Viral Menace and Civil Liberties

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First appearing in a 1949 dissent authored by Justice Robert H. Jackson, the phrase “the Constitution is not a suicide pact” is being cited today by critics of perceived government overreach. Local, state, and federal authorities have directed citizens to self-isolate to prevent the spread of COVID-19, causing the biggest economic shutdown in modern history. Part of the effort to “flatten the curve”, these initially voluntary quarantines are quickly becoming legal mandates in certain states (and nations across the world). In California and New York, people violating stay-home orders for non-essential activities have been ticketed and cited with misdemeanors. Is there a point at which these restrictions on travel and assembly violate the rights inherent in America’s constitutional order? Many legal scholars agree the chief executive has quasi-wartime powers during national pandemics, but is there a limiting principle or expiration date? Join Professors Richard Epstein and Anthony Kreis as they discuss the viral menace and civil liberties in this Teleforum.     


Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

Prof. Anthony Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology


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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Practice Groups, was recorded on April 7, 2020, during a live teleforum conference call held exclusively for Federalist Society members. 


Dean Reuter:  Welcome to The Federalist Society's practice group teleforum conference call as today we discuss COVID-19, civil liberties, and more. I’m Dean Reuter, Vice President and General Counsel of The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      We’re very pleased to welcome two guests to our teleforum conference call today. Professor Anthony Kreis is a Visiting Assistant Professor at Chicago-Kent Law School. He’s joined by Professor Richard Epstein, the Laurence A. Tish Professor and Director of the Classical Liberal Institute at NYU Law School. We’re going to get opening remarks from each of them of about 15 minutes or so each, first with Professor Kreis and then Professor Epstein. After that, as always, we’ll be looking to the audience for questions, so please have those in mind for when we get to that portion of the program. With that, Professor Kreis, the floor is yours.


Prof. Anthony Kreis:  All right. Well, first off, I want to thank The Federalist Society for the invitation to speak today, and send my appreciation to Professor Epstein for joining, and everyone who’s joining the call as well. My comments will briefly track a few important developments with respect to the right to travel and the right to gather, which I think are certainly worth considering in light of the COVID-19 pandemic.


      And first I want to talk about the public health crisis and the right to interstate travel and explore some of the interesting issues that have arisen with the right to travel and state and federal government power. I also want to briefly touch on some issues that I’ve seen pop up recently about religious objections to state and local stay-at-home orders. And I do want to briefly touch on as well at the end about some important issues that have arisen in respect to the states’ enforcement mechanisms for these travel regulations.


      So of course, it goes without saying that I don’t think since 1918 the United States has faced the kind of public health crisis that Americans face today. And the novel coronavirus pandemic of 2020 certainly jeopardizes millions of Americans’ lives, especially those who are elderly and immunocompromised. And it very well may cripple the American economy as I think we are at a real risk of economic recession and costly depression.


      And in light of this, it is true that public health experts and government officials have faced really, truly stark choices in the wake of the disease. And they can choose to either have swift crackdowns on private movement or face the real possibility of mass mortality from a disease which is significantly more contagious and more deadly than the seasonal flu.


      To calm down the exponential growth of these new infections and avoid overwhelming the healthcare system, governors and mayors throughout the country for the last month have mandated various forms of social distancing, limitations on crowd sizes and the like, and have instituted to some, I guess, standard now some stay-at-home orders which limit most commercial traffic to places that are only essential businesses.


      It’s also true that the pandemic has touched every state of the nation, but it’s also true at the same time that certain states like New York and Louisiana and New Jersey have had especially acute outbreaks. And governors and mayors have really responded to the fear that people from those jurisdictions will travel into their jurisdictions and create new sources of community spread.


      So governors of Alaska and Hawaii, for example, have issued mandatory self-quarantine periods for all people entering the state for 14 days. Travelers from New York, New Jersey, and Connecticut have been mandated to quarantine for 14 days if they’re going to Florida or Texas. The same is true of Louisiana residents going to Texas. Rhode Island for a while was stopping all New Yorkers at the border. And Delaware has implemented a policy which has directed their State Patrol to stop all non-Delaware resident vehicles that are on the roads, with the exception of those travelers on interstate highways.


      So I think this is an interesting moment in time, but course it’s not the first time that public health officials have been forced to make hard choices between life going on as normal or disrupting the public and the public’s scheduling in order to mandate social distancing. And certainly, history cautions us that those who did not make those hard decisions to crack down on social movement -- these folks are not remembered well in history.


      There’s the heartbreaking lesson that many might recall that comes from Philadelphia. Philadelphia in 1918 held a parade of 200,000 people just jamming the streets, notwithstanding the fact that the Spanish flu had begun to take hold in the city. And within 72 hours of that parade, Philly’s hospitals were at capacity, and 45,000 some-odd Philadelphians died over the following two weeks versus St. Louis which did the opposite, enforced social distancing, suspended public events, limited travel, and they avoided Philadelphia’s grim fate.


      But those historical vignettes aside, these recent gubernatorial actions do raise very serious and important questions about states’ power to constrict and restrict the constitutional right to interstate travel, which is, of course, grounded in the Dormant Commerce Clause. I think a lot of observers and a lot of lawyers and law students and the like would naturally lend themselves -- or think about Edwards v. California first, which is the 1941 Supreme Court decision which is in many ways one of the pivotal ones for the right to travel. This decision is not helpful. And there’s older decisions which I think are much more helpful, but I’ll briefly explain why Edwards is not the right one to be thinking about.


      So Edwards was about Fred Edwards, who was prosecuted under California’s anti-migrant law after he left his home in California to retrieve his sister who was destitute and pregnant and his brother-in-law from Texas. California had a law that said you couldn’t bring indigent persons who were not residents into the state. And the Supreme Court of course struck this down as an impermissible burden on interstate commerce.


      Now, Edwards is really a rejection of a century-old precedent that essentially said that states had the power to criminalize poverty as a form of economic protectionism. And so in this sense, the Edwards case is not really read as much or as well as a public health case or a right to travel case balanced against public health, but it’s much more about economic protectionism and morality legislation. But we do have older case law which does in fact recognize the wide latitudes states have had to impose quarantines and travel restrictions that date all the way back to Gibbons v. Ogden, the 1824 Supreme Court case which addressed the power of Congress to regulate interstate commerce.


      But there’s older cases particularly that have to deal with the movement of goods across state lines that long predated Edwards which I think are very insightful. So there are two quarantine livestock cases from the late 19th century which the Supreme Court enforced the idea, or reinforced the idea that states have a prerogative to establish rules to protect public welfare against contagion, even if there are incidental burdens on interstate commerce.


      So the Supreme Court in these cases, for example, okayed a rule in Colorado which said that certain cattle and horses couldn’t be moved from south of the state line into Colorado without a quarantine. Kansas had a similar one for cattle. The essence is here that states can’t block interstate change of goods for economic protectionism, but they do have the right to impose restrictions when public health is on the line and time is of the essence.


      Those quarantined good cases are about the shuffling of products and not people, but we do have an important case in the Supreme Court that does talk about the power of states and the like to constrict and restrict travel to restrain or to prevent the transmission of communicable disease. In 1898, there was a French passenger ship called the Britannia. It sailed from Marseilles to Italy to New Orleans with over 400 passengers. There were both American citizens and some foreign citizens. Britannia eventually arrived outside of New Orleans at a designated quarantine station off the Mississippi. The passengers, the merchandise was all inspected and were given the clear to go, deemed free of disease.


      But at the time the Britannia was moving up the Mississippi towards New Orleans, there was a new case of yellow fever that was discovered in New Orleans, and this was on the heels after an epidemic which had struck the city the year before and killed nearly 300 people. And so as this new case was discovered and the ship was making its way towards New Orleans, the city had mandated an absolute quarantine and blocked the Britannia’s passengers from disembarking, saying that no one was allowed in the city.


      And the Supreme Court upheld the power of Louisiana officials to block the Britannia’s passengers from entering the city. And the Court held that states’ powers to quarantine were essentially not even a question, that the New Orleans order met constitutional muster under the Commerce Clause, even though interstate and foreign commerce might be impeded as a consequence.


      So the Court noted, and I think this is very important, that in the absence of a federally enacted law to preempt state and local quarantine regulations that might affect interstate commerce, that regulations like New Orleans’s are permissible without some kind of contrary federal command. The Supreme Court essentially said that local officials and state officials can enact harsh measures to block even healthy people from coming into a place so that they can limit or -- city or public health officials can limit the potential for new vectors of disease.


      Now along these lines, there has been also talk about whether the President has the authority to cordon off certain states in order to stem the tide of communicable disease transmission. The federal component here I think is much trickier because it does require, in my view, statutory authorization. The President doesn’t have inherent power under Article II to quarantine states unilaterally. And so the current statutory framework which does exist doesn’t even convey that authority in clear terms.


      So under the Public Health Service Act, the Surgeon General has been granted authority to adopt measures to help [stop the] spread [of] communicable diseases between states and foreign nations. And so there are regulations that have been adopted and promulgated to authorize CDC under the act to detain interstate travelers between states who might be suspected of being likely vectors.


      But there is a real question about the granularity requirement here because I think the most plausible read that’s faithful to the text is that individual-level targeting is required for quarantine orders. In other words, broad geographic sweeps such as, I don't know, something like “all persons in New York can’t travel by order of the federal government to certain places” would not be granular enough. Certainly, there might be a position that an administration could proffer that individual determinations can be made by some kind of emergency regulation that creates a presumption that people from a certain area might be reasonably assumed to be vectors, but I think that’s a very tough uphill battle for federal officials to climb.


      But the controversy certainly will continue to brew over the interstate commerce issues and the right to travel. But I think the right to travel cases, the livestock quarantine cases provide ample authority that backs states’ ability to limit travel restrictions on nonresident interstate mobility. Now, that’s not unfettered, of course, and if orders are arbitrary, overbroad, if there’s some kind of arbitrary discriminatory animus behind it, those might be challengeable in court. But I think it’s pretty much true that that’s unlikely to happen.


      The touchstone of the right to travel as articulated by the Supreme Court in Sáenz v. Roe, for example, is that the right to travel has three primary features: the right to enter and leave a state, the right to be treated as a welcome visitor temporarily present in another state, and the right for individuals to elect to become permanent residents of other states. But given permissibility of public health orders in this kind of moment or the permissibility of these public health orders should be weighed against the characteristics of the disease that we’re dealing with right now and the way that residents versus nonresidents are treated.


      And I don’t think that any opponents of the state executive orders are likely really to have a strong case because unlike other outbreaks, we don’t really have an established standard for when individuals are infectious. We don’t have the ability to directly test states and symptomatic individuals, and so the question will really turn on whether state officials’ restrictions on interstate travel by individuals coming from jurisdictions mistreats out of state individuals versus residents differently. So I think barring some kind of total ban on nonresidents from identified jurisdictions from entering a state, it’s hard to see any judicial intervention or successful litigation.


      So simply put, federal courts are not going to enjoin these kinds of temporary measures which on their face appear reasonably -- or appear to be reasonably calculated to save lives. And I think this is why courts -- why expertise matters so much because we really do need to be skeptical of non-experts who are like, for example, Peter Navarro who has claimed yesterday to have some kind of expertise to assess FDA policy, notwithstanding the fact that he is not a pharmacologist. I have concerns about other people who are prominently in the news who are proposing kinds of policies that might not be scientifically sound because the truth of the matter is that courts won’t save us from bad decision making.


      I just want to briefly do want to talk about some of the other issues that we’re seeing, particularly in the religious liberty front. And I think the same principle, the idea that science and emotion or political expediency should not guide pandemic policy should also extend to how we treat religious gatherings and stay-at-home orders. The last few weeks, we have seen religious leaders in Florida, Iowa, Texas, and Louisiana really resisting some of these stay-at-home orders. And we’ve seen some individuals who’ve issued executive orders create express exemptions for religious persons to congregate.


      And I think this is also an important issue for the right to travel and the right to congregate. These principles are not unrelated. We have a long history in the American jurisprudential tradition of understanding that public health rationales are incredibly important and that exceptions aren’t necessarily the best thing to do when you’re trying to overcome a pandemic.


      This is true that the Jacobson v. Massachusetts case, which is the 1905 case which basically held that mandatory vaccinations in wake of a pandemic were not an unconstitutional infringement on personal liberty. The Supreme Court reaffirmed that 17 years later in a case called Zucht which required -- San Antonio schools required public school students to have a smallpox vaccination or otherwise they would be barred from enrolling in school.


      So I think it’s really important here that we think about this and this tradition in the same context that we’re thinking about the right to travel about how religious adherents are governed and whether there should be some kind of exception to public health measures which are designed to apply generally, including social distancing and crowd size maximums, and whether political officials should be creating them by executive order.


      These are certainly important things that we need to think about, but I think the challenge is that while on one hand, these exceptions might prioritize religious practice over all else, and that might be constitutionally problematic for some, I do think that we also need to think about the public health consequences for communities of faith who are not adhering to these kinds of policies and practices. We really do need to think about this, I think, a little bit more comprehensively than we have.


      I’ll just kind of wrap up with this parting thought. Certainly we’re finding ourselves in a historic moment that will indelibly change how America operates for the foreseeable future. And governors and public health officials will certainly take every reasonable measure that’s at their disposal to fight off the pandemic. But we do need to think about the honest concerns that are raised for civil liberties, and we really do need to think about the wisdom of some of these policies, even amid a crisis, to hold both government powers accountable but to really also protect constitutional values in the public policymaking process.


      So with that, I will turn it over to Richard, and I’ll look forward to your questions.


Prof. Richard Epstein:  Thank you so much, Anthony. Let me start from the beginning and follow the arc that he did, which is to give some estimate about the nature of the crisis that we face, which everybody regards as severe, and then something about the permissible kinds of responses that government officials at either the state or the federal level are entitled to deal with this.


      I think the most important thing to understand about this particular situation is the way in which it stands relative to the 1918 pandemic because they are completely different situations. In 1918, the number of deaths in the United States was about 675,000. The current number of deaths from the COVID situation are under 12,000. Worldwide, the number of deaths are about 78,000, which is about 12 percent of what it was in the United States in 1918.


      If you look at the latest maps, what you see is that essentially the biggest hot spot is the New York metropolitan area where essentially more than half of the particular cases have taken place. And then there are isolated hot spots in other states where particular kinds of facilities have been in danger. The most famous of these is the Kirkland facility in Washington state in which there turned out to be an influx of coronavirus with respect to people who were in a nursing facility, and it decimated large portions of the population.


      So the hard question is now what’s the trend line on this? It seems as though we are probably either at the peak or we are going to approach the peak. If one wants to get a magnitude of the situation that’s between the original estimates on the one hand and the current estimates on the other, it’s important to note that serious estimates, first from Imperial College in England and then from the group of epidemiologists — who I still don’t identify as such — in various kinds of plans had the numbers as being at, say, as many as 10 million cases a day, half the population in aggregate, with a death toll of something in excess of, shall we say, 1 million cases.


      The total number of deaths nobody can be sure now, but depending on where the peak is, it’s probably more likely than not that it will not exceed 100,000 in the United States and may, in fact, be considerably less than that. But as we know, these things are in vagaries.


      But if you want something -- I’m looking at a map now from the New York Times, and it’s clear that the case growth in New York state is now basically much slower than it was a week or so ago. The total number of deaths in the United States, over half of them are in the New York metropolitan area, which includes New York City and northern Jersey. So I mean, there’s a lot going on. California, which is under lockdown, has 400 deaths, to give you some situation out of a population of close to 40 million people.


      And so the first question one has to ask is when you start to look at these kinds of things, to what extent do you have to make some kind of estimate as to the severity of the situation when you want to put these things into place? And this is, of course, in two parts. There was the surge that took place towards the end of March and the first days of April. Now it seems to be going in the opposite direction. And so the question that one has to ask is to what extent when you think about the police power ought a state government or the federal government take into account the changes?


      Now, it’s an interesting kind of situation because the limits that one has on the police power in the states are not going to be brought to you by constitutional means. But most states have explicit provisions that deal with emergency authorizations. And sometimes, you have to wonder as to whether or not the particular results in question are consistent with the state authorization that is given to the governors.


      So in California, for example, there’s a statue which says that the governor in a state of emergency can suspend evictions, and he can do it for 30 days. And then there’s another provision which says that he can extend it for another 30 days after, I think, speaking to the legislature. Well, can you then decide within the state to simply suspend the evictions to 60 days?


      I think the answer under those circumstances should be no. That is, if you’re trying to talk about the way in which this works, as Anthony said, worried about the sort of distribution of powers, if in fact you have something which limits the power of the governor to act under emergency situations, an emergency by definition is not going to be a reason to justify getting around this particular situation. And here, as with, for example, the War Powers Act, it is very common to put temporary time-sensitive limitations on the way in which this particular power should be exercised.


      Now, what is very troublesome, of course, about this, is there any particular way in which you could get the judicial system involved in order to slow down something if you think there’s an excess? And here, generally, the deference that has been accorded to public officials with respect to emergencies vis-à-vis the courts and constitutional challenges are pretty much all-pervasive. The police power that we commonly talk about having to do with health and safety is not specific to one or another congressional powers, one or another state legislative powers. It’s kind of an omnibus exception which says that no matter where you start, you’re always going to have to run into the presumption of enormous deference given to public officials for what’s to be done.


      If courts are going to try to get themselves involved in these sorts of situations, it’s going to be extremely difficult because the timeframes that you have are too short to allow for thoughtful adjudication to take place, particularly if you want to do it not with one suit like, for example, say, Bush v. Gore in another kind of crisis, but with respect to countless sorts of actions brought by all sorts of people in all sorts of places with respect to what is going on. So I think what one can say under these circumstances is that the judicial remedy will not work in any particular way.


      Now, the next question, of course, that one wants to ask about this is what about non-judicial remedies? And here, again, it’s just so extremely frustrating. You start looking around. You see the decline that is starting to take place. You then get all sorts of disputes amongst epidemiologists, for example, on something as simple as whether or not it’s good for people to be out in fresh air or whether you want to keep them in their homes, and the former is probably more correct than the latter.


      And so then you could start asking the kind of question which says, well, if you tell people that you have to shut down the public parks and doing it in the name of public safety, is that something which you can get lifted relatively promptly, given the fairly solid epidemiological evidence going back to many of these kinds of large and small pandemics which says that this is, in fact, something that ought to help? And so what I think the strategies are, if you’re going to try to attack this stuff, is not to go wholesale with respect to the police powers that governors and the presidents start to have, but it’s to try to find particular orders that seem to you to go pretty much in wrong direction with respect to the ways in which these things happen.


      Now, the second question that I think one wants to ask is what about the distribution of powers between the states and the federal government, and how does one try to think about that? Well, it is, here, I think, very important to sort of distinguish between what I would call the pre- and the post-New Deal Constitutions. The post-New Deal Constitution is that which dates from the decisions in Jones & Laughlin on the one hand and Wickard v. Filburn on the other. And it says there’s no such thing as a local activity when it comes to the way in which the federal government can exert its commerce power because of all the indirects. And so what they did in that particular case was to completely reverse the pre-New Deal understanding, and now manufacture agriculture, mining, and all sorts of other activities that take place within the state, including local commerce, are in fact subject to federal regulation.


      So then when I started teaching in law school before the Lopez rebellion, which didn’t go very, very far, the great question that you used to pose to your students all the time was a very simple one. What you said to them: “Find me something that cannot be covered by the federal commerce power.” And no matter how preposterous the claim was, you could regulate it. Want to regulate weddings? Of course you can because it may well be that the lettuce is coming from interstate commerce, and you’ll influence the power. And so on it went.


      Now if, in fact, you have the narrower version about interstate transactions, then about the only thing that the federal government could really do with respect to one of these things is to make sure that you could keep the arteries of interstate commerce open under a kind of a balancing test which would ask whether or not the state need to protect its public health would in fact be sufficient to stop the interstate commerce situation. Interstate commerce challenges through either the Dormant Commerce Clause or to an explicit authority by Congress are not going to be done under a rational basis test where anything goes. There’s going to be a much higher level of scrutiny to see whether or not this thing actually matters, and at that particular point, the stuff that I mentioned earlier on about the ebbs and flows of the coronaviruses and the ultimate estimates as to what is going to take place probably will matter.


      So if the state of California wanted to keep out all goods from coming into the state, and all it can show is that it had at this particular point in time under 400 deaths, and you could show, in effect, that those particular deaths in fact are also getting abated, they are now less frequent than they were a couple of days ago so this thing may have peaked even in California, you can argue, no, you can’t do that anymore because the trend lines are sufficiently against you, and so therefore what you have to do is you have to come out of this thing pretty much in the opposite direction.


      And I think, in effect, that those arguments actually have a fairly good chance of succeeding. And since it turns out that some of this stuff you’re trying to put into effect not for a day or a week or an hour, but you may want to do it for much longer period of time, it may well be that you could even get in a judicial forum in that way.


      So the questions then that Anthony raises is how is this done at the federal level? And he said he didn’t think that there was anything that the President could do by executive order to do this. It would probably take an order from Congress. That’s my first approximation too. But then you get back to the following situation. If you were really talking about the, quote, “modern presidency” and so forth, and you start talking about all these fancy words about inherent powers and so forth, you can make the following argument that given the importance of the necessity, given the tripartite test that people use under the Steel Seizure Case, what you really ought to say is that in this particular area where Congress is silent, given the nature of the emergency, the President can move unilaterally within reason, and then it’s going to be up for the Congress to strive to veto him if not.


      Is this true or is this false? Well, frankly, we’ve never tested anything like this, but there’s nothing I think about this which would rule you out. Under the modern stage, it seems to me there’s nothing you can say that the Congress can’t just simply wipe out the entire scheme here just as it could do under any other circumstances.


      And so the common statements which I think are imminently sensible as a matter of first principle, John Yoo, Walter Olson both said, “Well, the state police power dominates these things. And if a governor could put these things into place, the governor and then maybe the state legislature could do it, but the President has to butt out.” That’s accurate, pre-1937. I don’t think it’s accurate post-1937. I think if President Trump were to try to intervene on this, the political fallback would be so enormous that it would basically doom his administration. So I don’t see that as going to happen.


      But again, suppose now one wants to look at some sort of more modest types of interventions of one kind or another. Maybe if they were coercive, maybe they could be sustained. But I think the President has taken the right track. I think this advisors have done well by him on this one, which is to basically limit his particular role to providing hospital boats, ships, authorizations, or something or other to help the states rather than trying to override it. I think that’s a much more sensible way.


      But then let me just end on the one note which I think is extremely important in this is I think what you have to do is to -- figuring out the ways going forward certainly is a political matter and maybe even is a legal one. That’s much more doubtful is that you have to look at the direction of the particular virus rather than the original projections as to how it is.


      And fortunately on that particular issue, the news now seems to be good. If you want one good telltale sign of this, New York City, which has been at the epicenter of this particular situation, has had more discharges than admissions into its hospitals over the last five days, which suggests that something about the trend of this particular disease is moving in the direction that we all devoutly hoped for, and that the time at which this thing will be back to a tolerable level is sooner rather than later, as was done commonly in the earlier projections.


      So with that, I think we should open it up to questions.


Dean Reuter:  Then let’s turn to our first caller.


Caller 1:  I wonder if you could comment on an action by the governor of Michigan who, for a number of days, prohibited the prescription of antimalarial drugs. These things had gotten politicized. That seems to me something that would be covered by preemption, the FDA. But I’d be interested in your comments. Thanks.


Prof. Richard Epstein:  Boy, do I think you’re right about that. I mean, if it’s been authorized by the FDA, it cannot be prohibited by the governor. And that would be something I think under these particular circumstances that you could achieve by a pretty straightforward injunction.


      Why one would want to prescribe this is again another mystery. In these particular situations, my usual view about the FDA is it’s always trying to do things on the wholesale level, and physicians have much more individual information about particular cases on the retail level. And that suggests that the only time you want to ban something is when you can’t think there’s going to be some sensible uses. But if, in fact, there’s a dispute over to the extent to which it is used, and some of these antimalarial drugs evidently are now routinely used in New York hospitals, not because of federal mandate but because of physician choice, I think it’s a case in which you really want to protect the physician choice.


      And I think the governor, (a) should remove that thing, and (b) I think a doctor or a patient could bring a suit, and I would give an injunction against the interference under these particular levels. This is the basic point that I started with, which is you may not be able to deal with plenary police power objections. Those things are going to be basically beaten back at the ground level. But I think at the specific level, a preemption case here is very much consistent with the entire pattern of FDA law.


Prof. Anthony Kreis:  It would seem to me that the kinds of cases that courts will not want to wade into will be the ones that are really about police powers and broad public health assessments that are made or relied upon in order to craft police power based stay-at-home orders and things like that. These kinds of preemption kind of claims are the ones that I think, if any, would be much more likely to be entertained by courts, and you would get some kind of judicial intervention. But barring those kinds of cases, you’re just not, in my view, going to see a lot of appetite by judges to wade in on this kind of stuff.


Prof. Richard Epstein:  Next?


Maurice Thompson:  Hi. Maurice Thompson in Ohio. I have a question about two other kinds of federal claims that you did not address, although very close to the line, the first being the right to intrastate travel, that is, travel within the state which in many federal circuits has been deemed a fundamental right subject to strict scrutiny, including our circuit, the Sixth. Secondly, procedural due process where many of the governors’ orders declare certain kinds of business or travel essential or nonessential but then do not provide a hearing or opportunity to contest that ruling, even if the orders last for 30, 60, 90 days or indefinitely. Thank you.


Prof. Richard Epstein:  I’m with you on the second one. I do think, in effect, you want to try to find a way to do this. In fact, I think one of the saddest things about this is I could understand why it is that you would put one of these orders into effect if you thought there was a deep emergency without going through the usual consultative process. But I think, in fact, another thing that I would do consistent with what you said is I think a state FOIA or a federal FOIA request which says, “Please let us see the epidemiology and the other evidence behind this thing,” and put it out for public discussion is in fact something that should be granted, and the order should take place within 24 hours. And so I think, in effect, yes, all of the kinds of challenges that you’re going to talk about I think, in fact, should be there.


      And the first question about intrastate travel as a fundamental right, I think Anthony and I are going to come up with the same answer. You’re trying to bring a general diffuse police power is insufficient justification for that case. And since you don’t have anything more specific, I think that case is likely to be much weaker than the first one you had. And I would like to see more FOIA requests. I would like to see more due process challenges on an expedited basis because I think that the arbitrariness of the powers is inexcusable because these are not orders keeping you out for one or two or three days. These things are in many cases now scheduled to go all the way through May.


Prof. Anthony Kreis:  So on the intrastate travel in particular, I think that if we’re looking at the current situation we’re in in particular, I think that the policy prescriptions that governors have been implementing have been fairly benign for the most part. So this idea that if you come from an identified jurisdiction that you have to self-quarantine for 14 days, and then you’re free to go out and about is a fairly benign restriction on the right to intrastate travel. And certainly, again, so long as those policies aren’t just kind of a total ban of nonresidents from a particular jurisdiction or some kind of policy that really grossly mistreats nonresidents over residents, I really have a hard time seeing any kind of judicial intervention.


      I do think that there are some more problematic policies than others that might warrant greater inspection, or at a minimum, greater debate amongst us. So for example, I do wonder about the Delaware example where it’s been reported that non-Delaware resident tags, so people who are driving from out of state, might be liable to be stopped if they’re not traveling on an interstate highway. That might be problematic, but I think certainly we need to think about that more and think about the consequences of that kind of policy more thoroughly. But as a general principle, I don’t think that those 14 day quarantine requirements would be subject to any successful litigation.


Prof. Richard Epstein:  I don’t think you’re going to win, but I have the following situation. There is the real question with uniformity within states. In New York State, there’s no crisis in Rochester, Buffalo, Schenectady, or Albany. It’s all in New York City. So are you basically going to say if somebody wants to go into Pennsylvania and they could pull out a driver’s license which shows that they’ve lived all their life in Buffalo that they should be subject to a two week quarantine when people inside Pennsylvania have exactly the same risk and they’re allowed to drive around freely? At that point, I do think, in effect, that there’s something that has to be done about this because there’s overreaction on this in many, many cases.


      And in California, for example, I do think it’s perfectly respectable for somebody now to start to raise a challenge and say, “Look, governor, we’ve had this under place for 15 days. You’ve got 400 cases. The actual recent trend is that the case load is decreasing, not increasing.” That seems to me to be at least an argument to say maybe you’ve got to rethink this thing. I don't know if you could win in the courts, but I certainly would want to in connection with, for example, the quarantine of somebody coming into Wyoming where there are no cases to a part of California where there are no cases, I would think that you might be able to say that the burden on interstate commerce is too great because the 14 day stuff makes a lot of sense if you’re going in and out of New York City. It doesn’t make a lot of sense if you’re going in and out of Wyoming. Another case?


Dean Reuter:  Go ahead, caller.


Michael Graham: This is Michael Graham. I’m in New Hampshire. Governor Chris Sununu just said that he, quote, “absolutely” has power to control people coming across the border to New Hampshire, fleeing hot spots like New York, etc., and coming to rural areas, and that he also absolutely -- and that the question isn’t whether he has the power but whether or not he chooses to use it. And I wonder if someone could point me to that absolute power and follow up on the previous caller’s question about discriminating state by state. And interestingly, the citizens of New Hampshire are pushing the governor to do so because they’re afraid of being -- having their small, rural hospitals and medical facilities overwhelmed.


      So the two questions are, number one, is the governor right that he absolutely has the power to treat New Yorkers and Vermonters differently? And number two, does is kind of make you nervous that we now live in a country where people say, “Yes, government, go get ‘em! Keep the people away from me!”?


Prof. Richard Epstein:  I mean, I think, in effect that absolute power leads to absolute corruption. This is a serious kind of situation. At the very least, I think the governor should say, “I think this is correct. I’d like to get the legislature behind me. I’d like to disclose the findings.” And so I think that kind of the imperial attitude that is taken by many governors now is deeply upset.


      And in fact, I mean, you actually want to figure out what is going on there. So for example, if you have somebody who’s under the age of 60, the likelihood of that person being a deadly carrier is very, very small. The likelihood of that person being a victim is very small. And what we know is that virtually all the cases who have died are in the over 70 situation. Most of them have comorbidities. And so what happens is that you’re taking a situation where we know there’s a targeted group whom we might be able to keep out, the high-risk people, and then you’re applying it to people who are extremely low risk in terms of what it is that they’re going to provide.


      I think, in effect, that Anthony’s correct. These challenges are going to be beaten back. But I do think as part of the political discourse, it’s important to say that you’ve lost all sense of proportion in the way in which you are now looking at this kind of thing because there’s a lot of pretty good medical evidence out there, and none of it supports the really strong view that everybody who comes across the state border is, in fact, an imminent peril to the way at which people at large will live or die.


Prof. Anthony Kreis:  I think it’s true that while I have the position that most of these orders will ultimately withstand constitutional muster or at least judicial review, it’s not a completely, totally unfettered power that governors and legislatures have to keep people out and to cordon off their state entirely. And there is some historical precedent for these kinds of cases where there’s a degree to which these bans are arbitrary and overbroad.


      So there’s the case often that I point to, the Jew Ho v. Williamson. It’s an early 20th century case. San Francisco officials had a case of bubonic plague. They were petrified that this was going to spread. But they created a quarantine that was essentially racially discriminatory against Chinese residents of San Francisco. And so the court was willing to step in to cut back on that or to restrict the power of San Francisco officials in the sense that they created a quarantine that was inconsistent with scientific evidence and ineffective.


      Same thing was true in an early 20th century case out of Brooklyn. And there, there was a smallpox -- again, the city was dealing with smallpox, but there, there were city officials who mandated isolation for anybody who refused a smallpox vaccine. But there was no -- and so they mandated the individuals be quarantined, but there was no basis to suspect they were infected or exposed, and so the court was willing to step in.


      So I think that there are examples where an arbitrary or capricious or overbroad regulation could very well be challenged like that. And I would be skeptical of any state government official saying, “I’m not letting anybody in my state.”


Prof. Richard Epstein:  Can I just make one very brief comment? The Jew Ho case from 1900 is very interesting because this was the world’s most bogus quarantine. It said that Chinese -- people of Chinese origin could not leave the Chinese quarter, but white people could enter that Chinese quarter. And the judge said that this was not a quarantine at all, which it wasn’t. It was just a sham transaction. That kind of a case, therefore, brings in the racial element that you don’t have in all these other cases, and so even though I’m very skeptical about the ways in which these absolute claims for power ought to be treated, I don’t think Jew Ho is going to get you there.


      And let me just mention one other thing. The Jacobson case, I think, you have to understand it’s a fake. And what happened is the fellow in question there said, “I’ve had serious reactions to these vaccines, and I don’t want to take them.” And the state said, “You’re absolutely compelled.” But the kicker was, “And if you don’t do it, we’re going to fine you $5.” So it wasn’t an order to perform, it was an order to perform or to pay. And it was only when the school exclusion cases came up in the 1920s that they said, “Unless you get vaccinated, you can’t go to public school,” that there was a real sting associated with the operation.


Dean Reuter:  Very good. Let’s check in with our next caller.


Caller 4:  I’m wondering if we can broaden this out and talk a little bit about the federal government. It’s obvious that Congress is in recess, and people are talking about more legislative action, but they can’t pass anything if they’re not in Washington. Can you talk about what the limitations are for the Executive Branch to do anything to fight coronavirus, absent further legislative action?


Prof. Richard Epstein:  What the President can do? I mean, my view about it is he has a fairly broad sway to do something under the general Steel Seizure Case doctrine. There’s a lot of, quote, unquote, “inherent” powers. It was something that liberals for a long time were in favor of and conservatives were against. It’s amazing how these roles can reverse.


      But I certainly think that he can do a fair bit of suspension with respect to the ways things work. I don't know if he could do it with respect to things that are exclusively charged to administrative agencies, but I think in terms of sort of general stuff, he probably has some power. As I said before, I think Trump has made the very strong judgement that everything he’s going to do is going to be assistive and facultative, facilitating. He’s not going to do anything that’s going to limit what’s going on in there, and I think he’s probably made the right political judgement.


      I think, in effect, what has to happen is that the state governors should really be asked by the press and the public to account for their decisions, given the fact that the trend lines seem to be moving away from the need for additional severity. There’s even some questioning about the social distancing and about the masks. I’ve even seen one or two articles which say, “Well, you know, ventilators are not always very good for this stuff. There are some disadvantages associated with their operation.” I think the medical questions should be decided by the doctors and not by the politicians in some of these ways.


      But I do think that the governors should be at very least called to account to explain the reasons behind their particular orders, given that the viruses have not shown the degree of exponential and explosive growth that they said they would when they put these things into place. When the governor of Illinois, J.B. Pritzker, put this thing up, he said, “My epidemiologist told me there’d be tens upon tens of thousands of deaths within the state if I didn’t do anything about it,” that’s clearly wrong. So when does he revise and why?


Prof. Anthony Kreis:  So I think that just barring some kind of express congressional authority, the President’s fairly limited here. Now, I did mention the public health statute that is on the books. There is, I think, perhaps some room there for some promulgation of emergency rules to give the President a little bit more leeway, perhaps. But I think this is really a call for governors and mayors and local officials to create policies under their police powers which are tailored for their communities. And I think that’s certainly an important dynamic, or an important dynamic here is taking into account what local communities need and what particular states need.


      For the federal government, in my view, the main role here is really supply chain management with the Defense Production Act and things of that nature, that to me is where the government could be doing the most good, perhaps, as governors and legislators and mayors continue to promulgate new rules which are tailored to new rules which are tailored for their particular community and the kinds of advice that they’re given by their own public health officials and given what they’re seeing on the ground in their own neighborhoods.


Dean Reuter:  Next caller, please.


Caller 5:  A foundational question about some of these orders and how they might be inspected maybe as a group, giving some of the examples that if allowed to stand could serve as precedent or guides for future situations. But when you have the governor of Florida announcing that there is a ban on people coming from a general area of substantial community spread, and there are criminal penalties attached to that ban -- now three state names were added at some point, but still, the words substantial community spread remained. And in addition to that, there was also criminal penalty for not disclosing to every person with whom one had contact if one came from an area of substantial community spread that they had indeed been in this area, there was just very frustratingly vague, overbroad, and difficult to imagine enforcement.


      And then you have local officials who were expressly enrolled in enforcing this using a lot of discretion in the enforcement. And then you’ve got a city council in Texas where the mayor has decided that he will -- that the council has voted to instate fines and misdemeanor penalty for not wearing a mask in public. So at what point is there a measure, a way to bring some of these into public scrutiny, maybe even a list of them because they’ve never been -- in Florida, these have never been cleaned up.


Prof. Richard Epstein:  I’m quite appalled by this. First of all, I mean, to the extent that you want to impose these duties on individuals, it’s been a general practice that there has to be very specific notice given of these kind of novel affirmative actions before you can tell individuals that they’re going to be subject to criminal penalties. And it’s not at all clear that the dissemination of these things is going to be sufficient to meet the notice requirement associated with the criminal enforcement. It also seems to me that it’s a little bit crazy to some extent because in some of these cases, the obvious thing to do is to give some kind of a warning if it turns out that you think it’s appropriate.


      And the other thing, again, for example, with respect to the masks and so forth, there’s a lot of dispute about their effectiveness. One would like to see, before any criminal order is put into place, a set of findings that are made by the party who’s doing it as to the necessity of this and why it is that less restrictive means will not work. And I think to the extent that we are doing that with sort of general orders but with criminal sanctions against individuals, maybe Anthony disagrees, but I think at that particular point, in a criminal prosecution the due process kinds of issues having to do with sufficient notice, specificity, and so forth will really grab, and that that those should be good whether or not this turns out to be some kind of a pandemic.


Prof. Anthony Kreis:  I have kind of two thoughts here. I think on the first end, there are tough questions here that aren’t legal in nature. And I think that there is an important lesson to be learned here about the importance of clear political communication. And I think Professor Epstein kind of echoed this idea in a sense that you do need to have public officials who explain to the public what the policy is, why that policy is being put in place, and what the benefit is to the public, and why compliance should be adhered to by members of the general public. That is something that there are governors who have not been so great about that, and others have been better. And so I think when you have political leadership that is able to communicate back to the public, that is an incredibly important public health tool on its own, aside from the legal questions.


      In terms of the policing aspect of it, I haven’t -- I’m not a criminal law scholar, and so I have not thought about this in terms of either Fourth Amendment or some kind of due process question. But as someone who is concerned with lessons of history and social change and the like, I do think we need to think about who’s enforcing it and how the people who are charged with enforcing it interact with the community and the consequences of that. Police -- the fact that we have a lot of folks -- we have police officials in charge of enforcing public health measures may not always necessarily be the smartest thing.


      Just for one example, there was a state senator in Georgia who had contracted COVID. By all accounts, it appears that he had recovered through the recovery process and was no longer a public health risk. He decided to go to his vacation home, his property in Florida, and the local sheriff decided to have essentially a press conference berating him for coming.


      Now, that may not have been a wise decision for him to go to his vacation house. I’m not going to make that judgement call. But I do wonder whether having the lead law enforcement officer of the county going to have a press conference to target one individual because of a perceived threat to the public health -- that may not necessarily be the wisest choice of -- course of action. So we do need to be cognizant of who’s enforcing it and how particularly government, police, community relations are affected by the way we choose to enforce these kinds of public health measures.


Dean Reuter:  Let’s see if we have a chance to get a final question in here.


Ed Heimlich:  Yes, this is Ed Heimlich from Texas. My question concerns these governors that are telling landlords that they cannot evict tenants. In Texas, we had our supreme court justice issue an emergency order saying that we cannot evict tenants that don’t pay rent. As you know, Article I of our U.S. Constitution prohibits the impairment of obligation of contracts. It’s prohibited as applies both to states and federal government. So is there any precedent for this?


Prof. Richard Epstein:  It’s the same problem we’ve had before. Impairment of contract gives you a prima facie case. The police power gives you something else. The way in which you’d want to look at this is look at is as the question of what is they’re telling you the quid pro quo. And all of the cases in which there have been basically payment moratory on mortgages and now on leases, there’s always been at least the assumption that you have to pay it back at some later time. And the question is is a promise to pay it back at a later time a full and sufficient equivalent for something now? The answer to that question is no because these things could be extended indefinitely, they they’re going to slow down the actual eviction procedure, and then even if you could evict the tenant, it turns out you can’t get the rent from them anyhow.


      The real crisis about this is an immense shortsightedness which is landlords will continue to have expenses even if tenants don’t pay rent. Then the question is how are they going to be able to keep the boilers running, the halls clean, and everything else up if they’re stripped of all kinds of revenues? They’re not going to be able to get a loan under these kinds of circumstances because they can’t back it up against the rent, and so this is a classic illustration which I think you can make the claim that there’s some overreach. I think what you could say is maybe you cannot make an eviction in some sense, but if there’s nonpayment of rent, then the government has to pick it up.


      What you really want to do is have a very different kind of order which says, “Look, landlords, this is a terrible situation. If people don’t pay rent and you evict them, you’re not going to be able to relet the premises anyhow.” And you hope that they would be able to get some kind of a compromise on the amount of rent that is paid so as to allow the landlords or the banks to remain in business.


      The serious risk here, and it’s a police power problem of a major proportion, you get tight enough on landlords, you get tight enough on banks, what’s going to happen is you’ll get bank rations because the banks will be not getting their money and there’s already a tendency for people to want to put money under their mattress because hoarding is going to take place, given the overall shutdown. I’m just going to state my position clear. I think that this is an overreaction by a factor of 100 in terms of the kinds of economic consequences which will turn out to be more deadly than the virus itself.


Prof. Anthony Kreis:  So I think in some ways -- I’m not a right to contract expert, per se, but I do think that we can have a historical lesson here to some extent. So I’m a firm supporter of the efforts by governors to suspend rents and lighten an eviction.


      Now, I think part of -- when I think about this, I’m reminded to some extent of a historical lesson. So in early 1901, there was a smallpox outbreak in the upper east side of New York, particularly in tenements with Italian immigrants. Now, smallpox, of course, is very deadly, 30 percent fatality rate. But the New York City officials had decided that they were going to basically shut off with police officers and public health officials to surround the neighborhoods, go door to door, and inspect each immigrant family, essentially, for exposure to smallpox. And if they weren’t exposed, that they would be forced to have a vaccine.


      Now, the vaccines at this time were very crude. Many times, they had side effects. And folks resisted this because they were afraid that even if they were affected that they would essentially be laid up by a vaccine that was effective but would make them sick for a number of days. But of course, the problem was is that being sick in a middle class, poor working class person in New York in the progressive era isn’t exactly a great thing for your economic security. And so it’s that lack of a social safety net which long predated that public health crisis which was acutely problematic for those new Americans.


      So I think that in many ways, we need to think about these problems from a more systemic or a bigger 40,000-foot level view. How do these kinds of public health crises affect members of particularly vulnerable communities when we have a system where many of these people are living paycheck to paycheck? There really is no good one solution. And I hope that what we do as we come out of this crisis in the future years is we really think about what are we doing in terms of underlying policies to make sure that when these crises of economic public health crises arise, what are we doing to best prepare ourselves and to create the most amount of stability for the most amount of people?


Prof. Richard Epstein:  There’s where I do disagree. These rent orders, I think, are statewide. The community may have zero number of cases. Somebody may not have lost their job. It’s just incredible overbreadth that’s going on in these circumstances. You could say quite simply to the governors, “If you guys really want to tell them they have to suspend the rent, you could suspend the rent, but you have to find public revenues in order to give the landlord something so as to make sure that they’re not going to be wiped out under these cases.” There will be claims that will be brought against the government if it turns out the landlord is driven into insolvency. I don’t want to see that happen, but this again is just wild overbreadth of what’s going on.


      The state of California has 400 cases like this. They’ve shut it down. And now they’re shutting down the landlord-tenant markets and so forth. And it seems to me that at some point, someone somewhere should say, “This is a disproportionate response.” There is no legal concept more difficult to enforce than disproportionate impact, and there’s one that’s no more essential than we have today. And in terms of the way in which these games have actually played out, the overresponse, I think, as I said, is much more deadly than the virus, given the current trajectory of economic ruination on the one hand and the abatement of the virus on the other. That’s my last words for the day.


Dean Reuter:  All right. Thank you both for your comments. Great to have you on. Maybe we’ll have you back soon as things continue to develop. I want to thank the audience as well for dialing in and for your thoughtful questions. We are adjourned. Thank you very much, everyone.


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