Transcript of OA371: Your COVID-19 Questions, Continued!

Listen to the episode and read the show note

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 371.  Coming at you early for patrons, how’s it going, everybody?  How’s it going, Andrew?

Andrew:         Just as fantastic as two minutes ago, although the creeping coronavirus in my throat – I’m not joking that, you know that.  I just realized our listeners probably know this, I seriously am sick.

Thomas:         Yeah.

Andrew:         But I’m fantastic for doing the show, I’m super happy to be here and I can’t way to knock out a bunch more coronavirus questions.

Thomas:         [Laughs] Yeah, a bunch more than the one we got?  No, sub-questions count!

Andrew:         Eh there were lots of sub-questions on that.

Thomas:         I’m excited too, and unless I’m wrong, Andrew, I don’t believe we have any other segments planned.  Do we have any announcements segments, nothing?

Andrew:         Nope.

Thomas:         Alright.  We are full on coronavirus questions.

SUBHEADING – Coronavirus Questions Part 2

[Segment Intro]

Thomas:         Question one, Andrew, sports law!  No, just kidding, although there are a lot of good sports law questions since sports have stopped!

Andrew:         Yeah, there really are.

Thomas:         But we will not, we will not.  Don’t worry.  When we last left off President Air Bud who got the presidency by way of being the Speaker of the House first and all that, where’d we leave off?  Was there anything we left off in the election thread?  You know what, I know, we didn’t get to talk about the primaries. 

Now we know that States have rescheduled, there were three States on Tuesday that for some reason still had primaries.  I believe it was what, Florida?  Biden won them all and it doesn’t seem like it’s particularly close or that it matters that much anymore, but I was really curious if there’s any case to be made for a State that held a primary and nobody came, or very few people – drastic reduction in votes because of this quarantine, are there any legal cases to be made?  Like, hey, this wasn’t valid, there’s significant shortage, whatever it may be, is there any case to be made there hypothetically?

Andrew:         Yeah, and there are a couple – I don’t think there are, is the bottom line.

Thomas:         Hmm.

Andrew:         The Democratic Party has sued governor Mike DeWine in Ohio because Ohio was one of the States that was supposed to have the primary on Tuesday that got moved.  It got moved to June 2nd.  There was also a request for mandamus that was denied by the Ohio Supreme Court.  He recused himself, governor Mike DeWine’s son was appointed to the Ohio Supreme Court.

Thomas:         Huh.

Andrew:         But he did recuse himself, so that was a good move.  I have to tell you, and I’ve said this publicly, I’ve said it in the OA forum, I am behind governor Mike DeWine on moving the primary.

Thomas:         Yeah.

Andrew:         I think Ohio has been very responsible in this, and look I was no fan of DeWine when he was in Congress, he’s a conservative, but he’s behaved in a way that is responsible and deserves being called that.

Thomas:         Why are the Democrats even suing him?  What is the case?

Andrew:         It seeks relief that I don’t think the Ohio Supreme Court is empowered to give.

Thomas:         Hmm.

Andrew:         So the Democratic Party is saying that governor Mike DeWine does not have the power unilaterally to move the primary to June 2nd and the relief that it seeks is to process all ballots as voting by mail.

Thomas:         Hmm.

Andrew:         Absentee ballot, by mail, by April 28th.

Thomas:         Which, by the way, that’s what everybody should be doing, right?

Andrew:         That is what everybody should be doing-

Thomas:         I mean, we all should do for every – even for the general, too.  We’ve gotta figure that out.

Andrew:         Yup, yup.  But I know if the State says we’re going to move our primary, I don’t know that you can go into court and say “no, you should do it this way because it would be a better way to do it.”

Thomas:         Well clarify who’s suing whom.  If the State Democratic Party is suing the governor then it seems – who’s in charge of when this whole thing happens?

Andrew:         That’s what’s up in the air, and as we said in the first episode, this is all going to be decided on a case-by-case basis according to State law because there just really isn’t a lot of federal guidance.  The argument kind of cuts both ways.  In multiple States, for example, we know that the Republican Party in 7 States cancelled their primaries long before coronavirus.

Thomas:         Oh, yeah.

Andrew:         Just because they were doing that to protect Trump.  Well six States were well before coronavirus.  South Carolina, Nevada, Kansas, Arizona, Alaska, Virginia and Hawaii, and then New York cancelled its Republican primary on March 3rd, which was, again, way early on coronavirus and just bound their delegates to Trump.  So States have wide latitude of what to do on primaries. 

The outer boundary is a case called Nixon v. Herndon.  Like most election law cases, it’s a different Nixon!

Thomas:         Huh.

Andrew:         A lot of people have been named Nixon over the years.  This one is from 1927.  It is 273 US 536 and it involved … and I’m not making this up, I wish I were, a Texas law that said black people can’t vote in primaries.

Thomas:         Huh.

Andrew:         The plaintiff, an African American voter, raised a 15th Amendment challenge.  And the court said, look – and this is a near direct quote and the last half will be a direct quote.  We don’t have to get to your 15th Amendment issue because (quote) “it is hard to imagine a more direct and obvious infringement of the 14th Amendment.” [Laughs]

Thomas:         Yeah.

Andrew:         (End of quote) and of course it is.  So look, understanding that States have wide latitude of what to do about primaries, which is true, they can cancel them altogether which is certainly true, but if they do hold them they hold them subject to your baseline constitutional rights.  Subject to your rights of due process and equal protection under the law.  That’s the best analysis I can give. 

I think particularly in Ohio, the move in Ohio is going to survive scrutiny by the Ohio State Supreme Court and I don’t think there will be any federal issues that will get it to the US Supreme Court.  More States are gonna follow, and again it’s a function of State law but by and large I think so long as you don’t have the kind of gut check of Nixon v. Herndon, “we’re not gonna let any black people in the room,” I think they’re gonna be fine.

Thomas:         Interesting.  I guess the hypothetical I was worried about, and again I guess it doesn’t seem like it will matter, but assume for a moment that there were three very large States on Tuesday, for example.  I mean Florida was a very large State, I can’t remember.  Was it actually Illinois, too?  Or am I blanking on States?  Anyway-

Andrew:         Yeah, it was.  It was also Illinois.

Thomas:         Yeah, so assume that turnout and the makeup of the turnout – let’s pretend that all old people stayed home because they were scared of this, and you had a primary that had way reduced turnout and then all of a sudden it swings it for Bernie or something.  Doesn’t matter who, but either way, swings it for Bernie, would anybody have a case to be like hey, we couldn’t vote, you shouldn’t have held this primary, this made a huge difference in who showed up and therefore this is unjust and this shouldn’t, you know, this aggression will not stand, man!

Andrew:         [Laughs]

Thomas:         Is there anything to be said there?  Would anybody have a case?

Andrew:         Yeah, in your hypothetical that would be an equal protection violation.  Age is a quasi-suspect class.

Thomas:         Right.  Only if it goes one way, right?  [Laughs] If the young people stayed home then you’d be fine.

Andrew:         [Laughs] So, yeah, you would then have to demonstrate the disparate impact and you would have to balance that against the State’s interest in moving forward with the primary.  But even in that scenario I think the Court is very likely to come out on the side of the State.

Thomas:         Hmm.

Andrew:         There’s not a lot of relief that’s gonna be out there in connection with holding primaries.  Part of that is as you are starting to craft the hypothetical is the standing issue.  What is this going to do?  You do have an argument that the number of delegates you take into the convention, even if they’re short of the majority, can materially affect your ability to get things done. 

Thomas:         Mm-hmm.

Andrew:         I don’t know, I think it’s harder and harder to make the argument that interest requires intervention.

Thomas:         Okay!  Well there you have it, I think we can move on to another – look, we’re already ahead of last episode! [Laughs]

Andrew:         [Laughs]

Thomas:         We’re on a second line of questioning!  So lots of questions on the Patreon thread about, and you know, from listener Thomas S. as well, about what governments have the power to do what.  Now I know this is a big broad question, we’ve seen emergency responses all over the map.  California’s been pretty good now, the Bay Area is like shut down.  I know Governor Newsom’s doing a lot of stuff, but in general can you give us, if I’m kind of collecting all the questions together, who has the power to do what?  And then I’m gonna have some follow-up questions about specific stuff.

But when it comes to shutting down all this stuff in the state of emergency, give us an overview of who has the power to do what and how far that power extends.

Andrew:         Okay.  This is one where answering this question really depends on is it the federal government or is it the State government?

Thomas:         Mm-hmm.

Andrew:         The reason is that our federal government is a limited government.  It can only do things that are specifically authorized under the Constitution.  One of the things that’s not authorized under the Constitution is “do good stuff for the people of the United States.”

Thomas:         [Laughs]

Andrew:         It’s not an enumerated power of Congress.  You might recall, in our first episode we were reminiscing on some old-timey language so you might be thinking isn’t there a “promote the common defense?”

Thomas:         The general welfare?

Andrew:         Right, provide for the general welfare.  That is the first power of Congress, but let me read you what the Constitution says.  It says the Congress shall have the power to lay and collect taxes, duties, and posts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts, and excises shall be uniform throughout the United States.”

Thomas:         Hmm.

Andrew:         So yeah, they can tax and spend for general welfare, but they can’t just sort of pass restrictions for the general welfare.

The other primary source of congressional power is clause 3, this is, again, Article 1 Section 8 which is the enumeration clause.  The Commerce Clause-

Thomas:         Right.

Andrew:         To regulate commerce with foreign nations among the several States and with the Indian tribes.

Thomas:         I feel like coronavirus affects interstate commerce, right?

Andrew:         It does indeed.  But the important part on framing is that those two powers describe the two major kinds of powers the federal government has in an emergency.  That is powers related to disbursing money and powers related to regulating interstate commerce. 

Let’s take a look at both of those.  I’m gonna pass lightly over the first one, the disbursing money, because we did an entire episode on declaring states of emergency and invoking the National Emergency Act, 50 U.S.C. chapter 34, that was episode 243 and we talked about the 30-plus existing states of emergency prior to this, and Donald Trump’s efforts to declare that in order to divert funds to build his big dumb wall.

That’s still the case, but I will tell you folks have also asked about the Stafford Act because there was an old people internet hoax that was going around that said Donald Trump was gonna use the Stafford Act to declare a quarantine, and that’s not what Stafford Act does.  The Stafford Act, like the National Emergency Act, provides expedited funding.  That’s 42 U.S.C. § 5121. 

When you read stories or see on CNN, I saw this framing the other day that by declaring a national emergency the President has availed himself of a hundred new powers.  That’s true, but like 87 of those are powers related to spending money.  Because the presidency doesn’t get to raise or spend money, that’s the job of the Congress, except where Congress has delegated it to executive agencies to be able to act because one guy acting is easier than trying to get a whole bunch of people together to vote and find a consensus. 

Most of the governmental powers in a declared state of emergency relate to funding.

Thomas:         Mm-hmm.

Andrew:         Relate to getting money out.  But there are a specific set of quarantine powers.  As you pointed out, those quarantine powers derive from the commerce clause!

Thomas:         Huh.

Andrew:         And so 42 U.S. § 264 is a delegation of congressional powers to the executive agency and in particular to the Surgeon General.  So Surgeon General with the approval of the Secretary of Health and Human Services is authorized to make and enforce regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions or from one State into any other State or possession. 

So you can see already at the outset of the quarantine powers is the justification of interstate commerce.  For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals – that’s sad – or articles found to be so infected or contaminated as to be sources of dangerous infections to human beings and other measures, as in his judgment, as may be necessary.

What kind of regulations can the Surgeon General provide and what kind of other measures might be necessary?  The Surgeon General may develop regulations to provide for the apprehension and examination of any individual reasonably believed-

Thomas:         Wow.

Andrew:         -to be infected with a communicative disease in a qualifying stage and either A) to be moving or about to move from one State to another State; or B) a probably source of infection to individuals who, while infected with such diseases in a qualifying stage will be moving from one State to another State.  That’s very, very broad.

Thomas:         Yeah.

Andrew:         In terms of the regulations that could be promulgated there I would analogize this to our – and we’ve talked about this on the show before – to the protections or lack thereof in the mental health system in this country.  We have a system in which individuals may be detained, examined, medicated, without probably cause on the grounds that they are a danger to themselves or to others on the basis of a diagnosis from a doctor. 

If you are asking – I think it’s implicit and I think it was explicit in one of the questions from one of our patrons – does the government have to show probable cause?  Do they have to meet the 4th Amendment standard – I know we have a specific 4th Amendment standard later on that we’re gonna talk about – in order to quarantine you?  Would they have to get a warrant to quarantine you, or something like that.

Thomas:         Hmm.

Andrew:         No.  They absolutely would not.  There’s a tremendous amount of discretion here and the relief that you would get from challenging the regulations would likely come after any quarantine period would expire anyway.

Thomas:         Yeah, yeah.

Andrew:         So in other words, Azar is going to promulgate regulations regarding quarantine and inspection, we will get to see what those are.  Assuming that they are reasonable, and as soon as we see them we will discuss them, they have not been promulgated yet.  Assuming that they are reasonable, even if a group like the ACLU challenges those I think they are unlikely to get an injunction anywhere in the country blocking those regs from going into effect.

What that means is then if you are a victim of the regs you would then bring a habeas corpus suit.  You would file for a writ of habeas corpus to say “I’m being quarantined and detained and this does not comport with the standards of due process.”  I think those standards there are going to weigh very heavily in favor of the government.

Thomas:         Now apologies if I missed it, but where did this derive from?  I’m curious if this was statutes passed in the wake of 1918 or something.

Andrew:         This is actually a World War II era statute.

Thomas:         Oh.  Okay.

Andrew:         Originates 1944, has been amended multiple times over the years including most recently in 2002, but yeah, not a turn of the century old-timey quarantine, but actually a fairly modern – for lawyers, right. 

Thomas:         Yeah.

Andrew:         [Laughs] It’s 80 years old so fairly modern.

Thomas:         It’s pre-Ally McBeal but-

Andrew:         [Laughs] But only by a little.

Thomas:         Alright, in lawyer adjusted units only by a little bit.  Okay, interesting.  I’m not totally understanding right now the difference between – you talk about what Congress can do, does the President have any special power?  What’s the difference in the powers there?

Andrew:         Other then potentially declaring martial law, which I’m not gonna talk about in this episode because if that happens I imagine we will record an emergency episode on Donald Trump.

Thomas:         We may need to do a martial law and we’ll spell it correctly unlike some of our Senators.

Andrew:         [Laughs] And there is a fantastic Transformers clip of that, of Megatron saying [Impersonation] “I declare martial laaaw.”

Thomas:         Oh we have that one to look forward to before we go into the brig or whatever.

Andrew:         So the President has no inherent powers in terms of states of emergency.

Thomas:         Mm-kay.

Andrew:         What the President has is previously delegated powers from Congress in the event that the President declares a state of emergency he then gets to claim those powers, if that makes sense.

Thomas:         Gotcha.  Yeah.

Andrew:         That’s contrasted with – remember I said all of this was the federal government.  The State level is very, very different.

Thomas:         Ah.

Andrew:         Okay?  To understand what happens at the State level we get to go to one of the least talked about Amendments in the Constitution?

Thomas:         Oooh!  The 42nd Amendment.

Andrew:         [Laughs]

Thomas:         Nobody ever talks about it!

Andrew:         [Laughing] That’s true, no one ever talks about that one.  The 10th Amendment, which says the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.

Thomas:         Hmm.

Andrew:         That sounds kind of weird and philosophical-

Thomas:         Sounds catch-all-ey.

Andrew:         Yeah it is.  But it emphasizes what I said, which is that the federal government is a government of limited and enumerated powers, although those powers can be broad, right?

Thomas:         Mm-hmm.

Andrew:         To regulate interstate commerce, but it still has to be interstate commerce.  States have plenary powers.  They get everything else.  One of the things that the States have that the federal government doesn’t have is what we call the Police Power.  Now that doesn’t just mean that States have police officers [Laughs] and the federal government does not, although that’s true.  That’s part of why the federal government does not have police officers.

The Police Power is the 13th Century Saxony term for the right to make laws that you think are good for your people. 

Thomas:         Hmm.

Andrew:         Things that we think are a good idea.  Bans on cigarette smoking, for example.  Laws for the health, welfare, safety of their citizens.  Those powers are inherent in the State, so what that means is that the things that your State are likely able to do in the event of corona- right now, during the coronavirus outbreak, are much, much more broad than what the federal government can do.

Thomas:         This is weird.  Apologies, I don’t wanna go on too much of a rabbit trail, but if this is the case how did something like the Defense of Marriage Act happen or whatever?  Isn’t that just a law that would be under the police power idea?  Like oh, we’re doing this because morally this is what the people should do.  Was there some secret tax part of that?

Andrew:         Yes, in the sense that the question was how the federal government should treat for tax filing purposes-

Thomas:         Oh!

Andrew:         -and other benefit purposes-

Thomas:         So literally yes.  Okay.

Andrew:         -marriages between States.  Yeah, that’s exactly right, that was the justification.

Thomas:         Gotcha.

Andrew:         There were very strong arguments that the Defense of Marriage Act was unconstitutional, the problem is that in general liberals tend to be on the side of an expansive commerce clause-

Thomas:         Ah.

Andrew:         -and conservatives tend to be on the side of a restrictive commerce clause.

Thomas:         Hoist by our own petard or whatever.

Andrew:         Yeah, it’s a little bit of that, yeah.

Thomas:         Okay.

Andrew:         That’s a great question, but yes, every law that you can say “oh well this is just kind of a good idea” requires a justification.  It’s why the NFIB v. Sebelius decision that everybody said oh look, this is John Roberts crossing the aisle and saving Obamacare and we’ve seen in the immediate aftermath that by confining and saying that [Laughs] a law to provide for the national health of all citizens in the country was justified under the tax clause but not under the interstate commerce clause was a truly-

Thomas:         That seems wrong to me.

Andrew:         Yeah, it seemed wrong to me at the time.  We didn’t have the show, but I would’ve been on there saying all the liberals cheering this are really gonna hate what happens, and I know it’s easy for me to say that now, I think I’m pretty open about where I’ve been wrong in the past.  I certainly didn’t see Trump coming, but I saw that as a radical confinement of the commerce clause and a truly dangerous decision, and I think we’re gonna see that continue in the future.  Our Supreme Court’s just terrible right now.

Thomas:         Yeah.

Andrew:         Okay.  Back to the States.  States have plenary powers.  You can’t say oh you have to justify this for intra-County commerce or whatever, States can just kinda do whatever the hell they want so long as it doesn’t violate your constitutional rights.  For example, in Maryland, this is the Maryland Code, the Public Safety Article.  There is a public safety article.

Thomas:         Can I- I’m so sorry.

Andrew:         Sure, sure!  Go right ahead!

Thomas:         We all need a little cheer in this day and age and we’re all managing with our quarantine.  I just got a text update from my wife that maybe will cheer us up a little bit.  Phoebe fell and had an owie and then was offering food to her foot. 

Andrew:         [Laughs]

Thomas:         Was holding her foot and said “do you want a bite?” of her food to feel better because she had an owie on her foot!  I just saw that update pop up on my phone and ah! [Sighs] Just made me feel good.  I thought maybe I’d spread a little cheer in this down time.  Kids are so freaking funny!   Oh, they’re the best!

Andrew:         I love kids! 

Thomas:         Ah! [Sighs] Apologies, but-

Andrew:         No, it’s okay!

Thomas:         -cheered me up, warmed my heart!  Back to the mayor in jaws not shutting down the beach.

Andrew:         Yeah, these movie analogies are more close when we’re talking about the State level.  As I was saying in Maryland, for example, and many States are similar, has an Emergency Powers Act.  It is the public safety article, Title 14 Article 3, so section 14-302 says “the general assembly recognizes the governor’s broad authority in the exercise of the police power of the State” (that’s what I defined) “to provide adequate control over persons and conditions during an impending or actual public emergencies.  The subtitle shall be construed as broadly as possible to carry out the purposes.”

Thomas:         Hmm.

Andrew:         Then what are some of the enumerated powers?  Well the power to control traffic, designate specific zones-

Thomas:         Right.

Andrew:         -in the occupancy and use of buildings.  Control the movement of individuals.  That explicitly says under the law that States can promulgate a quarantine in place order.  Say you may not leave your house under penalty of law.

Thomas:         How does that interact with local governments?  Is it the kind of thing where one trumps the other as you go up?  Can a tiniest little municipality have ordered a quarantine or no?  Or is it just a question of if they do something the State could kinda overrule that kind of this?

Andrew:         That’s an awesome question on preemption and it depends upon what the situs of the locality is.  For example, if your community – [Laughs] If your community is just a gated community in a County somewhere-

Thomas:         [Laughing] Yeah, my beachfront beach community?  What is it?

Andrew:         [Laughs] Then you will be – then the entity making the decision is going to be the County Council, but there are certain cities and towns that have a town charter that are subject, that are outside of a County rule.

Thomas:         Ah.

Andrew:         Or in Louisiana it’s a parish.  So it depends upon what the ultimate authority in a particular area is and noting that some (quote) “cities” may nevertheless, may not have what they call local autonomy.

Thomas:         Okay.

Andrew:         You might elect, say, the Mayor of Gwynns Falls, but Gwynns Falls is in Smith County, so it’s the county commissioners of Smith County that really make the regulations, the local regulations that apply in Gwynns Falls, for example.

Thomas:         Gotcha.

Andrew:         And I’m just making up those place names.  But yeah, you look to the situs, is it either the Mayor, the Mayor and City Council, or a County Council or equivalent and then typically they’re allowed to act so long as the State does not supersede that.

Thomas:         Mm-hmm.

Andrew:         If the State has done nothing and the incorporated town of, you know, Baltimore says “okay, according to our Town Charter under the plenary charter, under the plenary police powers, the Mayor is going to declare a lockdown and everybody is going to quarantine in place in their house.”  That would be a permissible use of the local police powers until the Governor says “no, we’re lifting all quarantine.”

Thomas:         Hmm.  But the State has to proactively make a claim one way or the other to kind of overrule?

Andrew:         Typically.  I’m alighting over a lot of-

Thomas:         Sure sure sure.

Andrew:         -preemption law, but typically yes.

Thomas:         We had a lot of questions about the interaction of the constitution.  Now I know, you know, things are in an emergency, we’ve got lockdown, but what are the limits of this?  A lot of people brought up, like, freedom of movement kind of thing.  What are the limits of this emergency power, I guess no matter who’s wielding it?  Does the Constitution prevent some of these things that we’re seeing really happening?

Andrew:         Yeah, so first freedom of movement is not a thing and anybody saying that is not necessarily repeating sovereign citizen level of misunderstandings?  But that is a major component of sovereign citizen nonsense.

Thomas:         Right.

Andrew:         You do not have freedom of movement in the sense that you have the right not to be quarantined during a coronavirus outbreak.  The other argument that I saw on the question thread that I want to pivot to and expand is the 1st Amendment argument.

Thomas:         Mm-hmm.

Andrew:         Citizens have the right to peacefully assemble.  [Laughs]

Thomas:         But now they’re telling us don’t assemble in groups larger than 10 or whatever it currently is.

Andrew:         Yup, yup.  I love – this is from, you pulled this question so I thought this was great from user “Tacos are a sandwich, change my mind.”

Thomas:         [Laughs]

Andrew:         Who said “some of my conservative friends were posting on Facebook how the government banning large gatherings would be unconstitutional if it were a church.  Obviously this is BS, but going into the law on how the government has the right to shut things down would be really cool.”  So Tacos, this is for you, buddy!

Thomas:         [Laughs]

Andrew:         The principle case here, and doctrine that’s going to guide everything under the 1st Amendment and spoiler, is going to allow virtually every restriction you can think of-

Thomas:         Wow.

Andrew:         -is the doctrine and the reason why we said two years ago that Ann Coulter’s lawsuit against Berkley was nonsense.  It is a case called Ward v. Rock Against Racism, and it is the time, place, and manner doctrine.  Look, I know we have a lot of law students and young lawyers who are out there.  I think there is a really, really interesting – if you wanna write the next cutting edge law review-

Thomas:         Oh!

Andrew:         Revisiting the time, place, and manner doctrine in the era of the internet I think would be a super cool idea.  Here’s the philosophical justification for it, it’s to say as long as we’re viewpoint neutral we can place reasonable restrictions – the government can place reasonable restrictions on the time, the place, and the manner in which you engage in your form of protected expression.

In other words, totally okay for you to run for office and drive down the street with a little loudspeaker saying “vote for Thomas Smith for mayor!”  The idea is yeah, you get to run for office, you get to broadcast your campaign stuff on a loudspeaker, we can stop you from doing it at 2 in the morning.  The problem is I think there really is an area in which time, place, and manner restrictions can start to creep into something that looks more like a content based regulation.

Thomas:         Hmm.

Andrew:         But let me give you the underlying case so that we know where the contours are.  It comes from New York City.  And New York City has, or at least had, I think they still do, an outdoor amphitheater in the southern portion of Central Park.

Thomas:         Oh yeah!

Andrew:         It’s called the Naumburg Acoustic Band Shell.  Lots of people have concerts out there, but in close proximity – now I’m reading from the case – “to the band shell and lying within the directional path of its sound” you can tell I’m reading from the case because this is how the Supreme Court talks about outdoor concerts.

Thomas:         [Laughs]

Andrew:         “is a grassy open area called the Sheep Meadow.  The City has designated the Sheep Meadow as a quiet area for passive recreations like reclining.”  I love that!

Thomas:         [Laughs]

Andrew:         I’m going out for a recline.

Thomas:         Yeah, I’m gonna do some reclining, where should I go?

Andrew:         Walking and reading.  [Laughs]

Thomas:         I could give you a great place!  The Sheep Meadow!

Andrew:         [Laughs] “Just beyond the park, and also within the potential sound range of the band shell are apartments and residences in Central Park West.”  Okay, you see where this is going.  Every year there was a concert called Rock Against Racism that would go out to the Bandshell and [Laughing] in multiple years the City would say “hey you guys, you’re just too darn loud, can you turn it down a little bit?”

Thomas:         Oh you’re in favor of racism then, huh?!

Andrew:         [Laughs]

Thomas:         That would be the retort.

Andrew:         And in fact, here’s how the Supreme Court put that one.  “On some occasions Rock Against Racism was less than cooperative when City officials asked that the volume be reduced.”

Thomas:         [Chuckles]

Andrew:         “At one concert, police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile.”

Thomas:         [Laughs]

Andrew:         Which I find very, very easy to believe!  So look, then over the years the Rock Against Racism folks, they met with the City, they tried to come up with alternative solutions, there were repeated warnings, it was just always really, really loud so eventually in 1986 Rock Against Racism said “hey, we wanna have our concert again,” and the City was like “yeah, we’re denying you the permit.”  That went all the way up to the Supreme Court.

That was kind of the argument.  It was hey, look, they’re denying us the permit because they don’t want us to take our message of Rock Against Racism-

Thomas:         Bunch of racists, yeah.

Andrew:         Yeah, because they’re racists!  And the Supreme Court said it’s not that they’re racists, it’s just that they want you to be quiet in the park.

Thomas:         [Laughs]

Andrew:         That established the time, place, and manner doctrine.  It said it’s reasonable for the government to impose non content-based restrictions on the time, the place, and the manner in which you express yourself.

Thomas:         That’s interesting.  I would’ve thought the time, place, and manner doctrine was older than that.

Andrew:         The first use comes from 1972.

Thomas:         Wow.

Andrew:         But still, it’s not- again, this is one of these things that I think our children will be coping with.  Most of what we think of as our rights coming from the courts are really a result of the Warren Court.

Thomas:         Yeah.

Andrew:         Are from the 60s and 70s and we’re gonna have a generation of kids who grow up who think oh yeah, the Supreme Court is the place where laws go to die.

Thomas:         Yeah.  Can we get another Warren Court kind of thing going?

Andrew:         I would kinda like that, that would be nice.

Thomas:         Yeah, maybe Elizabeth Warren could!

Andrew:         [Laughs] Oh man!

Thomas:         That would be another Warren Court.  Okay! 

[Commercial –, promo code “OA”]

Thomas:         So long story short there was a one weird trick type question you read that I thought was really funny, which is once you tell a church they can’t have service, that’s gonna be the thing that’s definitely against the 1st Amendment, but that’s not true because of this.

Andrew:         Exactly right.

Thomas:         Alright.  Well you said that you thought they pretty much have the ability to do anything that we’re seeing.  There were a lot of questions about can Trump or Congress or whoever, can they suspend mortgage payments?  Can they suspend utilities?  What are the limits of that, what might happen?  Will it matter if it’s a public company or whatever?  What are the limits and what can we expect there.

Andrew:         Almost all of what you’re going to see with suspending mortgage payments or any of the types of things that you’ve talked about are basically exercising governmental discretion over contracts.

Thomas:         Hmm.

Andrew:         It’s going to fall into one of two categories.  The first is there are a number of government contracts directly with individuals.  Federal student loan programs.  You can always direct in the maintenance of a federal student loan program that you’re going to differ, you’re not going to collect interest, you’re not going to collect principal, which is something that they haven’t put on the table.

Thomas:         Yeah.

Andrew:         Which obviously should be on the table.  When it comes to private student lenders, which is still most of the debt in this country, and all sorts of other private lenders, this is really much more a function of negotiation than a function of law. 

Thomas:         Huh.

Andrew:         The government doesn’t have the power to tell J.P. Morgan-Chase-

Thomas:         Wow.

Andrew:         “You can’t collect on your debts at this point in time.”  What they can do is they can call up and say “we strongly suggest that you do X at this particular time because you’re going to need stuff from the government and when we pass our giant bailout package it’s not going to include this unless you’re also giving some eyewash-

Thomas:         You’re gonna wanna get the massive stock buyout money that we’re probably gonna give a bunch of corporations for no reason, so you better behave.

Andrew:         Yeah, and look, I want to steel man the bailouts part.  A great many businesses are going to be really, really hurt.

Thomas:         Oh, yeah.  I’m not anti-bailout, I’m just pro Elizabeth Warren’s restrictions on what they can do with that money.

Andrew:         I couldn’t – I can no longer.  You’ve invoked Elizabeth Warren so I can steel man no longer.

Thomas:         [Laughs]

Andrew:         But I wanna be clear on this because we have that duty to our listeners.  Not all businesses are J.P. Morgan-Chase.

Thomas:         Yeah.

Andrew:         And I really, really think in addition to – that an appropriate bailout bill in addition to focusing on unemployment insurance, paid time off, paid sick leave, focusing on the employee side, needs to also provide relief to employers who are gonna have to come up with ways while they may not have customers.  I think there’re both halves of that that are worth considering.

That beings said, yeah, we go back to what we said to start off with in the immediately previous episode.  Donald Trump has squandered virtually all of the available potential fiscal and tax policy to just keep this economy afloat while he’s being an incompetent buffoon and now that’s coming home rather hard.

I assume you saw the notice that with yesterday’s stock closing … the stock market has now erased all of the gains from the Trump administration. 

Thomas:         Yeah, not only did I see that, I also saw that my retirement has erased all of the gains of any of it.

Andrew:         Yeah. 

Thomas:         Firmly in the negative.  So that’s interesting.

Andrew:         We are as if Barrack Obama stayed President, took the entire national economy, put it in a shoebox, and buried it under his bed for three years.

Thomas:         [Laughs] Sounds better than now.

Andrew:         Which is generally not a good way to run an economy, yeah.

Thomas:         Yeah, but would he have disbanded the pandemic task force, or whatever?  Okay.  I guess, then, that’s interesting.  That kind of scares me a little bit.  They don’t really have any for sure power over private companies in these scenarios, it sounds like.  Now we’ve seen orders that-

Andrew:         And it’s worse – let me do a slight sidebar.

Thomas:         Oh, make it worse.  Okay.

Andrew:         In the Constitution, and again, this featured prominently in the Lochner era, but-

Thomas:         Oh, yeah, they can’t interfere with contracts! 

Andrew:         It says no State shall pass any law impairing the obligation of contracts.  In other words, if a State tried to require a multinational insurance company to refund premiums, or a bank to defer on collections, that would be unconstitutional.

Thomas:         Wow!

Andrew:         Yeah.  [Laughs]

Thomas:         So … that’s scary.  I’ve seen that there are places that are saying we’re not evicting anybody.  Is that just a matter – we’re not gonna allow evictions right now, for example.  Is that a matter of saying you’re not gonna have any police help?  What’s the law around that?

Andrew:         Yeah, that stems from a Supreme Court decision called Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934), in that case the Supreme Court upheld a Minnesota law that suspended the remedy of eviction and said, you know, 1933-

Thomas:         Yeah.

Andrew:         Great Depression-

Thomas:         Well that’s like now.

Andrew:         Yeah.  [Laughs] The Supreme Court said, as sort of the first beginning moves away from the Lochner era, that’s what I was fumbling around on how to characterize this case.  That the Great Depression (quote) “may justify the exercise of Minnesota’s continuing and dominant protective power, notwithstanding interference with contracts.” (End of quote). 

Yeah, saying you may not impair a contract does not fully answer the question, because obviously taken on its face a contract that says if you don’t pay your rent by now we can kick you out, passing a law that deprives you of part of the remedy could be argued as impairing that contract.

Thomas:         Seems to be, yeah.

Andrew:         Yeah.  Exactly.

Thomas:         It seems like it is.

Andrew:         Look, this case, amusingly enough probably not going to be subject of said criticism at this point in time, but is the kind of thing that the Federalist Society has criticized. 

Thomas:         Well I know California has some pretty strict laws on – it’s actually very hard to evict someone in California, so it sounds like that means States have been allowed to make laws that prevent that kind of thing? 

Andrew:         Yeah, that’s right.  And look, all of this, really sort of rupturing the Libertarian paradise bubble, reflects the reality that your remedies under contract are State remedies.

Thomas:         Hmm.

Andrew:         At the end of the day when you’re talking about evicting somebody, you’re not talking about – you’re talking about the police preventing that person from coming back into the property, or the police coming in and forcibly escorting you.

Thomas:         Well that’s interesting.  So does that mean the President and Congress can’t do this?  They can’t say “stop evictions.”

Andrew:         [Laughs] It’s a really interesting question and I don’t think that under the current reading of either the commerce clause or the tax clause that the Congress could put a moratorium on evictions.  It would be an interesting question.  The reason that I say that is because the Blaisdell decision that I just described to you arises out of the police power that I talked about.

Thomas:         Yeah.

Andrew:         It says – that’s the State interest, is the State can say “we have an interest in people not being homeless.”  The federal government can have an interest in people not being homeless, but it doesn’t give rise to a separate power or justification.  So it would be a super interesting question.

Thomas:         Yeah.  So now this worries me because it sounds like, even if let’s say States put a moratorium on evictions, which some have and I suspect a lot will, it sounds to me though, like apart from voluntary behavior from these companies there is nothing to stop your mortgage holder from saying oh, cool, but we’re still racking up interest and penalties and principal and all that, so the minute this moratorium is lifted guess what, you’re out of your house.  Is anything going to protect anybody from that?

Andrew:         Is there going to be a law that protects anyone from that?  I … boy, I don’t know.

Thomas:         Hmm.

Andrew:         I don’t think – I mean [Sighs] we had a functioning Consumer Fraud Protection Bureau, right?

Thomas:         Well it’s not really fraud, I mean it’s just kind of-

Andrew:         I was gonna say if they tell you.  Depends on, as I’m trying to think about it, here’s the argument.  If we defer your obligations and impose no additional penalty on those obligations then when the emergency passes if we reinstate those obligations does that violate any federal law?  I think the answer’s no.  I invite our listeners, part of our reasons-

Thomas:         Well you saying deferring…

Andrew:         Right, so here’s what would happen.  If we defer your student loan payments with interest that could be something that a lender does during the coronavirus but it’s still accruing interest over that time period.

Thomas:         Yeah, yeah.

Andrew:         Then says okay, that deferral period is done, and now here’s what you owe.  I’m having a hard time off the top of my head coming up with a federal law that that would violate.  

Thomas:         Yeah, I don’t think it would.  What I’m saying, I guess I was assuming that’s not violating any law.  I’m saying is there even anything they could do to protect us?  If we had a government that wanted to protect us from this is there anything they could even do?  Or would it come down to “sorry, you can’t interfere in a contract.”

Andrew:         The contracts clause has not been applied …. Yet in a post-Lochner era, particularly expansively.

Thomas:         Hmm.

Andrew:         Typically what the contracts clause prevents is the federal government coming in and cancelling a contract between the State and a party or between two private parties.  It’s been much more treated as an all or nothing akin to the eminent domain analysis.  I don’t know that you would win a contracts clause argument if we passed a law that changed how banks could collect interest. 

I think you could justify that under the commerce clause power.  These are interstate banks lending to individuals and we are going to change how they could collect interest.  I feel like, and again, curveball off the cuff question, so I’m sure we’ll get some Andrew Was Wrong commentary on that, but I feel like we could do something to protect individuals in that case, I’m not willing to say that there’s nothing the government could do there.

Thomas:         Okay, but that’s a matter of they do need to proactively do something otherwise we’re pretty vulnerable, right?  I mean even if-

Andrew:         Yup!

Thomas:         Even if, let’s say you can’t be evicted for a period of months, there’s nothing right now to stop whoever holds your loan from saying “cool, but you owe us all these interest and penalties because of this.”

Andrew:         I think that’s right, I think that’s right.

Thomas:         Well that’s certainly scary.  Okay.  Let’s go on to some other questions.

Finishing up the topic of “is the constitution gonna stop governments and the President, whoever it is, from doing stuff,” does the 4th Amendment protect people against any sort of mandatory medical tests?  Can the government say you have to take a test?

Andrew:         The answer here is super clear, no it does not. 

Thomas:         Really?

Andrew:         Yeah.  The underlying case that I think pretty much controls is American Federation of Government Employees v. Skinner, which is a case from the D.C. Circuit which involved the Reagan era Department of Transportation announcing a plan to mandatorily test certain employees of the Department of Transportation for illegal drug use.  The various unions sued to prevent the policy from going into place and challenged that requiring them to take mandatory drug tests was a violation of the 4th Amendment.

Let’s be clear on this, I’m gonna quote from the decision, “The Department identified as Category 1 personnel,” (people who had to take the drug test) “those employed in some 20 different positions relating to air, rail, highway and water transportation.”  94% of the employees subject to random testing under the plan work for the Federal Aviation Administration, and nearly 2/3 of those covered employees are air traffic controllers.  Of the remainder most are employed in positions related to transportation safety, among them mechanics, inspectors, and engineers.

So the lawsuit, the face of the lawsuit was somebody who drives a mail van.  Delivers mail within the Department of Transportation and they’re like look, this person really has to be drug tested?  There’s virtually no nexus whatsoever.  I get it if you wanna say the person driving the heavy equipment or landing the airplanes or whatever has to be drug tested, but this dude is driving the mail, that’s no more dangerous than anybody in any other job anywhere.

The Supreme Court said that this is essentially a matter that deserves the most liberal of scrutiny, that they were going to defer to the government’s determination on relation to public health, safety, or national security, and that there was a correspondingly reduced expectation of privacy in connection with that kind of government work.  I thin if you can mandatorily drug test federal employees that drive mail trucks you can mandatorily test people for coronavirus without implicating the 4th Amendment.

Thomas:         Okay.  We’re running out of time, but I think that we can squeeze in this one.  There are a lot of questions about liability here.  For one, what’s gonna happen if anybody knowingly had the virus and came to work, or did whatever and spread it, talk us through any scenarios in which people could be held criminally accountable or civilly accountable and then I know a lot of people also wanna know if Trump or anyone in the administration can be held accountable for the fact that they bungled this and probably cost a lot of people’s lives.

Why don’t you take us through liability questions?

Andrew:         Sure.  A couple of things to note.  First, again when we’re talking about criminal liability we are talking about essentially State laws.  Here one of the things that I think is instructive is the way that States have dealt with individuals who are accused of intentionally spreading HIV.  There are other cases involving other diseases, but given the history of HIV in this country and the discrimination and prejudice and fear around its outset there were a lot of examples stemming from apocryphal stories of people getting HIV and then deliberately spreading it to as many sexual partners as they could.

Two things to think of.  The first is the crime of attempted murder is intentionally attempting to cause the death of another person.  Again, different States may tweak that a little bit, but that’s what attempted murder is.  There are States that have prosecuted individuals with potentially deadly diseases, like HIV, for going out and intentionally infecting someone else. 

In general those cases follow multi-step criterium of you must know you have the disease, you must know that the disease is communicable, could be spread through the way in which you’re spreading it, you must spread it that way, and then you must intend to infect that person and ultimately cause their death.  That’s how you get to attempted murder. 

Some States have specifically codified statutes that say it’s a crime to engage in a particular kind of behavior, HIV, Hepatitis C for example, there are States that have added Hep-C to the list of medical conditions that people can face criminal prosecution for if they knowingly expose others to the disease. 

An example in Ohio that has a specific criminal statute that lists HIV, Hepatitis, and others, there was a man who had Hepatitis C and when the emergency medical technicians and police tried to put him on a stretcher to take him to the hospital he was resisting and he spit a mixture of blood and saliva at them, and he hit one of the officers in the eye.  That person was charged under the Ohio statute for intentionally exposing someone else to their contaminated bodily fluids with the intent to (quote) “harass or threaten the person.” 

So if you’re a Typhoid Mary, if you know you have coronavirus, you go to work, you intend to spread the coronavirus, you do spread the coronavirus and you’re hoping that the person will get sick and die and then they get sick and die, you could be prosecuted for being “Coronavirus Mary.”  It’s a long string there, and I know we have folks who are doctors and health professionals.  I think as we said in the first episode, we have a President calling this “Chinese Virus,” I think that racism and disease stigma are likely to come into play here.

That’s the answer on the criminal liability question, you treat it like any other activity.  It’s a question of intent and it is then a question of whether you meet those criteria.

In terms of whether Trump could be held accountable for causing more deaths due to his incompetent administration?  [Sighs] The answer there is sadly no.  The President, while having extravagant claims of immunity as we learned throughout the Mueller investigation and impeachment that we didn’t hesitate to tell you were not backed up by law or fact, this is an area where the President does enjoy absolute immunity, in the performance of his job duties. 

Look, I just wanna emphasize, you want it to be that way.  The remedy for a stupid and incompetent President is to vote him out of office and you do not want to set the precedent that the next – Larry Klayman can file 800,000 lawsuits against our next Democratic President in order to challenge each and every decision that’s been done.  That would be a nightmare, it would be an end of separation of powers, it would be terrible.  You don’t want that no matter how much you want Trump to pay for his incompetence.

Thomas:         Alright, well we are way out of time, Andrew, so let’s attempt a coronavirus lightening round.  You ready?

Andrew:         I’m ready!

Thomas:         Okay, ready as an Andrew can be for a lightening round.

Andrew:         [Laughs]

Thomas:         Here was a weird one, weird tricky thing that I saw that I thought was interesting from one of our patrons.  Does Congress have to vote in the chamber for it to be official?  For it to be good law?

Andrew:         So the answer to this is Rule 20 of the House of Representatives.  That rule – so ultimately the House would need to amend its rules.  Here’s the way that a vote takes place is that when there is a vote, the Chair just gets to decide if it’s a voice vote.  Like eh, in my opinion the ayes have it, or in my opinion no. 

Then after that voice vote is a call for a division.  Under Roberts Rules of Order what that means is okay, we’re gonna actually have a vote.  We’re gonna count stuff up now.  When it is put to a division – so the rules currently say that the House shall divide and those in favor of the question shall first rise from their seats to be counted, and then those opposed. 

But whenever any vote is on the record it specifies in the rules only, unless the Speaker directs otherwise, the Clerk shall conduct a record vote or quorum call by electronic device.  Now what that means for electronic device is the little button that you push at your seat that we see on C-Span, but I don’t see any reason why that couldn’t be amended to change the device to some kind of online voting. 

I think the answer to this is that the House of Representatives could change their rules and the Senate could do the same thing, to make the vote by electronic device, and by electronic device they mean over the internet.

Thomas:         Alright, and then I think final lightening round question for today, Andrew, what happens if any one of our current candidates becomes ill or maybe even dies before the election?  What happens?

Andrew:         Yeah, that goes back to our friend the 20th Amendment.  Section 3 specifically provides for this.  It says “if at the time fixed for the beginning of the term of the President the President-Elect shall have died than the Vice President-Elect shall become President.”  It’s really, really important who our presidential candidates choose as their vice-presidential candidates. 

Then it says “If the President shall not have been chosen by the time fixed for the beginning of his term, or if the President-Elect shall have failed to qualify, then the Vice President-Elect shall act as President shall have qualified.”  That gets into, you know, electors issue that we talked about in the first episode, because the method for choosing a President and the method for choosing a Vice-President in the event that no candidate has an electoral majority are different. 

Yeah, we don’t have time, it’s a lightening round, but ultimately the answer is if the President-Elect dies before assuming office the Vice-President-Elect become President-Elect.

Thomas:         What happens if we’ve got nominee – it’s Biden and Trump and we’re in September and something happens to Joe Biden.  Is it just on the party to be like uhh, who’s the – is it automatically Joe Biden’s VP pick or is there still the ability to be like “fair is fair, actually Bernie Sanders was in 2nd so he should’ve been the one who gets to run for President” kind of thing?

Andrew:         The answers really are twofold.  Remember that elections are State things, so if it’s September you could probably get a new ticket out.  Ultimately it would be up to the Party to decide whether they would want to go forward.  Let’s say Joe Biden takes Stacey Abrams as his Vice-Presidential candidate and then Joe Biden passes away from coronavirus in September.  It would be up to the Democratic Party to decide if they want to go forward with Biden-Abrams on the ballot, September you probably could get ballots adjusted in every State.  Or, if they want to go with a different set of candidates.

But either way if the Biden votes come in then those Biden votes will transfer over to Abrams becoming President, those Biden electors.  But if they replace the nominee with Bernie Sanders and Bernie Sanders takes Elizabeth Warren as his Vice-Presidential candidate then you could potentially have a situation in which you throw the election into the House of Representatives because no candidate gets a majority. 

If you have two Democratic tickets and the Republican candidacy all splitting electoral votes you could have nobody get to 270.  It would be a dangerous and scary time and I think absolutely the Party would say Stacey Abrams is now the Presidential nominee.

Thomas:         Wow.

Andrew:         Stacey Abrams would pick a Vice-Presidential candidate and that way you would go forward, that way all the Biden votes would count as Abrams votes.

Thomas:         Wow!  Well we are so out of time but we, of course, need to thank our patrons.  A, thank you for all the great questions, we appreciate you so much, but B, we’re gonna thank our top patrons, our hall of famers, our all time greats here on Top Patron Tuesday!

[Patron Shout Outs]

Andrew:         Thank you all so much for supporting us over at and if you guys wanna join their ranks you know how to do that.  Just head on over and sign up and you get all the bonus goodies that these folks have been enjoying for so long.

Thomas:         Yeah, they already heard this episode early and they got Andrew’s last talk before the end of the world, go check it out on Patreon.  Alright, thanks so much everybody!  Thanks so much Andrew for toughing it out through your coronavirus that you probably have.

Andrew:         Definitely have.

Thomas:         We really appreciate it, and that was some good Q&A.  Most of your coronavirus legal questions.  Stay safe out there, everybody, and we will see you next time!

Andrew:         Until then!

[Show Outro]

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