The Constitutionality of Covid Stay-At-Home Orders Edition

Episode Notes

Transcript

@theBar

The Constitutionality of Covid Stay-At-Home Orders Edition

05/20/2020

[Music]

Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and young-ish lawyers come together and have unscripted conversations with our guests about legal news, topics, stories and whatever else strikes our fancy.

I am your host Jon Amarilio of Taft Law and joining me as co-host today is my friend Jack Sanker of SmithAmundsen.

Hey Jack.

Jack Sanker: Happy to be here.

Jon Amarilio: So Jack, this is our latest installment of our COVID-19 episode series and we are joined today by Professor Ann Lousin of the University of Illinois John Marshall Law School.

Professor Lousin is not only a constitutional scholar but one of the foremost experts on Illinois Constitution, which I think will probably be a big part of today’s conversation. In fact, after graduating from law school she served as a research assistant at Illinois 6th Constitutional Convention helping to draft that document. And she went on to work for the Illinois Speaker of the House and actually served for two years as the parliamentarian of the Illinois House.

Professor Lousin has also served as Chair of the CBA’s Constitutional Law Committee, regularly speaks and lectures on constitutional subjects and of course teaches constitutional law at John Marshall.

Professor, welcome to @theBar.

Ann Lousin: My pleasure.

Jon Amarilio: So professor, we asked you on to the podcast today to help us make sense of a debate that is simmering in several parts of the country, almost boiling over in others concerning constitutional challenges to state and local governments stay-at-home and quarantine orders, and I think we are seeing a small but vocal minority take to the streets and resort to the courts and at least in one case actually storm a state capital armed and they were arguing that stay-at-home and quarantine orders violate their fundamental rights.

Now, as usual the legal merits or lack thereof of that issue are being drowned out by the political heat let’s call it surrounding them.

But we are here with you to get into the weeds a bit and find out whether from a legal and constitutional standpoint there is anything to these complaints and protests. So I thought we could start by providing a little context just to ground the debate in historical rather than just legal precedent.

This isn’t the first time in the US history that state and local governments have imposed similar measures in response to epidemics, isn’t that right?

Ann Lousin: That’s correct. It goes all the way back to yellow fever epidemic in the 1790s in Washington DC.

Jon Amarilio: Right. And Philadelphia I think in 1793, right, just a couple of years after the Constitutional Convention.

Ann Lousin: At one time Congress adjourned so that everybody could get out of town before they all had to be quarantined because of yellow fever.

Jon Amarilio: So this was something — what that tells me, tell me if you agree, that tells me that the founding fathers were very familiar, not only with epidemics, but with the government, local and state government taking these kinds of measures to control those epidemics, is that right?

Ann Lousin: Yes, very definitely. They were not aware that it was the mosquitoes that were causing malaria and yellow fever, they just figured every summer we get this fever that comes in, and it wasn’t until about 1900 that we figured out the Anopheles mosquito was the problem here. So they just simply had to leave town, close down everything, there would be everything closed, you talk about restaurants today, restaurants, government buildings, everything closed.

Jon Amarilio: Right. And it seemed — when I was doing my research on this it seemed like there is thousands of years of historical precedent for the sovereign or governments taking those kind of measures; I could trace it as far back as the Book of Leviticus, which I think authorized priests to quarantine people who were sick.

Ann Lousin: Yeah.

Jon Amarilio: But I also saw examples in medieval Europe, during the Renaissance and early modern times. I think actually the word quarantine comes from the Venetian dialect for quarantena, 40 days, which is what they required ships —

Ann Lousin: You are absolutely right. That’s exactly where it comes from.

Jon Amarilio: So they required ships docking in the Venetian port to hold for 40 days to try to stop the spread of bubonic plague.

So there is a lot of — this measure, this public measure has a long vintage. I think it was also talked about in Blackstone, which is an appellate lawyer I always loved getting elbow deep in.

But Jack, this has happened in Chicago before as well, right?

(00:04:47)

Jack Sanker: Yeah, and in light of especially as you mentioned some of the public pushback on all of this, it’s probably good to point out the precedent, not only going back to Leviticus and Venice and everywhere else, but here in Chicago in the early 1900s. I mean this is the Spanish flu of course, which is probably the closest thing in recent history to what we have here in terms of an epidemic outbreak.

So the Spanish flu obviously was a strain of influenza that ultimately caused something like I think 50 million deaths worldwide and hit Chicago in noticeable numbers beginning in September of 1918, when roughly 250 or 260 cases were first reported. At that point state and local governments began ramping up restrictions on certain activities, much like what we saw here locally in March and April of 2020 in response to the coronavirus.

The first bit of restrictions and local regulations dealt with mandating that people carry handkerchiefs in their pockets to cough and sneeze on and there is a great bit of history about Chicago police officers being asked to stop persistent sneezers and coughers who weren’t covering their faces with these handkerchiefs and violators who promised that they would use the handkerchief next time were let off with a stern warning, but anyone who gave the officers a hard time would be arrested and eventually arraigned, which is kind of similar to what you are seeing and how the enforcement of some of these shelter-in-place rules are like on the Lakefront here in Chicago.

Jon Amarilio: Okay.

Jack Sanker: Yeah. So this was in September of 1918. Early in October, so roughly two-and-a-half weeks later, October 11^th, the city closed down dance halls and concert halls. October 16^th was then almost total ban in theaters, public gatherings, taverns, things like that. And at the end of October into early April things began to open up gradually with total restrictions being lifted some time, I think it was November 16^th, 1918.

So ultimately the shelter-in-place equivalent of what happened during the Spanish flu outbreak here in Chicago lasted from the end of September through November, roughly a month-and-a-half. Currently Illinois has been subject to a shelter-in-place order since March 21^st and we are recording this, today is what, May 11^th, meaning that we currently, as this episode is being recorded, have been sheltering in place for about as long as the entire duration of the shelter-in-place order that was set forth during the Spanish flu.

Jon Amarilio: Okay. So there is plenty of historical precedent for this, whether you go back to prehistoric Israel or 1918 Chicago.

Professor, let’s switch over to the legal side of things. At the federal level, let’s start broadly, at the federal level is the legality or I should say the constitutionality of these kinds of orders a question of settled law or is it still uncertain?

Ann Lousin: The problem is federalism and most of the time, including now, the President of the United States does not push the issue of whether he has authority or the governors have authority, but certainly they seem to have some kind of shared authority and the shared authority varies from occasion to occasion.

You had typhoid epidemics and yellow fever epidemics. Clearly the President had authority in Washington DC but did he have authority when the seat-of-government was in Philadelphia, New York and Washington never pushed that when he was president.

Jon Amarilio: So you mentioned shared authority and I suppose that brings up like you said federalism and the intersection, where the line is between federal and state authority.

Gibbons v. Ogden, 1824 case, I think we could probably start there, right, John Marshall says in the context of an Interstate Commerce Clause dispute which I think goes directly to what you were just talking about. He lists quarantines as among those broad powers that are traditionally — that traditionally fall within the police power that’s reserved to the states, right?

Ann Lousin: Yes, and you would also have on the federal level the issue of national security. If everybody is dying of typhoid, yellow fever, malaria or whatever, what happens to the Army?

Jon Amarilio: Right. Okay, so that’s a great point. There is an intersection here between national security law, national security interests, constitutional considerations and public health law as well, right?

Ann Lousin: Right.

(00:09:46)

Jon Amarilio: Okay. There was one case that I found bumming around Westlaw a little bit that seemed directly on point as to whether this was settled law and tell me if I am misreading it, but it was a 1902 case, Compagnie Francaise v. Louisiana Board of Health, and there the Supreme Court seemed to say that or held rather that it was constitutional for a state to require the involuntary quarantine of individuals to stop the spread of disease and it wasn’t a due process violation and it wasn’t a Commerce Clause issue.

What am I missing there; I mean that seems directly on point when we are talking about the constitutionality?

Ann Lousin: It’s absolutely right on point and I will bet you that the disease in Louisiana was yellow fever which bore the nickname yellow jack and it used to be said that the most terrible word to be uttered in New Orleans or anywhere in the south during the summer was to say yellow jack, meaning somebody had just keeled over on the floor with yellow fever, because it meant they would be quarantined, it meant people would die.

Jon Amarilio: Okay. So if it’s established law that quarantine laws are constitutional and not due process violations, then where — what’s the problem in terms of finding an intersection between federal and state law and determining where the police powers start and end?

Ann Lousin: We don’t know. We have never figured that out because usually the quarantine doesn’t last more than a month or two. The Spanish flu epidemic of 1918 came in two waves in the spring and then again in the fall. So that by the time the spring one was over and everybody was out in the streets again for the summer, nobody wanted to litigate what was over, but then it came back again in the fall and they started with litigation, but it never got anywhere. I suppose everybody’s mind was on the end of World War I.

Jon Amarilio: That’s a fairly settled part of federal law. Let’s zoom in on the Illinois Constitution a bit. Does the Illinois Constitution map perfectly to the Federal Constitution with these questions?

Ann Lousin: No, because we don’t — we are not part of the Interstate Commerce Clause, at most we are part of the dormant Commerce Clause which has no relevance here really. And we have a provision in the Illinois Constitution, Article V Section 8 that says the governor has the supreme executive power. So any residual powers that there are, that an executive would have reside in the governor. And governors have had quarantines before. Governorship sometimes had something close to martial law. As long as it doesn’t last too long and as long as it is reasonable and as long as it’s imposed on just about everybody, nobody really seems to object.

Jon Amarilio: That doesn’t seem to be the line in state law, whether it’s arbitrary, oppressive and unreasonable, that’s a phrase that seems to be repeated a lot.

Ann Lousin: Well, we do have a Due Process Clause in our state constitution. And more important what we are going to see in the next few weeks is an Equal Protection Clause, because Governor Pritzker was just saying today that he is going to continue the stay-at-home and closing the businesses at least till May 29^th and then start reopening. Well, which businesses are going to reopen? If he reopens the hair salons but not the restaurants, is that reasonable? And now we get into equal protection and due process.

Jon Amarilio: So that’s where you expect to see a lot of future litigation?

Ann Lousin: Yeah, that will be the next line and it is hard. I would have to say I regret that both on the federal and state level the executives have said in essential businesses versus nonessential businesses, practicing lawyers are essential. I am a law professor, I am nonessential. How do you think that makes me feel, okay? We have closed educational institutions, including law schools, we are doing everything online.

And I think the question is going to be not essential versus nonessential, but whether they have been fair to all businesses, like if restaurants can open and say everybody has to be 6 feet away, we will put the table 6 feet away, but not the same with hair salons or concerts or movie theaters. Now you are going to have an equal protection problem because you are depriving people of their livelihood, which is life, liberty, property.

Jon Amarilio: Okay. So that gets that balancing liberty interest versus public safety interests, where would you draw that line?

Ann Lousin: Yes, but also whether in fact, are movies, if people are seated 6 feet apart, are movies really any more dangerous than a restaurant or less dangerous than a restaurant and this is going to be the issue as we reopen. As you know, many of these smaller businesses have already said they don’t think they are going to be able to reopen at all.

Jon Amarilio: Right. Do you think that’s something that courts are equipped to answer whether one business setting is more dangerous than another?

(00:15:01)

Ann Lousin: Yes. And I think unless we open a lot of businesses at the end of May, hopefully with the guidelines and really get the cooperation of all of us regarding the guidelines, I think you are going to see quite a bit of anger and quite a bit of litigation because people’s livelihoods are at stake, there is no question about it.

Jon Amarilio: Professor, to your point earlier though, it seemed like historically what would happen is people would get upset or were otherwise aggrieved and want to bring litigation to sort of reopen things, but by the time that litigation got wheels, things were reopened already.

Ann Lousin: Yeah, they were reopened. In 1918, the two waves in 1918, by the time summer came around everything was reopened.

Jon Amarilio: Right. And specifically with regard to Illinois civil courts, they are closed right now, operating in very limited capacity. The idea that you could get a judgment on something, whether it’s — and go through the appeal process any quicker than it normally is, which is a year or so, it seems like the quarantine itself will have resolved itself before you would get resolution in the courts.

Ann Lousin: Yes, but I hate to be a doomsayer, but it is expected that everything will get better this summer, but that some time along about Halloween we are going to get the second wave again. So it would be nice if we could get these issues litigated in time to address the ramifications before the fall epidemic comes through. You understand what I mean here?

Jon Amarilio: Yeah. Absolutely. And you saw, even looking back when I was kind of going through some of the historical impacts on the Chicago legal scene of the prior shelter-in-place order during the Spanish flu, you saw a very limited amount of legal activity specific to the time in which things were on lockdown, which was like September through November of 1918, but then the rest of that year in general there was less litigation than in about five years prior, so like 1913 through 1918.

And I am getting these numbers basically by looking at the number of decisions that were issued from the appellate courts and the Supreme Court of Illinois specifically. Litigation seemed to have gone, and this is my general calculations from kind of poking around on Westlaw, there is about 25% less litigation during 1918 than in the couple of years prior.

I think just from being a civil litigator and experiencing the ways in which the court system is kind of slowing down due to all this, I think that things are going to move even slower than they usually do in Illinois civil courts.

Ann Lousin: Uh-huh. I understand from some people who work in the courts that people are filing lawsuits and then settling almost immediately, because it’s going to take so long before they completely reopen the court, so both sides have decided they better hold the settlement conference, maybe that’s a good thing.

Jack Sanker: Maybe it is a good thing.

Jon Amarilio: Certainly not a good thing for the lawyers though.

Ann Lousin: Well, yeah, there is that question, but a lot of litigants are saying that. I really don’t know what’s good. What do you think is going to be the permanent part? I really don’t know. Will people then say I just love doing everything online with the courts, why should we go into the judge’s chambers, why should we go into court and let’s just hold online settlement conferences. There could be a lot of changes in the practice of law.

Jack Sanker: I think so. I think that you are going to see a greater utilization of alternative dispute resolution services in particular, which I think has already seen an uptick at least in the past month or so as people are realizing well, we still have legal issues to resolve, we still have litigation, the courts are closed, let’s take this elsewhere. So there will probably be some lasting effect there, but everyone still wants their day in court.

Jon Amarilio: So professor, getting back to the constitutionality of the stay-at-home orders. There have been a couple of challenges already in Illinois, in one of them, Bailey v. Pritzker, a judge from downstate Illinois actually issued a temporary restraining order preventing the governor and joining the governor I should say from enforcing the stay-at-home order against the plaintiff. What do you make of these challenges?

Ann Lousin: I think they are going nowhere fast. I don’t blame the circuit court judge down in Clay County. On the face this would seem reasonable, but the Illinois appellate and Supreme Court, that is going to be the Supreme Court because I think they will bypass the appellate court, eventually they will say no, let’s not talk about this.

(00:19:56)

And I noticed that a hairdresser running a salon in Clay County has said you are depriving me of my livelihood and she is also talking about the 30-day rule. I don’t think they realized that the 30-day rule is part of a statute, no order for closing businesses or staying at home can exceed 30 days, but another part of the statute says nothing shall inhibit the power of the governor, under the Constitution statutes are common law to issue an order of martial law or emergency measures.

Jon Amarilio: And that relates back to the state’s police powers that we were discussing before, right?

Ann Lousin: Exactly. Somebody said to me well, what would be the common law here? It’s really the inherent police power here.

Jon Amarilio: And we should probably say for our audience who isn’t familiar with constitutional law that when we are discussing police powers, we are talking about state’s traditional authority to regulate in the name of public health, safety and welfare, right?

Ann Lousin: Right.

Jon Amarilio: Okay. What about the other case, there is a case filed in Federal Court, I have to admit I can’t think of the name right off the top my head, but it was filed by a church group and the Northern District of Illinois recently shot that challenge down saying that the stay-at-home rder.

Ann Lousin: That’s the Beloved Church, a Protestant Evangelical Church out in Stephenson County in the Northwestern part of the state. And the problem with that is they are arguing that since they are a religion, a religious group that you can’t force them to shut down. And obviously people seated next to each other in pews would be just as dangerous as people seated next to each other in movie theaters. As Judge Lee pointed out in the District Court case, this is just the same as people sitting next to each other; the governor is not singling out churches.

Jon Amarilio: Right. So the free exercise of religion doesn’t include the right to get your neighbor sick, right?

Ann Lousin: Yeah. And it also means they can exercise their religion, if they wanted to be out in the open or 6 feet apart or as most churches are doing these days, having online worship services, nobody would say that they couldn’t do it, it’s the thing that they are next to each other and spreading germs, which they then can take to people who were not at the church service.

Jon Amarilio: So let’s flip the chessboard, is there a good argument somewhere, either at the federal or state level challenging these laws on a constitutional basis, are these — the two cases that we have discussed, are they are just missing the mark completely or is there a path forward for them perhaps pursuing a different argument?

Ann Lousin: There is a path forward if the governor or indeed the president were to open certain businesses, but not other businesses, even though both businesses would be similarly situated. That is to say they could say we will seat everybody 6 feet apart, people will be wearing masks, there will be hand sanitizers.

I would like to say if a restaurant has salt pepper and hand sanitizer on every table, that’s probably a good idea. They could have had hand sanitizers as you enter the movie theater. There are a lot of things that they could do and if by any chance the governor were to single out movie theaters but not restaurants or vice versa, then they will have an argument. But we would have to wait and see that happen.

A couple of them have been making the argument the governor has turned into a tyrant and that would only be if the executive order to stay at home or to keep the businesses closed went on well beyond the time of the pandemic and I don’t think we are in that situation yet.

Jon Amarilio: Okay. So that brings I think to the fore an interesting point, which is that something that is constitutional today under the current circumstances may be unconstitutional a month from now when underlying circumstances change, right?

Ann Lousin: Yes, when the circumstances change. There is a rule of reasonableness here always. I suppose the theory is sort of Hitler came to power under the emergency powers provision of the Weimar Constitution; we are a long way from that, thank you.

Jack Sanker: That depends. There are angry people potentially that would disagree with you, I think. They all have guns and beards.

Jon Amarilio: So professor, there are civil liberty concerns that go beyond the constitutionality question though, right, something may be constitutional but it could still be concerning?

Ann Lousin: That is what I am told, right now I haven’t seen any litigation, I haven’t heard of the ACLU filing a suit, have you?

(00:25:01)

Jon Amarilio: I have not.

Ann Lousin: Yeah.

Jon Amarilio: But I am just thinking of the ultimate law school example, Korematsu, which held constitutionally involuntary detention of persons with Japanese heritage during World War II and technically that’s still on the books.

Ann Lousin: Where you might start to see things is if people are not allowed into nursing homes to say goodbye to dying relatives, there you might see a I have the right to say goodbye to my mother situation, and those are extremely painful, but you know there are people dying in nursing homes of COVID-19 and here again we have a balancing act, don’t we? You go in and you say goodbye to your mother and you kiss her goodbye and now she is gone and you walk out and you infect some other people who will then die.

Jack Sanker: I am thinking more about some of the way in which these challenges are going to come forth that are maybe a little bit, or at least what I have seen people complaining about that I think it may be a little off the wall.

For example, there has been travel restrictions put in place to prevent people from going to their vacation homes, things like that. As professor mentioned earlier, so much of this is going to be based on the reasonableness of the restrictive measures in place, but as the situation changes that reasonableness standard is going to change with the science, which is why so much of this argument is revolving around well, what is — what do the scientists say, what does the CDC say, what does Anthony Fauci keep saying, all of those things.

How much are the courts going to — how much room are the courts going to give in a hypothetically litigated case to these authorities, if the CDC sets forth some type of guideline or guidance on social distancing that the governor adheres to, but a lawsuit is brought challenging the constitutionality of it, how much deference is the court going to give to these scientific institutions?

Ann Lousin: I think a lot of deference, because death is here. Death, as the United States Supreme Court said in a different context, death is different, it’s so final. If it were that people were just getting sick and they were out of work or school for a week, it might be different, but now we are talking about how many fell, it’s over 2,000 here in Illinois, isn’t it, who have died of COVID and we are going — probably going to get hundreds of thousands of people dead in the United States within the next year. So it really means they are going to have to give a lot of deference to any government agency that can show it is relying upon medical statistics.

Jon Amarilio: Professor, Jack’s question brings another one to my mind, which is, so we have talked about how Congress can regulate travel between the states during these crises and we have talked about how governors can regulate travel within states during these crises. Can governors regulate travel between the states, like can they — what do you think about the constitutionality of those states that have essentially closed their borders?

Ann Lousin: That one is very tricky. By the way, a couple of Indian tribes, the Oglala Sioux and a couple of others have been setting up essentially checkpoints near their reservations saying we have very little medical care on our reservations, our people will die if they are infected, and that’s probably true, they have very poor medical care on reservations and we don’t want people coming in. And the Governor of South Dakota has said you can’t do that.

They have got a special situation because federal reservations for Native Americans are treaty lands, right? So they are under the federal government, they are not under the state government.

Can the Governor of Illinois prevent people from coming over from Indiana, which I noticed opened today pretty much, that one is a very tricky one. I suspect the Governor of Illinois isn’t going to try that, but what if he did, and I really don’t know the answer to that question. It seems to me it would be interfering with a general right to travel, but what if people start dying and we can trace it to Indiana? Again, a rule of reasonableness, right?

Jon Amarilio: So what are the constitutional considerations there?

Ann Lousin: Well, there is a federal right to travel from state to state, it’s interstate commerce and it’s also a personal liberty right, but there is really no right to carry a disease from state to state either.

(00:29:51)

At one time if you were coming into California by car and I remember this in the 1950s, you were stopped and they asked, do you have any fruit or vegetables on you, and many people did, a lot of people traveled carrying fruit or snacks, and they would say let’s see the fruit because we do not want fruit diseases coming into infect our crops here in California. And the courts upheld that. They said they have a right to make sure that their products, their orchards are kept safe from all of these diseases. Well, if you can protect your oranges in California, why not your people in California?

Jack Sanker: So it seems like a lot of these disputes are kind of setting up the central conflict that we have seen play out so many times of federally guaranteed rights coming in to friction with individual state powers. So the federal right to travel versus state police powers that would extend to the borders within the state, the federal right of free exercise, for example, even though there may be — there is going to be a state equivalent in each state’s Constitution, but generally the Free Exercise Clause of the Federal Constitution versus the state’s intrastate interest in keeping its citizens from spreading disease to one another.

Ann Lousin: Exactly.

Jack Sanker: Yeah. And I think that the litigation is going to come primarily in those forms, whereas people are going to be bringing these cases in Federal District Courts alleging they are being aggrieved and their federal constitutional rights are being violated by the state actors and you are going to see these disputes between the federal and state constitutional provisions.

Ann Lousin: And that is a huge question. I was intrigued that the church in Stephenson County brought the free exercise of religion clause in federal court right away; they didn’t start with the state courts. So people are looking to their federal rights and there is a federal right to travel.

Jon Amarilio: And I was just going to ask piggybacking on Jack’s question where the line is when we are talking about federal preemption, where can Congress, when can Congress overrule state’s police powers?

Ann Lousin: Usually through the Interstate Commerce Clause. We saw that with the civil rights era in the 1950s and ‘60s and early ‘70s, the right to travel included the right to have a meal at Ollie’s Barbecue in Alabama, because they were near an interstate highway.

So you have heard about the right to travel, which was to a certain extent under the Commerce Clause and that may be what we have again. But here again I am expecting that things will loosen up quite a bit over the summer and then what will happen to all of that litigation. I suspect it will sort of stay around in abeyance until of course the fall when it’s all going to come back again, if the predictions are correct that we are in for a second wave around Halloween.

Jon Amarilio: Right. And well, I was just thinking there are exceptions to the mootness doctrine if there weren’t a second wave, although I think you are right, there almost certainly will be.

Ann Lousin: Oh yeah, I don’t think it’s going to be a question of mootness; I think just a question of how far the courts, federal or state, can move, but we better get these issues settled over the summer as to what we are planning on doing, because as I say all of the predictions are that come the late fall we are going to be back in the same mess again.

Jon Amarilio: And those countries that we are seeing that are already opening up are starting to see their infection rates spike once again, so we may not have to wait until the fall.

Ann Lousin: Yes and we have a problem because they are already getting really the beginning of summer in much of Europe, especially in Italy, so everybody is going out onto the streets, and generally the nights in Italy people tend to go walking on the streets, Italy and Spain. So now we are going to have the pandemic back again for the summer and I don’t know what’s going to happen really. And we don’t have summers quite like they have in Southern Europe and of course they don’t have air conditioning the way we do so they go out in order to kind of get cool.

I absolutely think we are going to have to settle some of these issues before we get the next wave. By the way, I figure, don’t you, that about every three or four years we are going to have a pandemic.

Jon Amarilio: Really? What makes you say that?

Ann Lousin: We had SARS, we had MERS and the corona all within the last 15 years, right, and the current coronavirus is a variation on SARS. So we seem to have a family of viruses that will start anywhere in the world. And it doesn’t matter where they start.

(00:35:04)

Supposedly the 1918 one started in Spain, but really it was reported first in Madrid, but we don’t know where it really started. We think the current one started in Wuhan, China but it could have started anywhere, because in our world economy where I have flown from the United States to Hong Kong in 14 hours, we are all one world as far as diseases are concerned, aren’t we?

Jack Sanker: I think that that’s a compelling argument on the federalism issues that we have really been centering on here is the need to resolve these issues, not just to address the question of state versus federal authority before the second wave of the coronavirus hits, but as you mentioned, in advance of the potential for the next epidemic to hit, we can’t be starting from scratch in terms of these central questions on what the states allow to do versus your individual rights under the US Constitution every time there is a pandemic if we are going to see an uptick in infectious diseases like you seem to think.

Ann Lousin: This is going to require a lot of cooperation between the state governments and the federal government. For some years now at John Marshall we have had an elective called the International Legal Implications of Public Health; in other words, International Public Health, including pandemics, and some of our people went over to the Czech Republic and gave a talk on it a couple of years ago. And the result is that the Czechs adopted a lot of these rules anticipatorily, figuring we are going to have to face this, we are a little country of 10 million people in the center of Europe, we are very vulnerable; you may have noticed the Czechs have a very low infection rate because they were already prepared. They knew they were in a very bad situation geographically.

Jon Amarilio: So professor, one of the things that you have been saying throughout the podcast is that we need to settle these questions soon, but it seems to me also in talking to you that a lot of these questions are already settled, the constitutionality of state, quarantines and stay-at home-orders, that seems fairly clear after speaking with you, the Constitution at the federal level also seems fairly clear. There is some uncertainty about the interplay between federal and state power in the context of federalism, but really what other questions are there to decide here or is it just a question of seeing if we are going to stick with precedent and the doctrine of stare decisis?

Ann Lousin: I think it’s a question of being prepared and saying if we get a pandemic, this is what we are planning on doing, anybody have any objections right now, ahead of time, and say we are going to have a phase one that will be the following bang and we are going to have phase two, we will do the next group of things, and then we will have a — we will talk about reopening and reopening will be based upon the following rules and assumptions. And I think that that would really help a lot here. So we won’t be just trying to figure it out day-to-day.

Jon Amarilio: So that would probably have to come in the form of federal legislation.

Ann Lousin: Well, sometimes you can get, not only interstate context, but believe it or not, and I know this is going to sound like I am being a Pollyanna, every now and then the federal government and the state governments do work together. And I know that this is now an election year, this is a presidential election year and things are very contentious, but I would like to think that the federal and state governments could say this is beyond who gets elected President, we have to think about what we are going to have to sign on to before the fall disaster occurs, if it does occur.

By the way, there is one thing people don’t realize and that is the 1918 epidemic, mostly the deaths occurred because so many people got pneumonia and in those days before penicillin, there was really no way to cure pneumonia. So now we bring up the question of what if we get a vaccine or what if we get a good way of fighting COVID, that could change the situation again.

Jon Amarilio: And on that hopeful note we are going to take a quick break.

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(00:40:00)

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Jon Amarilio: And we are back. Professor, we like to end each podcast with a game that we call Stranger than Legal Fiction. The rules are pretty simple. I have done a little bit of research on a law that is still on the books somewhere in the world, but probably shouldn’t be. I have also made another one up. I am going to poll you and Jack to see if we can distinguish strange legal fact from fiction.

Are you ready to play?

Ann Lousin: Right.

Jon Amarilio: All right. Why don’t you go first, here are the two possible laws? First one, in China it is illegal to publicly use the phrase I oppose or I disagree, both of which are censored by the government. That’s option number one.

Option number two, in Massachusetts it is illegal to drag or hang from vehicles cans, other metal objects or wood objects from moving vehicles in particular if those objects hang low enough to touch the ground. Which one do you think is real?

Ann Lousin: The Massachusetts one.

Jon Amarilio: Why is that?

Ann Lousin: It really sounds like Massachusetts, but it would create noise, it could create problems with the road, the cans could fall off the strings, that sounds like Massachusetts.

On the other hand, I must say the culture in China is such that they do not normally publicly oppose each other, they tend to have a culture of public conciliation as it will. But I still would choose the Massachusetts one.

Jon Amarilio: All right. Jack, what about you? What do you think?

Jack Sanker: I think the Massachusetts one sounds like something I can conceive of being necessary at some point in that state, a bunch of like Patriots fans dragging around garbage from their trucks, I could see them needing to address it legislatively so that seems plausible to me.

Jon Amarilio: Well, I am happy to say that I have fooled both a constitutional scholar and a friend, the China law is real, the Massachusetts one I just thought up over lunch.

Jack Sanker: Oh wow.

Ann Lousin: Oh my.

Jon Amarilio: Yeah, the China law was actually passed in 2018 as part of a legislative package that removed term limits for the current president. So I don’t think that was a coincidence.

Jack Sanker: Right. Those are really good. Also, but try dragging cans from your car in China and see what happens, you know?

Jon Amarilio: Yeah, I am good. No, I don’t think so.

Anyway, that’s going to be our show for today. I want to thank our guest Professor Ann Lousin of the University of Illinois John Marshall Law School for this educational and edifying discussion.

Thank you, professor.

Ann Lousin: My pleasure, any time.

Jon Amarilio: I also want to thank my co-host Jack Sanker, our Executive Producer Jen Byrne, the CBA and everyone at the Legal Talk Network, all of whom are doing a remarkable job in trying circumstances.

Remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram or Twitter, @CBAatthebar.

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Until next time, for everyone here at the CBA, stay safe, thank you for joining us and we will see you soon @theBar.

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