It is entitled covid19 and federalism. John is a fellow at the Hoover Institution and served in all three branches of government, including the u. S. Department of justice, Senate Judiciary committee, and Supreme Court. Prof. Yoo thanks for tuning in. I can see you on the others of the zoom. Sometimes that can lead to very disturbing images. Here, in terms of you guys, i cant call on you either if you have questions, so we benefit from the new world we live in. Many appreciate that you cant see them. [laughter] i want to kick this off by jumping in the middle of the federalism debate. Federalism is about division of authority amongst different political leaders at different levels. We have seen some governors be aggressive in embracing shelterinplace and stayathome orders to flatten the curve. Other governors have been more open, arguing the local conditions didnt warrant it. Governors who adopted rigorous shutdown policies have been confronted by their citizens and city and local leaders. Overlaying it all is the federal government, who have done some things to compete with what local officials are doing. My good buddy and i talk about this a lot. His take often is we dont have a plan. My retort is we have lots of plans. His concern is, who is in charge . How do we understand this from our system of government . Prof. Yoo you just described the beauty and pitfalls of our system of government. We are not south korea or china or france, we dont have one unitary government where every policeman is an employee of seoul. We have a government with powers given to it by the constitution. Everything else that isnt specifically given to the federal government is retained to the states, which we call the police power. The federal government doesnt have the right to regulate Public Health. It is not in the constitution. We assume the major frontline policymakers about Public Health, about pandemics, which existed when the constitution was written there was a yellow fever epidemic when the constitution came into effect that will be up to the states. The federal government has two specific powers to support the states in their choices. There are 50 different choices about policy. One is the right to regulate interstate commerce, which is the movement of people and services across state borders, which is of some use in this pandemic, especially if you want to stop people from coming into the country that might bringing be bringing coronavirus with them. We see congresss power to tax and spend for the general welfare. That is how congress is taking trillions of dollars now and pushing it out to support state policies by more generous unemployment compensation, by purchasing equipment, medical supplies, by providing expertise, and by Encouraging Research and develop of a vaccine. The downside is that you have 50 governors making up their own policies. There are two good defenses for that system. It may not act quickly, but it doesnt make mistakes quickly either. It is a riskaverse approach to government where you have trial and error. You have laboratories of democracy which allow for experimentation. We will see how things go here versus texas or florida, and other states can adopt those policies which seem to work. It also means that local officials who are more responsive to the people can make policies best suited to local conditions. The policies in california are not suited for new york city or chicago or texas or florida either. It means that offering of diverse policies means states and the federal government has to compete for the support of us, the people. If we dont like what states are doing, we can go to the federal government. If we dont like what the federal government is doing, we can press the states. The founders thought that competition would lead to good policy and protect our freedoms and liberty by making sure government doesnt overreact and take away our liberties in exchange for whatever policy crisis of the day is. So federalism distributes authority in public policy, and that distribution is enforced by the law. What is going on now is boiling down to specific things. One idea talked about is Contact Tracing, which is an idea that one Public Health officials can use to identify who has been infected, who else they might have infected to flatten the curve. How do we understand what level of government can impose that, and is it legal under our system . Prof. Yoo tough question in part because we dont know. The means we would use for Contact Tracing now are much more effective because of smartphones and information revolution. The government has far greater tools now than 100 years ago. Which level of government would do it . It would be the states. Some states dont have to do Contact Tracing. Some states might feel they want to. They are in charge of the police power. They have the right to do Contact Tracing. There is an important limit on the broad power of the states, the right to due process, the right to equal protection. Here the Fourth Amendment right to be free of searches by the government that are unreasonable or require a warrant. That will be the main issue for Contact Tracing. Contact tracing would primarily be done through hightechnology, algorithmic programs using your smartphone. The Supreme Court a few years ago said if the government wants access to your smartphone, it needs a warrant from a judge. This was a case ironically involving robbers of cell phone stores. The government wanted to trace their cell phones every time the robberies occurred. The court said even though generally when you hand over your information to a third party you lose your privacy interests, the smartphone is so important today that you need a warrant from a judge. That sounds like Contact Tracing would be impossible. But there is an exception, that if the government is doing it not to track you down for a crime, but to protect Public Health and safety, you might not need a warrant. Examples include drunk driving checkpoints, random drug testing security screening at airports. Prof. Yoo exactly. The government is not trying to pin a crime on you, but do something randomized for Public Health reasons. You might not need a warrant. That is what this Contact Tracing approach will call into question, whether it fits into our protections for privacy generally. Lets talk about lockdown policies. Bruce asks, our county sheriff declared our states stayathome orders are unconstitutional. He will not have his deputies enforce them. Is he justified . Do state Police Powers make him wrong . Prof. Yoo they are not unconstitutional in the general approach. The state under the police power does have the right to shut down businesses for Public Health and safety reasons. Until the 1930s, you might have had a constitutional right to keep your business open, to economic liberty, but that right was lost in the 1930s under the pressures of the new deal and fdrs effort to pack the Supreme Court which struck down early versions of the new deal. Since then the court has not recognized this right to economic liberty. On the other hand, you do have some rights that are guaranteed by the bill of rights. Those will have the most success challenging the lockdown restrictions. For example, a law about political protesters in a place like california or michigan. I think a state doesnt have the right to say no protests. If the government can achieve its purpose of Public Health and safety and respect those Constitutional Rights through less oppressive means, then the courts will require the government to do that. If you are a protester and want to show up on the capitol grounds, you can say we will keep six feet apart and wear masks like at the supermarket, how can you say we dont have a right to protest . Churches i think the government doesnt have a right to shut down all churches if the worshipers can present reasonable alternatives that are going to respect social distancing like staggered services, sitting six feet apart in the pews. I saw driveins. I was a kid when we have driveins. I never thought they would come back. That is where the government is on shaky footing. It will be specific challenges based on the Constitutional Rights you have under the bill of rights. Since 1935, that no longer includes the economic liberty to make a living, although personally i thought that would have been part of the right of americans, but the Supreme Court announced it wouldnt protect those anymore under the pressures of the new deal. Gun stores. There is a constitutional right to bear arms. Some states declared them an essential facility. Prof. Yoo this may not be a popular answer in california, but i think this same approach if you have the right to bear arms, the government cant completely shut it down in the name of Public Health and safety if there are reasonable are are reasonable alternatives, if there are tailored ways the government can achieve its end. If the gun store said i will only allow one person in the store at a time or all customers have to be six feet apart and wear masks, i can do both. I can respect Second Amendment rights and maintain social distancing rules that exist at costco and target and the local supermarket. The Gun Store Owner has a good argument. If the state is starting to apply these policies to me when i have a reasonable alternative, doesnt it look like the government is taking advantage of these lockdown policies to prevent people from criticizing the government or engaging in the right to bear arms . That is where courts will be extremely suspicious. Can states restrict people from other states coming into their states to prevent covid19 infections . Prof. Yoo great question. Rhode island was starting to do that. If i was rhode island, i would not want new yorkers in my state anyway, covid or not. [laughter] the constitution doesnt give that power to the federal government. It does give the government the ability to stop interstate traffic. Police do have the right to prevent imports or people moving in as long as it is for Public Health and safety and not for some protectionist reason. The courts very suspicious when the state has some regulation effect of advantaging people in the state. You are not allowed to leave the National Market of the United States as a state. It seems in the case of the covid pandemic, states have a reasonable Public Health reason, just as they would if there were diseased livestock or diseased food. States have long had that power. It is mentioned in the constitution that states have such a power. It seems to me that they could. It is another question where states ought to be reasonable. In rhode island, they werent actually blocking people at the border in new york, but we will test you, go into selfquarantine. In those conditions, the courts would say it is within the constitutional power of the state. The courts will be suspicious of Rhode Islanders trying to isolate themselves from the rest of the United States and hoard its resources, which they are not allowed to do. The president used the defense production act to compel private companies to develop therapeutics. The states eventually end up with them and have to allocate their use. In maryland, Governor Hogan had the Maryland National guard protect a shipment of tests to prevent the government from taking them. He even had the flight land in maryland as opposed to dulles airport, which is in dc. Another question in a similar vein on using Governor Hogan as an example, he says he has testing kits in a secret location guarded by the national guard. Can the federal government seize those supplies and redistribute it to other states . Prof. Yoo great question. It raises this issue of federal government control over the borders. Usually we respect the state right as a government to manage its own employees, its own property. Hypothetical is the federal government cannot order a state where to have the capitol. The courts usually say the states are immune from federal regulation because they are sovereigns. States have every right to buy a mask. It is very complicated. What Governor Hogan did with his national guard, which could have been federalized i am not sure that is constitutional. You could say he has the right to property, but the federal government has the right to inspect everything that flies into the country. If this was a flight i think it was from korea that had medical equipment it seems to me the federal government has the right to inspect it when it comes in the country. The question about the defense production act is interesting. I would be wary of using the defense production act to say we can reopen the whole economy. If you look at its terms, it is a National Security law about wartime, making sure the government is getting enough war material to fight the war. What the statute talks about is prioritizing federal requests for equipment, allocating resources so federal demands get met first. To use the defense production act in the way people are worried about would raise constitutional questions if you used it to seize things from states. That might run into constitutional difficulties. Lets shift to the question of immunity. There has been debate about whether tort law should be amended to allow businesses and commercial operations who are reopening, to give them some immunity from subsequent claims that they helped spread the virus or sickened people. Prof. Yoo that is a great question. You can see in certain emergency situations we assume an immunity to people because we dont want them to have to make decisions under the press of time, limited information, limited resources and have them think, am i going to get sued about this . The wartime, for example, soldiers have what is called combatant immunity. We dont have lawsuits against our leaders and generals because of mistakes they might make in war. A lot of the ways we are thinking about this pandemic has that quality, thinking of it as a war. First responders, doctors, hospitals dont have any kind of heightened immunity from lawsuits. This would have to be done by states. To me, it seems like a reasonable policy. If you think about new york city where we were rushing graduates of medical school to the front lines they are not going to be fully trained. They are not doing their residency and internships yet. They may have only seen a ventilator once or twice, but it might be better to have someone there rather than no one because of the under capacity of the Hospital System for the waves of cases. If you dont have that kind of immunity, you are creating an incentive that prevents society from marshaling its resources. Think about the next pandemic. Suppose there is one five years from now. If you dont have immunity in place, will you get doctors to come out of retirement and volunteer and nurses rush right away to the emergency . You will impose this viability concern under conditions we dont want people to worry about, as opposed to normal everyday nonemergency society where we want people to consider the factors carefully. Emergencies those are not the best times for the normal tort system. This question is on elections. What powers to the federal government or states have to modified the processes of the november general election . Prof. Yoo that is not so fraught. The constitution gives congress the power to set the exact date of the election. There are already statute in existence and we went through this in 2000 with bush versus gore about when state results have to be counted and sent to washington. The constitution also has a hard date. There is a specific date in the constitution when the Congress Ends and when the president s term is over. Suppose we never had elections. President trumps term is going to end in january. If there is no election, that means there is no president. Pence is not president. It might mean nancy pelosi is president. So everyone will want to make sure we have elections. [laughter] one historical tidbit was seriously debated during the civil war. We might talk about an emergency, it would have been the civil war where one third of the country tried to leave. Abraham lincoln was pressed by many people to postpone the elections. To lincoln, it was important that we maintain the steps to show the constitution could adapt to civil war. He wrote a note to himself for the next president that he assumed would be general mcclellan in the election of 1864. We were not sure lincoln was going to win. Lincoln said if i lose, i will do everything i can to support and transfer power to the other party, even though mcclellan was campaigning on a peace platform. He would have repealed the emancipation proclamation. Lincoln said it was more important that we observe the measures of government, election, and placement. That is true here. You could have the elections, you just have to do them with social distancing. It is hard for the government to claim because of the pandemic that we can just shut elections down completely if there are reasonable alternatives. We saw that in the wisconsin primaries. This is an important issue. Suppose we have to undertake elections in a nontraditional way. What authority does the federal and State Government has in ensuring voter identification to make sure it is a Fair Election . Doesnt the Current Situation broadly disadvantage challengers as opposed