And the whole business of essential businesses -- so, in some places, gun stores or abortion clinics were closed down and, in others, medical marijuana facilities are allowed to stay open. I don't know how these things are going to get tested in court, but there are all sorts of interesting legal questions there, too.

 

Dean Reuter:  How do we keep in mind, or should be keep in mind, that for every bad interaction we're hearing about on the web—whether it's from the police or form a landlord or whatever the case might be or from a government official—a lot of people are getting it right?

 

In other words, for every bad interaction with a police officer, there's probably hundreds or thousands of instances where the police don't escalate things, and they just act in a way everybody would want them to. And that's probably true of landlords, and it's probably true of a lot of other people.

 

John G. Malcolm:  Yeah, it's a little bit -- the analogy is, when it comes to media, is "when it bleeds, it leads," and so people want to highlight the bad stuff. But it is certainly true that we have lots of first responders who are doing unbelievable work and police officers who are helping people who are sick to go to hospitals or bringing food to people who are infirmed and in their homes. And there are stories out there like that, but that's not what the media tends to harp on.

 

Dean Reuter:  Good enough. We've got six questions now in the queue, so let's roll on. We've got about 15 minutes left, so I'll ask our callers to be as concise as possible. Go ahead, caller.

 

Michael Rossman:  Yes, this is Michael Rossman with the Center for Individual Rights, and I'm a big fan of the John and John Show from way, way back.

 

John G. Malcolm:  Thanks, Michael.

 

Michael Rossman:  My question is this: John Malcolm mentioned a statute, of which I was unaware, that apparently allows the Surgeon General to issue orders to prevent the spread of disease from one state into another. And I thought—and correct me if I'm wrong, John—that you were suggesting that perhaps the surgeon general could issue an order that would essentially quarantine individual or individuals pursuant to that statute.

 

And my question is this: If Congress actually has that authority, why doesn't it have the authority to, say, pass general criminal laws on the ground that criminals might go from one state into another, and we need to lock them down to make sure that they don't?

 

John G. Malcolm:  Well, by the way, if anyone is interested in checking, the law I was referencing is 42 U.S.C. § 264, and it would've enabled the Surgeon General to prevent people from traveling from one state to another from a Native American territory into a state.

 

Michael Rossman:  Oh, you don't know that that would—

 

John G. Malcolm:  I don't think that they could use it to say, "You have to be locked down in your particular home," but they could certainly prohibit interstate travel. And if they prohibited interstate travel, they could effectively lockdown a state.

 

      Now, with respect to criminal travel—

 

Michael Rossman:  No, no. I had understood that perhaps you were suggesting he could actually order someone to stay in their home as opposed to stay within their state.

 

John G. Malcolm:  No. I think, I was talking about a governor could order somebody to stay in their home.

 

Michael Rossman:  Yeah, yeah. Right, right. That was the distinction.

 

John G. Malcolm:  The President -- yeah, he could prevent interstate travel.

 

Michael Rossman:  Very good. Thank you.

 

Prof. John C. Yoo:  I think it's an interesting statute, this § 264. It's part of the Public Health Services Act, and in the Act, it's § 361.  And John quoted 361(a), which has this language about doing any -- just issuing a regulation that blocks the spread of this disease from abroad or between states. And it's interesting, 361(d), just three subsections after, says, "Regulations may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease when they're moving or about to move from a state."

 

      So the interesting question would be is any regulation about quarantining limited to what you're talking about in (d), which is about individuals who are reasonably believed to be infected? Or is that just an example, and 361(a) gives a broader power to just block all travel out of, say, New York City, whether you as an individual are infected or not?

 

So the individual liberties person would say, "Well, it doesn't make sense to have (d) in there at all unless it was limiting because, otherwise, (a), by itself, which has already have included that power, why is (d) in there unless it was meant to narrow the regulatory power?"

 

And then, (d) only talks—so this interesting, right—sounds like there has to be some kind of proof that the individual you're blocking might be infected. And it may not be the case of just saying coming out of New York City is itself reasonable to believe he might be infected. In fact, even if the worst-case scenarios are true, it sounds like at least 70 percent of the people leaving New York City would not be infected.

 

      So this goes to the executive power. It goes to Dean's first question because that would be a question of administrative law; how much deference the courts would give to the President saying, "Well, I'm going to read this ambiguous statute to give me that power. And I don't have to go through the APA. We're in an emergency. I'm just making this emergency declaration, triggering the Public Health Services Act. I don't think the APA applies in emergency. Good luck in court."

 

John G. Malcolm:  Yeah, well, if you read it your way you'd have to have 100 percent testing at the entry of every -- and immediate results, which would be completely impractical because of the limits on testing and the fact that people can be completely asymptomatic and still have the disorder. So I, again, think courts would be deferential, but it's an interesting question.

 

Prof. John C. Yoo:  I do, too. I do. I agree. I think courts would deferential also. Yeah.

 

Dean Reuter:  We've got five questions and a hard stop at 3:30 Eastern, so I don't think we're going to get to all of them, but we will soldier on now. Caller from 415, go ahead.

 

Joe Russoniello:  Hello. This is Joe Russoniello. I'm in Phoenix right now, and I appreciate your reference to golf because, normally, I wouldn't be listening to you; I'd be out playing golf. But at 100 degrees… We don't even need lockdown laws in order to stay off the golf course when it's 100. [Laughter]

 

      I enjoyed your comments. John Yoo, I enjoy you almost as much as much as I enjoy seeing our friend, Debra Saunders, at the White House press briefing.

 

      My question is this: I think that it's probably true. I think we'd all admit that over the course of time these fine lines of separation of power that we make and have respect kind of break down in times of crisis; whether it's the sedition laws or the suspension of habeas corpus or the internment of the Japanese or Truman's nationalization of the steel industry; whatever.

 

      It's when we have the crisis that we sort of scramble. And I'm looking specifically, and thinking specifically, of this police power issue that Trump got himself kind of twisted up in. And assuming that the police powers are reserved to the states—and there's not much doubt, I don't think, in the minds of most prosecutors that that's where it is—what prevents the states from delegating, in the name of uniformity, whatever, the authority that they have to the federal government, specifically to the President, who might be able to -- and if there is no prohibition on that—the second part of the question—if there's no prohibition on that, couldn't the President, under the same theory, assert that there are exigency circumstances that require that he take this action, whether he has a specific delegation of authority from the governors or not?

 

      And then, the other part of that question is, if he does assert and, putting aside whether the courts would try to stop him or could stop him, how long would the exigency continue in the case of a pandemic? Would it be until there's a vaccine? Would it be until there's been a herd immunization? What would be the mechanism for determining that the exigency has disappeared?

 

John G. Malcolm:  So I have a very hard time imagining people like Governor J.B. Pritzker giving any kind of authority to the President at all. And I just don't see any governors doing it. I mean, to the extent to which you're going to have a friendly governor, they're going to follow whatever advice the President gives because they have a good relationship. But, other than that, I don't see that happening.

 

      And with respect to your exigency circumstances question, Joe. You know, I don't think so. I mean, I think that if you had -- clearly, if there was a rebellion going on, the Constitution gives the President authority. I think he would certainly have authority if there was an imminent foreign invasion coming. There are OLC opinions, as John well knows, that sort of cover those circumstances.

 

      But I think if you just sat there and said, "There's an exigency circumstances and, therefore, I'm going to declare, essentially, dictatorial powers," I don't think that would get very far.

 

Prof. John C. Yoo:  Thanks for your call, and I really hope you're suffering out there in Arizona where it sounds like you can drive around do things still. You were wise to escape the lockdown when you did from San Francisco. Yeah, I think I can't walk 10 feet out of my house without being arrested out here. And without a pass from The Federalist Society to participate in media activities, which do receive the First Amendment exception.

 

      So I agree with that. I think, Joe, actually, your experience as a U.S. attorney here would be helpful because one of the things that you could see happening -- rather than the state directly delegating power to the federal government in this emergency, you could see the states intensively cooperating with the federal government. You know these joint terrorism taskforces, other taskforces. And you, as U.S. attorney, here working on drugs and so on. I think that would be the model where state and federal enforcement coordinated so that their complementary powers would be well matched.

 

      And, as you know, it's really the state police and officials that really have all the on-the-ground information. And so any kind of real effort by the federal government to come in with control, which still would require voluntary cooperation by state officials -- I think your experience would be, I think, more important than a lot of other federal government officers on how to actually do that.

 

John G. Malcolm:  Yeah, you actually raised one other point, John, that's a good one, which is that if the President were to try to do that, there's no way there are enough federal officials in order to -- couldn't use the military because of Posse Comitatus, and there's certainly not enough federal officials to do this. You would have to cocoon state authorities to cooperate, and it can't do that because it would violate anti-commandeering principles. I just don't think you could do it without the cooperation of the states.

 

Joe Russoniello:  Well, you could [inaudible 00:53:15] National Guard. I mean, there are a lot of things that you could do in the circumstances [inaudible 00:53:19]…

 

Prof. John C. Yoo:  Yeah, I was just going to mention—

 

[CROSSTALK]

 

Joe Russoniello:  We know when tornadoes end and we know when floods abate [inaudible 00:53:29] really don't know what the end is or when the end will be. And the President has asserted, "I have the power. I can do these things," when, in fact, he probably can't.

 

But if he faced a recalcitrant group of governors for whatever reason, political motives or otherwise, and made the argument and said, "Look," he said, "you easily could've collaborated with me. We could've done all of this together, but that suggests that you would be giving me the lead on this. And since you didn't decide to do that, I can, because of the exigency of the circumstance, I can assume that power for the duration. Now, it'll take time for a court to make the decision that it was improper for me to do that, but as in the case of Truman, by the time they got around to criticizing him and rebuking him, the crisis had passed."

 

John G. Malcolm:  I don't think so. I think he could use the carrots and sticks that we talked about before, but I don't think he could go in there and say, "I have absolute power," and just do that. I think he'd be shut down pretty quickly.

 

Prof. John C. Yoo:  I think it requires much more circumstances. I mean, there is some power to do that, but the circumstances would have to be much worse than what we're facing now.

 

John G. Malcolm:  Right.

 

Prof. John C. Yoo:  And as you saw in California, with the breakdown of law and order after the Rodney King verdict—

 

John G. Malcolm:  Yes. You'll get a rebellion. Right.

 

Prof. John C. Yoo:  Or some kind of -- yes. Or just breakdown of law—

 

John G. Malcolm:  Your state authorities -- yeah, that's right. If state authorities cannot enforce law, then it’s got authority. But that's what it would take.

 

Prof. John C. Yoo:  Thanks, Joe.

 

Dean Reuter:  Let's try and get to a final question. I do wonder about that language about foreign invasion if there's an allegation, and maybe even some level of proof, that this was an engineered virus. Or, in the future, going forward, a technology invasion of a computer virus that's not feet on the ground, but comes within our borders. But maybe that's for another call.

 

Let's see if we can squeeze in a final question. Go ahead, caller, from area code 917.

 

Josh Jackson:  Yes, hello. Josh Jackson here. And I think, from my perspective, I'm seeing this more through the lens of just public health law in general on a sort of common good for the state itself and that separation through federalism and the like.

 

So to take on the, as a president or the Executive Branch at a federal level, the liability within the states, I think, doesn't help the argument in terms of, "Oh, I'm just going to take it on. It's my responsibility," when it would hurt individuals across the states, all of them. Does that make sense?

 

John G. Malcolm:  I'm not quite sure what it is you're asking. If you're asking about liability for people who are, say, open up businesses and comply with federal regulations -- I mean, so that's sort of the flip side of what John was talking about in terms of Congress' Commerce Clause power.

 

One of them is to say you can't do something; the other is granting them liability. And that is being discussed now. And I think that Congress probably could do this because of the effect on interstate commerce of these businesses either opening up or being reluctant to open up. But we will see what Congress does with that. Now, I don't know if that's getting to your question.

 

Josh Jackson:  Yeah, I mean, it's getting to my question in terms of the -- keeping it in the states, I think, is the lens that we all need to look through this from. And I think Congress would not push to move it out of the states. And the only way that they would think about doing that is if it went against the common good of the country rather than looking at it from a, say, individual rights sort of standpoint.

 

Prof. John C. Yoo:  I get it. I think it's a pretty straightforward. I think if you look at the statutes that John and I are talking about, they actually are very respectful and maybe even reinforce federalism rather than trying to run against it. And they do recognize states are the primary regulators and sort of the ground troops on any public health issue and to provide a more supporting role with money and finances and equipment and expertise rather than trying to displace it. So I quite agree with that.

 

And we -- it looks like we've run out of time, unfortunately. Go ahead, John. Last word.

 

John G. Malcolm:  Let me just -- yeah, the last point is that even, on that same thing, even the regulation that we're talking about, about communicable diseases, has another provision, subsection (e) that preserves federalism. It basically says if the secretary of HHS does not invoke this authority, there is no preemption, and federal and state and local officials can do what they think they need to do to address communicable diseases. So I think cooperative federalism has worked pretty well, and a lot of these statutes recognize that. But, again, difficult times test these limits.

 

Dean Reuter:  Well, gentlemen, I'm afraid we're going to have to leave it right there. We've got questions on the board remaining, but that just points out the fact that we'll need to revisit the John and John Show sooner rather than later. My thanks—

 

Prof. John C. Yoo:  Excellent, excellent.

 

Dean Reuter:  My thanks to you both from joining us from your undisclosed locations. Thanks, as well, to the audience for dialing in and for your thoughtful questions as we continue our Executive Branch Review Week. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

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.