Federalism and the Coronavirus

Episode Notes

Transcript

Lawyer 2 Lawyer: Law News and Legal Topics

Federalism and the Coronavirus

04/03/2020

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I. Glenn Cohen: My view is that this is really a very sensible public health intervention, especially given the inability, due to the fact that with COVID, we know that asymptomatic individuals can transmit, and that fact makes it much harder to say, oh, well, here is this least restrictive alternative you should have done looking at who is sick or who is coughing or the like.

Robert L. Tsai: A lot of those laws, a lot of those agencies arise from this claim that what they are doing is dealing with problems that cross state lines, those are big enough that really impacts more than kind of one community within one state. And so that’s kind of the theory that has allowed us to create these agencies, to fund them to be prepared for the kinds of crises that are really the kinds of modern problems that the framers couldn’t have really imagined back in the late 18th Century.

Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California.

I write a legal blog called May It Please the Court and have two books out titled ‘The Sled’ and ‘How to Get Sued’.

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As our nation battles the COVID-19 pandemic, our president’s response and leadership is being tested. Ventilators are in short supply, hospitals across the states are in desperate need of personal protective equipment, including masks, supplies, tests and beds. Governors across the state and across the country have been hitting the airwaves pleading for assistance from the federal government. So, what are the respective roles of the federal government and the state governments in a time of crisis?

Well, today on Lawyer 2 Lawyer we are going to discuss Federalism and the Coronavirus Pandemic. We will explore the concepts of federalism and states’ rights, the tug of war between governors and the president over COVID-19, leadership during the crisis and the constitutional underpinnings of who is in-charge of what.

And to do that we have got two great guests for you today. Our first guest is Robert Tsai. He is the Professor of Law at American University College of Law, where he teaches Constitutional Law. Professor Tsai’s third book, ‘Practical Equality: Forging Justice in a Divided Nation’ was published by W.W. Norton in 2019. Robert is also working on a major book project that details how the president sees a leadership role over the development of constitutional rights and liberties.

Welcome to the show, Robert.

Robert L. Tsai: Thanks for having me.

J. Craig Williams: And next up we have Professor of Law Glenn Cohen. He is a Faculty Director at Petrie-Flom Center for Health Law, Biotechnology and Bioethics at Harvard Law School. Professor Cohen is one of the world’s leading experts on the intersection of bioethics and the law, as well as health law. He also teaches civil procedure. Glenn is the author, co-author, editor, or co-editor of more than 15 books including ‘Readings in Comparative Health Law and Bioethics’ from Carolina Academic Press, 2020, as well as ‘Disability, Health, Law, and Bioethics’ from Cambridge University Press also in 2020.

Welcome to the show, Glenn.

I. Glenn Cohen: Thank you for having me.

J. Craig Williams: Well, let’s turn first to a little bit of background about what we are talking about. Robert, perhaps you can set us with the context and the background of the Constitution and what it says about what states’ rights are and what federal rights are when it comes to dealing with these kind of emergency situations that we are facing now?

Robert L. Tsai: Well, I think the most important thing to think about in terms of our constitutional structure in terms of how we regulate matters concerning health is that traditionally the power has rested with the states. The states have what’s called broad police power to deal with the health, the welfare and the morals of the people within each state.

By contrast, our US Constitution wasn’t granted that general police power to deal with health as an original matter. And what that means is that in the past when we have had to deal with things like smallpox and other kinds of epidemics, our kind of history and our practice has been — kind of seen through the prism of states working as aggressively as they can to kind of warn citizens and lock things down so as to slow the spread of disease.

There are certain things that president can do and we can certainly talk about what some of those things are and those powers have certainly expanded over the years. But that basic difference between a lot of power in the hands of the states over health and sort of select powers that a president might be able to wield I think remains.

(00:05:15)

J. Craig Williams: And what do you think, Glenn, the Constitution says about the federal role in this pandemic?

I. Glenn Cohen: So here I think it’s important also to distinguish between the branches of government in that there is a significant power of the president, for example, foreign affairs type powers to set policy regarding who may enter the country, to set up 14-day quarantines for people who have flown in from certain places, and that’s not really in dispute.

We do have some federal statutes that speak on the matter where Congress has kind of acted, again, mostly focused on interstate powers and interstate commerce.

I think what’s interesting about this setting, in some ways it’s a little bit of a reverse, there is some irony here in that during NFIB v. Sebelius and the cases about the Affordable Care Act part of the rhetoric was, oh, no, no, the federal government should not be the one doing this, it should be the states, that was kind of one of the conservative positions.

And here one of the offshoots of that kind of analysis is that maybe the federal government has less title than you might want it to, even congressional, once that we the commerce laws have been accepted.

J. Craig Williams: Is the Constitution addressed at all in — does it address emergencies at all in terms of coordinating these kind of responses on a federal level?

Robert L. Tsai: Well, the Constitution doesn’t specifically talk about health at all. This is one of the gaps. As far as Congress’ powers, certainly most of the power that Congress has used in the past, for example, Glenn mentioned that there is this law that allows the government to sort of intervene and say quarantine, prevent the transmission of disease between kind of state to state, that federal law rests on Congress’ sort of commerce power, kind of extrapolate to deal with the problem of disease. That’s a law that has been sort of rarely invoked.

When we look to the president’s powers, again, we don’t have anything explicit talking about health, but there is this general understanding that the president is the branch of government in our federal government that is sort of in power to act quickly, decisively to deal with perhaps situations like this and this has allowed kind of growth in terms of a leadership role for president in kind of national crises, and I think this is the kind of thing that qualifies.

One of the laws that we haven’t talked about is the Defense Production Act. This is one that was written by Congress in, I guess 1950 or so, and this is one that President Trump has invoked, but he has had qualms in terms of kind of using it maximally.

It allows him to force certain industries, companies to enter into contracts with the federal government, say produce necessary medical supplies, ventilators, masks, this sort of thing, but he has been a little bit reluctant in terms of forcing people to the table and making them do things. He has tried to use it as a little bit of a — I guess a chip, a bargaining chip to try to get them to cooperate and this is certainly reduced resistance in terms of company maybe won’t run to court and litigate, but the jury is sort of still out in terms of whether this is going to work to get the kind of widespread cooperation we would want to see in an emergency.

J. Craig Williams: It’s a great point. Glenn, let’s talk about that a little bit further. President Trump in certain circumstances has said that this is akin to a war and certainly he has war powers under the Constitution, is it possible to declare a war on a pandemic and have it succeed to enhance federal powers in this circumstance?

I. Glenn Cohen: I think the answer is probably no. Robert is much more of an expert on the war powers of the Constitution than I am, but let me just put it this way. Whenever you think about the Article II Powers of the Presidency, and the apparent powers of the president, it’s hard to think that it would allow him, for example, to overcome governors’ well-founded public health regulations and activities in this area, and one of the things that strikes you.

So truthfully speaking there have only been a handful of cases involving public health that have ever made it up to the US Supreme Court, but they are almost always about state initiatives, whether it’s about smallpox vaccination in Cambridge, where I live, in the early 1900s, whether it’s about whether Louisiana, New Orleans can turn away a ship called Britannia because of yellow fever, it’s almost always about state activities in these areas.

So it would be quite, let’s just say, a right turn — no, the left turn I should say for the president to try to assert this authority.

(00:10:00)

And this is one place — I think think what you will about the president, but I do think that the average American tends to have a thought, why isn’t the president doing more about this, and the truth of the matter is that the constitutional schemas envisioned by the framers, it really wasn’t envisioned that the president would be the public health authority.

J. Craig Williams: Let’s talk about what happens with cruise ships; you mentioned the case from the Supreme Court about turning ships away with fevers. Robert, what’s the circumstance here where we have by some estimates nearly 50,000 people at sea?

Robert L. Tsai: First of all, it sounds like a complete humanitarian disaster and it sounds like we have got Americans also on some of these cruise ships and I haven’t been following it that closely. I did see that there was a piece saying that the Governor of Florida is refusing to allow the cruise ships to dock, including the ones that have Americans. I am not sure if he is right; he claims that there aren’t any Floridians on those boats.

But in any event, there is a sort of question of whether the governor is actually going to take action or he is just sort of expressing his view at the moment. It could be that the local county or the city controlling kind of the area where the boats would land would have a more direct authority there. My sense is that they are waiting to see how the local government will behave, but it could be a real mess.

Let’s say the mayor decides the same way as the governor and bars the ships from landing, then I suppose if you are on the ships, you have got family on the ships, you are hoping that the president or the federal government will intervene in some way. If they don’t, then at some point you are probably looking at advocacy groups or lawyers to try to intervene and get some kind of judicial action here.

There I am not as well-versed in exactly what they would be invoking, but certainly if they are Americans on the boat, they would have probably an easier time claiming that they have some privileges, immunities or constitutional rights that are otherwise being infringed upon by their treatment.

J. Craig Williams: Glenn, do you have some thoughts on that? I have a few friends that are actually on sailboats cruising the world and they report that they can’t dock anywhere.

I. Glenn Cohen: No, I think it’s quite correct. So first thing I want to say from the public health perspective, I am not sure any of this is wise policy. The phrase that comes to mind is the murderer is already in the house and the idea that at this point we are going to stop people from entering the country who may be in very dire straits and need ventilators and the like, you certainly can quarantine them right just 00:12:31 and stuff like that. So from the public health perspective, I don’t think it’s a great idea, but governors and the president get to make their own decision.

I think Robert is right that the constitutional problems where they are sort of barring people from deboarding if they are Americans is an easier claim of the constitutional violation than if they are foreign citizens and probably it looks something like the right to travel or possibly something from the due process clause. I mean something we haven’t talked about is that all public health orders are judged under the standing of the due process clause which requires an analysis that looks to, is there a compelling state interest, is this the least restrictive alternative, and is there a procedural due process.

And so I imagine that there would be interesting questions with those orders that try to block Americans from deboarding whether there weren’t less restrictive alternatives than that.

J. Craig Williams: Robert, what about religious exemptions to this. I mean, we have had circumstances where a pastor in Florida has now been arrested for holding a church service on a Sunday in violation of the governor’s orders. There are several other pastors in southern states that are doing the same thing, claiming that there is some type of a religious exemption to a public health order?

Robert L. Tsai: Yeah, it’s kind of a mess right now. It looks like we have got the governors kind of doing different things. In Florida, where at least until, I guess is it today, the governor finally had issued a statewide shelter-in-place order or something, but until recently the governor had been pretty hands-off, allowing the local governments to kind of enact restrictions if they wanted to. And that’s what the minister in Florida, I guess, it’s Hillsborough County was arrested for violating, I believe it’s two counts of violating the local order.

And in Texas what I understand, there is something different going on, while the local governments have enacted similar restrictions trying to bend the curve, I saw that the Governor of Texas recently has kind of countermanded those local orders and kind of written religious organizations into the essential business’ description. So you have got the situation where it looks like jurisdictions are doing different things, obviously we are going to see what the impact is from a public health perspective.

Constitutionally, I think the way you look at these questions is that if someone raises a religious liberty objection to a law, we have got a bunch of cases that typically say that if a judge is to review it, one thing they look for is whether the law is kind of generally drawn to apply to most everybody.

(00:15:06)

And then the second question is, is there a kind of compelling justification, a strong one, and here it seems like there is a pretty strong one that A, they are evenhanded generally; and second, that they are trying to kind of in a very reasonable way trying to limit the spread of this communicable disease which seems to spread much more easily than initially thought.

And so if people gather in these big groups, whether they are a religious group or they are in a business or something else, it’s going to have the same sort of public health problems.

So I think that the local governments, even the state ones that are restricting the religious groups in the same way as other groups, are going to have a pretty good argument that they are able to do this consistent with the First Amendment.

But on the other hand, we do have some of these other cases that have said occasionally the religious claim is so strong and the interference with religious practice is so strong that we sort of carve out their practice. And I think this is a sort of thing where the regulation should be able to survive. These defiant ministers or others should be forced to at least temporarily stop doing what they are doing in the name of reducing disease, but we will sort of see. I mean, I think some of this stuff will get litigated from what I imagine.

J. Craig Williams: Right. Well, Glenn, I would like to ask you that same question, but before we move on to our next segment we are going to take a quick break to hear a message from our sponsor. We will be right back.

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I am Craig Williams and with us today is Robert Tsai, Constitutional Law Professor at American University College of Law and Professor Glenn Cohen, a Faculty Director at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School.

Right before the break we were talking about the potential for religious exemptions from public health orders. Glenn, do you have some thoughts on that?

I. Glenn Cohen: Yeah. Well, I think Robert is exactly right. I would be very skeptical of the court that were enjoining them from shutting down large gatherings in churches and the like, and oddly this is going to sound a little bit — pastors a little bit sacred to the profane, but there is some echoes of during the HIV/AIDS crisis where, for example, San Francisco shut down a bunch of bathhouses and the municipalities did as well on similar grounds. And if you believe there is a right toward sexual relations in the Constitution, you might think similar kind of infringement there.

But my hope is that religious institutions don’t push this, because my view is that this is really a very sensible public health intervention, especially given the inability, due to the fact that with COVID, we know that asymptomatic individuals can transmit and that fact makes it much harder to say, oh, well, here is this least restrictive alternative you should have done looking at who is sick or who is coughing or the like since we really don’t know. And until widespread testing becomes available and even then this seems like an appropriate thing, both at compelling state interest and the least restrictive alternative, I can’t think of one.

J. Craig Williams: Robert, given that the public health right seemed to be largely reserved to the states, how is it that we happen to have a National Institutes of Health and a Center for Disease Control and some other federal type of health organizations?

Robert L. Tsai: Well, a lot of that has to do with our expanded understandings of the need for a federal government to do more than what the original Constitution had laid out, but technically we are still being faithful to it in the sense that a lot of that is coming from congressional action, the assertion of what I mentioned before Congress’ power to regulate interstate commerce. So a lot of those laws, a lot of those agencies arise from this claim that what they are doing is dealing with problems that cross state lines, that are big enough that really impact more than kind of one community within one state.

And so that’s kind of the theory that has allowed us to create these agencies, to fund them to be prepared for the kinds of crises that are really the kinds of modern problems that the framers couldn’t have really imagined back in the late 18th Century.

(00:19:51)

J. Craig Williams: Glenn, let’s build on that a little bit and kind of speculate about what potentially is going to come out of this situation from a legislative standpoint. I mean it seems obvious that a coordinated federal response would have cleaned up a lot of the messes that we have been talking about, but we all know that the grab of federal power goes against the basic elements of the Constitution that reserves rights even to the people. What are your thoughts?

I. Glenn Cohen: Yeah. Well, realize that a lot of that healthcare regulation by the United States by the federal government was done through the Spending Clause, so in particular you look at something like EMTALA, which is a statute that requires every hospital to treat and stabilize people in emergency conditions who show up. The way that is achieved is as a condition of any hospital that receives Medicare and Medicaid funding.

So one strategy to do this would be to build, if we wanted to have more federal control over this sort of stuff would be to build it into the Spending Clause. Again, here there is a bit of a rub in that the justices basically in NFIB v. Sebelius, a number of them were worried about this coercion doctrine and the idea when federal government tried to expand Medicaid, justices including Justice Kagan, my own boss, said, well, actually, you know what, that might violate and coerce the states in a way that’s inappropriate and 00:21:11.

So I could imagine that some of what you might think might be wise policy even if you thought you couldn’t achieve why a Spending Clause might also be constrained in this way.

J. Craig Williams: Well, Robert, let’s take a walk up the Bill of Rights and talk about the Second Amendment and perhaps the Fourth and the Fifth. I mean, we have seen gun stores staying open, we have seen courts closing. I have gotten an email from my local courts here in Orange County, California that says we are going to put off the 10-day requirement for going to trial. How does that work?

Robert L. Tsai: Well, certainly the states who are mostly kind of taking the lead here and regulating in lots of aggressive ways in a number of these places, if it doesn’t affect a right that is specifically mentioned in the Bill of Rights or a right that’s not mentioned but we consider to be what’s called a fundamental right but an unenumerated one, as long as it doesn’t do that, then they are going to have a wide berth to be able to make those restrictions.

But you mentioned the Second Amendment, of course now we are living in a post-Heller world; that’s the decision that the Supreme Court had handed down saying that the right to bear arms is an individual right, not just one that is conditioned upon membership and the militia. And so that means that in theory that right is something that people could complain about in the same way that we have got reports where governors in some red states are trying to take advantage of the coronavirus crisis to close down clinics or at least temporarily shut them down as non-essential businesses.

And I think that that raises more visibly this concern that certain kinds of restrictions might interfere with some of these individual rights. The right to body integrity, to abortion you could say is on different footing than say your right to go get a gun, but there will be a lot of people who disagree with that and I suspect those things will actually be litigated.

J. Craig Williams: Well, gentlemen, it looks like we have reached the end of our program. So we would like to take this time to invite our guests to share their final thoughts and their contact information. So Glenn, I would like to turn to you first and kind of have you address the question that’s been more rolling in my mind.

We are in a moment of history, I think, and probably comparable to challenges that faced George Washington, that faced Lincoln and faced FDR, I mean we certainly have some economic disasters to look forward to, we have people out of work. Let’s talk about where we are in this moment of history as you wrap up?

I. Glenn Cohen: Easy question to finish up, thanks a lot. I think let me put it this way. I think this would be an interesting challenge, the same way 9/11 was, so the idea of the rule of law and what’s appropriate and what’s pragmatic and what’s do it but don’t tell me as it’s sometimes put, I mean I think in many of these things you will see people rush into the courts, seeking injunction, seeking temporary restraining order, even for something like somebody being removed from a ventilator to make way for someone else.

And I think it will be very interesting to see whether the courts respond now or whether they give the benefit of a doubt or they find a new way of refusing to take action. And then after the crisis has passed, kind of pass on this via a civil liability, the end of life, I think it’s quite a difficult position we are going to be putting judges in the next few months and we are going to be asking them to make hugely monumental decisions based on information and training that they don’t really have in terms of epidemiology.

And I just think that that is an unfortunate situation and whether we would have done well or badly, my guess is it will take us a decade to really understand what we did and what the ramifications are more generally for constitutional law, just as it took us at least a decade for 9/11.

J. Craig Williams: Great, thank you. And Robert?

(00:24:56)

Robert L. Tsai: I would encourage people to pay attention to two things. One, the question of leadership; and then two, the structural weaknesses in our government, in our economy that are being laid bare. I think in emergencies those are the two sort of recurrent themes that are worth paying attention to.

When it comes to leadership, we certainly had different models of leadership, right? We have got say President Trump, who has significant power despite some of the legal — the sort of differently structured basis of emergency power, he still has a number of sources of authority that he has not yet invoked, and even when he has invoked certain things, like the Defense Production Act, he has been reluctant to sort of go full-bore.

Some of it has to do with probably his skill set and some of this probably has to do with his philosophy of government and his view of the economy, which initially was to do as little as possible to harm the stock market and big business and so forth, but that strategy didn’t work. In the meantime, all of these governors and mayors sort of jumped into the fray and used their powers creatively and expansively. Perhaps we will see that at times they went a little too far, but we see these different models of leadership, I think it will be important to look at those.

The second thing is I think structure, we have seen that our workforce is vulnerable in ways that many people probably didn’t realize before. Healthcare is something that has been a structural issue and to the extent that so many millions of Americans’ healthcare is tethered to their jobs, we see those jobs disappearing, many of those jobs probably won’t return. And this is hopefully going to cause us to think more fundamentally about the workforce and the way we think about the right to healthcare.

J. Craig Williams: Well, gentlemen, thank you very much for joining us today. I would like to thank our guest Robert Tsai and Glenn Cohen, both Professors of Law, it was a pleasure having you on the show at this kind of momentous moment in history.

Well, for our listeners, if you have liked what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter.

I am Craig Williams, thanks for listening and join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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