As the pandemic continues, there have been more and more examples of government intervention. Police ticketed people attending church in their cars on Easter. One Florida county introduced curfews. And localities across America are mandating face masks in certain situations. What is the government allowed to do, and what is it not? John Malcolm, head of the Meese Center for Legal and Judicial Studies at The Heritage Foundation, unpacks the legal scenarios. Read the lightly edited transcript, pasted below, or listen on the podcast:
We also cover these stories:
- About 13.5% of America’s labor force has filed for unemployment over the past five weeks.
- New York’s nonessential businesses will remain closed until May 15.
- Los Angeles is letting businesses deny entry to someone without a mask.
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Rachel del Guidice: I’m joined today on The Daily Signal Podcast by John Malcolm. He’s the vice president of the Institute for Constitutional Government, and director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation. John, it’s great to have you on The Daily Signal Podcast.
John Malcolm: Great to be with you, Rachel.
Del Guidice: Earlier this week, President [Donald] Trump tweeted, “For the purpose of creating conflict and confusion, some in the fake news media are saying that it’s the governor’s decision to open up the states, not that of the president of the United States and the federal government. Let it be fully understood that this is incorrect.”
John, can you unpack this for us a little bit? How should this work?
Malcolm: Sure. I think that the president is wrong in what he had to say, with only one limited exception.
The limited exception is that if he wanted to order federal employees and military personnel to go back to work, the governors could not stop that from happening. State officials cannot, under the Constitution, stop federal officials from executing federal policy. But that is the only exception.
Our Constitution sets up a federal government of limited and enumerated powers. And the only time in which a president could exercise that sort of extraordinary power would be if our nation faced an imminent attack from a foreign nation, or if there was an outright rebellion, an insurrection going on in the states, and the states were fundamentally incapable of enforcing their own laws.
Other than that, the federal government and the president have a lot of power when it comes to controlling foreign travel.
They can stop people who are trying to enter our country if they suspect that they may be infected with the coronavirus. They have plenary power when it comes to interstate travel. The federal government could probably stop people from entering or leaving states if they felt that they were infected by the coronavirus.
They could control commerce between the states, so they could control the movement of goods if they thought that might be impacted by the coronavirus.
But under the Constitution, the 10th Amendment, it is the state government officials, usually governors, who exercise what’s known as residual police power to protect the health, safety, and welfare of the inhabitants of those states.
It’s that authority that the governors are using to issue their stay-in-place orders, they’re closing down what they deem to be nonessential businesses, preventing large gatherings, and the like.
Del Guidice: On that note, is our traditional understanding of federalism affected by this unique nature of a pandemic and its contagiousness?
Malcolm: It’s certainly being tested, and the president’s statement is a test of that. In general, our liberties are being tested by all of this.
There are all kinds of extraordinary restraints being placed on us. Our freedom of movement, our freedom of association, our freedom to practice our religion in large settings … are being impinged upon by this rather unique virus.
At the time of whenever there’s a crisis of this sort, our liberties or our unconstitutional limits are frequently tested and sometimes decisions that are made are wise ones and sometimes they are not wise ones. But for the most part, at least, the governors and the federal officials have acted cooperatively.
The federal government has a lot of resources at its disposal in terms of information about what’s going on around the world and how to address this virus.
That’s why we hear every day from Dr. Deborah Birx and Dr. Anthony Fauci, they also have a lot of material at their disposal. They’ve been using military ships off of the coast in California and New York.
And the president’s invoked the Stafford Act to provide a disaster relief and he’s invoked the Defense Production Act in order to order some businesses to prioritize government contracts to build ventilators, respirators, etc.
It’s been mostly collaborative, but occasionally the governors and the president have butted heads.
Del Guidice: In Delaware, we can see people who live there or people who are traveling through can see state troopers stop drivers without a state license. And they’re saying for the need to be self-quarantined for two weeks if they’re traveling in from another state. Texas, Rhode Island, and Florida are taking similar measures. Is this legal?
Malcolm: Yes, I believe that they have that authority under the Constitution, so long as they are treating out-of-staters the same as in-staters.
Here’s what I mean by that: If you were in Delaware and if they are stopping people coming into Delaware from hot spots and urging them or requiring them to self-quarantine, that’s fine. So long as they would also treat Delaware residents who leave the state and go to those hot spots the same way when they try to come back into Delaware.
But yes, look, the governors have a lot of authority to try to stop the spread of this pandemic and they’re certainly making aggressive use of that authority. They certainly, I believe, have the constitutional authority to do that, whether it’s a wise decision or not as a different matter.
But of course, you still have your constitutional rights. For instance, they can’t stop you from complaining about it. They can’t treat, say, religious institutions differently or in a discriminatory manner from other types of institutions. But there’s no question that a lot of our civil liberties are being curtailed on a broad basis to deal with this very real problem.
Del Guidice: John, if the pandemic were to get worse, would states have the option to close their borders?
Malcolm: Yeah, I think they probably could. I think they probably could but that would include preventing people from leaving or, if they left, preventing them from coming back in. But I don’t think it’s going to come to that and I certainly hope it doesn’t come to that.
Del Guidice: Thank you for your perspective there. Looking at New York, there’s been a lot of conflict with Mayor Bill de Blasio saying that he wants to keep schools closed until the fall with Gov. Andrew Cuomo saying that de Blasio doesn’t have the authority to do so. Whose authority is it to properly decide this?
Malcolm: I’m not sure because that’s really a matter of state law. I don’t know the words in New York City ordinance that allows that to happen.
My guess is that the governor has authority under some state statute that enables him to trump what Mayor De Blasio would want to do. But that’s really a matter of New York law, so I don’t know the definitive answer to that.
Del Guidice: All right, well, sticking on New York for just a second, or maybe a little more, we’ll see, Cuomo is also issuing an executive order requiring all people to wear masks or a face covering. Does he have the authority to force people who live there to do that?
Malcolm: Yeah. Again, I assume he does. I’m sure … he’s acting pursuant to some statute, some power that has been given to him and he is taking extreme steps to try to contain this pandemic.
Of course, New York, particularly New York City, has been unusually hard hit and there was no question that this impinges on our lifestyle. I mean, wearing a mask going outside certainly impinges on your lifestyle, but no more than requiring people to stay at home.
I have a daughter who has been spending the past month in a one bedroom apartment in Brooklyn, that is quite an impingement on her liberty, but I believe that the governor has that authority and it certainly is, I hope, keeping her safe.
Del Guidice: Another example that we’ve seen in the news lately is in Michigan. Michiganders have expressed a lot of frustration with Gov. Gretchen Whitmer’s sweeping a stay-at-home order, which [bans visiting] other people’s residences, other homes such as a neighbor’s residence or people’s vacation homes.
What do you make of this and how should people in Michigan respond? Because I know there has been a lot of frustration over that.
Malcolm: Well, they’re going to decide how to respond the next time she runs for reelection and they’re going to let their local elected officials know exactly how they feel about all of this.
Again, I do think that she has the authority under the Constitution to do this. Whether she should do it is a different story.
But look, people do need to understand that this is a very unique pandemic. In the sense that, if you contract coronavirus, you can be completely asymptomatic and yet give that disease to somebody who could die from it.
If you come in contact with somebody with coronavirus and you walk around in the general public, you could be totally, unwittingly, a serial killer.
That’s a harsh way of thinking about it, but it’s a way of painting a picture—that you are carrying on you a potentially deadly disease that you could impart to anybody you come in contact with, even if you don’t know it. And, obviously, even though you don’t intend anybody any harm.
It’s that reality that I believe gives these governors the kind of extraordinary authority that they’ve been exercising.
Del Guidice: I have another question for you out of Mississippi. There were some churchgoers who decided to go to a drive-in service on Easter and the people … that ended up going were ticketed $500 for attending this drive-in church service. Is this going too far?
Malcolm: Yes. I think that that is going too far. …
I feel very bad for parishioners, but if a governor or a local official decides to ban a church service that involves people gathering together in a church and congregating close to each other, so long as they are not singling out churches for that treatment, so long as they are banning all sorts of gatherings of that type—except, obviously, people need to be in hospitals and other essential businesses—then I think it is OK.
But nonetheless, you do have a right to freely exercise your religion. That can be curtailed if the government has a compelling interest in doing so. But even then, it must use the least restrictive means possible to achieve that compelling interest.
Here, clearly, the government has a compelling interest. The compelling interest is to prevent the spread of the pandemic. But it can achieve its goal in a less restrictive manner. And that is specifically the things like drive-by services, which are monitored to make sure that people are not opening their windows more than a crack and they are engaging in safe social distancing, remaining in their cars.
… So long as you are following all of the applicable guidelines to be safe, then I think that churchgoers have a right to exercise their religion because the government can achieve its goal in a less restrictive manner.
Del Guidice: I have one more question from a state for you about these different examples. There is a county in Florida that instituted a 9 p.m. to 5 a.m. curfew. Is that legal for that Florida county to do that?
Malcolm: Yeah. Again, I don’t know what the justification is for the curfew. Presumably it’s because there been people breaking the social distancing rules, who’ve been having secret parties and things. And it becomes difficult to detect that at night.
I suppose there is some justification that would give a governor the authority, or a local official the authority, to do that. Whether that is a wise decision or not is a totally different matter.
Del Guidice: John, looking back at history during the time of the Spanish flu, that disease killed over, I believe, 600,000 Americans. During that time, were there questions about how much the state could legally impose on its citizens? And how did states and the federal government handle that situation?
Malcolm: I don’t know specifically about the Spanish flu, but I do know, for instance, one of the seminal Supreme Court cases in this area involved a smallpox outbreak in Massachusetts.
Smallpox is a deadly disease. It certainly was running rampant in Massachusetts. The Massachusetts Legislature, this is in the early 1900s, passed a law that required everybody to be vaccinated against smallpox.
There was a Swedish preacher who had a similar order when he lived in Sweden. He moved to Massachusetts, he was a local leader. He’d seen this story once before and he refused to get vaccinated. He was prosecuted, convicted, and fined, and filed a lawsuit challenging the constitutionality of that law.
The Supreme Court upheld it and basically said the public has a right to protect itself from somebody who is potentially carrying a dangerous disease and that trumps his right to bodily integrity. And the state could force him to be vaccinated against his will. Even though, by the way, there was some risk that the vaccination itself could give him the very disease it was trying to prevent.
Del Guidice: John, given all that we’ve talked about, how should states work with the federal government while respecting civil liberties?
Malcolm: I think there needs to be as much cooperation as possible and information sharing.
These are very, very difficult decisions. Obviously, if the coronavirus spreads or even, once the curve flattens and lessens, it could come back, that is deadly and dire consequences to the people who contact the disease.
I know people, at this point we may all know people, who have died from COVID-19. On the other hand, there are many, many people who have lost their jobs or are in danger of losing their jobs. Businesses are on the brink of failing. There are people who suffer from depression who may become suicidal from all of this isolation. There are trade-offs to be made and I don’t envy the public officials that have to make them.
Del Guidice: Right now is definitely a time of increased involvement in Americans’ lives, for the government to be, obviously, more involved. What can be done to ensure these measures are all temporary and don’t become permanent? And as a second part, are you concerned that this could lead Americans to [give] up certain civil liberties for the long term?
Malcolm: Yes, I’m concerned about that. I mean, the way that we make sure that these extraordinary measures are temporary is for the public to insist upon that and to raise quite an outcry, including voting against officials who want to do that if people try to extend these restrictions.
Look, you have to look at what happened after 9/11. After 9/11, we now put up with all sorts of intrusions—entering public buildings, traveling in airports—that we never did in a pre-9/11 era.
Some of those extraordinary measures that were put in place to deal with that problem—and because we recognize that that problem might come back—have led people to make sacrifices in terms of their privacy and their civil liberties. Some of those who may be prepared to live with going into the future and some perhaps not. We’ll have to see what happens after this.
Del Guidice: Well, John, thank you so much for joining us on The Daily Signal Podcast. It’s a pleasure to have you.
Malcolm: Good to be with you, Rachel. Stay safe.
Del Guidice: Thanks, John.