Advisory Opinions - Quarantine Law

Episode Date: March 16, 2020

David and Sarah answer all your questions about the legal issues raised by the coronavirus outbreak: enumerated powers, police powers, regulatory takings, quarantines, and martial law. Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Spring is here and you can now get almost anything you need for your sunny days delivered with Uber Eats. What do we mean by almost? Well, you can't get a well-groomed lawn delivered, but you can get a chicken parmesan delivered. A cabana? That's a no. But a banana? That's a yes. A nice that's a yes a nice tan sorry nope but a

box fan happily yes a day at sunshine no a box of fine wines yes uber eats can definitely get you that get almost almost anything delivered with uber eats order now alcohol and select markets product availability may vary by regency app for details you ready I was born ready. Welcome to the Advisory Opinions Podcast. This is David Trench with Sarah Isger. And we are, because of coronavirus concerns, located in multiple different places. Our producer is in D.C. Sarah is in, are you in Virginia, Sarah? I am in Virginia. And to make sure that the sound is good, I am also under the covers of my bed. So it's like real self-quarantining now.

And also if you hear cats meowing, they are concerned about me being under the covers of my bed. So you're not supposed to tell everyone how the sausage is made. It's pretty bad sausage today. But I guess we believe in radical transparency here at The Dispatch. So we've got a lot to talk about today. We're going to briefly touch on the Biden-Sanders debate. the ability of governors to ban large gatherings, to all of the legal issues that are raised by this massive state intervention into our association, our freedom of association, into our economy. We have been getting a ton of questions along those lines. So we're going to

go into everything from enumerated powers to police power to regulatory takings to quarantines and even to martial law. Now, correctly spelled martial law, M-A-R-T-I-A-L. But I believe it was Marco Rubio today who introduced a new concept of martial law, M-A-R-S-H-A-L-L law, which is an underdeveloped area of constitutional jurisprudence. You know what? I'm the last person to make fun of someone for spelling mistakes. Yes, I know. That's a cheap shot. I'm so sorry, Senator. But it was funny. But let's just start. Let's start very briefly with the debate. My Let's start very briefly with the debate. My 15 word or whatever summary was Joe Biden did what Joe Biden needed to do.

And it's still over. I don't know if that's 15 words, but it's roughly. Yes, there's some interesting polling out of Florida today that actually Sanders has pulled up pretty close with Cuban voters, which is surprising and a little bit unexpected. But last night's debate, Biden dominated the first 45 minutes, which were on coronavirus. Then Sanders, not surprisingly, went just directly after Biden on sort of the progressive laundry list of complaints. And then for the second hour biden really shifted pretty far to the left i think just the best example though there were plenty of others was um that he said in the first hundred days of his administration he will deport no one and after that he will only deport people convicted of a felony in the united states which is a very high bar but overall i actually thought sanders had his worst debate

to date because of the coronavirus thing he was not able to use his normal messaging and it was really hard for him he was actually stumbling over his words sort of meandering answers things that i just hadn't seen from sanders this whole time things that I just hadn't seen from Sanders this whole time. Yeah, you know, I thought that was interesting, too. I mean, normally, Bernie comes across as sort of a young 78-year-old. I mean, he's, and it's funny when you look at pictures of Bernie honeymooning in the Soviet Union, he looks remarkably in the 80s. He looks remarkably a lot like he does today.

And you sort of have this- I totally agree. He kind of has this timeless quality normally. But I did not get that sense in the first 45 minutes. And you really got a sense that when he's pushed out of Bernie mode, when he's pushed out of talking about the same thing that he's talked about for decades, he really does seem kind of at sea. And he did seem, you know, I think a lot of Bernie's folks were thinking that he was going to come in and he was going to look to be in command and Biden was going to be

Biden. And that contrast was going to be reassuring to Bernie supporters and tell Democratic voters that this is actually the guy you need in the time of crisis. And between the two of them, I didn't think it was all that close in the first 45 minutes. I mean, Biden seemed far steadier. If we had more time, I'd run through some quotes in the transcript. But time and again, the moderators say, would you consider this? What should be done on this specific topic related to coronavirus? And Sanders would try to pivot back to Medicare for all or how the economy needed to be redone in general. And they would have to stop him and say, Senator, we'll get to economic policy eventually. We're asking specifically about coronavirus and whether

you would consider mobilizing the military. And then Biden would jump in and say, here's what we did with Ebola. Here's how I would handle it. Here's the specific solution I would propose. You can take issue with any of Biden's specific solutions or whether we're doing enough right now. It's all sort of beside the point. Sanders was not able to engage on the topic. Yes, right. Exactly. And that was, you know, in my mind, as I saw that unfold, I thought a couple of things at once. One, this was not in any way, shape or form the debate, the way that Sanders wanted this debate to start. As it went on, you could see where Sanders got more comfortable, as you said, going after Biden. thing is, especially in the aftermath of Trump's very stumbling address to the nation on Wednesday, where he misstated public policy, his own administration's public policy, and misread the teleprompter. This was actually a good debate for Biden in this, what's going to be this

contrast going forward as to who is more on top of things, Joe Biden or Donald Trump. And this was a better day for Biden. I'm sure that's going to kind of go back and forth as this campaign goes on. But this was a round for Biden in that contest. But, you know, as I said, I mean, this isn't going to end that conversation. This is going to be, as Jonah said in his own midweek newsletter, I mean, you're going to have a back and forth throughout this entire race as to who's more mentally and physically fit for the presidency. And to make our very subtle transitions, as we always do in this podcast, you know, the big thing right now is that there were four primaries scheduled for Tuesday. Illinois, Ohio, Florida and Arizona. Will those obviously are up in the air because of coronavirus and states control their primaries. And so I say we jump right into the law of coronavirus. Yeah. And just to give you a sense and to give the listeners a sense of how many times we've

been asked about that, literally as you were talking just this very moment, Sarah, I got an email that says, what power does the government have over churches during this time? I live in northern New Jersey. Our church has canceled all events for at least the next two weeks. Our worship service on Sunday was online. A different small church in the area was planning to hold a service on Sunday. Fortunately, they decided Saturday night to cancel the service, but before they did, the fire department contacted them and said if they're going to hold a service, the church needed to send the town a list of every person's name who attended the service. Interesting, but you have, let's not, that's a sense of the kinds of questions we got, but you've got an outline that I think puts this

in context. And let's walk everyone, what's the outline going to be? And then let's just dive in. I think you have to start big picture, who's in control? Where is the authority lie? So I want to start with, you know, 10th Amendment police powers, states, federal. I got some questions over why mayors are allowed to do some of these actions and not governors. So I want to start with like where the power lies. Then I want to walk through the Constitution. Let's start with the First Amendment, assembly, religion. I personally have gotten very into the takings question because I think it is a little bit unresolved.

So I've got some, you know, Fifth Amendment takings law to discuss. So I've got some Fifth Amendment takings law to discuss. And then I think we go into what has not yet happened. There's no particular indication that it will happen, but the suspension clause, the suspension of habeas corpus and martial law, as you said. Right. And we'll also dabble a little in quarantines. Oh, yes. And quarantine law, which is all part of what I'm calling sort of the extreme measures. Quarantining people against their will, meaning not what I'm doing, which is self-quarantining under a quilt blanket. It's getting hot, David. It's getting really hot. By the way, David can see me on Skype and it's like we're having an old school like hiding from your parents and I have a flashlight underneath the covers while I'm talking to David about the Fifth Amendment takings jurisprudence. This is a site I never, in a context I never thought I'd see or experience. Takings, a takings discussion with a person on Skype under a blanket. But hey,

this is the kind of versatility that you bring to the dispatch, Sarah. And so why don't you launch into the difference between enumerated powers and police power and go from there? So, and, you know, we're going to start at the simple places, so forgive me, but the federal government is one of enumerated powers. The 10th Amendment says the simple places so forgive me but the federal government is one of enumerated powers the 10th amendment says the powers not delegated to the united states by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people now if you remember back in tea party days the 10th Amendment became all the rage. It was very fashionable. As part of the Tea Party movement was to remove power from the federal government and give it back to the states.

You know, circa 1995, enumerated powers restricting the commerce power became hot and fun with Lopez, which struck down a law about guns near schools. Morrison, which struck down part of the Violence Against Women Act. Same idea being that the federal government could not exert police powers using the Commerce Clause as like a hook for all things if it was only tangentially related. hook for all things if it was only tangentially related. Well, and just to butt in for just a moment, to give you a super shorthand primer on the difference between enumerated powers and police powers. And a government subject of enumerated powers only has the power given to it by its constitution. A government that possesses the police power has essentially, and there are scholars who are going to disagree with me on this, but a widely accepted definition of police power is to say you have all of the powers that are inherent in government except that which is

denied by its constitution or by superior law like the U.S. Constitution. Correct. And often, or by superior law like the U.S. Constitution. So this is often, you know, what's listed first among police powers? What is listed? Yes. Yes. Like this. This is not the first time that we've had public health crises. And I have I've done lots of legal research into the 1918 flu stuff, which I think is really, really fun, by the way. legal research into the 1918 flu stuff, which I think is really, really fun, by the way. So, you know, this ain't the first time police powers have been used in public health context. Right. Right. And so the police power, you know, we've we've seen it used and we'll get into this in the quarantine act quarantine in the quarantine analysis here. Quarantines have been used. Police powers have been used for involuntary

quarantines. The United States, the American Republic has faced health scares consistently through its history. And the power of local governments to deal with health scares is considerable. However, it does not repeal the Constitution. So these powers are going to be subject to the Constitution. But the way I look at it is, as people will say all the time, no right is absolute. What ends up happening as a practical matter is that the balancing test that applies in any sort of constitutional claim against the state is going to adjust in favor of the state in a time of a public health crisis. So, for example. Oh, go ahead. No, no, no. Go ahead.

Well, there's been this discussion of, you know, some reporting that the president was considering instituting a nationwide curfew. That reporting has backed off to the president is considering asking the states to consider implementing curfews for each state. And I saw these like legal discussions pop up of the president has no authority to do this, which is like what I'm going to call true asterisk. Which is like what I'm going to call true asterisk. Because you get to where he would. Right, right. So I think that but the front line here is as a general matter, if a state possesses the police power, a governor is going to be able to say, everyone stay inside your home. However, I'm going to either be able to go to a courthouse literally or virtually and challenge that. And how would this turn out? So a blanket ban on assembly is going to be analyzed much more under the freedom of association and the free speech clauses of the First Amendment and much less under religious liberty. church gatherings and not on concerts and not on meeting up in bars, et cetera, then you would have

a free exercise claim because it would be targeted to churches, probably lose unless you had, and the state would probably lose unless you had an evidence that, you know, a pandemic was coming from churches only. Although, you know what's funny, David? In 1918 1918 i just enjoy these because i think we have this huge misconception of what life was like 100 years ago right um in 1918 the churches were upset because they were targeted uh and saloons were allowed to stay open now of course what we use saloons for now versus then is maybe a little bit different, but not wildly different. So really, most of the targets in 1918 were on movie theaters and churches, in part because they were large gatherings that were deemed sort of unnecessary. And there were lawsuits, particularly from the movie theaters.

Those guys were ready to roll with their lawsuits. Wichita, Kansas, Terre Haute, Indiana, Roanoke, Virginia. There's an Arizona one. It went up to the Arizona Supreme Court. And I don't think this will come as a huge shock to you. The Arizona Supreme Court said no. Right. That absolutely local public health officials did have constitutional authority, constitutional meaning

under the Arizona Supreme Constitution, to compel him, this movie theater owner, to close his place of business. Well, and so if you're taking an analysis, even strict, let's assume strict scrutiny would be applied. Again, not in the religious liberty context, because we're not seeing specific bans on churches right now. What we're seeing are bans that include churches. It's a neutral law of general applicability. Back to our Smith test. Exactly. So we're going to have to go back to is a generalized ban on gatherings of, say, more than 50 or a general, a generalized closing of

certain kinds of establishments that have more than X number of people, is that going to be constitutional? And even if you apply strict scrutiny, which will be a compelling governmental interest accomplished through the least restrictive means in this context, the compelling governmental interest standard is going to be that test is going to be met. Oh, it's not even close. And this is why for common sense tells you, obviously, you don't have to leave, you know, clothes, restaurants, bars, gyms, movie theaters, but leave open churches because they're a place of religion. It can't work that way. And as we saw in South Korea... But if strict scrutiny applies, even without Smith, strict scrutiny would still permit the government.

even without Smith, strict scrutiny would still permit the government. That's what I'm saying, is strict scrutiny would permit the government to implement a ban in this circumstance. Good point. And you look at South Korea, where the patient 31 went to a buffet and a church and infected a thousand people, like, you know, evidence piece number one. people, like, you know, evidence piece number one. Yeah, yeah, that's, yeah, exactly. So in this circumstance, now we could get to gray areas where we're not dealing with a illness that is 10 times at least more dangerous than the flu, where the WHO has not declared a pandemic, where you would have, you would have situations where just invoking the term public health is not a get out of the First Amendment free card. But in this circumstance, as we see what's happening in Italy, now what's happening in Spain, what has happened in China, the idea that this wouldn't meet that

scrutiny, I think, is fantastical. And that's why I have not seen the big religious liberty firms like my former employer Alliance Defending Freedom or ACLJ or Beckett running into court on these, you know, on these to stop any of the bans of, you know, large gatherings, et cetera, et cetera. Now, some of it, though, is that we're on the front end of this. Something that we also saw in 1918 and some of these others is the real legal challenges come on the back end, where some people think the pandemic's over and other people don't and the rules haven't changed and they think we should be able to reopen our church. And it gets sort of wishy-washy. In one write-up that I saw, with massive non-compliance,

local public health leaders were ultimately unsuccessful in exerting full control as the 1918, you know, 1919 by this point. Right, right. Yeah. Yeah, on the front end, I think the legal answer is easier. And then on the back end, then everything starts to get gray again. And the compelling governmental interest test is less easy to meet. has been a measurable outbreak, the governors are going to have a wide latitude to implement pretty broad and what seem to be authoritarian bans on large gatherings. They're going to be able to do that under their police power, and that police power will survive the First Amendment challenge. At least that's my view. Can I also take a little detour to mayors? Yes, please. So I had a friend say, why is my mayor allowed to do this?

This is clearly only a power given to the governor. And of course, his mayor was of one political party and his governor was of another. He obviously trusted the one over the other political party to make these rules. And I think there is some misinformation about there. He thought that churches had been specifically targeted, things like that. So here's the deal on the mayors, because it's actually a pretty interesting question, because a lot of these are coming from mayors. Bill de Blasio, for instance, went to the YMCA today and mandates that all gyms close by 8 p.m. tonight. But he had to he couldn't lose his gains, Sarah. He couldn't lose his gains.

He couldn't lose his gains, Sarah. I get it. He couldn't lose his gains. Yeah. I get it. So mayors, this is actually an ongoing legal dispute because of the sanctuary city immigration context. Mayors have said that they are instituting these sanctuary city policies where they're not going to arrest immigrants. And the governor has said that's not accurate. You will do this because the state

controls so while this is sort of an ongoing legal question let me at least give the argument for why mayors are on very solid footing um in this case we're both agree actually but the cities exist as a political entity because of the state. Right. The state grants the charter for the city, rules for annexation, things like that. So the argument goes something like the mayor's power is derived from the state. So in theory, the governor could tell a mayor that his quarantine policies were not appropriate. But if and until that happens, the mayor acts with the full police power, in this case of a public health crisis, with the authority of the state. So that's all to say, if you think you can ignore your mayor because they're not the governor, you're going to lose that fight. Yeah. Yeah. So, OK, to all all listeners and readers who have asked about

the authority to ban of their governors and mayors, and especially if the mayors are acting pursuant to the authority granted them by the state, can they ban if they do choose to? Can they ban these large gatherings consistent with the First Amendment under the present facts? Yes. I'm not saying every single time they invoke public health, but under the present facts. Well, and I think we get to an interesting case, by the way, if people were assembling to protest and petition the mayor's office about a type of closure in, let's call it, eight weeks. So after the CDC has said things are fine, but this one mayor has decided to leave things open. And so people assemble as an act of civil disobedience to petition the mayor.

That's an interesting question, but one that we're not even close to yet. Not yet. That will be a future advisory opinion when, Lord willing, this thing is fading away. So let's move on to this other really interesting issue, which is when bars and restaurants and gyms are ordered to be closed, they cannot function. They lose their economic viability. Is this a regulatory taking under the Fifth Amendment, which the state must compensate these businesses for? And Sarah, you've been looking at it. I've been looking at it. I'd love to hear your first thought. started, as will not surprise anyone who's been listening, in a dinner conversation with Scott, my husband, where I said, you know, I think they have a big problem here because on the one hand, well, let me give you my hypo. Okay. My hypo is that you own a restaurant in a zoned area where you can only use that property for commercial purposes and even you know in some zoning you can only use it for a restaurant that holds x number to x

number of people you know zoning can get pretty specific so on the one hand you're zoned in on one side and then on the other hand the state comes in and says, and now you cannot use your property for that purpose that it is zoned for exclusively. Right. Thereby restricting all economic viability for your property. and this gets pretty interesting because the two cases that we're really gonna i think be spending most of our time talking about here is penn central uh 1978 supreme court opinion by brennan this has sort of a four-part wishy-washy test as the supreme court is want to do from time to time yes and it's you know a balancing test of well on the one hand on the other hand. And then you have Lucas, 1992 Scalia opinion, which sort of cabins off Penn Central and says, yeah, yeah, that test is all well and good, the balancing test. But

if there's a deprivation of all economically beneficial use from the perspective of the property owner deprivation is of the property itself right so that's why the hypo matters by the way because if you just happen to own a bar in the middle of nowhere but you could use that to be a farm you could use it to be your house anything else i don't think you're very close to the Lucas test. You're much closer to the Penn Central four-part on the one hand, on the other hand. But in my zoning example, I think there's a problem. And so then, by the way, there's a remedy issue. On the one hand, the regulation can be invalidated as a denial of due process. If this were a long-term regulation, that may be more

interesting, but we know this is going to be short-term. Or the regulation may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect. That's what we're talking about. I don't think this will be seen as a due process issue. And I'm going to go and throw a third case at you. Ooh, do it. Tahoe Sierra Preservation Council, Inc. The Tahoe Regional Planning Agency. And man, I tell you,

I knew we would get into interesting cases in advisory opinions. I never knew we'd be pulling up old Tahoe Sierra. But this is an interesting case. And for two reasons. One is I've never really seen a case that begins with odes to natural beauty as undisputed facts. So it says all agree that Lake Tahoe Tahoe is uniquely beautiful. Agree that Lake Tahoe is uniquely beautiful, that President Clinton was right to call it a national treasure that must be protected and preserved, and that Mark Twain aptly described the clarity of its waters as not merely transparent, but dazzlingly, brilliantly so. So it's like that in the case, a statement of undisputed facts. That's hilarious.

So it's like that in the case, a statement of undisputed facts. That's hilarious. But so essentially the case was to try to preserve the clarity of the South, any kind of reservoir lake in the South is like this deep green color typically. To keep it from going green or brown, they put a moratorium on development in certain areas for 32 months. So this was a temporary moratorium on development. Wasn't quite the total regulatory, the end of all right you know all value of the property but it was a temporary and worth mentioning here in lucas you know our extreme on the other side lucas was um he owned some property on the beach and the charleston county uh whatever wild dunes you know development. They said he couldn't build anything on

that property because of fear of public erosion of the beach. So he couldn't do anything with the property. He could own it and say it was his, but that was about it. That was the total deprivation. So what you're talking about is both temporary and not a total deprivation, correct? Correct. So it's not a total deprivation and it is temporary. But as I read the court, the more temporary it is, the less likely there's going to be a finding of regulatory taking. So I would say, I would look at it like this. The less total and more temporary you lose, the more total it is, it really had better be pretty darn temporary. And so if it's total, but it's temporary, if that temporary is stretching into years,

it would be hard for me to see the court saying, especially considering that some of the dissenting opinions here were from justices with a more conservative outlook who now control this. Their judicial philosophy is more dominant at the court. So I would say, again, what we're dealing with on the front end, it's a very similar analysis as to last time in my view. On the front end, they're going to be okay. But if this thing keeps going and going and going, the case for compensation as a regulatory taking is going to get better and better. I think that's true. I think that the total deprivation here, again, goes back to the zoning that's on the property to begin with. I do wonder whether in the interim, let's say this lasts for 10 weeks. And let's say, unlike restaurants where they're still allowing carryout, well, actually, some of these are written pretty carefully.

The Austin one that I read, your movie theater can't house 250 people to show a movie however you can use that space for something else with fewer people right so they know like they're aware of some of the ins and outs of of this but um let's imagine the gym for instance they're telling the gyms they cannot function at all right if that is zoned in a pretty loosey-goosey way where it's not commercial only you could use it and rent it you know on airbnb or something uh i think that you end up with the penn central test of look there's some economic viability still to your property. I also think it'd be interesting if someone who was commercially zoned in, you know, a gym that said this basically has to be a gym. Right.

If they said, OK, well, I'm going to follow that, but now I'm not going to follow the zoning law. but now I'm not going to follow the zoning law. Could they then enforce the zoning rules during this temporary other rule? That's an interesting question to me, and I'm not totally sure that they could. Again, with the argument being you have to have some economic viability for the property now. Yeah, I just keep going back to the thought that, you know, as you were pointing out earlier in our talk about public assembly, all of this on the front end is going to be legally easy. Like if my gym decides, well, you know, the zoning, we're only zoned for this particular use. We're shut down, but we're going to defy our zoning right now. Right now we're going to do it.

I think a court throws them out of, they're tossed out of court so fast. So fast. If we're dealing with an extended period of time in which the numbers have dropped, but the political, you know, it's very clear that the curve has been flattened, as everyone talks about flattening the curve and not just flattened, but we're on the downslope pretty clearly. And you see people all over the country reopening and we're still not. Then you could begin to see cases filed where they are just going to get stronger and stronger the longer this goes and the more the public health crisis eases. And you know what? Transition.

That brings us to Ex parte Milligan, an important case after the crisis had eased. But here's something interesting, David, that is very relevant to the conversation we're about to have, to me. Okay. The Supreme Court has said that they are not hearing cases right now. They've pushed off their March docket. According to my appellate expert that lives in my house, some of his appellate arguments look like they're going to be pushed off as well. My father, for those who have been very Google savvy, is a bankruptcy judge. And they're having to put in sort of interesting plans of tele hearings and stuff like that, which is actually not unheard of at district and Article one court levels, especially in Houston, for instance. We have hurricanes on the regular that shut down people's ability to get into court.

And so there is pretty good precedent for calling into court, stuff like that in public health emergencies. That being said, we're creeping pretty close to a time where someone could argue that the courts are not open for business. Right. Now, if that's the case, things get interesting. And let me let me vent about this for just a moment, because you can e-file now. I mean, so this is not, this is 2020. It's not 1920. It's not 1990. You can e-file. You have no due process right to an oral argument, certainly at the appellate level. right to an oral argument, certainly at the appellate level, there is no need for oral argument to deliver justice. I mean, especially at the Supreme Court. I mean, you have these cases at the Supreme Court, these cases at the appellate level are briefed out the wazoo. You're talking

about hundreds of pages of briefs, amicus briefs, amicus briefs on the other side. The Supreme Court has all it needs to decide these cases. And they decide cases based on the briefs alone regularly. Regularly, regularly. And so many say that no, like many people have a hard time pointing to any oral argument that has swayed a decision one way or the other. Well, and you know what? Let's put a pin in that because we may have some special guests coming on the Advisory Opinions podcast. Good call. And we will ask those special guests if they agree to come. special guests if they agree to come. But so I would say in most certainly civil proceedings that business can continue as usual. Appellate proceedings, business can continue as far as the business of the court reading briefs and deciding cases can and should continue, in my

view. Where it gets really dicey are criminal trials where you're going to have a right to confront your accuser and a jury has to weigh credibility. And there are speedy trial considerations that are bedrock constitutional issues. And so once again, we're at an issue like right now, right away at this moment, you're going to have you're going to be able to cancel and close or postpone trials. But as this drags on, I mean, you've got people, potentially innocent people in conditions of crowded jails, unable to obtain a hearing. crowded jails, unable to obtain a hearing. Yikes. That's my legal, that would be the legal declaration. Yikes. Let me throw out the other hypothetical that you almost, like, touched on. Imagine a pandemic outbreak in the jails, which, by the way, BOP and DOJ are terrified of and very aware of the possibility of this happening right uh if coronavirus broke out at a jail with a cloistered population um you could imagine various defense attorneys filing

habeas petitions on behalf of those prisoners what what what would the courts do and this gets to i mean let's let's get to the suspension clause right so article one section nine clause two the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it some interesting notes there one you'll notice it's an article one it is not a presidential power there is an implied perhaps presidential power in the commander-in-chief powers but the fact that you know as good textualists you will note if it is enumerated in article one but not enumerated in Article 2, that undermines your implied power argument in Article 2 for sure. Indeed. And that's where

the second part is whether cases of rebellion or invasion would count with a public health crisis. I think the fact that it says the public safety may require it would meet that standard. But in theory, that could be debated. But regardless, we get to Milligan, our little, our Civil War friend, our rebel in Indiana. Yes, and give the people what they want about Milligan. Give the people what they want about Milligan. So, Lambden Milligan is his name. He was arrested in Indiana as a Confederate sympathizer, like you do.

Indiana was part of a military district, and Milligan was tried by military commission and sentenced to die by hanging. After his convention, he filed for habeas, arguing that the whole thing was unconstitutional. It takes a long time to get to the courts. The Supreme Court doesn't decide this until well after the Civil War is over and abraham lincoln is dead and they say um uh martial law destroys every guarantee of the constitution civil liberty and this kind of martial law cannot endure together the antagonism is irreconcilable and in conflict one or the other must perish and And they voted for rule of law, in case you're curious between which of the two they picked. Yes. But you'll notice they did not decide this in 1863, in the middle of the Civil War. Yes. Yeah, which we were slacking back and forth. And I said, I wonder how this comes out in 1863, say a month before Gettysburg, when Lee is invading Pennsylvania,

it feels like this might have come out differently. And in fact, we have a different case, ex parte Quirin, different case, different facts. I mean, this was German saboteurs in the United States, decided in 1942, and it comes out in favor of the military commissions. So this goes, I think if there's a consistent principle I could get to here that we keep getting and keep discovering is early in the crisis, maximum legal discretion to public officials. Later in the crisis or post-crisis, a lot of backfill on the rule of law. Judges are humans too. Judges can get coronavirus. Judges want to not be the thing that caused 10,000 deaths because they were like, yeah, of course you have to be able to go to church. Yeah, exactly. Can we spare a couple of minutes on quarantining? Let's do it.

All right. So interestingly enough, I mean, quarantining is a practice. This is something that going, I mean, way back in American constitutional law has been held to be a part of the police power of the states is quarantining. Quarantining, just to be clear, is distinct from isolation. Isolation is something is after you've already been diagnosed, can you be kept away from people? Less controversial, obviously, than quarantining, which is typically you've been exposed or we believe you've been exposed and we're going to end there. And we're again speaking of involuntary quarantine, not voluntary quarantine, because there's no constitutional issue with voluntary. So involuntary quarantining, what evaluated very much in the way that we

evaluate involuntary civil commitments of people who have mental disabilities. And so that there is, this is a deprivation of liberty. Due process attaches to deprivation of liberty. The best analogy is to involuntary commitment of people who are having mental difficulties. There seems to be a broad amount of agreement on that. However, nobody has quite figured out how to vindicate or how to create a court challenge that actually works because involuntary quarantining happens immediately upon exposure. It's not like you have a court proceeding and then you become involuntarily quarantined. You're quarantined.

Well, the quarantine period is usually only what? About two weeks, three weeks, four weeks. And the thing about American court proceedings is that, did you ever hear the lawyer's joke, Sarah, that the great thing about America is that everyone gets their decade in court? They take a while. So by the time the court proceeding is over, you're out and it's over. And so then you're left with what? A suit for damages. Well, who's going to impose damages under a qualified immunity regime for someone who in good faith quarantines you based on exposure to coronavirus,

to smallpox? Well, there's no smallpox. Coronavirus, smallpox historically, coronavirus, Ebola, H1N1, you name it, SARS, who's going to then impose personal liability on someone who's went ahead and involuntarily confined you for two weeks, three weeks, four weeks? And then when the court case is over, where's the prospective relief? There's no injunction available because you're already out. because you're already out. And so what ends up happening is while in theory there exists a due process right to challenge a quarantine, in practice, because quarantines tend to be quite temporary, you're kind of just going to get quarantined and you're not going to have a real viable judicial avenue to challenging it. Because even if you get an injunction in a lower court immediately, let's say you've got great connections, you fly into the court, you get a TRO

in 72 hours or 48 hours to release you, there's going to be an immediate appeal. There will be a stay on appeal because the stakes are so high. And we're right back to that catch 22. So that's my quick take on quarantine. Right. If at 9 p.m. I decide to go skip down the street sneezing on people, although I don't sneezing is actually I don't think a symptom of coronavirus. So licking people as as I do. Yes. And they arrest me. Right. I mean, is this a similar analysis in terms of quarantine analysis? It's not that I'm being quarantined because they think I'm sick. I'm being arrested for failing to observe a public health law. Yeah, I think if you want damages, you're going to be out of luck. If you want to be released, if there's going to be a imposition of, say, a 15 day or 20 day jail sentence or whatever it is for violating the curfew, you're likely going to be out of luck while you challenge the constitution for violating the curfew, you're likely going to be out of luck

while you challenge the constitutionality of the curfew statute. The only advantage you'd have over the civil quarantine process is at least you would be able to get retrospective relief to sort of, if it was an unconstitutional curfew imposition, an unconstitutional arrest, to have your record expunged and cleansed. So you would at least be able to have some degree of release. You know what else, David? I love tying this into like, you know, sanctuary city law and everything else. You know what else would come up at this point? Qualified immunity.

Oh, I know. That's what we're talking about. Qualified immunity. No damages available. So in theory, it's one of those circumstances where you could have your rights violated by an imprudent, unconstitutional quarantine and have zero recourse because of qualified immunity, which goes back to last week. That's a great... It's a good tie in. It is. No, I still believe qualified immunity should go away, that if somebody was subjected to an unlawful quarantine, that they should be able to receive damages for that. Now, they might not be very many, what, you know, two weeks of lost wages, three weeks of lost wages or lost wages for a lost job. If there was an evidence of bad faith, punitive application of a quarantine or corrupt application of quarantine, you know, punitive damages. But but yeah, I think that violations of civil rights should be compensated, period. But and again, that's not to say it should come out of the doctor's pocket, but the public fisc.

Well, this is where the clearly established thing you and I, I think this is our friction on qualified immunity. I think you could find places where the law is far more clearly established, but somehow the courts keep finding that it's not clearly established. I think in the case of a national pandemic where the law actually is not clearly established, qualified immunity has a lot more room in my heart. Well, I would say what would end up happening, and this might be a downside to my argument, is that a court in a face of a real viable threat to public health would be more likely to just go ahead and rule the quarantine lawful in the first place. Which is a separate and interesting problem. Like if the courts are going to lean one way or the other in the middle of said pandemic, as we've seen, you almost want, you get better law if you wait.

True, true. And I think quarantining in a pandemic is always going to be viewed much more hospitably than individual quarantining in non-pandemic circumstances. Some of the facts surrounding one of the Ebola quarantines are really pretty chilling. Like a nurse comes back, doesn't test positive, is denied even the ability to shower for days on end. Like I don't even know, you know, maybe there's a medical reason for that. But, you know, that and and then people were reporting on her if she even received groceries. I mean, it was bad. I remember this, actually. Yeah.

Yeah. Yeah. It was pretty bad. So some of the facts can be pretty egregious. That being said, and my heart goes out to her, but for the grace of God, if they had not taken extreme measures, and for any reason a second person had gotten Ebola in the country, and then a fourth person, and an eighth person, we wouldn't be sitting here talking about how insane it was that they quarantined that nurse

and wouldn't let her shower. Yeah, true, true. And which, again, goes back to what we were saying at the very beginning, and have been saying throughout, that public health is a core. The police power is it absolutely encompasses the power to protect the public health in much the same way that the the authority of the chief executive of the United States is at its apex. And when national security is at stake, the authority, the police power of your governors and by extension, your mayors is going to be at its apex when public health is at stake. And where you have to be vigilant is to make sure that they don't abuse that authority or use it as a pretext. But in this circumstance, the odds of that, the odds of a court finding any sort of abuse or finding of a pretext. But in this circumstance, the odds of that, the odds of a court finding any sort of abuse or finding of a pretext are pretty low. In 1918, by the way, the United States has 10 cities

with more than half a million in population, the largest of which was New York City with five and a half million residents. There's a lot that's very similar about 1918, but having only 10 cities with 500,000 people, you know, that's why this has the capacity to be so large. We're living on top of each other. Yeah. Or in my case, underneath the sheets of my bed. Well, as long as you're social distancing from everybody else, you're good. Well, as long as you're social distancing from everybody else, you're good. And, you know, they also, it's amazing actually how little there is on the economic impacts of the 1918 flu as I was looking around in some of the scholarly journals.

You know, it was considered unprecedented at the time. And we have like very specific local numbers, but there just really isn't a whole lot on the macro effects. Like one department store in Little Rock, Arkansas, which had had business of $15,000 daily, about $200,000 in our terms, went down to half of that. Right. Yeah. Right. Yeah. I think the pandemic, you know, part of the economic versus human economic toll versus human toll. If the if the coronavirus does not take a large human toll, I think the history of the coronavirus will be written much more in economic terms. If it does take a large human toll, that will far overshadow in history's verdict or in history's telling any of the economic tolls. But it is interesting that the economic toll of Spanish flu is not quickly, readily, and easily available,

although some listeners may correct us on that. Well, I hope so. Please send it in if you have it. You know, the other thing to note about Spanish flu is in the spring of 1918, there was the Spanish flu over here, and it was just far less deadly. Over the summer, it kind of went away. When it came back in the fall, it had mutated and become a far deadlier strand, which is what we call the Spanish flu pandemic. That's fascinating.

I would note that it's March. Oh, on that cheery note. David, what are you and your family, any good books, any good binging, recommendations? So we're going to start a film festival tonight. Oh, gosh. Our 12-year-old has not yet been introduced to the majesty and the glory of the Peter Jackson Lord of the Rings trilogy. So that will start tonight. But that's only three days. So, I'm open to suggestions. I'm considering re-binging Battlestar Galactica, all four seasons. After years of playing World of Warcraft, I had allowed my character, Ricky Bobby, to languish in the virtual world at level 110 when the max level is now level 120.

So I might level Ricky Bobby to 120. That will be hours. And I'm considering starting Better Call Saul season one, episode one, and then just roll straight through all the way to the end of Breaking Bad. Even though Better Call Saul is not over. But I think that could be a very solid plan. Okay, you have a plan. I like that you've given this some real thought. people online of my age group all talking about the same thing which is funny because i thought i felt very alone and isolated in this and it's been really pleasing to see that i'm not the only one who did not watch the sopranos yes and i think that's because at the time that it came out

you had to be like an hbo subscriber like with cable. Yes. And you know, I was in college. That wasn't a thing. Um, we didn't have the money for that, let alone like even the technology, like in college dorms to have HBO, as far as I know. Uh, so, and also you had to watch it every week. The only thing I was watching every week at that point was the West wing. So, uh, we have started the Sopranos. We actually started it pre-coronavirus which is even funnier but we're we're in the throes of it um we also like i mean binged in the truest sense i did not move off my couch for six hours um mcmillions the documentary on the mcdonald's monopoly fraud scheme oh yes, yes, yes. Oh, David, we need to dedicate like a whole thing to McMillions. My documentaries, I can rank all my documentaries.

It's like, it's a glass menagerie for me that I curate and love. The best one is obviously the 30 for 30 O.J. Made in America. Nothing has beaten it. Not even close. Yeah. But I think McMillions now comes in second, which moves the Jinx to number three. Well, I've been trying to get Nancy to watch McMillions, But it's too painful for her, Sarah, because, as she says, I spent too many years of my childhood trying faithfully to win McDonald's Monopoly. And it was all a lie. Oh, David, the characters, like the opening characters, you will be like, oh, my gosh, I can't believe they found these people. And then in the middle, you're like, why are we spending so much time on this? Maybe it's dragging and like the jinx the last 10 minutes you're like oh my gosh amazing okay all right well i'll watch it and can i give you two other documentary yes okay king of kong have you seen this one? Nope. And I'm concerned. It is one man's quest to obtain the

world record in Donkey Kong. I knew, I knew you were going to say Donkey Kong. Oh my God. Okay. And that's all I'm going to say. And if you watch King of Kong, you will thank me and you'll publicly thank me. And the other one is called New York Doll. And New York Doll, it's by the same guy who did Cheer on Netflix. Yes. And Last Chance U. And it's sort of his first documentary, his breakout documentary. And it's the story Excellent. So those are my two obscure documentary references. I like it. Have you seen Three Identical Strangers? I have not. Okay. I'm adding that one to your list then.

Okay. Three Identical Strangers. Well, I'll start with MacMillian. If you read it, it's about three identical triplets separated at birth. And then they find each other and you're like, okay, that's sort of an interesting premise. And so I went into it with those expectations. But actually, there's a lot of twists and turns and it gets legally kind of interesting there. Oh, good. Okay. Well, there you have it, listeners. Those are our binge recommendations during our self-quarantine

social distancing time. And we'll be back with you again on Thursday. And we're going to have our Dispatch podcast on Wednesday. And we're going to continue at the Dispatch to cover all of the twists and turns of the economic and cultural and social and health effects of the coronavirus crisis. And please go rate us at iTunes. Please subscribe at Apple Podcasts. And please become a member of thedispatch.com. And we will talk to you again on Thursday. Bye.