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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out lawfare's other podcast offerings, rational security chatter, lawfare, no bull and the aftermath.
- [00:35]
Mary Ford
Out here, we feel things the sore calves that lead to epic views, the cool waterfall mist during a hot hike, and the breeze that hits just right at the summit. But hey, don't just listen to us. Experience it for yourself. Alltrails makes it easy to discover the best of the outdoors with more than 450,000 trails around the world, points of interest along the trail and offline maps for always on navigation. Download the free app today and find your next outdoor adventure. Heather is a nurse practitioner from UnitedHealthcare. We meet patients wherever they live.
- [01:07]
Steve Vladek
During a house call, she found Jack had an issue.
- [01:10]
Mary Ford
Jack's blood pressure was dangerously high.
- [01:13]
Benjamin Wittes
It was 217 over 110.
- [01:16]
Steve Vladek
So they got Jack to the hospital and got him the help he needed.
- [01:19]
Mary Ford
He had had a stamp placed in his heart preventing a massive heart attack.
- [01:23]
Benjamin Wittes
If it wasn't for my guardian angel, I wouldn't be here.
- [01:26]
Steve Vladek
Hear more stor like Jax@unitedhealthcare.com benefits, features and or devices vary by plan, area limitation and exclusions apply.
- [01:45]
Mary Ford
I'm Mary ford, intern at LawFair, with an episode for the Lawfare archive for June 29, 2025 in response to protests in LA over ICE raids, President Trump took two controversial actions. He federalized the California national guard without the governor's consent and sent active duty U.S. marines to the city. The state of California sued the Trump administration, arguing that the president exceeded his power under 10 USC section 12 406, which empowers the executive to respond to a rebellion. Whether the president overstepped in his use of emergency powers hinges, however, on a clear definition and use of the term rebellion, something that Congress has not provided. For today's archive episode, I selected an episode from March 19, 2020 in which Lawfare Editor in Chief Ben Wittes and Steve Ladock, a professor of law at Georgetown University Law center, questioned President Trump's decision decision to use executive powers. But this time, at the start of the pandemic, Wood has sat down with Vladec to talk about presidential emergency powers limits on these powers if the president overused or underused these powers enough at the start of the pandemic and more.
- [03:13]
Benjamin Wittes
I'm Benjamin Wittes and this is the Lawfare podcast March 19. It is a Bonus Edition Last night I got on the phone with Steve Vladek, who needs no introduction for Lawfare listeners to talk about presidential emergency powers, all things presidential emergency powers. What can the president do? What limits what the president can do? What authorizes the president to do all those things, things he can do in a national emergency? Is the president abusing, misusing, using appropriately or under using emergency powers in the coronavirus crisis? And what are the logical endpoints, how far this could go? It's a wide ranging conversation, a lot of hypotheticals, a lot of scenarios, a fair bit of speculation and a whole lot of law. It's, it's the Lawfare podcast Bonus Edition. Steve Vladek on emergency powers and coronavirus all right, I want to start with federalism, because we have a federal response that people are seeing, or a federal non response, depending on your perspective. And you also have all these coercive measures that are being taken at the state end, sometimes municipal levels. So which part of the response, broadly speaking, is federal and which part is state and local?
- [04:56]
Steve Vladek
I mean, I think that's going to vary a lot by what day it is that we're talking about and by what jurisdiction we're talking about. Historically, we've left most of the response responsibility, for lack of a better term, to state and local authorities for a couple different reasons. One, because they're actually there on the ground. And at least some of these public health crises historically have been geographically confined too, because unlike the federal government, state and local governments have a police power. That is to say, they have general regulatory authority over their populace, including health and safety codes. And then three, just as a matter of pure national politics, that inertia has often favored leaving as much of the response as possible to state and local governments just because maybe there are budgetary objections at the federal level, maybe there really are pure federalism concerns, or maybe there are just not in my backyard objections. But it's rare to have a public health crisis with a national response because it's rare in this country to have a national public health crisis.
- [06:02]
Benjamin Wittes
Right. So my impression is that very little of the law on this subject actually tests the limits of the federal power. The famous quarantine cases, except insofar as they involve people arriving in the country. But the isolation cases, they're all state cases. So if Donald Trump, let's start with a sane, rational, reasonable version of Donald Trump, with Anthony Fauci holding it his hand and whispering in his ear, decided to impose what these counties in California imposed, a sort of national lockdown, my impression is that that would be beyond the federal government's constitutional authority. Do we have any solid law on the question of how far the federal government can go in responding to a public health emergency?
- [07:08]
Steve Vladek
The short answer to that is no. There's stunningly little law, partly because again, so much of the response historically has been handled in the first instance by state and local governments. But also I think it's worth stressing so much even when we've had federal responses and we saw a little bit of that with SARS, we saw a little bit of that with H1N1. We saw it with a couple of isolated cases. A nurse in Maine from the Ebola crisis, Casey Hickox, a lawyer in Georgia with what we thought was extremely drug resistant tuberculosis. The case law just hasn't fleshed out in any useful way just how far the federal government can go. I think it's a working assumption that the federal government lacks the power under any of its enumerated authorities. And again, we should be clear, we're mostly talking about Congress's powers here, that Congress lacks the power to reach all the way down to the quarantining you in your house level of disaster control and public health crisis management. But we have no case law to point to that other than sort of general cases about the limits of Congress's commerce clause power. And it's not hard to imagine the federal courts in general and this Supreme Court in particular being remarkably deferential to the federal government in a public health crisis like this one.
- [08:27]
Benjamin Wittes
It's true, although it's also not hard to im imagine the majority. It's not the same group of justices, but it's a similar flavor who resisted the idea that the commerce clause has no limits. And in the Gun Free School Zones Act Lopez case and the Morrison case really insisted and the theory of it was that or part of the theory was well, you couldn't have a general federal murder statute because there no police power. Right. And it's hard for me to imagine some combination of the commander in chief clause and the sort of emergency powers reaching down to the granular level of kind of regulating in a very coercive way the behavior of individuals even in a crisis. Do you think the deference to executive power and to and to emergency powers would sort of overwhelm that general sense that the, that the president doesn't have or that the federal government, you know, enumerated powers actually means some limits on federal power?
- [09:45]
Steve Vladek
You know, I don't know, Ben, because again, we've never had the case and you know, I think there are at least two of the five justices in the current, you know, conservative majority who I think would be perfectly happy to subservient or subserve their sort of federalism principles to their sort of government power and emergency principles. But I don't think we're ever going to get there. I mean, I think this is a point that when you look back at any kind of disasters in American history, be they man made or natural, it was invariably politics that kept us from reaching the cliff of the government's legal authorities far more than it was the courts. It was politics that stopped President Bush from activating the military and sending it into Louisiana after Hurricane Katrina, not concerns about the constitutional limits of the Insurrection Act. So I think that would be a close case, it would be a messy case. All I would say is that I doubt we're ever going to get quite that far. But contrast that, say, with an interstate travel ban where the Secretary of Health and Human Services, acting in concert with the director of cdc, promulgates a rule that to suppress the spread of the virus, all non essential interstate travel is prohibited. I actually think that would be constitutional under the interstate commerce clause. And I actually think there's a plausible reading of the existing statutes that would allow the government in a particularly extreme situation to do just that.
- [11:18]
Benjamin Wittes
Okay, we're going to get to that, to the, what the statutes allow in a moment. But let's, let's stick with the federalism matter for, for a minute. I want to posit one other reason why I think the federal government is unlikely to be kind of Italy, like aggressive. And that's that it simply doesn't have the manpower to do it. That without state and local, and particularly local police authorities to actually carry out whatever policies you imagine, there actually isn't. I mean, the FBI isn't that big. The military has, you know, a lot of people, but it doesn't have enough people to patrol the streets of every city in the United States. And the only actors that have that kind of manpower are state and local law enforcement. And, and that actually creates a gravitational pull downward to the lower level of authority. Your thoughts? Is that silly?
- [12:21]
Steve Vladek
No, I don't think it's silly at all. I mean, I think the capacity part of this story is a critical one because this is all a fascinating academic conversation. If there's no meaningful capacity on the ground for the government to actually carry any of this out. The complicating factor for me in this story is the very complicated relationship that this administration has with federalism.
- [12:41]
Benjamin Wittes
It's a transactional relationship, Steve.
- [12:44]
Steve Vladek
Indeed. And I think if this were a different time and a different place, I think it would be much more obvious to me that the administration's first priority would be finding out what the governors need and using every federal resource to backstop them. I don't think I'm speaking out of school when I suggest that this administration has governors they like more and governors they like less. And so my concern is that this is not an administration that thinks that way, even if for logistical and manpower reasons or for constitutional norm reasons or just for practical reasons, it ought to.
- [13:22]
Benjamin Wittes
Yeah, that's a really interesting point. All right, let's talk about separation of powers at the federal level, because we're talking about the President kind of waving his arms and wanting to do stuff.
- [13:35]
Steve Vladek
Or at least wanting to look like.
- [13:36]
Benjamin Wittes
He'S doing stuff, or at least wanting to look like he's doing stuff. And certainly that's the way he behaves, but it isn't actually the way federal law behaves. He has certain inherent authorities by virtue of being president, but there is no inherent authority to manage public health crises or to, you know, deliver ventilators. So you're basically dealing with mostly with delegated powers from Congress. And so I guess the question is, you know, let's not skip over the question. What powers has the Congress delegated to the President that are potentially relevant here? I mean, that's a huge list. But like, what are your big few? When you think about when what are the powers that the executive branch has to bring to bear on this situation? What are you thinking about?
- [14:31]
Steve Vladek
Well, I mean, I think, let me kind of make one point off the top and then hit what I call the big four. So I think the big point off the top is something you said in your question. And I just want to make sure we drive it home, which is this is not a conversation about the war powers where there is a long running, well joined historical debate about the division of power in the Constitution between the President and Congress. This is an area where from the founding all the way through today, it has just been understood that it's Congress's power to delegate. Now, Congress has delegated most of its power in this space. Congress has delegated enormous public health authority as we're going to talk about. Congress has delegated a ton of military authority, as we're going to talk about. But from a pure separation of powers perspective, most of what this analysis is going to turn on is statutory interpretation and not the messier, you know, what can the President do purely as a matter of Article 2? And I think that, you know, it's important not to lose sight of that because it just, it underscores how much Congress not only sort of carries the big stick, but how Congress actually could, if it really thought the President was running awry, you know, could theoretically amass veto proof, super majorities of both houses and pare back these authorities. So to me, I mean, you know, other people are going to have other examples, but when I think about the government's powers in this field, I think the four most important statutes are the Stafford act, which I think folks are most used to hearing about in the context of hurricane relief and hurricane recovery, which is basically just a broad grant of authority to the President if he declares something called a major disaster or a national emergency to transfer huge sums of money from other agencies and from other purposes and basically sort of throw money at the disaster. And so the Stafford act is a big part of the funding piece of this. The statute that I think is most squarely on point, but also I think least well known even to folks who study these issues, is a statute called the Public Health Service act, which dates to 1944, although it actually has some sort of derivative all the way back to right after the Civil War. The Public Health Service act is where just about all of the government's public health authorities come from. It's where the CDC, the CDC's authority comes from. It's where the Surgeon General's authority comes from. And we'll talk a bit about sort of the quarantine authority it provides in the news. You know, on Wednesday was the Defense Production Act. This is a Korean War era statute that basically authorizes the President to do a couple of different things with regard to production of materials that are necessary for national defense. So in this context, think respirators, think N95 masks, think tests, et cetera. The sort of. The weaker part of the statute gives the President the power to basically let the military cut in line and let the federal government cut in line to buy goods. The much stronger part of the statute, the real teeth of the statute, is actually the federal government directly compelling private companies to produce goods for the government. And then the sort of. The fourth is the real elephant in the room. And the fourth is the Insurrection act, which is the very, very old source of the government's authority to use military force during domestic crises. And I think that's the sort of, I don't want to say it's the nightmare scenario, but that is Sort of the real worst case scenario for how far the government's authority goes when you actually have the military in the streets doing law enforcement.
- [18:13]
Benjamin Wittes
Right. So I want to. Let's talk about that one last. I want to mention one other bunch of authorities, which are the immigration laws, which give the President a lot of authority to take the steps he's already taken with respect to cutting off entry from particular countries or regions and also imposing or all kinds of new checks on people coming in. Could he do more with that group of statutes than he's already done, other than adding new countries to the list?
- [18:48]
Steve Vladek
He absolutely could. And if I can cheat a little, most of the power that the President has over immigration in this context actually comes from the Public Health Service Act. So one of the interesting things that the Public Health Service act does is it creates quarantine authority that is then broken out differentially between what the regulations call interstate quarantines and what the regulations call foreign quarantines. And so this is actually a place where basically HHS and I guess what's now Citizenship and Immigration Services and Customs and Border Protection, their authorities actually overlap rather substantially.
- [19:27]
Benjamin Wittes
All right. So, you know, earlier in the Trump administration, people like you and I were waxing indignant at his use of emergency powers and the ability to declare a national emergency in order to circumvent Congress's refusal to fund his wall building project. I'm curious whether you think that any of the exercises of these authorities so far, do they trouble you, or do they seem like a reasonable exercise of executive authority in the face of a genuine national emergency?
- [20:12]
Steve Vladek
So, at the risk of pissing off everybody, the short answer is they trouble me only because they haven't come fast.
- [20:17]
Benjamin Wittes
Enough, in other words. I mean, I completely agree with that. I mean, your problem, just to be clear, is not that the President invoked a national emergency and has exercised these potentially sweeping powers that in certain circumstances we find troubling, but that in this case, which is the sort of thing that they were designed for, he was dilatory in doing so. Is it. You don't see any abuse of executive power here. You see negligence of executive power. Is that fair?
- [20:50]
Steve Vladek
Not only is that fair, Ben, but I actually think it ties together to what I think is probably the most important point that I could probably make in this conversation, which is the President's dilatory use of the powers he has, I think is going to end up requiring him to use a lot more of that power in ways that are a lot more controversial and a lot more coercive. And a lot more inconsistent.
- [21:13]
Benjamin Wittes
Give us examples of that. How is it that if you had used these powers earlier, you might be able to use them less?
- [21:22]
Steve Vladek
Sure. So let's talk about the timing. Right. So Secretary Azar declared a public health emergency, which is not the same thing as a national emergency, on January 31. And for legal purposes, what that did was that triggered a small number of public health statutes and a small number of sort of bureaucratic and administrative softening of rules that would have allowed the government, among other things, to ratchet up, for example, experimental drug approval through the FDA to reallocate at least certain funding resources. It would have allowed the government, I think, on a plausible reading of the statute, to dramatically ramp up the production of tests for the coronavirus. And so I think just the secretary's declaration of a public health emergency actually triggered a bunch of powers that the executive branch, at least so far as we know, Ben, did not aggressively utilize, at least at first. And indeed, six weeks elapse between when Secretary Azar declares a public health emergency and March 13 last week when President Trump finally declares a national emergency. And even then, the national emergency declaration principally only sort of opens up the spigot for more money. You still have to use it. So, you know, here's my concern. Let's play this forward. Imagine we get to a point where the virus is so widespread in the United States that the only way to relax any of these social distancing measures and the only way to reopen schools and the only way to allow for large scale gatherings again is if you're relatively confident that the people who are going to these gatherings are not infected. And we have some experience from Italy that shows that you can actually really do that. There was a story online earlier this week about one city in Italy that had an aggressive testing regime and that had really been able to relax some of its measures. If we had massive testing capabilities today, if we were able to provide tests for anyone who was remotely symptomatic, or at least anyone who thought they might have been exposed to, might be possible for local, state and federal government officers to target those who are a risk and to pursue suppression measures that are not directed at the entire population, but rather at those who have tested positive, if we had better information. The problem is that without that kind of retail information, the government's choices are to do nothing or to take wholesale measures. Wholesale measures like shelter in place, wholesale measures like a mandatory curfew, wholesale measures like an interstate travel ban. We'll never know, Ben, if we had had much more testing capacity much earlier if we would have been able to do all this on a retail basis. I think the point is that we're not able to do it now. And so the government's limited to these wholesale and I think increasingly unpopular responsibility responses.
- [24:24]
Benjamin Wittes
All right, so the there are two broad subjects that I want to cover with all of that as preview. One is what could you do with the military? This is the biggest workforce that the government has that can go in places and do things right. It can do them fast. It's really good at doing things like building field hospitals. It's also something that we're pretty suspicious of deployments of domestically. The other subject I want to talk about is elections. We have to have an election while we're doing all this. And there's been a lot of anxiety about the way the government could behave in relation to the election. And frankly, you know, there's some basis for concern about that when you look at what happened in Ohio, although I'm not convinced that what Governor DeWine did in Ohio wasn't justified, it. It certainly poses a democratic problem, let's put it that way. So let's start with the military. You know, if you're Donald Trump and you like grand gestures and you want to be seen to be doing things that look decisive, rolling in the troops is got to be an attractive option. Right. And so I guess let's start with what could you and couldn't you use the military to do with how much ease or difficulty under current law, in your judgment?
- [25:59]
Steve Vladek
Sure. I mean, this is. I made the mistake of writing about this in my student note in law school and being very happy it would never come up. That didn't work out so well.
- [26:08]
Benjamin Wittes
Yeah, that's the thing about hypotheticals.
- [26:10]
Steve Vladek
Yeah. One day they come true. So let me sort of try to unpack this in a way that will be hopefully useful if a bit long winded. So I think a lot of folks who come to this issue, either for the first time or as relative newbies, either know by name or at least understand by insinuation the tradition in this country of not having the military do domestic law enforcement. And that tradition is actually not a founding era tradition. Rather, at the founding it was pretty routine to have the military, at least in the form of the state militias, provide support for civilian law enforcement because there just wasn't that much civilian law enforcement. Rather, it is a post civil war innovation that has somewhat sordid origins. I mean, it was largely a response to the federal military suppression of Racial violence in the not yet reconstructed South. But the Posse Comitatus act of 1878 is a statute I think a lot of folks are at least superficially familiar with. And it actually makes it a crime to use the army or as amended, the Air Force to perform ordinary domestic law enforcement. The statute has been interpreted by the Department of Defense to include the Navy as well, even though it's not in the text of the statute. And so the basic rule is unless there's some other statute that authorizes law enforcement operations by the military on US Soil, such operations are prohibited. That's why we're used to seeing the military on US soil in a support capacity, that is to say logistical support to law enforcement support to FEMA in building shelters after a hurricane, sort of. Those kinds of non direct enforcement capacities are the sort of bread and butter of the military's role in domestic response. And by the military, we should say here I'm including both the National Guard and what we might call the regular troops, the active duty and reserve service members of the U.S. army and Navy and Marine Corps, et cetera. But the Posse Comitatus act is not a constitutional rule. It is only a statutory rule and it can be overcome by other statutes. It's basically a clear statement rule that Congress has to be clear what it means for the military to be able to do domestic law enforcement. And the statute I mentioned a bit earlier, by far I think the most important statute that satisfies the Posse Comitatus act is the Insurrection Act. The Insurrection act is the name that we give today to actually a series of statutes that date all the way back to just after the founding. 1792 was the first one through which Congress has delegated remarkably broad power to the President to call out first the militia, but then the regular army in three circumstances. To suppress insurrections, to repel invasions, or to execute the laws of the union. And the Insurrection act is basically the hook for the President to call out the military when laws are not being enforced adequately by the civilian authorities on the ground in a particular jurisdiction.
- [29:24]
Mary Ford
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- [30:59]
Benjamin Wittes
Yeah, so let me, let me just pause there because you have a basic conflict between the two laws that that you've the two major set of statutes that you've described. On the one end you have Posse Comitatus that says you can't use the military for civilian law enforcement without a clear statement from Congress. And on the other hand you have the Insurrection act which has this broad clear statement. Anytime the President says that civilian law enforcement isn't adequately enforcing the law, he's entitled to use the military. So I guess the initial question is absent a bad guy and like some insurrectionist or some terrorist group or some invader, can the Insurrection act reasonably be read to swallow whole Posse Comitatus?
- [31:55]
Steve Vladek
I think it depends on the circumstances. I mean, so I think it is not a massive leap to think that a natural disaster, right? Nothing, man made, nothing warlike, nothing like that could so overwhelm local authorities as to justify a deployment of federal troops. I mean, I think after Katrina, I'm one of those who believes President Bush would have been well within his legal rights to send the army into Louisiana and to do it not just to support Louisiana authorities, but actually in areas where local law enforcement was just not up to the task to actually supplant civilian law enforcement or at least supplement civilian law enforcement. So, you know, I think the short answer is the statute as it's written today. And I think the statute as it's been understood for almost all of its history does not depend upon some underlying act of violence. Rather, it depends upon any set of circumstances where civilian authorities are just Overwhelmed. And, you know, the critical reason why we haven't really seen that envelope pushed is because as much as any other statute on the books, the political constraints on invoking the Insurrection act have become enormously powerful. So much so that not even President Trump did it with regard to the border, even though that idea had been floated at some point. So, you know, I think part of what's going on here is a very, very broad statute where at least historically, political norms prevented presidents from abusing it. And we should just say, I mean, we are currently in the longest period in all of American history without an Insurrection act declaration, without a, you know, domestic deployment of the military for law enforcement. The last time it happened was when George H.W. bush sent troops into Los Angeles after the Rodney King riots.
- [33:49]
Benjamin Wittes
Isn't the other factor here that I think would inhibit it? To go back to this earlier point we were talking about, about manpower is that it's not entirely what US Troops could do in a law enforcement capacity that local law enforcement in these communities can't do. If you have a problem of non compliance with shelter in place orders in in San Francisco or Berkeley, you know, the San Francisco Police Department or the health Commissioner's office is perfectly capable of enforcing that. Unless you had kind of massive defiance of it and you send in the troops to engage in law enforcement activity, unless you're going to declare martial law, it doesn't substantively change the rules, right?
- [34:42]
Steve Vladek
That's right. I mean, so the activating the Insurrection act does not change any of the substantive law governing law enforcement. The troops are supposed to be enforcing the same laws that the civilian law enforcement authorities are enforcing. I think I mostly agree with you, Ben, about why we haven't seen it yet, although we're still, I think, unfortunately, in the early stages of this crisis. But short of sending in the military to enforce local shelter in place rules, which by the way, I don't even think would be authorized. It has to be federal law that's not being properly enforced by civilian authorities. I think the one place where I can and would see a potentially lawful invocation of the Insurrection act would be if the President really does promulgate an interstate travel ban and you want to park federal troops and National Guard troops along the major junctions at state borders. I think it sounds like a scene from a dystopic apocalyptic fiction movie. But I think if we really aren't successful, if the current round of measures don't do enough to abate the spread of the virus, I could see a logical argument that were it made from any president other than Trump, I think would be a lot easier to swallow that not only was an interstate travel ban necessary, but that we needed the military to make it effective.
- [36:06]
Benjamin Wittes
All right, so just walk us through that. What would the legal basis of an interstate travel ban look like in interaction with the invocation of the Insurrection act to enforce it?
- [36:21]
Steve Vladek
Right, so now we have to sort of get into a little bit of nerdy detail about the Public Health Service Act. So the most aggressive authorities that the federal government has to respond to a public health crisis are authorities that come from a random provision of the Public Health Service Act. Depending upon who you ask, it's either section 361, because that was the section number of the original statute, or it's 42 US code section 264. And what's remarkable is if you look at 42 USC 264, it actually just delegates a ton of authority to the Surgeon General, to the head of the cdc, to the relevant federal officers, to the secretary of HHS to promulgate regulations to deal with the spread of communicable diseases. And so then you have to go to the regulations. And so now we're into the Code of Federal Regulations. This is title 42, part 70 of the CFR, and it's section 70.6, for example, that talks about the rules for the apprehension, medical examination, quarantine, isolation, or conditional release of any individual for the purpose of preventing the introduction, transmission and spread of quarantine able communicable diseases. And then it's, I think, section 70.14 that basically puts teeth into federal quarantine orders that basically says, here's how the director of the CDC can impose some kind of nationwide quarantine. So imagine if we get to a point where the government determines that it is no longer plausible or possible to isolate, say, even entire cities, let alone individuals within cities. And that the most important thing to do is basically to shut down as much travel as possible. You know, for some of the reasons we discussed earlier, it's going to be hard for the federal government to stop intrastate travel. It's not clear it would be within their constitutional authority. But I don't know that it's that much of a stretch to read section 70.6 as basically saying if the director of the CDC determines that it's necessary to prevent the spread of coronavirus to stop people from traveling, basically to quarantine every state unto itself, you know, it would certainly be challenged in court. Those challenges would not be frivolous but it just, you know, I think there would be a pretty powerful argument if we're at a point where, you know, less restrictive measures have been unsuccessful.
- [38:47]
Benjamin Wittes
And just to tie this part of the conversation to the previous part, the link to the Insurrection act would be that having determined to do that, that that is necessary, the President could then turn around and say, and federal law, I. E. This quarantine under these regs is not being adequately enforced by civilian authorities in the face of this emergency situation, and therefore I can call out the military to enforce it. Is. Is that. Is that the sequence?
- [39:24]
Steve Vladek
Yep, that's exactly right. That the regulations, and therefore the Public Health Service act itself, are not being adequately enforced by local and state authorities. And so in order to ensure that these lawful orders promulgated by the director of the cdc, acting under authority delegated to him by Congress are enforced, I'm using the military. And I should say, I mean, it's worth noting, you know, the statute and the regulations put teeth into these orders where there can be criminal consequences. Section 70.18, if folks want to go check this out. Persons in violation of this part are subject to a fine of no more than $100,000 if the violation doesn't result in death or one year in jail or both. So this is a criminal. The regulation already has criminal teeth. I don't think it would be a stretch if we assumed that the ban itself were lawful for the President to say. And because I can't count on the states to enforce this ban, I'm sending in the troops.
- [40:21]
Benjamin Wittes
All right, so now let's talk about the election, right now that I've terrified.
- [40:26]
Steve Vladek
Everybody, let's talk about the war.
- [40:28]
Benjamin Wittes
So here are the following are all facts. One, several states, in fact, did postpone their primary elections because of coronavirus fears. And those were almost certainly responsible things for those states to do, given the proximity it takes to human proximity it takes for people to vote. Number two, in one state, Ohio, the governor did it as a matter of unilateral executive authority in the face of a court order without legislative support, although the state Supreme Court later backed him on it. But it was a quite aggressive move on the part of the governor. Three, the president has repeatedly suggested, I don't think seriously, but he has not. He has repeatedly suggested that maybe he should just be made president indefinitely. And he has also cast doubt on the legitimacy of any electoral defeat, both before he was elected, when people believed, including him, I suspect, that he was going to lose, and more recently. So under those circumstances, it is not crazy for people to be asking the question, what could a president with all these sweeping powers do to interfere in an election that he doesn't believe he might win? Win? And so I guess the question is just that if you were a president who wanted to not lose an election, and you saw an election coming that you thought you might lose, and you were unscrupulous and had a panoply of powers available that we've just been talking about, what's the best path to mischief? You can't change the election date, can you?
- [42:37]
Steve Vladek
Not by yourself. So I think we have to sort of start with one critical point that I think sort of pushes the rest of this analysis, which is it is the Constitution itself, or at the very least, Section 1 of the 20th Amendment to the Constitution that decrees that the president's term is over at noon on January 20, 2021, unless he's been reelected. And so, in the absence of an election between November 3, which is the congressionally set election day this year, and January 20th, the President would have no possible claim that he's still the president. Instead, we'd be left to the messy debate about the Presidential Succession act of 1947, where we'd be left either with the new speaker of the House, if there is one, or worst case scenario, the president pro tem of the Senate. And just to sort of make things even more ridiculous here, if you look at which Senate seats are up in 2020, if there's no election between November and January, my reading of the math is that Chuck Schumer would be the president pro tem of the Senate. So I don't think even a conspiracy theorist could find a way where, without an election, President Trump can still be president come January 20. But the conspiracy theory, to me, is not canceling the election, it's messing with it. It is making it much harder for people to vote on November 3rd. The question, I think, is if you're really trying to be malicious, you wouldn't try anything as overt as rescheduling the election. You would try something much more, I think, obnoxious, like just if we're still in social distancing and isolation mode come November, making it much, much, much harder for people to actually go to the polls. And so this is where I think the most important thing Congress and state legislatures, either separately or together, could do between now and November 3rd, is provide more facilities for remote participation in the election. Basically vote by mail, because that would be the easiest and most obvious way to avoid that potential for mischief.
- [45:01]
Benjamin Wittes
And Congress can't really do that except by providing funds for states to do it themselves, Right. I mean, it really is state balloting beyond equal protection concerns is genuinely is a matter of state competence, right?
- [45:21]
Steve Vladek
Yes and no. I mean, I think the Constitution is very interesting when it comes to Congress's power over federal elections. I think there's actually a pretty good argument, Ben, and now we're getting a little bit more sort of out of my bellow, so let me just sort of summarize my understanding of the debate and then not try to say more. There's a pretty good argument that Congress actually has a lot more power over federal elections than it has historically exercised and that the elections clause of Article 1 would give Congress the power, among other things, to set some kind of national uniform requirement for access to the polls, especially during a public health emergency. But that would raise its own set of novel questions that would have to be challenged in court. And this is why I think you're seeing a lot of pressure on those states that have historically been resistant to absentee voting in general, to no fault absentee voting, to really try to at least relax those rules for this fall, if not on a permanent basis.
- [46:17]
Benjamin Wittes
All right, one more subject before I let you go, which is it's an odd thing for you and I to have a conversation about very aggressive use of executive power and not talk about the challenges to those uses. And I don't want to leave listeners with the impression that if any of these most aggressive scenarios were attempted, that there wouldn't be significant legal challenges to it. So without going into spinning out detailed hypotheticals of each situation, what would you suggest are the major bases on which challenges would develop?
- [47:04]
Steve Vladek
So I think there are three major bases, and I think we can probably put them into three categories in broad terms. And again, let me be clear here. We're talking about challenges to federal exercise of authority. Some of these, I think, would also be available at the state and local level, some would not. And for as complicated as the law is at the federal level, multiply that by 50 and we've got sort of the variances in state public health crisis law. So I think the most obvious and sort of, I think least constitutionally weighted challenge would simply be that the relevant statutes don't authorize the measures the government is taking. And so these would be basically sort of ultra virus arguments that things like an interstate travel ban or other more coercive measures from the federal government actually exceed the authority that Congress delegated through 42 USC 264 Section 361, the Public Health Service Act. Those arguments will be attractive to some judges because it would allow them to avoid nasty constitutional questions. The flip side is that those authorities have historically been read quite capaciously, and so I think a lot would rise and fall at the federal level on those arguments. Assuming the government stays within its statutory lines, then we get to the constitutional objection, and I think there are four especially big ones. The first and most obvious is procedural due process. Basically, that if the government is imposing these restrictions on people and on their liberty without providing them a meaningful opportunity to contest the restriction, obviously that could raise serious Fifth Amendment due process concerns. And here, Ben, I think we go back to why the sort of lack of aggressive use of executive power in the six weeks after January 31st might actually lead to more aggressive uses down the line. Because I think it's going to be harder for the government to adopt policies that don't have high risk of error. It just might be that that's inevitable. That sort of bleeds into a substantive due process objection. Whatever else we might say about substantive due process, it's the idea that the government has to have a sufficiently good reason for doing the thing that it's doing in this context, and that the sort of the justification has to be well tailored to the actual policy. Here again, I think a lot's going to depend upon what the actual thing being challenged is and whether there really are less restrictive alternatives available. I think the government's going to be in the awkward position of arguing that it has to do these wholesale measures because it wasn't fully prepared for what came. There's, of course, always the Fourth Amendment objections that if the government is conducting any kind of searches and seizures, if there are, for example, checkpoints before you enter or leave particular jurisdictions, I think folks will bring Fourth Amendment challenges there. We'll run into something called the special needs doctrine in Fourth Amendment jurisprudence, which is the idea that the government does not need to satisfy the warrant clause of the Fourth Amendment, doesn't need probable cause or even in some cases, reasonable suspicion if what it's doing is the vindication of some broader public need that's unrelated to criminal law enforcement. I don't think it's a stretch to see how a quarantine would blend into the special needs doctrine actually quite easily. And last but not least, the weirdest of these is perhaps the right that's most directly on point, which is the right to travel. You know, the Supreme Court has said on multiple occasions, I think most recently in Signs vs. Roe in the late 90s, that the Constitution does protect at least some right to travel among and within the United States. But the court hasn't had a lot of opportunities to really put meat on that bone. And so I think we would see, obviously, litigation challenging that. I mean, I'm reminded, Ben, I don't know how many folks have read the Tom Clancy, Jack Ryan book Executive Orders, but there's a whole sort of plot element in that book about a national travel ban, an interstate travel ban, and the vice president, the former sort of ish vice president, challenging it in court. That's kind of where this might end up and sort of fighting on the right to travel.
- [51:20]
Benjamin Wittes
I mean, and I also think it's important to say in reference to the right of travel, that the right to travel arguments and the procedural due process arguments would hybridize to some degree.
- [51:32]
Steve Vladek
And the substantive due process arguments, I think, too.
- [51:34]
Benjamin Wittes
Yeah, but I'm thinking particularly about somebody, somebody making the argument, hey, I am not a carrier of the coronavirus, and I am willing to subject myself to. I have been tested, and I would be willing to subject myself to any test. And so you are without adequate process to establish that the restriction on my right to travel is necessary, nonetheless, restricting my right to travel. And it would, I think it would present as a sort of, a sort of blended argument of the substantive right to travel combined with the procedural due process. If you want to restrict my right to travel, you've got to give me some process to determine whether it's necessary.
- [52:21]
Steve Vladek
I think that's right. But then I think the government's counterargument would be we're not in a position to provide individualized process. And so this is why I think all roads lead back to the inadequacies of our testing regime and the government's inability to engage in that kind of sort of ground level, case by case, neighborhood by neighborhood, cluster by cluster, suppression of the virus. And so that's why I think those arguments would be available, But I wouldn't have a lot of confidence in them succeeding. And I should say just before I forget and just before the property rights folks scream at me, there's also the specter of the government taking property and of the potential takings claims that would arise from that, especially if the government needs to, for example, I don't know, convert hotels into hospitals or things like that. But in that context, the litigation would only be if the government didn't provide just compensation. So that would be sort of a second order round of litigation if we.
- [53:23]
Benjamin Wittes
Get that far so, Steve, how does this end? Are we looking at, is this a situation where the testing ramps up over the next few days? We find out, as we are finding out, that there are a really large number of these cases, but with good testing, we actually get surveillance on the situation. And the thing we've all done our part, the curve flattens and, and all these kind of nightmare authorities don't come to pass. Or are you actually contemplating that some of the more aggressive scenarios that we've been describing are more than hypotheticals at this point?
- [54:04]
Steve Vladek
Well, I should say something I probably should say at the top, which is I'm not an epidemiologist and I do think that too many of us lawyers have been playing epidemiologists on Twitter over the last couple of weeks. So some of that is really a question of epidemiology. Let me sort of take the legal part. I think that so long as even if test, even if testing improves, and by testing, I mean both diagnostic testing and surveillance testing, even if we get to a point where tests are widely available and accessible and we're able to identify the full contours of the problem, you know, my understanding of the medicine, amateurish though it may be, is that the virus is going to be a problem until and unless there's widespread access to vaccines. Because, you know, even if there are folks who just for some reason are resistant to the virus or are inoculated from it naturally, or have had the virus and no longer can get it a second time, and we're not even sure if that's true, that the virus is going to be present in our society, you know, up until the moment that there's mass scale, innocuous or vaccination. And so I think the question's going to be how long does it take to get to the vaccination point of this conversation and how much interference with everyday life will Americans tolerate, will the government pursue, and will the sort of the political majority abide between now and then? I hate to be sort of. I'm not usually a pessimist, I'm usually an optimist, but I really think this is, is going to get a heck of a lot worse before it gets better. And that at least some of these authorities are absolutely going to be brought to bear with the sad, tragic irony being, especially coming from someone like me who is not a big fan of executive power, that the ultimate central mistake the Trump administration made was not going to these powers and authorities sooner.
- [56:01]
Benjamin Wittes
There you have it. The coronavirus has gotten Steve Vladek to accuse the Trump administration of being wusses on executive power. Steve, thanks so much for joining us. The transformation of us all never ends.
- [56:17]
Steve Vladek
I mean, the one thing I'll say in closing is I think this is a real emergency. And hopefully it shows both why we ought to be very, very mindful of presidents who cry wolf when it comes to emergencies. Because when the real emergency comes, we want them there at the first sign, as opposed to reacting for political reasons.
- [56:44]
Benjamin Wittes
The Lawfare Podcast is produced and edited by Jen Patya Howell. It is produced in cooperation with the Brookings Institution. This week our audio engineer was me and Steve Vladek, who recorded ourselves in our respective homes. Special thanks to Steve's dog for her guest appearance on the podcast. You know, recording from home creates all kinds of new variables. Our music is, as ever, performed by Sophia Yan. You should share the Lawfare podcast on social media because people need to know that these conversations are taking place. You should review and rate the Lawfare podcast on whatever podcast distribution service you use. And in these troubled times, you should deck yourself out in Lawfare swag. Available@thelawfairstore.com and as always, thanks for listening. Test Test Check 1, 2. You know you need unique New York. You know you need unique New York. Does that sound alright? Ah, that's better.
- [58:03]
Steve Vladek
You can always tell something's missing when.
- [58:05]
Benjamin Wittes
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