Washington Wednesday - Presidential pandemic powers

MARY REICHARD, HOST: It’s Wednesday the 1st of April, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: Washington Wednesday.

On Saturday, President Trump announced he would not issue quarantine orders for New York, New Jersey, and Connecticut. Instead, the Centers for Disease Control and Prevention issued a domestic travel advisory for the area. It encouraged Americans “to refrain from non-essential domestic travel for 14 days effective immediately.”

REICHARD: Although the president backed off a wide-scale quarantine, state leaders across the country are issuing their own orders. At least 30 states have some form of stay-at-home or shelter-in-place mandates. And in some places, police are arresting anyone who violates those orders.

Quarantines aren’t unheard of in the United States. Officials used similar restrictions during the Spanish Flu pandemic in 1918. But none of us was alive then, so this level of government control is a new experience.

EICHER: Joining us now to talk about what the government can and can’t do during a national health crisis is David Iglesias. He’s a former U.S. attorney who now teaches law and political science at Wheaton College. Good morning, professor!

DAVID IGLESIAS: Good morning!

EICHER: Let’s start at the federal level, and with the executive branch specifically. What powers does the president have to issue quarantines and travel bans, beyond say what he’s already done?

IGLESIAS: The thing to keep in mind is that the federal government has limited powers. Primarily the state, local government has greater direct power. Now, saying that, the federal government has enormous support power. So, in terms of creating materials to help state and local government. But for example, the president could not issue an order to quarantine a state or a city. That is something that is specifically reserved for the state and local government leaders.

EICHER: Does Congress have any role in this, or is this purely an executive branch prerogative?

IGLESIAS: No, Congress has an important role such as passing legislation such as the Defense Production Act of 1950, which allows the president to order key industries to stop making what they normally make and make something related to the war effort. So, I’m thinking of, theoretically, the president could order under the DPA General Motors to stop making cars and start making respirators.

EICHER: Which he did.

IGLESIAS: Correct. The president can also declare a national emergency, mobilize guard and reserve members—I’m a former reservist myself—and he can order the Navy hospital ships‚ one on the East Coast and one on the West Coast, to go and provide medical services. So, but the congressional powers are pretty significant. 

There’s a law called the Public Health Service Act, which gives the Centers for Disease Control and the Health and Human Services Department statutory authority over specific diseases. Not across the board, but specific diseases such as cholera, [tuberculosis], plague, smallpox, and flu-causing pandemics.

EICHER: Let’s move to the state level, because you said that seems to be really where the action is. Where do governors fit into the picture? Do they have the same powers—in a sense—than the president has at the federal level?

IGLESIAS: So, governors can issue quarantine orders, but cannot specifically target a certain city. So, the governor of Illinois cannot say, “Chicago, I’m shutting you down.” The mayor has that authority. So, the thing to keep in mind is their shared power. And the 10th Amendment to the Constitution makes clear that those powers not specifically allocated to the federal government have to go to the states.

EICHER: Let’s talk about how conflicts get resolved between federal and state officials. Last week President Trump had been talking about a goal of reopening the country by Easter. And some governors were saying they were not going along with that at all. So, let’s say in a situation where we run into a meaningful disagreement, who gets the final say so?

IGLESIAS: That would be a power reserve to the governor or to the mayor. So, I’m sure when the president initially said what he did, he probably then talked to White House counsel who said, “Mr. President, you don’t have that statutory or constitutional authority.”

EICHER: We’ve heard accounts of significant restrictions and surveillance tactics in other countries. I’m thinking specifically of Israel, where the government has faced criticism for tracking people’s movements via cell phone and things like that. 

Now, I know that has no control over what we do in the United States. Nevertheless, we do watch what happens elsewhere fighting the pandemic, and I just wonder if those kinds of things might come here. Are there any limits that keep that from happening here in this country?

IGLESIAS: Well, now that’s an interesting question because Forbes magazine is reporting now that the U.S. government is in fact doing that also. The thing to keep in mind—if the listeners can remember one thing from my comments, it’s this: quarantine laws are the most extreme government power over a person who has not committed a crime. 

So, provided the information is kept in the aggregate, that’s fine. I think that would pass constitutional muster. And, again, they’re not trying to put people in jail, they’re trying to make sure the quarantine laws are being kept. So, aggregated, anonymized information is probably constitutional, but that can be abused and that’s where the courts would come in.

EICHER: Do you worry at all that if we chip away at some of our civil liberties and we accept these during a time of legitimate crisis that it may be difficult for the government to give that up?

IGLESIAS: You know, no. Having been in government for most of my career—at the federal level primarily, but also at the state and local government—our government [is] comprised of citizens who, I think, understand what we have here in the United States is quite special.

EICHER: Let me ask you a final question related to churches. New York City Mayor Bill de Blasio going back to Monday said he would close any places of worship that did not follow his shutdown orders. Then if we look at Florida, sheriff’s deputies have arrested a Tampa-area megachurch pastor who held services on Sunday despite local orders against mass gatherings. 

Now, whether that’s a good idea or bad idea, are those officials on solid legal ground to do that?

IGLESIAS: I think probably, yes, provided that the order is enforced uniformly to all large organizations. So, there’s a problem if they would specifically target churches. 

There’s an interesting case out of San Francisco called Jew Ho v. Williamson, it’s a 1900 case in which quarantine for bubonic plague in that case was enforced only against Chinese. And the Ninth Circuit struck that down. So, provided that the order is being uniformly applied against all organizations, it’s constitutional. If churches are being specifically targeted, that’s problematic in light of the First Amendment. I think the court will strike down that.

EICHER: Before I say goodbye, let me give you a wide open lane here. Maybe my questions didn’t elicit something you felt you needed to say here. So, this is just wide open if you want to add anything.

IGLESIAS: Well, thank you for giving me that. You know, there is tremendous governmental power, but it’s not unlimited. Go back to Harry Truman who tried to order a steel mill in the steel industry to stop making their products and make war time products. That’s the Youngstown steel case that the Supreme Court struck down that presidential action. So it is not unlimited. 

Also, there’s an interesting case out of Massachusetts in which the Supreme Court heard a challenge to mandatory smallpox vaccination. Listen to this language, Justice Harlan said in the 7-2 majority, “The U.S. Constitution does not import an absolute right in each person to be at all times, and in all circumstances, wholly free from restraint. Rather, a community has a right to protect itself against an epidemic.” 

That was true then, I think it’s true now. So, I would say we still have constitutional protections. This is temporary and this too will pass.

EICHER: David Iglesias is a professor of law and political science at Wheaton College. Thanks so much for joining us today.

IGLESIAS: Thank you, have a good day. Stay healthy, please.

(AP Photo/Alex Brandon) President Donald Trump speaks about the coronavirus in the James Brady Press Briefing Room of the White House, Tuesday, March 31, 2020, in Washington. 

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