The Daily Signal - How Far Can the Government Restrain Citizens' Lives During COVID-19?

Episode Date: April 17, 2020

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.  We also cover these stories: About 13.5% of America’s labor force has filed for unemployment over the past 5 weeks.  New York’s non-essential businesses will remain closed until May 15. Los Angeles is letting businesses deny entry to someone without a mask. The Daily Signal Podcast is available on Ricochet, Apple Podcasts, Pippa, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Friday, April 17th. I'm Virginia Allen. And I'm Kate Trinko. As the pandemic continues, there have been more and more examples of government intervention, from police ticketing people attending church in their cars on Easter, to curfews to mandated wearing a face mask. What is the government allowed to do and what is it not? John Malcolm, head of the Me Center for Legal and Judicial Studies at the Heritage Foundation, joins our colleagues. Rachel Del Judas to unpack the various legal scenarios. Don't forget, if you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple podcasts and encourage others to subscribe. Now onto our top news. The Department of Labor released its latest numbers on Thursday. An additional 5.2 million people filed for unemployment last

week, bringing the total number to 22 million claims since March 14th. This means that about 13.5% of America's labor force has filed for unemployment over the course of the past five weeks. Secretary of Labor Eugene Scalia said in a statement Thursday, The Department of Labor has issued all the essential guidance the states need to implement the historic unemployment benefits expansion under the CARES Act. And 29 states are now paying the $600 weekly boost in unemployment benefits under the Act. There are a remaining, states will begin providing the benefit as they update their systems. A government program designed to encourage small businesses to keep their staffs employed during the coronavirus pandemic is out of money, having hit its $349 billion limit.

Last week, Senate Majority Leader Mitch McConnell tried to increase the amount of money in the fund, but Democrats blocked the measure, insisting that it be paired with additional appropriations. In a statement Wednesday, McConnell and House Minority Leader Kevin McCarthy said, It has been stunning to watch our Democratic colleagues treat emergency funding for Americans' paychecks like a Republican priority, which they need to be goaded into supporting. Funding a bipartisan program should not be a partisan issue. The notion that crucial help for working people is not appealing enough to Democrats without other additions sends a strange message about their priorities. The cost of continued democratic obstruction will be pink slips and shuttered businesses.

New York's non-essential businesses will remain closed until May 15th. During a press conference on Thursday, Governor Andrew Cuomo announced he was extending the New York Pause order. Here's what Governor Cuomo had to say via CBS News. But New York pause has worked the closed. down is worked. That's how we controlled the beast. That's how we got it down to point nine. However, we're not there yet. We're just at

0.9. Again, Wuhan got down to point 3. So we have to continue doing what we're doing. I'd like to see that infection rate get down even more. The New York pause policies, the closed down policies, will be extended

in coordination with other states to May 15th. I don't want to project. beyond that period. That's about one month. One month is a long time. People need certainty and clarity so they can plan. I need a coordinated action plan with the other states. So one month will continue to close down policies. What happens after then? I don't know. We will see depending on what the data shows. We reported yesterday that New York would soon require face masks, and it's not the only part of the U.S. where dawning masks will sometimes be mandated.

USA Today rounded up some other examples. Los Angeles is letting businesses deny entry to someone without a mask and is requiring both employees and shoppers to wear them during essential shopping. New Jersey and Maryland also now have mask rules. In Maryland, for instance, anyone on public transit or inside a store must wear a mask. Facebook will now let you know if you have engaged with misinformation about COVID-19. In other words, if you like, share, or comment on an article, maybe a graph, or just a general piece of information that Facebook fact checkers have found to be inaccurate regarding COVID-19, Facebook is going to send you a message to let you know. Guy Rosen, the vice president of integrity at Facebook, said the platform is committed to fact-checking and making sure its users are receiving the most accurate information about the virus. In a press release Thursday, Rosen said, we're going to start showing messages in news feeds to people who have liked, reacted, or commented on harmful misinformation about COVID-19 that we have since removed.

These messages will connect people to COVID-19 myths debunked by the WHO, including ones we've removed from our platform for leading to imminent physical harm. We want to connect people who may have interacted with harmful misinformation about the virus with the truth from authoritative sources in case they see or hear these claims again off of Facebook. People will start seeing these messages in the coming weeks. Next up, we'll have Rachel's interview with John Malcolm about what the government can and can't do during COVID-19. It's our priority at the Daily Signal to keep you informed during the coronavirus pandemic. Here's an important message from the White House Coronavirus Task Force. Taking care of your mental health is critically important as we stay indoors more often. It's important that people get enough sleep because we know sleep promotes mental health.

It's important that you get exercise when you can while still engaging in proper social distancing. And most importantly, seek help if you need it. Telehealth services are available and call a friend if you just need someone to talk to. Now more than ever, we want you to pay attention to your mental health. 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.

Great to be with you, Rachel. So earlier this week, President Trump tweeted, for the purpose of creating conflict and confusion, some in the fake news media are saying that is 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?

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. So 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 and 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 so 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, so the federal government could probably stop people from entering or leaving states if they felt that they were infected by the coronavirus. They can 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.

And it's that authority that the governors are using to issue their stay-in-place orders and closing down what they deem to be non-essential businesses, preventing large gatherings and the like. So on that note, is our traditional understanding of federalism affected by this unique nature of a pandemic and its contagiousness? Well, it's certainly being tested, and the president's statement is a test of that. I mean, 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. that are being impinged upon by this rather unique virus. And at the time, whenever there's a crisis of this sort, our liberties and constitutional limits are frequently tested.

And sometimes the decisions that are made are wise ones. And sometimes they are not wise ones. But, you know, 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. Birx and Dr. Fauci. They also have a lot of material at their disposal.

So they've been using military ships off of the coast in California and New York. And the presidents invoke 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, et cetera. So it's been mostly collaborative. But occasionally the governors and the president have butted heads. So in Delaware, we can see people who live there or people who are traveling through can see state troopers, stop drivers with out-of-state licenses.

And they're saying for the need to be self-quarantine for two weeks if they're traveling in from another state. Texas, Rhode Island, and Florida are taking similar measures. Is this legal? Yes, I believe that they have that authority under the Constitution. So long as they are treating, you know, out of staters, the same as in-staters. And here's what I mean by that. So if you were in Delaware and if they are stopping people coming in to Delaware from hotspots

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, you know, 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 is a different matter. But of course, still have your constitutional rights. So, for instance, they can't stop you from complaining about it. They can't treat same 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. So, John, if the pandemic were to get worse, would states have the option to close their borders? Yeah, I think they probably could. I think they probably could, but that would include, you know, 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. Well, 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 Governor Andrew Cuomo saying that DeBlasio doesn't have the authority to do so. Whose authority is it to properly decide this? Well, I'm not sure because that's really a matter of state law. I don't know whether it's a New York City ordinance that allows that to happen. My guess is 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. All right. Well, sticking on New York for just a second, or maybe a little bit more, we'll see. Cuomo is also issuing an executive order requiring all people to wear a mayor. masks or a face covering, does he have the authority to force people who live there to do that? Yeah, again, I assume he does. I'm sure he has been given, you know, 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's no question that this is 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. Well, another example that we've seen in the news lately is in Michigan, and Michiganers have expressed a lot of frustration with Governor Gretchen Whitmer sweeping state-at-home order, which some of it includes that is now illegal to visit other people's residences, other homes such as the 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. Well, they're going to decide how to respond the next time she runs for re-election and they're going to let their 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, you know, 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. So, you know, 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. And, you know, 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.

And it's that reality that I believe gives these governors the kind of extraordinary authority that they've been exercising. So 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 there that ended up going were ticketed $500 for attending this drive-in church service. Is this going too far? Yes, I think that that is going too far. Now, I have no problem. I mean, 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 who need to be in hospitals and other essential businesses, then I think it is okay. 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. So here, clearly the government has a compelling interest. Compelling interest is to prevent the spread of the pandemic. But it can achieve its goal in a less restrictive. 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, that, you know, then so long as you are following

all of the applicable guidelines to be safe, then I think that churchgoers have a right to you know, exercise their religion because the government can achieve its goal in a less restrictive manner. So I have one more question from a state for you about these different examples. There's a county in Florida that instituted in 9 p.m. to 5am curfew. Is that legal for that Florida County to do that? Yeah, again, you know, I don't know what the justification is for the curfew. presumably it's because there have been people breaking, you know, breaking the social distancing rules have been having secret parties and things and it becomes difficult to detect that at night. So 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. So, John, looking back at history during the time of the Spanish flu, that disease killed over, I believe, 600,000 Americans. And during that time, were there questions about how much the state could legally impose on its citizens and how did states in the federal government handle that situation? 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, you know, 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 very. 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.

So, John, given all that we've talked about, how should states work with the federal government while respecting civil liberties? Well, I think there needs to be as much cooperation as possible in information sharing. And, you know, these are very, very difficult decisions. I mean, obviously, if the coronavirus spreads or even, Once the curve flattens and lessons, it could come back, that is deadly and dire consequences to the people who contract the disease. And 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 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 tradeoffs to be made, and I don't envy the public officials that have to make them. So 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 giving up certain civil liberties for the long term? 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. You have to look at what happened after 9-11. I mean, 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. So 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 will have to see what happens after this. Well, John, thank you so much for joining us on the Daily Signal podcast. It's a pleasure to have you. Good to be with you, Rachel. Stay safe. Thanks, John. And that'll do it for today's episode. Thanks for listening to the Daily Signal podcast, and we really appreciate your patience as we do record remotely during these weeks. Please be sure to subscribe on Apple Podcasts, Google Play, or Spotify, and please do us a review or a rating on Apple Podcasts to give us your feedback. Stay healthy, and we will be back with you all on Monday.

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