Unfortunate i cant in terms of you guys, i can call on you either if i have questions, so we both benefit from this new world we live in. Good. John, shall we appreciate you being here and many of them im sure appreciate you cant see them. I want to kick this off a jumper in the middle of this federalism debate. Federalism is about the division of authority amongst different lytic leaders at different levels. We have seen some governors be very aggressive in embracing shelter in place and stay at home orders to flatten the curve. Other governors have been more open, arguing the local conditions didnt warn what they did. Governors with were adopted vey rigorous shutdown policies have often been confronted by their citizens and city and local leaders with their authority. And overlaying it all is the federal government who have done some things to complement and sometimes to compete with what the local officials are doing. My good buddy steve and i talk with us a lot and his take on this is often we dont have a plan. My retort is always, we have lots of plans. Frankly, his concern is who is in charge . How do we understand this from our system of government . You just described the beauty and some of the pitfalls of our uniquely federal system of government. We are not like a china, south korea or france. We dont have one unitary government where everybody, down to the policeman on the street is an employee of terrorists or beijing or tokyo or soul. Instead, with one federal government which has limited enumerated powers given to it by the constitution. And then Everything Else that isnt specifically given to the federal government is retained to the states which we call the police power. The federal government doesnt have a right to regulate Public Health. Its not in the constitution so we assume the major frontline policymakers about Public Health, about pandemics, which existed back in the 18th century and the constitution was written. There was a great yellow fever epidemic in philadelphia shortly after the constitution came into effect. Thats come to get to the states. The federal government instead has two specific powers and can use to support the states in the choices and there are 50 different choices about policy. One is the right to regulate interstate commerce, which is a movement of people and goods and services across state borders, which is some used in this pandemic. Especially if you want to stop people from coming into the country, i mean, the coronavirus with them. But the major power we are seeing here is Congress Power to tax and spend for the general welfare. In using this power thats how congress is taking billions, trillions of dollars now and pushing it out to support state policies, by more generous unemployment compensation, by purchasing equipment, medical supplies, by providing expertise and by Encouraging Research and development of a vaccine or cure. The downside is, no one seems to be in charge. That means you 50 governors who are making up their own policies. Theres two good defenses for the system. It may not act quickly but also doesnt make mistakes quickly either. Its a riskaverse approach to government where your trial and error. You have 50 different Justice Brandeis called laboratories of democracy out there, which allow for experimentation. We will see how things go here versus texas or florida and in other states can adopt those policies which seem to work. It also means that local officials who are more responsive to people can make special condition. Policies to work in california are not suited for new york city or chicago or maybe not texas or florida either. It also means that offering of diverse policies means states and the federal government have to compete for the support of us, the people. If we dont like what states are doing we can go to the federal government. If we dont like what the federal government we can try to press for change and estate and the founders thought the competition between the federal and State Government would lead to both ultimately good policy but also protect our individual rights as citizens, our freedoms and liberty by making sure government doesnt go too far, doesnt overreact and takes away our liberties in exchange for whatever the policy of the day, policy crisis of the day is. So federalism a lot of disturbed authority about public policy, and the way in which that distribution is enforced is through the constitution and the law. Let me ask specific questions because whats going on now is boiling dental on specific things. One idea thats been talked about is Contact Tracing, which is an idea that when Public Health officials can use to identify people who are infected to find who else they might of infected towards trying to flood the curve or limit the amount of infections. How do we understand first of all what level of government can impose that, and is a a legal d constitutional under our system . Thats a great question. Tough question in part because we dont really know since these pandemic seem to come along once every century. The means we would use our Contact Tracing out a much more efficient and effective because of smart phones and information revolution here the government has far greater tools now than it used to 100 years ago. Your first question, which level of government would probably do it . Again would probably be the states. The state of the once that will set policy. Some states dont have to do Contact Tracing. Some states might feel they want to. It would probably be State Government and since they are in charge of the police power they have the right to do Contact Tracing. There is an important limit on the broad power of the state to regulate everybody and everything that goes on in its territory is the bill of rights and the reconstruction amendment, the right to due process, the right to equal protection. And then cure the Fourth Amendment right to be free of searches from the government that are either unreasonable or the require a word. Thats going to be the main issue for Contact Tracing. The reason why is this. Because ill be done to High Technology using your smart phone. The Supreme Court just a few years ago said if the government wants access to your smart phone it needs a ward from a judge. This was a case where ironically it was robert a Cell Phone Stores. Government wanted to trace the movements using their cell phones to show that they had been at the Cell Phone Stores every time the robberies occurred. The court said even though generally when you hand over information to a thirdparty, pulitzer privacy interest, the smart phone is so important to us today that you need a ward from a judge. That might sound like a Contact Trace of probably be impossible. Theres an important exception which is if the government is doing it not to track it down for crimes but to protect Public Health and safety, which is what the Police Powers usually used for, you might not need a warrant. Examples of this include drunk driving checkpoints, random drug testing, security screener airports. When the government is not trying to paint a crime on you but is doing something randomized or systematic for Public Health and safety reasons, you might not need a word. Thats what this contract case testing approach is going to call into courts told me decide, whether it fits within the exception to the warrant into protection for privacy in general. Lets talk about lockdown policies. We have a lot of questions about this out of a lot of would ask you about. Bruce asked the following, our states stayathome restrictions are unconstitutional. He will not have his deputies enforced if there is a justified or do state Police Powers make him wrong . Bruce, unfortunately i think they are not unconstitutional in general approach. The state under the police power does have the right to shut down businesses for Public Health and safety reasons. Until the 1930s you mightve had a constitutional right to keep their business open, to make a living, to economic liberty. But that right was lost in the 1930s under the pressures of the new deal and fdrs effort to pack the Supreme Court which had struck down the early versions of the new deal, and since then the courts of that recognize this kind of right to economic liberty. On the other hand, you do have some rights that are guaranteed by the bill of rights. Those are the ones that will have the most success challenging the lockdown restrictions. So, for example, i want about political protesters in a place like california and michigan. I think the state doesnt have the right to just say no protests. Under our law if the government can change its the courts are going to require the government to do that. If your protest and want to shop the Capitol Grounds in sacramento, you could say we will keep six feat apart and we will bury masks just like you do when youre at the supermarket. How can you say we dont have a right to protest . Churches, right . The government doesnt have the right to shut down all churches if the worshipers can present reasonable alternatives that allow them to worship, that are going to respect social distancing like staggered Services Come sitting six feat apart in the pews. Or maybe, i saw driveins. I was a kid when there were driveins. I never thought they would come back. We of driving churches now. That would also be where the government is on very shaky footing. Its not going to be a general right against lockdowns. It will be specific challenges based on the constitutional right chip under the bill of rights. Unfortunately, since 1935 that no longer includes a certain economic liberty to make a living, although personally i thought that wouldve been part of the rights of americans but the Supreme Court announced under the pressures of the new deal and the Great Depression that it wouldnt take those anymore. Interesting. Theres a separate constitutional right to bear arms. Some states have close gun store. Some have declared them an essential facility. How does the bill of rights informed decision on whether to close down or not . This may not get popular ants in california but the same approach if you have a constitutional right such as a right to bear arms, the government cant completely shut it down in the name of Public Health and safety if there are reasonable alternatives. If there are other tailored ways of government to achieve its in. So, for example, if the gun store were to say okay, but it only going to love one person of the store at a time, or all customers have to be six feat apart and wear a mask, i can do both. I can respect Second Amendment rights and i can maintain the social distancing rules which are in existence at costco, at target and the local supermarket. I think against tort arches like the bookstore owner or the church or the has a good argument that the state if its starting to apply these policies to me when im a reasonable alternative doesnt start to look like the government is taking advantage of these lockdown policies to prevent people from criticizing the government or engage in the right to bear arms even though im the governor, Governor Newsom favors gun control. Thats were where courts will e extremist suspicious. Ten states restrict people from other states coming into their states to prevent covid19 infections . Thats a a great question ai know rhode island was starting to do that. Although if i were in rhode island i would never what new yorkers in my state anyway, even covid or not. [laughing] its interesting, the constitution again doesnt give that power to the federal government. It does get the federal government the ability to stop interstate traffic and when it comes to states, they have the police power, the right to prevent imports or people moving in as long as its really for Public Health and safety, and not for some kind of protectionist reason. Theres a lot of cases about this where the courts very suspicious when the state has some regulation in fact, it has the effect of just advantage and people in the state. Youre not allowed as estate to totally leave the National Market of the United States. It seems to me here in the case of the covid pandemic states to have reasonable Public Health safety reason, just like they would if there were diseased livestock or diseased food. States have long had that power. Its actually mentioned in the constitution that state has such a power. It seems to me they could and again its another question were state ought to be reasonable if they really want to defend it. For example, in rhode island they were not actually blocking people at new york at the border with new york but you could say we will test you, go into self working. In those conditions the courts would say thats within the constitutional power of the state. To cut off all traffic between rhode island and new york no matter what the courts are going to be more suspicious thats Rhode Islanders trying to isolate themselves from the National Market of the United States and sort of ford its resources for its own citizens which they are not allowed to do. Heres a couple interesting questions i will try to combine. The president use the defense production act to compel private companies to develop therapeutics. But the states are the one that eventually end up with them and have to allocate them for their use. In Maryland Governor hogan had the Maryland National guard attacked a shipment of coronavirus tests to prevent the federal government from taking them. He even had the flight landed at baltimore come his airport in maryland, as opposed to Dulles Airport which i guess is in d. C. , right . Can you discuss the federal power to confiscate tests from the National Stockpile . Peter asked another question in a similar vein. Again using Governor Hogan as an example. He said he is testing kits in a secret location guarded by the national guard. Can the federal government compelled maryland to disclose those supplies and redistribute them to other states . Thats a great question. It raises this issue of federal governments control of the borders, commerce versus state sovereignty. Usually we respect the state the sovereign right as the government to manage its own employees, its own property. For example, the hypothetical often get is the federal government cant order a state where to have the capital, where to build its executive and legislative branches at a certain time. So when a state consent into the market and buys things, or sells things, generally when they are Market Participants just like a business would be, the courts usually say the state are immune from federal regulation when they do that. Because they are sovereigns. It seems to me states have every right to buy masks. It doesnt seem to be all right in the constitution for the federal government to seize that state property. However, its very complicated. I think what Governor Hogan did with his national guard, which could always be federalized into federal service and become part of the us army, im not sure that was constitutional. You could say he has the right to the property but the federal government has the right to stop and start everything at the border includes everything that flies into the country. If this was a flight from i think it was from korea, that have medical equipment, it seems to me the federico has the right to inspect and decide what to do with it at the border when it comes into the country. Once its inside maryland. Then the other question is about the defense production act. Again, its, i would be wary of using the defense production act to say we can reopen the whole economy. The defense production productf you look at its terms its a National Security law about in war time making sure is getting enough were material to fight the war. So the best use of this and what the statute talks about is prioritizing federal requests for equipment, allocating resources so federal demands get met first. The use of the defense production act the way people are worried about would raise constitutional questions if you use to take things away from states, if you used it to seize things from states. That might run into constitutional difficulties. Lets shift over the question of immunity, john. Theres been debate the last week about whether tort law should be amended to allow businesses and commercial operations who are reopening to give them some kind of immunity from claims that they help spread the virus or sickened people. What are your thoughts on that . Thats a great question, tom. You can see in certain emergency situation we to grant or assume an immunity to people because we dont want them to have to make decisions under the press the t time, limit information, limited resources and think am i going to about this . Soap wartime, for example, soldiers have whats called combatant immunity. We generally dont allow lawsuits against our leaders and generals because of mistakes they might make in war. So you could see a lot of the ways we are thinking about this pandemic do have that kind of quality, start thinking of it as the war. First responders, doctors, hospitals dont have any kind of heightened immunity from lawsuits. This would have to be done by states. To me it seems like a reasonable policy. Because again if you think about new york city where we were rushing graduates of middle school right out of med school right to the front lines, they are not going to be fully trained. They are not doing the residency and internships yet. They mightve only seen a procedure with the ventilator once but twice and maybe never did it themselves, but it might import of someone there rather than no one because of the under capacity of the Hospital System for the wave of cases that came. If you dont have that kind of immunity, you are creating a huge incentive that prevents society from marshaling its resources. Think about the next pandemic. I hope this is the last one for the next century but suppose there is one in five years from now. Can you get doctors to come out of retirement and volunteer again . Can you get nurses and first responders, right, rush right away to the emergency . You are going to impose this kind of liability concern in the thinking of people under conditions when we dont want them to have to worry about it. As opposed to just normal everyday nonemergency society where we want people to be, we wanted to consider the factors more carefully and think about harder. Emergencies, does not the best times for the normal tort system. Exactly. This is a fraught question. What powers to the federal government and or the states have to modify the conditions or processes of november general election . Thats not so fraught. Thats all you got . Come on, bring it on. Give me something worse. It is politically fraught propr constitutional straightforward because the constitution gives congress the power to set the exact date of the election and theres already a bunch of statutes in existence at talk about, and we went through this in 2000 with bush v. Gore about when a state has to its electoral votes counted, when have to be sent off to washington. The interesting thing is the constitution also has like a hard date. Because theres a specific date in the constitution when the congress in and with the president s term is over. Theres nothing that says the president suppose we never had elections. President trumps trump is going to in at a date certain in january picketers. Election that just means theres no president. Think about this. Right . Pence is not vice president. It might mean nancy pelosi becomes president some of you wants to make sure we have the elections. In all seriousness, this one historical tidbit here is actually this was seriously debated and discussed during the civil war. Talk about an emergency which seemed like the constitution was unprepared for. It would been the civil war where about a third of the country just tried to leave and they bring lincoln was pressed by many people to postpone the elections. To lincoln it was important that we maintain the steps, the constitution forms that would go through all the steps to show that the constitution could adapt to the civil war. He wrote a little note to himself he stuck in his drawer for the next president who he assumed would be general mclellan and election of 1864 until the fall of a length of your sure lincoln was going to win. And consent if i lose, im could to do everything i can to support and transfer power to the other party, even though mclellan was campaigning on a piece platform. Wouldve and then everything lincoln was trying to do, wanted to sue for would have repealed the mets patient proclamation. Lincoln said it was more important that we observe the measures of government, election and replacement. I think thats true here. One less thing is, you could have the elections, you just have to do them with social distancing. Its hard for the government to claim because of this pandemic we just shut the elections that completely, if the are reasonable alternatives, and we saw that happen in wisconsin, just the wisconsin primaries were able to be held. We get a lot of questions on this. This is an important issue. Suppose we have to undertake elections in a nontraditional way, right . What authority does the federal government versus a State Government have for modifying the elections to ensure the right invitation to make sure it is a fair and probably subscribe election . And doesnt the Current Situation probably disadvantaged challengers relative to incumbents . Is there any constitutional mandate or imperative that some political leaders try to address that problem . Very tough questions. The changing of the rules is interesting. It goes to initial question about federalism. You could say of federalism is hardwired into our system in many different areas, many different questions. Its hardwired into our system in elections. One thing i shouldve mentioned earlier was yes, another reason the federal government cant take over the pandemic response, have opened the economy and close it simultaneously is because all the resources, the people, the officers, the bureaucracies, the money for government are really at the local level, local and state level. Thats just a statistic i love to throw out. The new York Police Department has more sworn officers in the entire than the entire if their workforce. Thats true of elections. Under our constitution, the elections are to be run by states. Often most states often push that down to the county. Time, place and manner is up to states. They can be overridden by congress. Congress uses the power occasionally like the Voting Rights act of 1965 to stop discrimination, racial discrimination. In general its still at the states. All of the questions you raise about voter id, about internet voting, thats still up to the states. As long as they are not using the rules to try to advantage or disadvantage a particular party here bush v. Gore, and dish with the Supreme Court said the way forward in that county, palm beach county, was running that election was this saving one candidate over another on purpose, or it was so irrational that it didnt make any sense. So here a lot of these alternative ideas are up to consider, you could have a completely mailin voting. If lots of states networks, they might adopt or they might not. The second question asked about this is more an issue about lockdowns. Theres an interesting case the came out of pennsylvania, the Supreme Court just denied a hearing and appeal on it. In pennsylvania i love this guy, theres a plaintiff who was running for a seat in the house, i mean the assume it. I am originally from pennsylvania, hence this while wallmounted which does exist in california because of the horrible nature federalism. Only on east coast. This guy is name danny devito. What is danny devito doing whatever office in pennsylvania . He went like that but its actually a different danny devito. He made clint is lockdown policies protect incumbents because right, if youre in te state legislature you are doing things, you are an essential employee. You are allowed to keep the operation of government going. People are seeing you. You are doing things. If youre in incumbent how do you challenge someone . You cant hold fundraisers. You cant meet the folders. You can have events. He argued his right essentially to challenge an incumbent was violated by the lockdown. The court come Supreme Courts it will not hear this. Go back. Im going to guess that the courts are going to say in this emergency were going to allow the lockdowns. But as the curve bends, as infections are reduced, as deaths are reduced, kevin has to start considering less burdensome alternatives to still protect Public Health and safety, allow challengers to do what they want to do, have to do to rent a reasonable election. Or put it differently, ten why cant a challenger for office have events by the same rules that cosco has to sell toilet paper in meet . I think thats going to be harder for court courts to dene get further along. Lets switch over to the International Legal front for a while. You did a lot of research on this. This is about china. We know chinese doctors and scientists encountered covid19 patients as early as november of last year and they alerted chinese authorities but beijing didnt notify the world. Should china held accountable . If so, what are the legal remedies and the International Setting to do so . Yes, i yes, i think china she held accountable, not because of any desire to punish china which is what you hear in some of the rhetoric these days, but in order to encourage better behavior in the future. This is an appeal to the economist in the talk. You want someone when youre doing something what we call internalize the cost and benefits of the decision. So they can make the right choice about whether to do something or not. China has effectively done, they have externalized a lot of the costs of its choice. Those costs being the hundreds of thousands died, millions being infected. So if you think about what china did, their benefit was the Chinese Communist party prevented knowledge of the outbreak, prevented early study of it, prevented doctors entices from studying it, prevented them from coming elsewhere from the world like from the cdc to come and study it. There are study suggested more than 90 of the infections and deaths would up and stop if time had been more transparent and open. The Chinese Party want to show they were competent, maintaining this image of competency means you dont want to bring to public light catastrophes, disasters, mismanagement of the kind we saw in wuhan in the early days. The Chinese Government realize the benefits of that. The costs are borne by everyone else and will. So to stop that from happening, again for the next pandemic, you want china to realize those costs. How you do it is a difficult question. There is no International Court thats going to hear a case like this. China is not going to cooperate. They have refused to obey international decisions. They lost for example, involving the south china sea. I have argued countries have to engage in selfhelp. They have to claim the chinese assets in the countries can be used to satisfy compensation claims by their citizens to pay for some of the costs. It wont come close but thats a start. China has a lot of investments in other countries like india and italy under its belt and Road Initiative and pakistan. Those countries could refuse to pay back those debts, x appropriate that property. Were doing it to pay compensation to the people in our country that were harmed by chinas failures at the beginning of the outbreak. So looking forward to remedy. It says the right behavior the next time this comes round is the idea . Exactly. That could be promises our newest additions that up the rest of the will monitor the outbreak of viruses more quickly from china. Thats a good point. You are seeing proposals. Im working on something for one of our publications, defining ideas, about what a postpandemic w. H. O. Would look like. And as you say, to encourage china you could give it benefits or you could impose sanctions. The economist will say theyre all the same thing, just to the point on the spectrum. You could encourage china like were going to allow you to participate to play more leadership in the world, in addition to sanctioning you if youre on bad behavior. Martin asked an interesting question. Several times today you said the power of state and local governments to kind of dig into the bill of rights really depend upon their ability to clear a Public Health emergency. He asks, what is the criteria declare a Public Health emergency . Doesnt not need to meet a credible standard . If it does, you know, if it isnt an objective standard might of violent Constitutional Rights . Hes what about the arbitrariness i guess. Thats a good question and you could say look, people have accused President Trump and past president of using this National Emergency power at the federal level in an arbitrary way. For example, you might recall President Trump declared a National Emergency at the border and you shift money out of Defense Department accounts to a wall building account. You can say the same arguments are true at the state level. Each state as we were just discussing about federalism can have its own system for when theres a Public Health emergency. Out here in california theres a law that essentially gives Governor Newsom pretty unbridled power to decide when theres an emergency. It sets some criteria. Are very loose and ambiguous, and you could say look, thats as the people of the state wanted the government to have a lot of freedom to take into account new unforeseen circumstances. Thats really the root of emergencies. I think its to a federal and state levels. The legislature when it writes a law cant anticipate whats going whats going to happen in the next emergency. Thats what its an emergency, because it doesnt really fit in the cases we saw before. Thats really a lot of things i work about is that the nature of executive power, and thats the nature of successful executives is to respond. Look at you, tom, you are executive at the hoover institution. Hoover has responded and basically to this crisis. The amount of videos and content come is incredible. Thats an example on a smaller scale. If you want executives to have that ability, you cant write statutes that are so narrow that ties them for the next pandemic. This question is an essential part of being an executive. I love this question. In many respects federalism is about the allocation of authority between the federal, state and local levels. What are your thoughts on the recent confederations of states to form form coronavirus responses . With these last . So on this one, go back to the 18th century and visit the Constitutional Convention because they did worry about this. In fact, they worry about a lot more than we may do today which is what happens if the states try to group themselves in different regions and try to pull away from federal authority . So not surprisingly, they put a clause in the constitution that really addresses this. Its called the compaqs clause and it prohibits states from making agreements and contracts with other states unless congress approves. So general youre not allowed to pics of the key is is is truly an agreement or is it just states making promises that they dont have to keep . Thats really the dividing line. So right now these regional groups, they seem to be more like best practices, if one state pilots and that nothing devastates can do that state. Its not a legal agreement. If thats the case then its okay under the constitution. I think its just another way for the states to keep competing with each other for the approval of their citizens and for all of us who can move and choose to go to the states we think of done a better job. As long as they are not legally binding, i think their constitutional and they may very well survive. Interesting. I have a concluding question which is a fantastic question. Im really interested in your answer. Its a question about the future federalism. Its asked by john and he says the following. It seems like since the new deal because of the federalism has become an antiquated concert. Today most people dont even understand the concept. There has been an immense consolidation of power in the federal government the last eight years. Enabled by the courts. Perhaps this crisis will bring back a rebirth of federalism or maybe a pendulum swing back to state and local authority. What is your general prediction about that . I agree with what has happened. Whats going to happen in the future is a prediction. People predicting a revival federalism for the last 30 years ever since president reagan came in office. The pendulum has swung back a bit from the new deal and Great Society but nothing approaching what it was before the new deal. Because it was a game that wasp. I agreed you could see the pendulum to the back because the success or the response to the pandemic have primarily been at the state level. Your seen high Approval Ratings for governors much higher than the legislative branches. You can see maybe liberals as well as conservatives are starting to appreciate the virtues of the centralized government in terms of competition, resiliency and institutions and protections of individual liberty. Yes, you could start to see, the Supreme Court has been trying to push the pendulum back a little bit but it really cant happen successfully unless its not Just Congress and the president but also the state governors now take advantage of the good job they have done, the support theyve had to now lead us into the recovery ineffective in an efficient way that is more balanced and gives voice to the people who are demanding more from the right to make a living, right to open their businesses, not to be so ideological wetted into a shutdown everywhere it all times. I think that would do a lot to restore respect for federalism in the future. Great, thank you so much, what a wonderful conversation, were glad you joined us today. The fed comes in at 3 00 p. M. Eastern for legislative business under social distancing and health guidelines, todays senators will resume debate on the nomination on Brian Montgomery to be deputy housing in 530 easter though the vote on whether to advance the nomination. Also coming up this week lawmakers will take up the authorization Foreign Intelligence Surveillance Act law that set to expire this coming friday and when the Senate Returns at 3 00 p. M. Eastern, live coverage right here on cspan2. Brad smith, microsoft president , whats the premise of your new book. Digital technology has become both the tool and weapon, excreting all kind of benefits and challenges and we have to grapple with
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