And many other sorts of Public Policy issues, and one of our intellectuals. Gene. Ank you, j 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 eminent legal scholars. One from new york law school, former longtime chairman of the american Civil Liberties union. Eugene of the ucla law school, host of the eponymous website of conspiracy julia of the university of Virginia School of guestnd finally have our who specializes in comparative 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 conference 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 click raise hand on your screen or star nine on your phone. To set the stage, the centerpiece of the u. S. Response to the pandemic has been a massive 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. The orders 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. But the orders were met with widespread Public Acceptance and very high levels of compliance. Indeed, 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 as voluntary 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. The lockdown orders were 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, but Church Services 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. The famous american spirit of feisty individualism and permissionless freedom is reawakening. Our panelists will analyze Civil Liberties issues that have arisen in the course of this problem, 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 strossen. The zoom podium is yours. Thank you so much for that terrific introduction to a huge topic, and i am so happy and honored to share with my distinguished colleague panelists. I thought the best use of my 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 health and,g public time permitting, i would like to discuss one or more specific issues in terms of how we apply those standards, including the right to life and health itself with those who are in custody, the right to vote, but with respect to general principle, there is broad consensus about these across the ideological spectrum. The very first statement i heard from a Government Official earlier on was attorney general bill barr who said these words that were music to my ears as a civil libertarian. , there is no pandemic exception to the constitution and its bill of rights. That said, he did go on correctly to point out that when we have a genuine emergency, the constitution and the bill of have to be consistent with restrictions that are necessary and temporary in order to deal with the genuine emergency and it is interesting, the United States constitution is distinct from other countries and International Treaties insofar as they do not have expressly written to 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 emergency, and that is the ascension clause regarding habeas corpus. I dont think even the most ardent civil libertarian would disagree that most rights can be subject to restriction, subject to the socalled strict standards. Notably, even though this is a standard in american law, it is mirrored in international and human rights law and the laws of other countries and regional human rights treaties, as well as every of namely, is the measure necessary . It is the least restrictive of Civil Liberties in order to promote the unarguably compelling goal of promoting Public Health . In addition to that substantive standard, there have to be procedural safeguards 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 satisfy that standard if it is not even effective in countering the Public Health danger. Sadly but not surprisingly, because all of this is so new and in flux the number of liberty restricting measures dont even need the effectiveness standard, let restrictive least alternative. Fact assessment of this requires a factspecific assessment and with apologies in advance, it is impossible to keep abreast of even all of the wrist all of the restrictions, let alone the factual do want this, nuances, which is why i wanted to concentrate on this general standard. Especially when something is so fact specific, a very 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, as well as, and yet, in a recent statement in a Supreme Court ruling, chief Justice John Roberts stressed his perspective it was a 54 ruling, he stressed that courts should be highly deferential to Government Officials in assessing the constitutionality of pandemic restrictions. He specifically happened to be talking about upholding restrictions on Worship Services in california. He said the precise question of when restrictions on social activities should be lifted during a pandemic is a dynamic matter, subject to disagreement. Reasonable disagreement. Our constitution interests the entrusts 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 a familiar refrain 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 offices all over the country and at last count, there were more than 150 different lawsuits in addition to all the advocacy, legislatures, the executive branch, and so forth. A couple days ago, there was a forbes column in which a columnist said about the only things federal court arguing these days are video sentences and American Civil Liberty Union cases. In fairness, a lot of the issues joined in by Government Officials as well, of all ideological stripes. A lot the issues are being resolved by consent, 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, namely to protect oneself from grave danger when one is in government custody involuntarily, in jail or prison, detention, 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 mates 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 this affirmative duty. The plaintiffs have to show a deliberate indifference to a substantial risk of serious harm. That said, it is a standard that has been by satisfied in prisons and jails and detention facilities 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 ideological spectrum including within the government and prison system itself to very aggressively reduce populations concentrating on the inmates who health be in greatest danger of themselves and pose the least risk of resiffdism. And this starts with the president and his attorney general on 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 released. The cares act and to various alternatives including home confinement such as ankle monitors and transfers to facilities that are not as crowded. 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 has issued 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 issue 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 that pandemictriggered decargs policy are consistent with Civil Liberties have been advocated for a long time for a long time and 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. Nadine . Is that my time . I would like to move onto the other panelists and well come back to you soon. Next up is professor eugene. I want to talk briefly about these rights. One might think of freedom of assembly and movement. Assemblyudes the gatherings,tical listening to lectures on art and science and all the gatherings and private universities. Of course urban restrictions on religious gatherings. Altogether, for many people, its important to get together physically. There are restrictions on freedom of movement, driving from one home to a summer home. I think thats in part because freedom of assembly and movement are broadly accepted in large part because they are not particularly. If you assemble with others to and leadvocate crime people to commit crimes, that is something that is punishable. Punishable unlisted reaches a level. We protect this. Assembly, it makes this ordinary innocent behavior potentially deadly. Dudley to other people. Clause allows people to assemble peaceably. Who might or might not be infected with a dangerous disease gather, they are peaceable in the hearts. You might think of it as an causes of assembly that danger or physical harm. I think the courts of rightly realized the standard assumptions underlying assembly. Nd travel dont really apply there is ample precedent for that for quarantines and other restrictions in the past, especially before modern medicine. Immunizations were much more common. Thats one class. Traveling, spreading the disease. Lets talk about the second class. Its actually very interesting. Have barred elective medical procedures. If theres something that is urgently necessary to protect your life and health, put it off epidemic disease, the abates. The broad restrictions were nn gun shops come but they closed things but they had to decide which side. So there have been challenges about this. These have sometimes succeeded on the abortion side. And i think the difference is sales areions and gun performed usually with one person receiving and one or a couple providing. Anyrisk of contagion time meet, there is a risk of contagion, but it is a lot less. A lot easier to maintain social distancing. That is i think one reason why courts have been more open to striking down restrictions. At least striking them down in the sense that, for example with abortion, if a woman is at a where, iner pregnancy a couple of weeks, she would be no longer legally allowed to have an abortion because it is past the point of viability, that delay is denial and unconstitutional. I am a big believer in thinking about how different right are similar. If you treat one right one way you should treat the other a similar way. In the academy we discussed this as lumpers and splitters. Splitters try to draw a distinction. With the locale things. One is, all of these restrictions i think are generally permissible to the extent that they are neutral. To the extent they really treat things equal. For example, it is clear that if they say, we shut down mosques and synagogues because we are afraid there will be spread of churches, it is wrong. They have basically declined to enforce any rules with regards to black lives matter protests. They certainly cannot say black lives matter protesters it is an Important Message soy trumps of the Public Health interest, that would be unconstitutional. I suppose they might argue, it isters are so big and so hard to stop them that we decided it was a matter of enforcement discretion. Is in the future they could say, these were smaller protests, we can stop them, it suggests that , the such a popular idea more people believe in it, the less one can [indiscernible] hesitant about those kinds of inequality arguments because sometimes lines need to be drawn. Services, a lot of people seem together. Dispensaries, in many states, they are treated as the equipment of pharmacies. Rightly or wrongly, that is how they are treated. As a result, they are treated like pharmacies. That is the reason they have remained open. I am hesitant about some of these inequality arguments. Clearly when it comes to one right, freedom of assembly, you cant treat some assemblies differently. People often worry that restrictions, even sensible on its own, will last too long or be adopted more often than it ought to be. For example, concerns about surveillance. You allow sermon is against terrorists, it will spread to lots of other areas. Or allow a wartime restriction, especially since the war can go on for a long time, it can go on forever. One thing about these restrictions, especially ones that treat people equally, they , tremendously expensive in terms of lost enjoyment of life, they are politically expensive for politicians. The politicians want by and large the spend money on their favorite programs. The consequences much less tax revenue and outflow to provide stimulus and the like. So there are lots of incentives. Is not one of those things where , oh my god, you will have a perpetual state of war. Feasible. Politically this is one area i worry less about restrictions leading to broader restrictions and lasting way too long. Thank you very much. We now turn to julia. Thank you. Federalistor the society for organizing this event and for having me. I am very much looking forward. In the few minutes i have for my opening remarks, i will make three points. The first relates to the medium and longterm impact of government responses to covid19 on Civil Liberties. In particular, i will explain why were being too optimistic when we come to the medium and longterm. The second involves constitutional structure and how upheaval,mes of great constitutional structure often functions as the most potent check on government, or so i would argue in the short term. The third concerns property and economic rights and how a vision of Civil Liberties that encompasses these words, which are sometimes like that negative stepchild of constitutional rights, has the potential, or so i would argue, to strengthen the u. S. Institutional system. U. S. Constitutional system. First, the medium and longterm consequences for Civil Liberties resulting from government responses to the covid19 crisis. I understand why eugene and many others have suggested that many are most of the restrictions put in place are not likely to be as they are politically selflimiting. At first glance, this makes a sense. You look at colonial and u. S. History and what do we see, we see lots of epidemics, smallpox, malaria, and we see a lot of significant restrictions quarantine, carter and cordon sanitaire, school closings. Then i think it is true that once the danger has abated, things have, at least on the surface, gone back pretty much to normal, or at least that is the standard story. So, why do i think covid19 pointwell mark a turning and it has the potential, not the surgeon to come but the potential to be best not the certainty, but the potential to be a catalyst for change . For starters, in recent u. S. History, never let a crisis go to waste has been the watchword, century,in the 21st among many members of the political class. Covid19 is the third crisis in less than 20 years in which we have seen a lot of public officials, not all, tries to harness a public emergency in the service of what i would describe as preexisting partisan and policy objectives. Eugene is right that many of the restrictions in place are very costly politically. But plenty of Government Actions are not, they are kind of opaque. Those put in place will not certainly pay much of a price. In addition, widening the lens somewhat beyond america and the United States, there is history in general, a rich and fascinating literature on the epidemics,ts of which, not surprisingly, has generated a lot of the eight on whether, and if so a lot of debate on whether and if so, how, epidemics have transformed societies, have shifted political power. The debate about the black death in england. On the have a debate plague in the second century in rome. Again, it may well be that the government responses have affect dustr brought about affected or brought about significant change in society and that could happen in the United States. The point region was making, it is not clear which direction this will go in. I certainly do not have a crystal ball. There could be lasting effects in the direction of greater control by government. We have already seen a bit of the incarceration, accelerating increase in incarceration. We have also seen quite a bit of deregulation. To seerimly humorous many states, including new york, suspend a lot of Health Regulations in order to protect Public Health. That is indeed what we saw. Some of these suspensions may well become permanent, especially as a lot of voters see that the regulation power has been suspended. The Previous Panel had a discussion on the loosening of alcohol regulations. Civilization has not ended. We can certainly imagine that those changes are going to be ongoing, getting back again to what eugene said, it is quite plausible that the incarceration trend will continue. My second point about constitutional structure and how the constitutional structure protects Civil Liberties. That, too, has been on full display during the covid19 crisis. Crisis,he covid19 legislatures and courts have been active, not just the executive branches, not just the president , the executive branch, the federal government and the governors acting, not at all. Courts have been called upon to hear challenges to restrictions that have been imposed. It comes as no surprise, thinking about Justice Roberts no surprise that many judges and justices are very hesitant in the heat of a serious Public Health crisis, to secondguess political branches. After all, they are making decisions under grave time pressures and incredible uncertainty. We know a lot more about this virus than we did a few months ago, but we still dont know very much about it. So we can see why courts will hang back. Where and they are confident of course is in evaluating office, so it comes as no surprise to me that when we look at the successful challenges to a lot of these weernment measures in place, see that the successful challenges have raised procedural quarrels. Wait, you cant do this. Youre not going to the correct channels. We saw this in the Supreme Court of wisconsin in the 43 decision. We saw this in the michigan Supreme Court in the case involving a barber. One of the justices of the michigan Supreme Court said, flat out, it is incumbent on the court to ensure decisions are made according to the rule of law, not hysteria. So where serious measures have not jumped through all the hoops, have not been in accordance with constitutional structure, that is when courts, i believe, feel their most confident and are most likely to take action. Abouty, to my third point property and economic rights and Civil Liberties. ,ince roughly the new deal era property and economic rights have been, again, something of neglected rights. Often deemed not as important as some of the other rights that we have been discussing. Highlights think, just how important rights to participate in the economy and to have ones Property Value protected in the face of Government Action, just how important these rights are to human flourishing, and how hard, perhaps impossible, it is to disentangle them from these other rights that tend to get more publicity such as rights of speech, travel, abortion, etc. The ability of living is at the heart of many challenges. These challenges, interestingly, are rising against the backdrop rather has been a trend of plaintiffs who challenge occupational license regimes and are more likely to win. About takingword these challenges. These claims are hard to win. But i would suggest that courts be very careful desk take a very careful look at these challenges because reports say i would suggest that courts b take a careful look at these challenges. It is another matter to order consultation of Business Owners and others who have suffered particularly heavy losses who the been i asked to bear of the covid19 responses. Once things have settled down and covid19 has passed, it is easier to order compensation. Considerations for those on whom the burden has fallen quite hard are especially compelling if one is concerned about cronyism, favoritism, and anticompetitive Government Action. Those who suffer the most losses often lack government power. That can compensating them can make our constitutional structure more robust. Thank you very much. Uva, mila,league at please proceed. Thank you for having me here. As the last speaker of the day, i will take a comparative perspective on the event. The issue the u. S. Is facing are very similar to issues other democracies are facing. I think it is fair to say that never before have we seen such a major drop in Civil Liberties around the world in democracies during this current pandemic. Some of the measures mentioned, nationwide stayathome orders, cell phone monitoring, censoring in some places. Though there is a variation in the response across countries, the initial response is often quite similar in all countries. No matter the circumstance, they decided they needed some form of lockdown. And also, Opinion Poll Research from these Different Countries shows that these measures are public. Ccepted by the but everywhere, we have seen debates about some of the issues in eugene and julia raised, what does this do for longterm Civil Liberties . Do we see the constitution constraint of executive power . What does it mean for democracy in the long run . In their brief talk, i want to Say Something about, i think the extent to which we should be worried about this as a longterm phenomenon, sort of picking up on what eugene and julia said, but from a slightly angle. Nt i have been, with a coauthor, working on a project where we have basically been surveying the Covid Response in every country. We have done this for 74 countries. Specifically to what extent it has been a phenomenon of an executive acting on his or her own versus to what extent have we seen the constitution be invoked . Have we seen courts involved . Legislatures involved, and also subnational units or states within federal systems like mayors, governors, involved in the response. Image, the traditional an image that some people are worried about, is one of unconstrained executives. Once we have an emergency, we dont let it go to waste. Amassing an enormous amount of power. Some defer to their executive legislatures. Power goes away. This is a wellknown view of emergency power. One of the key findings so far as we look at democracies is that has not happened in most places. In most places, we have actually seen a lot of involvements by courts more so than in the u. S. Perhaps. They have inserted themselves in questions, scrutinizing the lockdown measures on constitutional grounds. We have seen a legislatures involved, passing brandnew laws. We have seen some National Unity state within federal systems, sometimes provinces were cities, resist lockdown orders or impose them when the Central Government does not. We have seen Something Like much more of a dialogue between different branches. I actually think that is a good thing. In a world where we dont know what the right response is, nobody really knows what the right response to this crisis is, maybe the best we can do is make sure multiple actors are involved. And reduces the risk of making a colossal mistake. Having a dialogue between branches of different governments is probably useful. For the purpose of this audience , on this research, the different ways courts around the world have involved themselves in this question. We basically looked at the cases in some 30 countries and read them to the extent we could. I will be a lumper and not a splitter. There are elen four different ways courts involve themselves. Julia predicted the most common, to ensure proper procedures are followed and separation of framework in the constitution is upheld. The very first court that got involved in this was the Constitutional Court of kosovo. It struck down the entire lockdown order in the country because it was passed by the executive alone and not based on legislation. It basically said, you cannot do this until you pass a law. Then a law was passed. Some say it only means that the executive had to jump through a procedural hoop. Others say it is extremely important that you have involvement. The israeli Supreme Court said the government can do so for monitoring without involving the israeli parliament. In contradiction with the basic laws. We have seen a whole bunch of these procedural cases. That is not the only type of case we sa see. We have seen courts doing substantive rights review that julia predicted would happen and has not been as, and in the u. S. As common in the u. S. Talkingas about, they are scrutinizing, are these measures necessary, are they proportional . The german Constitutional Court said, you cannot ban gatherings if they take social distancing measures into account. You cant ban religious services if they can adhere to social distancing guidelines. South africa just last week, a case came out where the high court basically said, the government has failed to explain why you can run on the beach but when you enter the beach, you are not allowed to run there because the beaches are closed. You can run on the boulevard next to the beach but when you enter the beach, you are not allowed to run there because the beaches are closed. The second court of appeals said thatn kentucky kentucky could not ban religious services because you had to explain why you could keep open laundromats and Liquor Stores with social distancing. You should also be able to do the same for religious services. We see some of those cases. It is interesting because the courts are really inserting themselves into substantive questions. Third, we see cases where courts are demanding action. Actually asking governments to do stuff. It is, in the United States because you cannot violate the constitution if you do nothing. That is not true in the constitutional law if you do nothing. In brazil, the court imposed a lockdown in the city where the Health Care System collapsed. The government failed to act. President bolsonaro failed to act for the court impose a lockdown. The highest court of brazil also held the government is under an obligation to provide Accurate Information about the virus. Bolsonaro could not just go around saying how this was just propagandau and have videos saying it was not real, he had to provide Accurate Information to the country. In the end, the High Court Ruled that the government should pay for the Health Insurance to treat it. It is used to demand that governments actually do stuff. Finally, there is a number of cases we found that are about postponing elections. Obviously, the question of whether elections should be held is a difficult one. Not clear that courts have a right or wrong answer. What they can do is try just for out ulterior motives postponing elections. We have seen cases where they tried to do that in the polish Supreme Court. For every single one of the cases we found, the court said the elections should go ahead as planned. We havent found a single one where the court said they should be postponed. Flavor i am out what we seehis is that courts have been doing. We also see a lot of legislative involvement. Some 60 of the democracies we looked at, brandnew legislation passed. Like in the u. K. , there is a that givesll additional power to the Prime Minister but only applies for 21 days. This is not legislators deferring to the executive but handing new powers to them sorry, actively legislating in the face of the crisis. Finally, we see the subnational resistance. Going, president s backandforth between the national and subnational level. I will leave it at that. We will come back to you. This has been 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 toh of you if you would like , having listened to the others, or respond to others, ask questions, revise or extend your own remarks, change your positions if you have been persuaded. I will ask everybody, but i want to start with nadine because i caught her off a little bit and i think she wanted to make a few more points. [laughter] nadine thank you so much. Revise, extend, take things or ask questions of your copanelists. Nadine thank you so much. This is absolutely fascinating, all of you. We were talking about the fact that the United States generally only imposed negative obligations on the government rather than affirmative. Of course, the one exception is when the government is Holding People in custody. The one that occurs to me, where the court has actually acknowledged because of the rationale that the government is incapacitating that person. Does impose duties on the government. That explains all of the cases. With respect to voting issues in this country, the main flurry of debate and litigation has the over the extent to which 16 states that do not already automatically entitle everybody to vote by mail should be required to do so without any procedural impediments. , 16 i believe have already voluntarily implemented those reforms. Interestingly enough, states with both republican and democratic majorities and democratic and republican governors. But there are others who are resisting. This plays out in a national debate, especially with the headline in todays usa today. Let me see if i have it somewhere, basically pitting donald trump against joe biden. Conventional wisdom seems to be that it would be voter fraud that would disenfranchise. The headline biden and trump the other side might see the election as a fight over voting rights. There seems to be some partisan where the democrats seem they would be disadvantaged by vote by mail, and some republicans were agree with it. That is being fought out in courts on over the country. Thank you. Eugene, on the question of , has juliaffects turned you around . Just talking about different aspects of the same question. I think i am inclined to say that the kind of restrictions i talk about will go away on the road. But it may very well be that others may not. Other kinds of regulations or the regulations. We have not talked much about it, about Contact Tracing apps which may require you to have them on the phone. Have peoplelets voluntarily have these apps so they can be notified if they have been exposed to someone infected. If not yield enough updates, and the indications are that it will not, what about mandated Contact Tracing . Maye things, once adopted, spread. And i think there is a serious concern. Talk about tradeoffs between liberty and privacy on one side and 50 on the other. Some such tradeoffs have to be one amendment bans all seizures. There has to be an attempt to it. Nce this is an area where we may be seeing a tradeoff between privacy and a pretty. ,et us say there is a next wave as if every likely will be, of infection. Vaccine, there is a huge problem with mexico and the border being porous. There will be no way of stopping the infections in mexico even if things die out in the u. S. If we shut down international trade, there will be the forms of infection. Do we have more privacy and then the consequence is if we get the second wave, which will be worse than the first, we have less liberty because everything gets shut down, or do we have less privacy and the government will be able to track you now, protecting against reinfection . Will be aly there serious next wave. If there is, we have more effective ways of dealing with it that dont require a shutdown. That could be a difficult problem that we have to face within the coming months. I completely agree with the point eugene is making. It moreld make complicated. I would not draw a distinction between liberty and privacy. There are liberty concerns on both sides here for the reason you explained. Surveillance, the more government surveillance there is, in studies after are subject toe that kind of surveillance, and the more of a chilling impact it has an exercise of classic Civil Liberties in terms of freedom of speech and assembly, religious liberty and so forth. Thats right, they are closely interrelated. I would say there is a difference between restrictions on privacy and liberty. It is more burdensome to say to people that they cant speak about the elections and if they do speak out, they will disclose something about themselves. Both are restraints on liberty. There is no doubt they closely interact with each other. Youre absolutely right. I agree. Julia . You have heard other people speak . I will limit myself to one brief question. , with the incarceration, are you concerned at all about the possible backlash if this is done under great pressure, is it that is noty thought out, are you concerned that the public support might fall . With eugene, thinking about whichrestrictions and ones are selflimiting, are you worried about you mentioned surveillance. Certainly, beefed up surveillance would be at the top. F changes to Civil Liberties to not be turn not selflimiting, because they could turn not to be extensive. The clearest example is surveillance. It could be viewed as unduly that wetic, but i think will be seeing much more surveillance no matter what in the years and decades to come. I have long thought that because of a greater ease of Technology Available to small groups of people, meaning terrorists, there will be more and more risk of terrorists using biological weapons. Plagues. Ust have this is nothing. The mortality rate is under 1 . Where is smallpox, it is 30 . Whether or not while we have immunization against smallpox, if theres a new strain, this could be devastating, and my guess is one of the things we need to do is, apart from radiological weaponry and other things, is have more and more surveillance. I will give you another example. Obviously policing is , tremendously necessary. When people say the fund they defund theple say parties, they dont really mean that. To the extent they do, thats a losing proposition. All of us need police protection. At the same time, its not clear to me that the right way of enforcing traffic laws, the way that is best for liberty is to pull people over. It seems much simpler to have video record them, have it sent then and have a citation sent to the person. And then the parties, 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 things, with responsible risks with that, will actually be better for Civil Liberties and will allow us to have fewer policecitizen encounters for those things which dont need to risk turning into something very bad. And limit those situations where you really are trying to stop someone in the middle of a property crime or such. But, again, that will involve more surveillance. So, yes, i think the surveillance we are going to set up here, i think that will stay. I do not think its reversible. I will chime in on that. I will also answer julias great question. Julia, you referred to the three crisis in the last 20 years, the first of those being 9 11. The patriot act bastia increased surveillance powers to intercept communications on those who were not even suspected of misconduct. They were initially enacted with a strict provision. That provision has been extended and extended and extended and those surveillance provisions are still in effect, even after the revelations by edward snowden. Eugenely, i agree with that surveillance is likely to increase and not decrease. With respect to your great devil is inlia, the the details. That is why it is really important that specific criteria for determining who will be eligible for removal and what kind of removal does not , isrily mean really important. One very worrying turn is the absence of opportunities for integration that exist in our current cluster of laws and regulations, which makes people who have been incarcerated and have been convicted, ineligible for a whole host of thattunities and services seem necessary in order to help Successful Transition back into society. Stop is not enough just to them, we need a lot of other reforms, and it may be hard to do that in a time of such great economic difficulties, with the high unemployment rates. You are right to point out that this requires a lot more thinking and planning and further policy steps. Let me ask if you have anything you would like to add or ask . And questions. Surveillance, in the European Countries i have been following, this is probably the biggest debate as well, everybody thinks these blog will end and we will return to normal , but there is debate over legislature being passed that allows for this kind of surveillance. In general, there is more of a concern with privacy of data in europe and there is in this country. There is stricter regulation on this as well. What producestely probably, so we may have to do this. It is a difficult and controversial issue. The second thing i wanted to mention about the mailin elections, there was a case refer the Supreme Court of poland where the polish Supreme Court said that you cannot simply change to a postal election because that affects of thetutional election. It changes the Postal Office into election officers. And it marginalizes the role of our electoral election commission. Unless there is a major constitutional or legislative reform, it were not because additional. Obviously, thus it would not be constitutional. Obviously, it would be a very interesting element. It touched on the issues it raised. That so fascinating. Honestly there was a pretextual situation where the ruling government thought that by holding the elections sooner, to beould be more likely reelected. Clearly, that was going on. So, yeah. I went to emphasize the point that this surveillance and will probably become more salient in the next phase. If you just say everybody has to are home for one month, we making everybody alike. But when we get into situations, especially Contact Tracing, i know patients in some states where people have been asked to , and outofstate are being asymptomatic has been asked to acquire and two for two weeks and police come to your house later to make sure you are still there are. 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. In 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, like a motorcycle helmet, that 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 amount of degree of individual compliance. That makes it like a vaccine requirement. Does it make a difference in how we assess the Civil Liberties burdens . What the justification is . 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. Do i have a stronger case for challenging the effectiveness of these rules based upon one purpose or another. I can see that that agitated a lot of what do you think about it, chris . Casejust have not seen a there is an enormous amount debate about the effectiveness of the lockdown orders and the effectiveness of many things being done right now. I a have not seen 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 . Show less text 01 08 44 one is, is there a rational basis question mark and certainly, under the standard rational basis scrutiny, sure. 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 an emergency basis more rational. The second thing is, how much does the government have to prove . Almost uniformly, the courts of said, not much. Because this is not something on which we can really expect serious proof because of the difficult, complex systems, the human body and human society, massachusetts,. The 1905 case, the courts continue to treat this is highly instructive, at least, says look, when we are trained to , figure out the pluses and minuses of various approaches, when they stick dangerous medicine, essentially in their own body, that is something the court should defer to executive judgment on. Especially in the context of a Public Health emergency. I think that remains the general view and it is probably right. I actually think the judge will do great job of trying to figure things out. Public Health Experts they dont know either. They dont know [laughter] could i add something. Massachusetts in 1905, it is not about being vaccinated. It was about whether someone could be fined. I think its really important that the court said the fine is ok. It was not about whether or not somebody had to produce themselves for a jab. In terms of chriss question, i think its just too soon. It seems to me the first day the 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 short term, free to scrutinize on any group. Milaems in the next age, could tell me whether i have this right, courts should be are likely to tell me whether what the government is doing is an outlier. That becomes a little easier to have the court look carefully at something. Look what this government is doing. No one else is doing this. Hich is way more restrictive finally, we begin to see more examination of the substance. I think that examination of the substance. Is going to come. In fact, it is coming already. I would love to hear if my taxonomy is roughly correct or not. I think that is possible. Although there are some courts, like the german Constitutional Court or others in europe that have said, explain why children have to stay home, because it is not clear there is any reason for singling out young people, for example. But i do also want to push back on this idea that courts are not suitable decisionmakers here. Nobody has perfect information. The epidemiologists are not running the country. Everybody 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. Really not clear to me at all. So i think it is important to have these Different Actors checking each other on these questions. I think i will see more of that Going Forward. There has not been any litigation about this technology, ideas that were flooded have been, as far as i consensus, by rejected, because the consensus has developed that they would not be infected. Early on, there were suggestions that we could all use mobile phone location apps for Contact Tracing. And the fact that it was tried not granular enough relation to show whether weve been in close enough proximity for a long enough time to possibly be infected. Thank you very much. Weve arrived at question time. We have about 15 minutes to pose questions for pertinent and pithy comments as well. If you wish to introduce a question or a comment, if youre on zoom, you should hit the raise hand button on your screen. If youre on the phone, hit the star 9 button. That will put you in a queue on my page. Please wait until i call on you. When i call on you, technical people will unmute you but you should unmute yourself before we speak. We have several people who are already who have already raised their hand and the first three people im going to call on are karen lugo, cameron atkinson, and eric rasmussen. Well start with karen. Please unmute yourself, karen. Am i unmuted now . Im sorry, i didnt know. Yes, please proceed. I will be fast. There has been a growing demand for constitutional clarity by the public. In some cases they are apparently been muted by government as they reach the courts and there has been an ongoing discussion about this on bullock conspiracy. Im part of supporting litigation in florida and would like to use this particular executive order as an example where, although this governor has been called out as a positive example of managing the crisis in many ways, one of the executive orders alone talks about quarantine, but these standards have to do with four states including anyone coming from an area of substantial community spread. Orders like this have been in place for months, and they also entail criminal penalties. They are not updated, not scaled to curve flattening, so the public is baffled as to when and where to get the constitutional clarity as to when police power has gone on for too long, gone too far, so rather than learning from popularized examples like, well call it civil disobedience of the dallas hair salon owner, how do general citizens understand that some of these orders, because of their constitutional infringement on Civil Liberties, should be challenged . Great question, karen. Panelists . Maybe im missing the exact nature of the question. But if the question is, youre a member of the public. How do you know what the rule is . Like when you hear about news stories, should you be outraged or not . Whats the rule . The answer is there is not a very clear rule, in part because how do rules become more clear in our system . Through a process of repeat litigation. I can tell you a good deal now about free speech. Why . Because the court has cited hundreds of free speech cases including in recent decades so we dont have to look back a century but thankfully we havent had a lot of cases in recent years having to do with this from the u. S. Supreme court. So we have to say the law is not completely clear but a few things seem clear. The government does have Broad Authority here, its sort of the nature of at least our commonlaw system, a system where a lot of the decisions are made by judges rather than purport to be set forth in some comprehensive code, and maybe [inaudible] as to the question of what should be challenged, you can certainly challenge what you have the inclination and lawyer fees to challenge and people are challenging and sometimes they [indiscernible] press totally understood. I dont think beck expect great expectnt think we can great clarity in this area of the law, in large part because first of all, life is complicated. My father likes to tell you, like life itself. 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 the last few months, or many decades now, so as a result why should we expect to have a really crisp, clear rule of law in this situation, especially when on top of that, the facts on the ground are both changing and our understanding of the facts. I like clarity in the law. I think in a lot of areas we should expect clarity. In a lot of areas the law could be a lot clearer than it is. I just dont think this is one of them. This is a matter of state statutory law. Thats also true. Ordinances, and there may be whole separate bodies of case law 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, big thing that were all waiting for, i think anyway, is some information about asymptomatic transmission. Unlike other epidemics, where if there was asymptomatic transmission, that wasnt on the radar screen, and at that point, when there are some historic facts about asymptomatic transmission or the lack thereof, then courts are picking up on what we were saying a few minutes ago, courts are going to be much more confident in deciding where they are going to draw the boundary of permissible exercise of police power. It really does become clear. Lets say there is no asymptomatic transmission, and what all the Health Experts say, there is no need at this point to have lockdowns. You just need to have everybody get the temperature measured to see if they are running a fever or something. Its true that at that point the courts might be fairly well armed and fairly willing to strike things down, but they arent going to have anything struck down at that point because its not terribly likely the Government Officials will say i dont care. They are facing a lot of political incentives. Especially since weve seen, in fact, a lot of states are already opening up even in the face of infection, governors and mayors have shown a willingness to change the policies in light of changing evidence, you can imagine some outlier who is crazy or politically captured by one side or the other, or maybe just way, way too cautious. Judges historically tend to be more cautious. The judges can step in and trump that. But i dont think thats terribly likely. I think if it becomes clear enough that some of these actionable,o longer by and large they are going to get shut down in most cases by the executive and maybe by the legislature before they get shut down. What were probably going to find is there is no asymptomatic transmission but there is presymptomatic transmission, which makes it much more complicated again. We have seven or 10 minutes left. I have seven questions. I would like to get through as many of them as i can, so lets be brief and to the point. The next question is, cameron atkinson. Thank you. My question is for everyone. Ive been involved in two cases in the process for challenges to connecticuts coronavirus restrictions, and one of the problems were running into in court here is we dont get to the necessary argument that effectiveness arguments, we get stopped dead in our tracks on the standard of scrutiny connecticut courts and second courts, using jacobson to develop its own standard of scrutiny and given jacobsons place in american constitutional law, its preincorporation and prescrutiny, restricts scrutiny. They have not been very receptive even on the enumerated rights claim. Can jacobsons unreasonable, arbitrary and unnecessary standard of scrutiny be reconciled with modern constitutional jurisprudence . Im just going to say hi to cameron. Its good to hear from you. Hosted me prepandemic at his law school. Well, i would push backward on jacobson in massachusetts. I would push hard. I think that thats a far weaker precedent for government for untrammeled government power than is generally thought. I suggest you contact me and we can talk offline about this. Very good. Next is eric eric . Okay. Hi, i think im unmuted now. We can hear you. How can liberties restriction be worse than telling people they have to close down their business, close their church, and Location Tracking seems utterly completely trivial compared to that. So why are we talking about it . When they do talk i hear things, trivial things like if your neighbor sees you coughing can we tell the neighbor that you got covid19 or is that an infringement on your hiba rights . We arent worried because everybody is treated equally and its going to get tough only when sick people get surveilled, but i think its a stalinism. Stalin oppressed everyone equally. Even as executions and arrests were mostly random after 1930, it was just a matter of terrorizing everybody, and i wonder if current jurisprudence would say thats fine in america, since everything you did is perfectly legal if what you do is what the courts say is legal rather than using natural law or Something Like that, we dont even know whats illegal yet. Its like if you asked me if i can play the tuba, i dont know, i havent tried. Why arent you more worried . These are tremendous burdens on liberty. They are not folly. Themve been living under for three months. They are easing and will be largely gone in another three months. Serious tremendously but i think many libertarians or many people who are im not a libertarian, im libertarianish. A libertarian sympathizer. Many recognize that in extraordinary times when the normal circumstances of the nonaggression principle, where we can go throughout and do anything we want as long as we dont hurts dont apply because we might be hurting others by our very physical presence without even knowing that were carriers, that under those circumstances, certain things on a temporary basis are legitimate. Thats been recognized throughout American History when we have had quarantines and various other such things. And its serious but its timely. One reason to worry about location tracing and especially thats mandatory, not that im tremendously worried about it but i think its right to be worried about it, the danger that this is going to be seen as a necessary precaution against future plagues, then it might end up being used, oh, incidentally, why dont we use Location Tracking to track people who are members of terrorist groups, white supremacist groups, that people Say Something on twitter that seem like White Supremacy . These are serious risks and those are things wherein deed the restriction is smaller but it will last for a much longer time where as here we have something thats a very big restriction but one we have every confidence will last for a short time. I think thats one reason why people are rightly not as troubled by it as they would be had the restriction been aimed at Something Else and potentially lasting longer. Thank you. The socalled smaller restrictions may not be justified at all if they are shown to be ineffective. I think eric makes a good point, he would be happy to see the aclu fight, which from the beginning, has talked about Civil Liberties being on both sides of the equation. If we could have minor restrictions that are effective in getting us safely into a free realm, that thats definitely worth the cost. Unfortunately, some of the proposals have been worst of both 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 think were at risk of what i call tyranny by model. All models are wrong but some are useful but the models are not very good, yet they can be invoked as justification for extraordinary restrictions by the government. So this is just another layer to the difficulty of figuring out as a society when we trump experts and to what extent and so forth. I am not relaxed about this. Very fine. Thank you. The next question is from wesley p. All i know is the first letter of your last name. Please proceed. Hello, everybody, i want to say hi. Thank you to all the panelists. [indiscernible] also, the question, will this pandemic allow for the courts to be questioned for abuses, there will be more technology in the courts because we see it in the higher level courts, but in the state courts, even lower District Courts and other areas are not up to speed on technology. Or, maybe it will be the reverse and they are going to show more deference to executives saying making such decisions is too swift. We should wait and let the executives do their job for policy. Another thing we didnt mention was employees labeled as essential workers in bad faith. Were a people who are not nurses and administrators that are required to go into work, required to put their safety at risk, essentially under an edict that probably should be questioned but its difficult. Thank you very much. Let me interject that we have arrived at the end of our time. If the panelists are willing i would like to run over for five minutes until 5 20, so let me ask, if there are points that people would like to make in response to wesley and then ill move on to others. In that case im going to ask eric, i hope i get this right, eric, eric please. I want to say hi to everybody. If i could just very quickly the second part of wesleys point. If i could Say Something that wesley mentioned. One question that arises with all of these things is who is essential and who is not. Some people are very upset at being called essential because they are afraid this exposes them to health risk. Others are upset being called nonessential because that damages their livelihoods. There was a Penn State Court case where a claim was brought, among other things, procedural due process claims because there were waivers that could be issued by the bureaucracy, that there was not really adequate procedures for making sure that its done fairly. This is a very serious issue. Its often an issue of stated state administrative law, and at the same time, we also have to recognize that inevitably, any situation, whenever youre trying to draw the line between one thing and another thing, nontaxexempt, regulated to not regulated things, youre going to have to draw that line, you cant really do it in the abstract. You have to come up with a general principle, but then you have to have people making these decisions, and then when there is a claim its unfair. We need to know a lot more facts about why its unfair. You can imagine some decisions about essentialnonessential that are clearly right, wrong, and quite a few where you need to know a lot more facts. A minor point, it might make sense to ponder whether it would be useful to designate essential and nonessential in advance. At least to have a little bit more planning in order to prepare. It may not be, right . It may be that the facts are so specific, but its certainly something as voters, i think, we should contemplate. Good. Eric . Thank you. Youre very, very close. You get an a, not an a plus. For the panelists, the framers of the United States constitution didnt create the judiciary or even the bill of rights to be the ultimate arbiter of safeguarding liberty. They used checks and balances to do so. Unfortunately over time the legislative check on executive access at all levels of government has been largely subordinated to an individual legislators partisan affiliation, not their constitutional affiliation. What do we do about this when the executive is unchecked due to partisan affiliation, or is the judiciary then the ultimate arbiter and are we doomed as a result . Thank you. No, were not doomed, i would say. I dont think were doomed at all. I think checks and balances exist. Maybe not in the form that you would like. Maybe not as robust a form as i would like. Whats occurred in the last few months, where the state Supreme Courts do take action fairly quickly has convinced me that our constitutional structure is in reasonably good shape. Not that it cant be improved but its been functioning, i would say, fairly well under enormous stress. I would just add at the national level, which is write which is where i have followed these issues, part of the reason for congresss failure to exercise a robust checking they is because dont want to have to take responsibility, in the exercise of law making powers, right . To deny accountability, denyability. With apologies to the others who are lined up at that microphone in the sky, im going to cut things off with one final question. And that will be bridget bush. Please. Hello, can you hear me . Yes. Thank you to the entire panel. Wonderful conference. My question regards court proceedings. I was just wondering what your thoughts are, to what extent can you change Court Procedures to fit the unique challenges of the covid crisis and what long term effects might such Remote Court Proceedings have on litigants constitutional and due process rights. Thank you. First of all, its an Interesting Development for Supreme Court watchers, is having the court make its oral arguments for readily accessible more readily accessible than in the past. I havent been following it to the extent to which the Supreme Court has made clear that its not going to continue to do this after we go back to normal prepandemic normal, but it seems to me once that bridge has been crossed, it might be hard to turn back to the old days of just making us wait to hear those oral arguments. I think thats absolutely right. If i could just elaborate in two quick ways. One is, there are a lot more appellate arguments are going to be done by Video Conference. The ninth circuit has shifted to that with great success. Some courts only to audio, such as the Supreme Court, but also some lower courts for reasons i dont fully grasp. Only to audio. Thats not a great way of doing those. But video, i think, its not perfect, its not quite as good, quite as effective in some ways, but so much easier, not just from a Health Perspective but so much easier and cheaper, a lot less travel costs, imagine in the ninth circuit, for example, people have to come from guam to san francisco. Ive been told by the ninth circuit the fact that they actually had Video Conference or oral arguments especially. I think well see a court call, as we already have. We will see that at the trial level. I think well have more video and i think a lot of judges will say i like this better. The lawyers like this better. Its cheaper for everybody. Lets do it. Environmentalists would like it, too. A lot less traffic on the roads. A lot less emissions, such and such. The second question is, how do you do jury trials which is a cheap 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 show heres a drawing of our courtroom and would you have four jurors sitting in the jury box and eight jurors in the audience and then were going to have Video Conference feed to some other courtroom in the courthouse to provide for Public Access which is a constitutional mandate. So i think whats going to happen is that, the legal system will adapt to this and well actually learn some things that are good Going Forward such as to do more by video. The time has come to conclude and i would like to note that the most important innovation in the Legal Proceedings that weve seen in the past couple of months is that the Federalist Society is now holding such intense and interesting proceedings on zoom. So i would like to thank eugene meyer and all of his colleagues there for inviting us to this meeting and for this new innovation. I would like to thank all of the many attendees who have joined us for the many interesting questions that have been raised. Most of all, i would like to thank our distinguished panelists. Nadine, chris, mila and eugene. Julia. Thank you and good evening. Wait a minute. Wait a minute. Our supervisor has another word to say. A lot of what i wanted to say you said. I would like to thank all the panelists for all six panels. All those panels are Available Online on our website. Redsoc. Org. We appreciate all the panels. One other comment, dont underplay the value of interpersonal relations. Fedsoc. Org. Zoom is wonderful, but it cant do everything. Thats just a wise crack, and thank you all very much as weve had some wonderful discussions and i really appreciate it. President trump delivers the commencement address at west point this morning. 1000 cadets this year. There will be social distancing in place for the ceremony. Live coverage, 10 a. M. Eastern, cspan. Next, the impact of the coronavirus on social and racial tensions, the prospects for a vaccine, state reopenings and congressional efforts to reform law enforcement. The center for strategic and International Studies hosted the discussion
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