These and many other sorts of Public Policy issues, one of our intellectuals. Thank you. Welcome, one and all. This session will examine the Civil Liberties issues that have been raised by Government Actions to content with the coronavirus pandemic. We will hear from four imminent legal scholars. One from new york law school, chairman of the american Civil Liberties union. School,f the ucla law host of the eponymous website of conspiracy julia of the university of Virginia School of law, who specializes in property, public finance, and constitutional law. Mia Love University of Virginia School of law, who specializes in comparative constitutional law and international law. Further information about each of them is available at the. Onference website our session will run up to 90 minutes, concluding not later than 5 15 eastern in the United States. We will have individual presentations and a general Panel Discussion and questions from attendees. When question time arrives, i will ask those with questions to onck raise and raise hand your screen or star nine on your phone. To set the stage, the centerpiece of u. S. Response to massiveemic has been a suppression of everyday Civil Liberties going beyond anything in American History. As much can be said of most of the other free democracies, beginning in march, 43 states and the district of columbia and puerto rico issued lockdown orders that required the vast majority of americans to isolate at home and to limit their outings to a few specified purposes, public and private gatherings were limited to small numbers, and virtually all schools, churches, and businesses were shuttered. Restrictions were to be temporary, but their duration was extended from weeks to months and are just beginning to be relaxed. The closure of schools and large indoor gatherings may extend through the fall. Were exertions of state police power undertaken by governors, mayors, agencies, sometimes with explicit authorities that set forth state legislation, sometimes without it. We have learned a great deal about the virus and its patterns of transmission since march and there are serious debates whether the lockdowns were sensible and effective compared to more targeted measures outside of hotspots, such as new york city and san francisco. The orders were met with widespread Public Acceptance and high levels of compliance. Even before the orders were issued, some individuals and residential communities had begun to shuttered some shops and businesses and many large assemblies had been canceled. What i have described as a suppression of Civil Liberties could just as well be described temporary surrender of liberties and of Popular Mobilization against a mysterious but clearly deadly contagion. Several of these issues are largely counter majoritarian. They do not depend upon popular assent at the moment they are exercised and they are often most feared when they run afoul of government policies. Wereockdown orders different between different sort of activities and some have no relationship to defense against the spread of covid19 or individual self protection against contracting the disease. Some of these were probably mistakes made in haste, such as banning outdoor gardening services. Others seemed more deliberate, such as categorizing pot shops as essential what church. Ervices as inessential now lockdowns are being replaced by opening up policies that involve narrow and numerous kinds of distinctions. Regulation of public conduct such as distancing and masking are being applied to larger numbers of citizens and many new policies are being introduced or mandatory testing, contact tracing, public surveillance, restrictions on interstate travel, and Public Opinion has splintered. Many of us are reluctant to be out, but others are busting out, setting up shop, and releasing months of pent up energy. Of famous american spirit individualism and freedom is reawakening. Our panelists will analyze Civil Liberties issues that have arisen in the course of this,. Some of them perhaps touching on federal as well as state policies, these will include issues under the bill of rights and the broader question of whether Civil Liberties are best protected in circumstances such as these by specific rights or by government structure. We will also examine how these controversies played out under the constitutional regimes of other nations it consider whether they are transitory incidents or may have lasting consequences for law and policy. We will begin with professor nadine. The zoom podium is yours. Thank you so much for that terrific introduction. Honored. Y and use of mythe best time would be to set out general principles that are applicable to assessing all government restrictions on Civil Liberties or human rights in the interest of protecting Public Health and, time permitting, i would like to discuss one or more specific sets of issues in terms of how we apply those standards, including the right to life and health itself for those in government custody, the right to vote, the right to privacy. With respect to general principles, broad consensus about these across the ideological spectrum. I think the first statement i heard about this from the nine States Government officials early on was attorney general wordsarr, who said these that were music to my years as a civil libertarian, he said, there is no pandemic exception to the constitution and its bill of rights. That said, he did go on to point out that when we have a genuine emergency, the constitution and are consistent with restrictions that are necessary and temporary in order to deal with the genuine emergency. The United States constitution is distinct from constitutions in other countries insofar as we do not have expressly written into the constitution a general exception for emergencies. It is noteworthy that the constitution itself provides for only one exception, only one right in specific types of emergencies, that is the ascension clause regarding habeas corpus. I dont think even the most ardent civil libertarian would most whites can be subject to restriction most rights can be subject to restriction, subject to strict standards. Notably, even though this is a standard in american life, it is mirrored in international and human rights law and the laws of other countries and regional human rights treaties, namely, is the measure necessary . The least restrictive of Civil Liberties in order to promote the unarguably compelling goal of promoting Public Health . In addition to that standard, there has to be procedural statements including due process, accountability, and transparency. Let me pause to say, with respect to that necessity, less restrictive alternative criterion, a government restriction on Civil Liberties cannot set aside that standard if it is not even effective in countering the Public Health danger. Sadly but not surprisingly, because this is so new and influx the number of liberty restricting measures dont make the standard, let alone reached restrictive alternative the least restrictive alternative. Factspecifica inessment and with apologies advance, it is impossible to keep abreast of even all of the wrist restrictions all of the restrictions, let alone the factual do want this, which is why i wanted to concentrate on this general standard. Especially when something is so factspecific, an important legal issue is burden of proof and with what level of deference . Under strict scrutiny, the government should bear the burden of proof, that is true in International Human rights laws, and yet, in a recent statement in a separate and a Supreme Court ruling, john roberts stressed his perspective, he stressed that courts should be highly deferential to government officials in assessing the constitutionality of pandemic restrictions. Aboutpened to be talking restrictions on Worship Services in california. He said the question of when restrictions on social activities should be lifted during a pandemic is a dynamic matter, subject to disagreement. Our constitution and trusts the safety and health of its people to the politically accountable officials of the state. When those officials acted areas fraught with medical and scientific uncertainty, there latitude must be broad. They must not be subject to secondguessing by an unelected federal judiciary which lacks the expertise to assess Public Health and is not accountable to the public. This is familiar for our chief justice. Judicial restraint, deference to majorities, as indicated in his opening remarks, he is consistent with the notion of individual rights guaranteed by the constitution. That will certainly be a theme that will separate different sides of these debates. In terms of the multiple important steps of issues, i look at the aclu as a bellwether because we have officers all over the country, more than 150 different lawsuits in addition to all the advocacy, legislatures, the executive branch, and so forth. A couple days ago, a columnist said about the only things federal court arguing these days are video sentences and american civil liberty humans civil liberty cases. A lot of the issues are joined by government officials as well, of all ideological stripes. A lot the issues are being resolved without the necessity for litigation. I will illustrate that with the first specific basket of issues and that has to do with what has been called the most basic human right, to protect oneself from grave danger when one is in jail or prison, the Supreme Court has for many decades now recognized that the government does have an obligation under the 8th amendment and under the due process clause to protect in terms of their health and medical conditions, that is an affirmative duty. The standard is quite deferential to successfully challenge a Government Action as violating the duty. Ey have to show a deliberate indifference to a substantial isk of serious harm. And that has been by satisfied in prisons and jails around the country, their inability to comply with the minimal social distancing and hygiene rules that have been prescribed by Health Experts. That said, there has been a lot of support across the i had logical spectrum including within the government and prison system itself to very aggressively reduce populations concentrating on the inmates who seems to be in injurying themselves and who pose the least risk of resiffdism. And this starts with the president on the detention. I. C. E. Announced, its going to arrest and place in detention only undocumented immigrants who have serious criminal convictions. Very important policy changes. Thousands of inmates have been are released. He cares act and to various alternatives including home confinement such as ankle monitors and transfers. The cares act that Congress Passed gives the attorney general and bureau of Prisons Authority to expand home confinement. And this has been a high priority for the attorney general who should two directives to the federal bureau of prisons to immediately maximize appropriate transfers to home confinement of all appropriate inmates. Since then more than 4,000 inmates have been released from federal prison, which is more than twice the usual case. And this is consistent with growing bipartisan support we have seen in the last decade reducing mass incarceration in the United States. In our earlier prePanel Discussions both raised the ssue about the extent to which pandemictriggered measures will last beyond the pandemic and focusing on measures that reduce Civil Liberties but im talking now about something that is the opposite and another example is hat pandemictriggered decargs policy are consistent with Civil Liberties have been advocated for a long time for a long time nd perhaps the pandemic is going towards those reforms. And advocates are saying they are hoping this will be a Tipping Point in addition to Health Pressures and there are also economic pressures, again ramping up the number of people incarcerated in the United States. In the past couple of weeks all the protests about police abuse have increased the zeal and the momentum to implement reforms in the criminal legal system. Is that my time . I would like to move onto the other panelists and well come back to you soon. Next up is the professor. I just want to talk briefly some of these because there are interesting similarities. So one when i think freedom of assembly and movement, freedom of gathering. And that includes the Assembly Clause that bans restrictions on political gatherings, gatherings to listen to lectures all the things in universities. All the things that are protected by the Assembly Clause and there have been restrictions on religious gathers, not religious worship if you feel it is adequate to gather online, and you are free to do that. And restrictions on freedom of movement, driving from one home to a summer home, lets say and those are things that germly speaking affect our life. Courts upheld it. And correctly, germly speaking. I think that is in part because of freedom of assembly and movement are broadly accepted in large part because by and large, they by themselves are not particularly [inaudible] crime, try to foment well that is something that is punishable but it is dangerous but not pun tissueable and we protect this kind of these kinds of Communications Even if they are harmful. Most assembly and most travel, othing terrible. Pandemics is deadly to the people engaging in it. One way of thinking about it, remember Assembly Clause allows people to peacebly assemble. When n intent speaker people may not be they are peaceable in their heart. And not trying to do anything bad, but you might think of an example and it is not peaceable because it causes danger or physical harm. So i think courts have rightly realized the standard functions underlying the freedom of assembly and travel dont apply in times of a pandemic. There is a. M. Will pandemic like quarantines and other restrictions in the past, especially in the time of American History before modern medicine. [indiscernible] thats one class. So remember this is people gathering in large numbers or traveling in ways that may spread the disease far and wide. Abortion and guns dont go together but abortion rights and gun rights. Many states have barred elective medical procedures and said look, if there is something that isnt necessary to protect your life and health, put it off, put it off until the disease or abated. Magnitude is nd abortion, unless its necessary to preserve life and health, that is one example. The broad restrictions were not imposed just as an excuse to limit abortion. There are way too many other things to be an excuse. There had to be a judgment that abortion for medical procedures ke others and [indiscernible] with regard to gun sales that got a lot of nonessential businesses that sell goods have been closed down and not all states but some states have said gun stores are not essential businesses and closed down. Not just an excuse to close down gun shops. Many other things br closed down as well. But which side of the [indiscernible] there are challenges to both and they have succeeded both on the abortion side and sometimes on the gun side. There is a recent connecticut district decision accepting a un rights claim and california rejecting it. And i think the difference is that abortions and gun sales are performed usually with one person receiving and one or a ouple providing. Its a lot easier to maintain social distancing. And that is one reason why courts have been more open to striking down such restrictions at least striking them down if the woman is at a point in her pregnancy in a couple of weeks she longer be allowed to have an abortion because she assed the point, that delay is denial. So im the big believer in thinking how different rights are similar in arguing if you treat one right one way, you should treat the other right the same way. Some people are lum pers and try to draw analogies and some are splitters. The joke is [indiscernible] let me close with two things. One is all of these restrictions think are germly permissible and permissible to the extent that they are neutral and treat things equally. For example, it is quite clear if they say if you shut down mosques and synagogues because they will spread covid but not churches. And one thing of that remark now that many states have basically declined to enforce with regards. The black lives mater they certainly cant say black lives matter that is an Important Message but trumps the Public Health message. That would be unconstitutional. I suppose they might argue, black lives matter protests, they are so big and seem so hard to stop them we decided not to stop them. But it wont go far, but this is a smaller stop, we cant stop it because the more popular the idea, the more people believe in the idea, it is protected under the first amendment. One extent can one broaden, why are Church Services treated worse than medical marijuana sales . m hesitant of those inquality arguments. There are real disstimpingshons. Church services have a lot of people gt they aring. People may not like marijuana dispensaries but they are treated equally as pharmacist so the results are treated like pharmacist and that is the reason they have remained. Im helps tapt of the inquality arguments. Freedom of assembly, you can reat some see see himbly differently. People worry, restrictions is going to last too long or kind of adopted more often than it ought to be. Surveillance and its going to spread in a lot of others and wartime and the war can go on for a very long time, it can go on forever. One thing about these kinds of restrictions, those that treats ople equally is they are expensive. [indiscernible] and they are financially expensive for politicians and politicians want to spend money on their Favorite Program and there are tremendous economic problems and the stimulus and the like. There are lots of incentives. Oh my god, you started out with this war. You arent going to have a perpetual shutdown. This is where i worrisome what less of restrictions leading to roader restrictions. Julia. Ow turn to thanks for organizing this event and having me. So in the few minutes i have for my opening remarks imgoing to make three points. The first relates the media and longterm impact of government responses to covid19 on Civil Liberties and in particular, why a bit too s possible optimistic to medium and longterm. It ininvolves constitutional structure and how in times of great [indiscernible] constitutional structure is the most important check on depoft at least i would argue in the shortterm. And the third concerns property and economic rights and vision of Civil Liberties that encompasses these rights which is a neglected stepchild, has pones or so i would argue [indiscernible] let me take these one at a time. First, the medium and longterm consequences for Civil Liberties resulting from government responses in the covid19 crisis. I understand why eugene and many others have suggested that many of the various restrictions put in place are not likely to be lasting indiscernible] at first glance, this makes sense. You look throughout history. Yellow fever, smallpocks, malaria and a lot of pretty significant, quarantine, closure of sporting events and closing of schools. I think it is true that in general in u. S. And colonial history, once the danger have abated, things have on the surface gone back to pretty much normal. Why do i think that covid19 could well mark a turning point and that it has potential not with certainty but the potential o be a catalyst or for lasting societal change . For starters, never let a crisis go to waste has been the watch word in the 21st century of many members of [indiscernible] covid19 is the third crisis in less than 20 years in which we have seen a lot of public officials, not all, i sfress, but many try to harness the public emergency in the service of what i would describe as preexisting policy of justice. Eugene is completely right that many of the restrictions are costly politically. That is the one we should worry about least. But plenty of Government Action and will not necessarily pay much of a fight. In addition, widening the lens somewhat beyond america and the United States, here is history in germ. There is a rich and fascinating literature on the aftereffects of epidemics which not surprisingly debate on whether and if so how various epidemics have transformed sortse and shifted political power. Maybe from land owners. England. Century in and wide debates on the plague in the 2nd century in roman again it may well be the government response is how it has brought about significant changes in society. This could, i believe happen in the United States. Now i stress getting to one of the points that eugene was making, this is not clear which correction this is going to go in. I do not have a crystal ball. There could be lasting effects in greater control by government. We have seen a bit of the incarceration and [indiscernible] we have seen quite a bit of eregulation and grimly human ourous to see new york defend a lot of Health Regulations in order to protect Public Health. And some of these suspensions may well become permanent especially as a lot of voters see that regulations have been suspended. The Previous Panel to have discussion of alcohol regulations, church side cocktails and we can imagine that those changes are going to be on balance. And it certainly is quite possible that the incarceration trend is going to continue. My second set of points of constitutional structure and how it protects Civil Liberties. That, too, or so i would argue has been on full display during the covid19 crisis. During the covid19 crisis legislatures and courts have been active. This has not been through the executive branch. The federal government and the governor and courts have been called to hear challenges to restrictions that have been imposed. And it comes as no surprise inking about Justice Roberts many judges and justices are hesitant in the heat of a Public Health crisis to second guess the political branches. They are making decisions under time and pressure and uncertainty. We know a lot more about this virus than we did a few months ago but we still dont know about it. But courts and judges will hang back. But where courts and judges are confident is when there is downgrading process. It is no surprise to me when you look at the successful challenges to a lot of these government measures put in place, we see that the successful challenges have raised procedural checks, wait, you cant do this. You are not going through the correct channels. We saw this in the Supreme Court of wisconsin decision in 43 decision and also from michigan Supreme Court in a case involving the barber. One of the michigan Supreme Court justices it is incumbent that decisions are made according to the rule of law and not hysteria. Where various measures have not jumped through all the hoops, have not been in accordance with constitutional structure, that is when courts believe their most confident and most likely to take action. Finally, my third point about property and economic rights as Civil Liberties. In the new deal era, property and economic rights have been again painted with a very broad brush something of neglected rights or often deemed not to be as important as of the other rights we have been discussing. Covid19 i think highlights just how important right to participate in the economy and have ones Property Value up to a point protected in the face of Government Action, just how important these rights are and how hard it is to disentangle from these prior profile rights. The right of free exercise, travel, abortion. The ability to make a living is at the heart of many of the challenges and these challenges interestingly to me are rising against the backdrop where there has been a trend for plaintiffs to challenge licensing regimes or win [indiscernible] finally a word of these challenges. And government restrictions. And they are hard to win. But i would at least suggest that courts take a careful look because the courts may, hesitate to enjoin Government Action in time of grave emergency absent some deviation from some procedure. Its another matter to give compensation to businesses who suffered heavy losses who have been asked to bear the burden of the covid19 responses. Once things have settled down and once the emergency has passed rgs it is ok to order compensation and the response and i think consideration of compensating those on whom the burden has fallen quite hard are especially compelling if one is concerned about cronyism and anticompetitive action. Those who suffer the greatest losses often lack political power and compensating them for the inaqualities that often flow. And i would argue to make our constitutional structure more rerobust. I will turn it over. Professor, julias colleague at u. V. A. Please proceed. Thank you for having me. As the last speaker of the day, im going to take a comparative perspective on these events because the issues that the u. S. Is facing are very similar to the issues that other democracies are facing and i ink it is fair to say that never before have we seen a major drop in Civil Liberties around the world as during this urrent pandemic and nationwide stayathome order and stopping of religious services, and it is interesting that even though there is variation in response across countries there is the initial response is quite similar. All countries no matter the exact circumstances needed some form of lockdown. Lockdown is what we have seen. In this and we also Opinion Poll Research from these Different Countries showing these measures are widely by public but they see some of the issues that are being raised that jewelaa raised what this does longterm for Civil Liberties. Is there risk for abuse . Do we see the constraining the executive power and what does it mean for democracy . So in my i want to Say Something i think the extent we should be worried about this as a longterm phenomenon and picking what was said, but something slightly different. Together with a coauthor and working on a project where we have been surveying the Covid Response in every country. And specifically to what extent this has been a phenomenon of an executive acting on his or her own versus what do we see the constitution being invoked and courts and legislatures involved. The mayors, governors and so on involved in this response. And because the traditional image and thats an image that some people are worried is an unconstrained executive. Once you have an emergency, the executive ahas an enormous amount of power. And delegate power and all goes away. This is a well known view of emergency power that goes back carl smith and has remained influential to this day. One of the key findings as we look at democracies that is not what has happened. In most places we have actually seen a lot of vofments by courts, courts more so in the measures e lockdown on constitutional grounds. We have seen legislatures passing brand new laws and units within federal systems. Sometimes provinces or cities resist lockdown orders or impose them when the Central Government doesnt. There is a dialogue between different branches. And i actually think thats a good thing. In a world where we dont know what the right response is and nobody knows what the right response is to this current crisis, maybe we can ensure that multiple actors are involved and reduces a risk making a mistake. Having dialogue between different parts of government is probably useful. Let me Say Something for the purpose of this audience on this research, the different way that courts around the world have involved themselves in these questions. We have looked at cases in some 30 countries and read them to the extent that we could. I think there is some analysis. Theres four different ways the court has involved themselves. Predicted. Julian procedures are followed and the separation of power from work in the the veryion itself first court that got involved in this was the Constitutional Court of kosovo and it struck because entire lockdown it was passed by the executive alone and they basically said you cant do this until you have passed a law and then the law was passed. Some would say the executives have to jump through procedural hoops. Others would say that is important. Its mainly the Supreme Court that says the government can use cell phone monitoring without involving the israeli parliament. A contradiction with the basic law. We have seen a whole bunch of these cases. Thats not the only type of case we see. We see courts in Different Countries doing the kind of substantive review. As nadine was talking about, just making sure, are these measures necessary. Are they temporary. Are they proportional. Constitutional court says, well, you cant stand gatherings. Services ban religious if they adhere to social distancing guidelines. The high court came out and basically said the government has still to explain what you can run on the boulevard next to the beach, but once you enter the beach you are no longer allowed to run there because the beaches closed. That just doesnt make sense, right . Explain to us why these rules seem so arbitrary. U. S. , the sixth Circuit Court of appeals decision held that kentucky could not simply ban religious services. Open liquoreep stores with social distancing we actually see some of these cases. The courts are really inserting themselves. And then third, we see cases where courts are demanding action. This is kind of uncommon in the United States. So, in brazil, the court actually imposed the lockdown. The court imposed a lockdown. Under annment is obligation to provide Accurate Information about the virus. All they have this video saying that it is not real. Courtdia, the supreme ruled that Public Health often, this is a right that is not recognized in the u. S. Constitution. That is to require that the government actually do stuff. Elections. Have obviously the question about whether elections should be held. Its not clear if there is a right or wrong answer. Its not clear if the courts have a right or wrong answer. They can screen out the old terrier motive. The polish Supreme Court. Everyone of the courts said the election should go ahead as planned. So thats some flavor. I guess im out of time as well. Is this is what the courts have been doing. Weve also seen a lot of legislative involvement. So, in the u k, theres the covid19 bill that gives additional power to the prime minister, but only for 21 days. But they are actively legislating. Statesally, we see the the states resisting president s at the national and subnational level. We will come back to you. This has been does i would like to say an extraordinarily rich and substantial set of presentations. Thank you very much, all. I would like to begin by asking each of you if you would like to , having listened to the others, respond to the others, ask tostions, revise and extend your owner mark, change her position . Going to ask everybody, but i want to start with nadine because i cut her off a little bit and i think she wanted to make a few more points. Thank you so much. There was an incident revise and extend, ask questions of your copanelist. Thank you so much. This was an absolute gaffe today. Things to all of you. We were talking about the fact that the United States generally only imposes negative obligations on the government. Of course, the one exception is Holding People in custody. At least, that is the major one that comes that occurs to me. The government is incapacitating that student that person from taking care of him or herself. So, that explains all of those cases. ,ith respect to voting issues debate and litigation has been over the extent to which in 16 states that do not already automatically entitle everybody to vote by mail, should be required to do so without any procedural impediments, and of , i believe some have already voluntarily implemented , interestingly states with republican and democratic majorities, democratic and republican governors. But there are others who are resisting. Re was that trend line trend line in usa today. Basically pitting donald trump against joe biden because the conventional wisdom seems to be fraudt would be voting that would disenfranchise republicans. Trump both worn that the other side may steal the election. Even though theres reason to contest the underlying assumption, you see this they feel that they would be advantaged by more vote by mail. But as thing fought out in courts all over the country. Thank you. The question of longterm effects, has julia turned you around . That i am inclined to say the restrictions i have talked about will go a replay on their own. We have not talked much about this. Maycontact tracing apps require you to have them on the phone. Lets have people voluntarily join these apps because they are in their own interest as well so they can be notified if they are exposed to someone who is infected, but if that does not have enough uptick on the publics part, and indications are that it wont, what about mandated contract tracing. Think theres a very serious reason to be concerned, but we often talk about tradeoffs between liberty and privacy on one side and safety on the other, and of course, some such tradeoffs have to be made. So, that is why there are attempts to balance them. But i want to suggest this is an area where we might see a tradeoff between privacy and liberty. So, lets say theres a next ,ave, as there likely will be of infections. Until we get a vaccine, we have a huge problem with the order being famously porous, there will be no way of stopping reinfection. Example,he clearest unless we totally shut down international trade. So, it may be that one of the things we will be facing is, do we have more privacy, but the consequence, when we get the second wave, which could be worse in the first, then we have to have less liberty because everything gets shutdown, or do we have less privacy and the government will be able to track you now for the sake of rejecting against reinfection . But then when there is a next wave, first of all, its likely that there will be a serious nextwave and if there is, we will have more effective ways of dealing with it that dont require a shutdown. That could be a difficult problem we will be faced with in the coming months. If i could make it more complicated always good to make it more complicated. I would not draw a distinction the between liberty and privacy. I would say there are liberty inlins on the sides here it terms of the intervening, the more government surveillance there is, their study after study that while we are subject has, thethe impact it Civil Liberties, freedom of speech, freedom of assembly and so forth. I would say theres a difference between restrictions on liberty and privacy. Its more burden some to people to think that they cannot speak out about elections. That if they do speak out they will disclose some about themselves. But theres no doubt that they closely interact. Absolutely. Julia . I will limit myself to one brief question for each of my copanelists. Incarceration. Are you concerned about a possible backlash if this is . One under great pressure are you concerned that public support might fall . Would you be thinking about and whichrictions ones are selflimiting. So this is not obvious to the people. Right. I think the clearest example is surveillance. I dont know if this is unduly pessimistic or realistic or neither, but i think we are going to see much more surveillance no matter what in the years and decades to come. I have long thought this because the greater ease of Technology Available to small groups, including terrorists, and you are going to have more and more risk, for example, terrorist using biological this isd not just nothing. Very sad to see the people died, but the fatality rate is under 1 or smaller. Have immunization against smallpox, if theres a new strain, this could be devastating, and my guess is one is,he things we need to do apart from radiological weaponry and other things, is have more and more surveillance. I will give you another example. A loosely policing is tremendously necessary. When people say the fund they dont really mean that. To the extent they do, thats a losing proposition. Need police protection. At the same time, its not clear to me the right way of enforcing traffic laws, the way that is best for liberty is to have pulled over by police. It seems much simpler to have video record them, have it sent then and have a citation sent to the person. And then the police, rather than stopping the car and then running a license check or some other kind of check, that the police might just have the computer, you see the light, the car is owned by this person, pull up alongside, does it look like this person . On balance, it may be a greater surveillance mechanism, red light cameras, various other responsible risks with that, will actually be better and allow us to have fewer policecitizen encounters for those things which dont need to risk turning into something very bad. Whereere are situations you really are trying to stop someone in the middle of a valley crime and such, but again that will involve more surveillance. So, yes, i think the surveillance we are going to set up here, i think that is part of a rolling trend. I do not think its reversible. I will chime in on that. I will also answer julias great question. [indiscernible] surveillance powers with respect to communication. They were initially enacted with this concept provision, right . And that has been extended and extended and extended and those surveillance provisions, mass surveillance, are still in effect coming even after the revelations by edward snowden. So, sadly, i agree with eugene that surveillance is likely to increase, not decrease. With respect to your great , the deado me, julia work the devil is in the details. That is why it is really specific that you are in determining who will be eligible for removal. It does not necessarily mean outright. Its really, really important. One return is the absence of that exists in our current cluster of laws and regulations which makes people who have been incarcerated in eligible for a whole host of opportunities in eligible ible for a whole host of opportunities to make a successful tradition transition into society. Its not just to help them out. We need a lot of other reforms and it may be hard to do that in a time of such great economic difficulty. Right to point out this requires a lot more thinking. Let me ask if you have anything you would like to add or ask . On the issue of surveillance, this is one of the biggest everyone thinks these lockdowns will end and we will return to normal, but theres a debates over legislation being passed that allows for this kind of surveillance. There is one concerned with privacy and privacy of data in europe. And for reasons that eugene points out, this is ultimately what produces more liberty. Thing i want to , the male in election, the postal ballot elections. This has been a case before the Supreme Court of poland where the polish Supreme Court says it you cannot simply switch to the postal election because it changes the Postal Office into election officers. And it marginalizes the role of our electoral election commission. Major there is a constitutional or legislative reform, obviously thats a very interesting element. It touched on the issues it raised. That so fascinating. [indiscernible] sure. Not im not sure. Honestly there was a pretextual situation where the ruling government thought that by ruling the election sooner they would be more likely to be reelected. That was going on. I want to emphasize the point that surveillance and privacy going toe probably become more salient in this next phase than they were in the past. If you just say everybody has to are home for a month, we treating everybody alike. But when you get into a situation, especially on contact tracing, i know of cases in some states where people have been asked to quarantine. Of stater, completely asymptomatic, as to quarantine for two weeks and the police come to your house week later to make sure you are still there. In other states, they have actually said, this is the honor system. Theres a lot of emergence there, but we are going to see in several states, some act of surveillance coming up. Listening to the justifications of these various measures being taken, there has been consistent confusion or overlap as to what government is trying to accomplish. Sometimes it seems like its paternalistic self protection, thata motorcycle helmet, we are doing these things to protect ourselves. Sometimes it sounds like we are protecting immediate bystanders. People that are right around us. Like a dog leash law, i suppose. And then in other cases, the strongest just petition is this is necessary for achieving an important Public Health goal that requires some substantial individualree of compliance. That makes it like a vaccine requirements. Does it make a difference in how we assess these Civil Liberties burdens . The government is sometimes inconsistent. Its pretty clear these are being done for general Public Health services, purposes, but government officials make it sound like you better do this or you are going to get set. That makes it much more paternalistic. Stronger case for challenging the effectiveness of these rules aced upon one purpose or another. Based upon one purpose or another. An see what do you think about it, chris . I have not seen a case. Theres an enormous amount of debate about the effectiveness of the lockdown orders and the effectiveness of many things being felt right now. Im not seeing a legal challenge based on the fact that this had no rational basis for the protection of Public Health. Maybe there are some of these cases where you close a beach or a public park and it doesnt seem to be related to anything at all. But i have not seen a strong Civil Liberties attack on any of these things on the ground. Am i wrong . [indiscernible] there a rational basis question mark and certainly, under the standard rational basis scrutiny, sure. Of course, of course. You could say is completely irrational and the fact that we do not know what is going to work and what is not makes experimenting with things on emergency basis more rational. The second thing is, how much does the government have to prove . Almost uniformly the courts of said, not much. This is not something we can because ofous proof the difficult, complex systems, the human body and human 1905 case on this, i think the courts continued to treat this as highly instructive as at least, says look, when we are trained to figure out the pluses and minuses of various , when they stick dangerous medicine, essentially in their own body, that is something the court should defer to executive judgment on. I think its probably right. Public Health Experts [indiscernible] yes, even more. Slowed jacobson, massachusetts, 1905 president , being vaccinated. Its about being fined. I think its really important that the court said the fine is ok. It was not about whether somebody has to [indiscernible] questionof chris is question, i think its just too soon. Day the to me the first courts are willing to look carefully at what the governments are doing, separation of powers and process arguments and so forth, but if they really do seem to step back at least initially in the scrutinize free to with any group, it seems the next stage, they should be able to tell me whether i have this writes the courts are likely to tommy whether what the government is doing is an outlier. Easier toes a little have the court look carefully at something. This government is doing. Nobody also is doing this. Its way more restrictive. And finally, we begin to see subject. Ination of the i think that examination of the substance is going to come. And it is coming already. I would love to hear if my taxonomy is roughly correct or not. Think thats possible. Constitutional court or the other courts in europe, they have said, explain this, why children up to stay home because its not clear theres any reason for singling out young people, for example. But i do want to also i guess, do what others have said, and pushback on this idea of whether courts are not suitable decisionmakers here. , everybodymiologist is weighing the same imperfect information. Its not obvious to me that the courts are worse or in a worse position to judge this information than elected officials. Its not clear to me at all. I think i will see more of that Going Forward. There hasnt been any litigation about this technology , ideas that were floated. The consensus has developed. Early on there were suggestions that we could argue this mobile phone for contact somewhere, and the consensus was its not granular enough whether weve w been in close enough proximity to a long enough time possibly be infected. Thank you very much. Arrived at question time. Poseve about 15 minutes to questions for pertinent and as well. Ments if you wish to introduce a question or a comment, if youre on zoom, you should hit the raise hand button on your screen. Phone, hit the e button. That will put you in a cue on my page. Call on you. Ntil i when i call on you, technical eople will unmute you but you should unmute yourself before we speak. We have several people who are already who have raised their hand and the first three people im going to call lugo, cameron eric osawe. D well start with karen. Please unmute yourself, karen. Now . Unmuted im sorry, i didnt know. Yes, please proceed. There has been a growing demand for constitutional clarity by the public. Some cases they are apparently been muted by government as they reach the has been an ere ongoing discussion about this on conspiracy. Im part of supporting would ion in florida and like to use this particular executive order as an example where, although this governor out as a alled positive example of managing the ways, one of the xecutive orders alone talks about quarantine, but these standards have to do with four including anyone coming from an area of substantial community spread. Been in ke this have place for months, and they also penalties. Minal they are not updated, not scaled flattening, so the public is baffled as to when and get the constitutional rarity as to when police power long, gone for too too far, so rather than learning like, p rised examples well call it civil disobedience salon owner, hair how do general citizens nderstand that some of these orders, because of their constitutional infringement on should be ties, challenged . Question, karen. Panelist . Maybe im missing the exact question. The but if the question is, youre a member of the public. Know what the rule is . Like when you hear about news outraged hould you be or not . Whats the rule . The answer is there is not a rule, in part because how do rules become more clear in our system . Through a process of repeat litigation. Good deal now a about free speech. Why . Because the court has cited of free speech cases including in recent decades so we dont have to look back a thankfully we havent had a lot of cases in with years having to do this from the u. S. Supreme court. So we have to say the law is not clear ely a few things seem clear. The government does have broad here, its sort of the nature of at least our commonlaw system, a system a lot of the decisions are made by judges rather than in some o be set forth comprehensive code, and maybe [inaudible] to the question of what should be challenged, you can certainly challenge what you the inclination and lawyer are to challenge and people challenging and sometimes they press totally understood. I dont think beck expect great this area of the law, in large part because first of complicated. My father likes to tell you, itself. Ke life so life is complicated, but also, there has been fortunately relatively little occasion for the Supreme Court or even lower courts to chime in on this until months, or many decades now, so as a result why should we expect to have a crisp, clear rule of law in this situation, especially facts top of that, the on the ground are both changing our understanding of the facts. I like clarity in the law. I think in a lot of areas we should expect later. Could t of areas the law be a lot clearer than it is. Think this is one of them. This is a matter of state statutory law. True. Ats also ordinances, and there may be whole separate bodies of case for each state and each jurisdiction thats involved. With that said, i think were going to get a little bit of clarity, in particular, the big, waitingg that were all for, i think anyway, is some asymptomatic out transmission. Unlike other epidemics, where if systematic transmission, that wasnt on the radar screen, and at that point, there are some historic facts about asymptomatic ransmission or the lack thereof, then courts are picking up on what we were saying a few courts are going to be much more confident in deciding where they are going to boundary of permissible exercise of police power. Become clear. Oes ets say there is no asymptomatic transmission, and what all the Health Experts say, point s no need at this to have lockdowns. Need to have everybody get the temperature measured to see if they are running a fever something. Its true that at that point the ourts might be fairly well armed and fairly willing to but they ngs down, arent going to have anything struck down at that point because its not terribly likely the government officials will say i dont care. Lot of facing a political incentives. Especially since weve seen, in are a lot of states already opening up even in the infection, governors and mayors have shown a willingness policies in light of changing evidence, you can outlier who is crazy or politically captured by other, or maybe too cautious. Judges historically tend to be more cautious. Step in and trump that. But i dont think thats terribly likely. Becomes clear enough that some of these things by and large they are in most get shut down maces by the executive and maybe by the legislature before they down. Hut what were probably going to find is there is no asymptomatic there is on but presymptomatic transmission, more makes it much complicated again. We have seven or 10 minutes left. Questions. En i would like to get through as many of them as i can, so lets to the point. Is, cameron stion atkinson. You. Ank my question is for everyone. Involved in two cases in the past process for hallenges to connecticuts coronavirus restrictions, and one of the problems were court here is we dont get to the necessary argument that effectiveness rguments, we get stopped dead in our tracks on the connecticut courts and second courts, using jacobson to develop its own standard of given jacobsons place in american constitutional its preincorporation and prescrutiny, restricts scrutiny. They have not been very even on the enumerated rights claim. Jacobsons unreasonable, arbitrary and unnecessary be dard of scrutiny modern ed with constitutional jurisprudence . Im just going to say hi to cameron. Good to hear from you. Well, i would push backward on jacobson in massachusetts. Thats a far weaker precedent for government for government power than is generally thought. Suggest you contact me and we offline about this. Very good. Eric . Ric okay. Think im unmuted now. We can hear you. Liberties restriction be worse than telling people they have to close down their close their church, ign it seems utterly completely trivial compared to that. We talking about it . And why are when they do talk things, trivial things like if your neighbor sees you coughing can we tell the got covid19 you r is that an infringement on your hiba rights . We arent worried because everybody is treated equally and going to get tough only get surveilled, a stalinism. Ts stalin even as executions and mostly random after of , it was just a matter i rorizing everybody, and wonder if they would say thats fine in america, since you did is perfectly legal if what you do is what the than say is legal rather using natural law or something even know we dont illegal yet. Its like if you asked me if i play the tribe ba, i dont know, i havent tried. Worried . t you more to say they are not tremendously serious but i think many peoplerians or who are im not a libertarianish. A libertarian sympathizer. Any recognize that in extraordinary times when the normal circumstances of the nonaggression principle, where go throughout and do anything we want as long as we dont hurts dont apply because by ight be hurting others our very physical presence without even knowing that were those s, that under circumstances, certain things on a temporary basis are legitimate. Hats been recognized throughout American History when ie had quarantines and various other such things. And its serious but its timely. About son to worry location tracer and especially thats mandatory, not that im remendously worried about it but i think its right to be worried about it, the danger to be seen asoing a necessary precaution against future plagues, then it might up being used, oh, incidentally, why dont we use track n tracking to people who are members of errorist groups, white supremacist groups, that people Say Something on twitter that supremacy. Hite these are serious risks and those are things wherein deed is smaller but it will last for a much longer ime where as here we have something thats a very big restriction but one we have every confidence will last for a short time. Think thats one reason why people are rightly not as would be y it as they had the restriction been aimed and mething else potentially lasting longer. You. Ank the socalled smaller be rictions may not justified at all if they are shown to be ineffective. A good point,akes he would be happy to see the which from the beginning, has talked about on both erties being sides of the equation. If we could have minor effective s that are in getting us safely into a free that thats definitely cost. The unfortunately, some of the proposals have been worst of worlds. They do restrict our freedom and they, in fact, dont make us safer from a Health Perspective. I agree completely. I would add one more thing to that. Put me in the category i i nk were at risk of what called tyranny all models are wrong but some are useful but models are not very good, et they can be invoked as justification for extraordinary restrictions by the government. So this is just another layer to out ifficulty of figuring as a society when we trump what extent and so forth. Very fine. Thank you. The next question is from wesley is the first letter of your last name. Please proceed. Hello, everybody, i want to say hi. Panelists. To all the jim. T to say youre a lso, the question, will this pandemic allow for the courts to e questioned for abuses, there will be no technology in the courts because we see it in the but in the courts, state courts, even lower District Courts and other areas not up to speed on technology. Reversee it will be the and they are going to show more saying ce to executives making such decisions is too swift. We should wait and let the do their job for policy. Didnt mention was employees labeled as essential workers in bad faith. People who are not nurses and administrators that work, quired to go into required to put their safety at essentially under an edict that probably should be questioned but its difficult. Thank you very much. Et me interject that we have arrived at the end of our time. I the panelists are willing would like to run over for five 5 20, so let me ask, if there are points that make in uld like to illnse to wesley and then move on to others. Im going to ask ric, i hop i get this right, please. Ric i want to say hi to everybody. If i could just very the second part of wesleys point. If i could Say Something that wesley mentioned. One question that arises with who isse things is essential and who is not. Some people are very upset at because led essential they are afraid this exposes them to health risk. Thers are upset being called nonessential because that damages their livelihoods. Here was a Penn State Court case where a claim was brought, among other things, procedural due process claims because there that could be issued by the bureaucracy, that not really adequate procedures for making sure that its done fairly. A very serious issue. Its often an issue of stated and at the ve law, same time, we also have to inevitably, any situation, whenever youre between draw the line one thing and another thing, regulated to not regulated to have to re going draw that line, you cant really do it in the abstract. You have to come up with a general principle, but then you making thesepeople decisions, and then when there is a claim its unfair. A lot more facts about why its unfair. Decisions gine some about essentialnonessential right, wrong, ly nd quite a few where you need to know a lot more facts. Might make oint, it sense to ponder whether it would be useful to designate essential and nonessential in advance. To have a little bit more planning in order to prepare. Not be, right . Are so e that the facts specific, but its certainly something as voters, i think, we contemplate. Good. Eric . You. Thank youre very, very close. You get an a, not an a plus. For the panelists, the framers United States constitution didnt create the judiciary or even the bill of be the ultimate arbiter of safeguarding liberty. They used checks and balances to do so. Unfortunately over time the egislative check on executive access at all levels of government has been largely individual to an legislators partisan affiliation, not their affiliation. Al what do we do about this when the executive is unchecked due partisan affiliation, or is the judiciary then the ultimate we doomed as a result . Thank you. Doomed, i wouldt say. I dont think were doomed at all. Balances ecks and exist. Maybe not in the form that you would like. A form as i robust would like. Whats occurred in the last few the state Supreme Courts do take action fairly quickly has convinced me that structure is onal in reasonably good shape. Not that it cant be improved been functioning, i would say, fairly well under stress. I would just add at the level, which is write follow these issues, part of the reason for congresss failure to robust checking is because on they dont want to have to take in the exercise powers, right . Accountability, denyability. With apologies to the others who are lined up at that microphone in the sky, im going things off with one final question. Be bridget bush. Please. Me . Hello, can you hear entire you to the panel. I was just wondering what your thoughts are, to what extent can Court Procedures to set the unique challenges of the term crisis and what long effects might such Remote Court Proceedings have on litigants process ional and due rights. Thank you. First of all, its an nteresting development for Supreme Court watchers, is having the court make its oral for readily accessible than in the past. It to t been following the extent to which the supreme ourt has made clear that its not going to continue to do this after we go back to normal prepandemic normal, but it that bridge has been crossed, it might be hard to turn back to the old days of making us wait to hear those oral arguments. Thats absolutely right. Two could just elaborate in quick ways. One is, there are a lot more toellate arguments are going be done by Video Conference. Shifted toircuit has that with great success. Some courts only to audio, such the Supreme Court, but also some lower courts for reasons i grasp. Ully only to audio. Thats not a great way of doing those. Not ideo, i think, its perfect, its not quite as good, ways,as effective in some but so much easier, not just from a Health Perspective but so cheaper, a lot less travel costs, imagine in the ninth circuit, for example, to come from guam to san francisco. Ninth en told by the ircuit the fact that they actually had Video Conference or arguments especially. A court call, ee as we already have. I think well have more video and i think a lot of judges will i like this better. The lawyers like this better. For everybody. Lets do it. Environmentalists would like it, too. A lot less traffic on the roads. Less emissions, such and such. Is, how do uestion a do jury trials which is thing that has to be done in person . How do you do video trials with social distance . There is a very interesting document, its a report outlining, having all of these drawings, architectstyle drawings like blueprints, which heres a drawing of our courtroom and would you have four jurors sitting in the jury and eight jurors in the audience and then were going to conference feed to some other courtroom in the courthouse to provide for Public Access which is a constitutional mandate. I think whats going to happen is that, the legal system adapt to this and well actually learn some things that such as Going Forward to do more by video. The time has come to conclude i would like to note that innovation intant the Legal Proceedings that weve seen in the past couple of federalist at the society is now holding such ntense and interesting proceedings on zoom. Thank eugene e to meyer and all of his colleagues to this inviting us meeting and for this new innovation. I would like to thank all of the attendees who have joined us for the many interesting raised. S that have been most of all, i would like to our distinguished panelists. And eugene. S, mila wait a minute. Supervisor has another word to say. Wanted to sayat i you thank, i would like to thank panelists for all six panels. Those panels are available our website. We appreciate all the panels. Ne other comment, dont underplay the value of interpersonal relations. But it cant ful, do everything. Crack, and a wise thank you all very much as weve ad some wonderful discussions it. I really appreciate [captions Copyright National cable Satellite Corp 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] there was territory in oregon disputed with britain, and there was california which belonged to mexico. Fremont encouraged the american settlement of oregon and took american conquest of california just in time for the so he did play a real role in changing the map of the states. Npr morning edition host on union, how perfect jesse and john fremont mapped celebrity andnted word. Cause the monday night on cspans q a. Bench watch book tv. Every saturday evening at 8 00 satellite settle in and watch your favorite nonfiction authors. Next saturday, as we feature bestselling es uthor david bench watch summer on cspan 2. Cspan has unfiltered coverage. You can watch all of their ublic Affairs Programming on television. Listen on our free radio app. Be part of the National Conversation on cspans Daily Program or through our social media feed. Cspan created by americas company, as a ion to ic service, and brought you today by your television provider. The d. C. Circuit court of appeals heard oral argument by teleconference in a case on they should order a lower court judge to dismiss the departments perjury case against Michael Flynn the president s former National Security adviser. A majority of the threejudge panel declines to intervene, the justice g over departments motion to dismiss he Michael Flynn case is scheduled to take place on july 16, 2020, in the u. S