They will be on our website has more detailed biographies of all the speakers. To moderate our panel on Civil Liberties with covid19 long time president of eeo on aei no longer focus on these and other policy issues. Will come one and all we will examine the Civil Liberties issues raised by Government Actions with the coronavirus pandemic and a longtime chairman of the american Civil Liberties union and the university of virginia specializes in property Public Financing constitutional law and finally university of virginia schoolnc of law with that constitutional law. For the information about each is available at the conference website and concluding and to have individual presentations a general Panel Discussion and questions on attendees when those will arise and to set the stage briefly and to be a math suppression of everyday Civil Liberties going on beyond anything in history. Was most of the other three democracies with the district of columbia in puerto rico issuing lockdown orders with the vast majority of americans to isolate a home and limit their outings public and private gatherings reminiscent of small numbers in all schools and churches and businesses wered shuttered. That generation was extended from weeks to months the closure of schools and large indoor gatherings the exertion of power under governors and mayors and agencies sometimes with explicit authorities set forth in the state legislation and with the patterns of transmission since march and their serious debates if they were sensible and effective. Those outside of hotspots from new york city and san francisco. With very high levels of compliance even before the orders were issued some individuals in residential communitiesde with shops and businesses have begun to close down and then he have been canceled what i described as a suppression of Civil Liberties we may as well be described as voluntary with those importantwe elements and Civil Liberties issues largely are countered and and the moment they are exercised and when they run afoul of official government policies. And of those different sorts and some of those distinctions. And with the threat of the spread or individual selfns protection against contracting the disease. Some of these were mistakes made in haste such as banning outdoor Gardening Services for some more deliberate like momandpop shops essential Church Service is essential. And with that public conduct it with those numbers citizens and policies to be introduced for mandatory testing public surveillance in Public Opinion has splintered. And those that are busted out setting up shop then faced individualism the panelist will analyze civil liberty issue and at the crux of the problem and those under the bill of rights and the broader question if Civil Liberties are best protected in circumstances such as these. And how these controversies played out under the constitutional regime. With the extreme emergency. Ns and thank you for that terrific introduction. And you set out general erprinciples. With all government restriction and protecting e Public Health. And how they apply those standards. With the road on the right to vote and then early on we realize the attorney general bar who said these words as a civil libertarian he sayse there is no pandemic exception to the constitution and the bill of rights. And then had a genuine emergency on the bill ofy, rights and with those that are necessary d and temporary and why it is interesting the United Statess constitution from those of International Human rights expressly written into the constitution especially forrt emergencies the constitution itself provides for all the one exception. And the writ of habeass. Corpus. And the most ardent civil libertarian most can be subject to you and notably the standard is mirrored in International Human rights law. And mainly is the measure necessary . And an arguably and with that substantiveoc standard and with that due process and accountability and transparency so with respect to do that with that alternative criteria the government restriction on Civil Liberties can pass by that standard and then to encounter the Public Health dangers but not surprisingly the number of liberty restrictive measures requires a very specific assessment of apeach challenge and its impossible to keep abreast and then to develop that factual nuance which is why want to concentrate on the standard. Especially a very important into the goal issue and with what level of deference. And the government should bear the burden of proof in the International Human rights laws as well but in a recent ruling he stressed that courts should be highly deferential to government officials with the constitutionality of pandemics and specifically rslking about upholding the restrictions in california and said those on social activity the constitution interest the people to those of the state those five with medical and scientific uncertainty they should not be subject to the unelected federal judiciary that lacks the expertise to assess Public Health. This is a familiar refrain for on from the chief justice judicial restraint and as indicated in the opening remarks. So that will separate the different sides but the multiple important steps of issues i look at the aclu as a bellwether and at last count there were more than 150 different classes with the legislatures and executive branch. The only thing that federal courts are hearing these days with the aclu paper. A lot of the issues are joined in by government officials as well. It without the necessity for litigation. Rnd then the most basic to protect from danger and then voluntarily and then for decades has recognized they do have the obligation under the amendment. And then to protract and in that deferential to challenge Government Action and just to show a deliberate indifference to the substantial risk of serious harm and sadly that has been unsatisfied around the country with that ability to comply with social distancing and hygiene rules that said with the ideological spectrum very aggressively to concentrate themselves of recidivism. It starts with President Trump himself and the attorney general from midmarch i g announced he would put and attention only undocumented immigrants very important change in policy into a then relieved with those alternatives to ankle monitors to those that are not asen overcrowded and it gives the attorney general and the bureau of prisons because it is a high priority and with the federal bureau of prison to immediately maximize transfers to confinement. And those 4000 and inmates which is more than twice the usual. Rt this is consistent with bipartisan support and with that incarceration in the United States and then the issue of the extent of which and then to focus on measures to reduce stability but now the opposite and a fascinating counterexample of the idea incarceration policies and in that ideological spectrum and foreseeing toward those reforms. And hoping this will be a Tipping Point to those health and economic pressures and then to see a large number of people that are incarcerated in the United States. The past couple of weeks police abuse has increased and to implement reforms in the system. We will go around and come back to you soon. So thats talk briefly the interesting similarities. Thinking of freedom of assembly and data includes the Assembly Clause and to listen to lectures and that is protected by the assembly and the restrictions not unlike religious worship they feel adequate for your purposes to gather online pretty you are free toar do that. And then driving to a summer home. That courts have upheld these generally speaking because freedom of assembly by and large they by themselves. But if you assemble with others to foment crime to advocate that is something that is punishable. And then more than they will protect. And then to make that deadly to those engaging in it so once you gather thanad acting violent in the intense perspective that might or might not be infected with a dangerous disease they are not trying that you might think of it but it is danger of physicalal harm. So i think the courts have rightly realized theta standard the functions underlying the freedom of assembly thought that they dont but quarantines and those that have restrictions in the past before modern medicine. So that is one class those large numbers are traveling with those abortions and guns its very interesting. Many states have barred elective medical procedures something that is not urgency necessary to protect your life and health but the disease or the epidemic but of its magnitude. It was necessary to life and health it is pretty clear the broad restrictionss but simply to be an excuse and then surprisingly some in some states and not in anothers. And those that sell goods have been closed down . Not all states but some states have said gunshots are not essential businesses. And then many other things as well. So there are challenges to both more often on the abortion side with the Federal District court the decision rejecting that as well and the difference is that abortions and gun sales one person receiving and one providing so the risk of contagion but it is a lot less and manageable to maintain social distancing. Thats one reason why they are opposed to striking down such restrictions. And a woman in her pregnancy in a couple weeks that cannot legally be allowed and the academy some people are lumpers they draw analogy and so one of two things only after these restrictions are permissible. And how they treat things equal it is quite clear shutting down the mosques and synagogues but not churches. Clearly one consequences people have remarked basically to enforce it becomes much harder for them. They certainly cannot say with the black lives matter thats an Important Message but for other messages they might argue that they are so big and so hard to do anything. And a smaller purpose for that suggest the more popular the idea to be protected under the first amendment. Why are the Church Services worse than medical marijuana sales . I am hesitant about that inequality arguments. Sometimes line needs to be drawn. I think the Marijuana Dispensary not so much. But in many states right or wrong thats the way the legal system treats them. So i am hesitant about thes arguments but clearly with the freedom of assembly so people often worry that restriction even on its own will last too long or be adopted were often. So concerns about surveillance and then were time restrictions it can go one for ast long time. It can go on forever. One thing it is tremendously expensive in terms of loss of enjoyment of life, politicall life, politically, financially for politicians and they want to spend money but this creates problems some people say start over real have perpetual state of for. And then to worry less about broader restrictions leading to more. Things to the Federalist Society so in a few minutes with my opening remarks i will make points. The first for the and Civil Liberties and in particular to be optimistic medium and longterm that we can discuss that structure andth how that often functions as a check in the short term and the third concerns poverty and economic rights of Civil Liberties sometimes this is the neglected stepchild has the potential with that constitutional system so first the medium and longterm consequences developing from cove in 18 crisis and now i understand why they have suggested and to be selflimiting canisters make a lot of sense. Yellow fever smallpox andd malaria. Restrictions and quarantine the sporting events and businesses and then it is true in general once the danger has abated it has come back to normal at least that is the standard story. Why do i think of it 19 could well mark a turning point and has potential . Not for certainty but can be a catalyst . So for starters never lead a crisis go to waste has been the watchwordsry. Cove in 18 is the third crisis in less than 20 years and then to harness the emergency so with that policy of justice. And then it is costly politically but then we should worry about least . Or Government Action and then where is his history in general . There should be fascinating literature on the aftereffects of epidemics which not surprisingly and then to transform society from state landowners with the effects from 14th century. And then second century and row and then the government responses. And this could happen in the United States. And back to one of the points and with those lasting effects in the direction of greater control by governmentwh and also the incarceration and also with the deregulation that then to spend a lot of Health Regulation to protect public cost and that is what we saw. And a lot of voters see the regulation. And then to discuss the alcohol regulation. And civilization hasnt ended now about how we have constitutional structure and protects overreach. That to my keying crisis legislators of course have been action on active. But the executive branch the ngfederal government we are acting. Not at all. And then to have the restrictions imposed so they think about Justice Roberts opinion and are surprised that of that Public Health crest on crisis to the Second Branch because after all they are making a decision and a great time pressureai. And we still dont know very much about it. With the successful challenges put in place they have raised procedural and we decided from the Michigan Supreme Court and one of the justices of the Supreme Court said it is incumbent on the short on the rule of law and not hysteria. Where various measures to jump into the troops in be the most likely to take action. And with the economic rate as Civil Liberties walked me to the new deal era painting with a very broad brush and often are deemed not to be as important as the others. But covid19 highlights just how important to participate in the economy and have Property Value to be protected in justus how important these rights are and how impossible it is to disentangle them and with the free exercise speech et cetera and the heart of many of the challenges interestingly to me a right against the backdrop where you have a trend or a plaintiff i like a word they are not taking claims with government prescription by taking claims are hard for them but i would at least suggest at these challenges because to have Government Action in times of race emergency its another matter to order compensationed for those in office have been asked to bear the burden of the cove it 19 responses. Once the emergency has passed it easier to order compensation and whom the burden has fallen and those that are concerned about cronyism and favoritism anticompetitive Government Action and it often lacks political power and compensating them with the equality from political power and then that is what i would argue makes the constitutional structure more robust and now i will turn it over. Thank you so much for having me here as the last speaker of the day i will take a comparative perspective because the issue the us spaces are similar because never before have we seen such a major drop of Civil Liberties in the world with the current pandemic like a nationwide stayathome order and religious Services Cell phone monitoring and actually there are and also the open Important Research that with these colleagues everywhere these are some of the issues with this long term for sake ofer all liberties do we see the constitution constraining executive power . What does that mean for democracy . So when the brief talk i want to Say Something about the extent of what we should be worried and then the covert response and specifically to be a phenomenon of the executive acting on their own have you seen the constitution and being invoked are the Supreme Court involved legislaturesrtrt and federal systems like mayors and governors do get involved in this response because the traditional image that people are worried about is and itrained executive guess you have the emergency power to go back to carl smith that was influential until this day. Looking at democracy in most places we haveem seen a lot of them more so than in new york perhaps but then they are seen as much more as a dialogue for different friends. And actually think that is a good thing in a world where we idont know the right response nobody knows the right response may be the best we can do is to make surebe multiplear actors are not involved. Are they different courts around the world . And then to the extent that we could. And now i will be a lumbar but there are four different ways the courts are involved in julian predicted the most common that those procedures are followed and separation oflv powers framework in the constitution is upheld. The very first court struck down the entire lockdown order because in the past by the executives alone based on regulation and not legislation and then the law was passed now the executives have to jump and others will sayti thats important and the israeli Supreme Court says the government. And and to set up procedural cases. He also that we could ask in any case and then talkinghaen about just making sure these measures are they necessary or a temporary or proportionate . The german constitution we can spend gathering if they take social distancing measures into account and then if they can adhere to social distancing guidelines and the case came out the high court basically said the government t failed to explain but once you enter the beach you are no longer there because the beaches are closed . That doesnt make sense explain why these rules seem so arbitrary and unconstitutional even in the us that court of appeals but you should also should be able to do the a same. So we actually see some of those and its interesting because courts are inserting ththemselves and then third cases where courts are demanding action and this is uncommon in the United States and then in the city, where the. The highest courts of brazil saying the government is under obligation so will america say with that they get along up propaganda to say that for the country and india the Supreme Court ruleded. Theres a lot of cases like that and then to recognize u. S. Constitution it is used there are a number of cases so obviously the question if they should be held is very difficult. Also not clear if the courts have a right or wrong answer. Of course, what they can do is screen out ulterior motives for postponing elections. We have seen this in the polish Supreme Court. And thus far, every single one of the cases that we have seen said that the courts have said the election should go ahead as planned. Ok, so thats some flavor. I guess im out of time as well. This is what the courts have been doing. Weve also seen a lot of legislative involvement. So in 60 of the democracies we looked at, brandnew legislation was passed. So in the u. K. Theres the covid19 bill that gives additional power to the prime minister, but only applies for 21 days. Here, it is not legislators deferring to the executive, they are actively legislating in the face of the crisis. And then finally, we see subnational resistance, the states resisting president s at and back and forth that at the national and subnational level. I will leave it at that we will come back to you. This has been an extraordinarily rich and substantial set of presentations. Thank you very much, all. I would like to begin by asking each of you if you would like to, having listened to the others, respond to the others, ask questions, revise and extend your own remarks, change your position, and im going to ask everybody to do that. But i want to start with nadine because i cut her off a little bit and i think she wanted to make a few more points. Thank you so much. There was an incident revise and extend, ask questions of your copanelist. Thank you so much. This was absolutely fascinating. Thanks to all of you. We were talking about the fact that the United States generally only imposes negative obligations on the government, rather than affirmative. Of course, the one exception is when the government is Holding People in custody. The court has actually acknowledged because of other rationales that if the government is incapacitated, that person from taking care of him or herself, and that is extremely unusual in our form of constitution to impose duties on the government, so that explains all of those cases. Voting issues in this country, the main debate and litigation has been over the extent to which the 16 states that do not already automatically entitle everybody to vote by mail, should be required to do so without any procedural impediments. End of these 16, i believe some have already voluntarily ,mplemented those reforms interestingly states with republican and democratic majorities, and democratic and republican governors. But there are others who are resisting. And this lays out in a national debate. In fact, there was a trendline today ina basicallysa today pitting donald trump against joe biden, because the conventional wisdom seems to be that it would be voting fraud that would disenfranchise republicans. Biden and trump both warn that the other side may steal the election as a result of coping 19. So even though theres reason to contest the underlying assumption, it seems to be that democrats feel they would be be advantaged by more vote by mail. And some republicans disagree with that. And that is being fought out in courts all over the country. Thank you. Eugene, on the question of longterm effects, has julia turned you around . Just talking about different aspects of the same question. Inclined tod im say that the restrictions i have talked about will go a replay on their own. But others may not, other kinds of regulations, other kinds of deregulation. We havent talked much about apps thatacy, and the may require you to have them on your phone. Lets have people voluntarily join these apps because they are in their own interest as well so they can be notified if they are exposed to someone who is infected, but if that does not yield enough uptick on the publics part, and indications are that it wont, what about mandated Contact Tracing and such . Adopted,things, once mary very well spread once adopted, may very well spread, and i think there is a very serious reason to be concerned. But we often talk about tradeoffs between liberty and privacy on one side and safety on the other, and of course, some such tradeoffs have to be made. The fourth amendment, for example, doesnt ban all searches and seizures. That is why there are attempts to balance them. But i want to suggest this is an area where we might see a tradeoff between privacy and liberty. So lets say theres a next wave, as there likely will be, of infections. Get a vaccine, part of the problem is that there is a huge problem happening now in mexico, and with the border being famously porous, there will be no way of stopping reinfection from mexico, even if it is in the u. S. This is the clearest example, unless we totally shut down international trade. Cell it may be that one of the things we will be facing is, do we have more privacy, but the consequence, when we get the second wave, which could be worse in the first, then we have to have less liberty because everything gets shut down . Or do we have less privacy and the government will be able to track you now for the sake of rejecting against reinfection . But then when there is a next wave, first of all, its likely that there will be a serious next wave, and if there is, we will have more effective ways of dealing with it that dont require a shutdown. That could be a difficult problem we are going to be faced with in the coming months. The completely agree with point eugene is making. But if i could make it more complicated always good to make it more complicated. I would not draw a distinction between liberty and privacy. I would say there are Liberty Sites here inth , the of what you explained more government surveillance there is, their study after study that while we are subject to that, the more chilling impact it has on Civil Liberties, freedom of speech, freedom of assembly and so forth. I would say theres a difference between restrictions on liberty and privacy. It is more burdensome, for example to people to think that , they cannot speak out about elections that if they do speak , out they will disclose some things about themselves. Both are restrictions on liberty, but theres no doubt that they closely interact. Absolutely. Julia . I will limit myself to one brief question for each of my copanelists. Deincarceration, are you concerned about a possible backlash if this is done under great pressure, if he is done perhaps in a way that is not well thought out . Are you concerned that public support might fall . With eugene speaking about these restrictions, and which ones are politically selflimiting, are you worried . You mentioned surveillance. Up fact we beefed surveillance would be top of my thatin changes of liberty are not going to be politically , and they are not so obvious to the people. Right. I think the clearest example is surveillance. , and i dont know if this is unduly pessimistic or realistic or neither, but i think we are going to see much more surveillance, no matter what in the years and decades to , come. I have long thought this because greater ease of Technology Available to small groups of people, including , and and you are going to have more and more example, terrorists using biological weapons, and not just this is nothing. Very sad to see the people died, but the fatality rate is under 1 for smallpox. And while we have immunization against smallpox, if theres a new strain, this could be devastating. And my guess is one of the things we are going to need to doing order to prevent that in the future 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 to defund the police, they dont really mean that, and to the extent they do, thats a losing proposition. All of us need police protection. At the same time, its not clear to me the right way of enforcing traffic laws, the way that is best for liberty as a whole, is to have people pulled over by police for traffic violations. It seems much simpler to have them have itd of , sent then and have a citation sent to the person. And then the police, rather than stopping the car and then running a license check or some other kind of check, that the police might just have the computer, so you see the license plate the car is owned by this , person, pull up alongside, does it look like this person . So on balance, it may be a greater surveillance mechanism, red light cameras, various other things, properly done, there are all sorts of risks with that, will actually be better and better for Civil Liberties and 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 and such, but again that will involve more surveillance. So yes, i think the surveillance we are going to set up here, i think that is part of a rolling trend. I do not think its reversible. I will chime in on that. I will also answer julias great question. Julia, you referred to the three crises in the last 20 years, the first 9 11, and the patriot act vastly increased surveillance powers with respect to usmunication, among those of who arent even suspected of any kind of the conduct, let alone terrorism. They were initially enacted with this concept provision, right . And that concept has been extended and extended and extended and those surveillance , provisions, mass surveillance, are still in effect, even after the revelations by Edward Snowden and the seeming impetus to reform. So sadly, i agree with eugene that surveillance is likely to increase, not decrease. With respect to your great question to me, julia the devil , is in the details. And that is why it is really important that a specific criteria in determining who will be eligible for removal, and what kind of removal, it doesnt necessarily mean outright removal, is really, really important. One very real concern is the absence of opportunities for reintegration that exists in our current cluster of laws and regulations which makes people incarcerated,n who have been convicted, ineligible for a whole host of opportunities and services that would seem to be necessary and order to up them make a Successful Transition back into society. So it is not enough just to dump them out, so to speak. We need a lot of other reforms and it may be hard to do that in , a time of such great economic difficulty, with such high unemployment rates. So you are very right to point 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 . On the issue of surveillance, in the European Countries i have been following this is one of , the biggest debates, that everybody thinks these lockdowns will end and we will return to normal, but there is these big debates over legislation being passed that allows for this kind of surveillance. And in general, there is more concerned with privacy and privacy data in europe that there is in this country. There are strict regulations on this as well. Nonetheless, they are considering this and for reasons , that eugene points out, this is ultimately what produces more liberty, probably, so we may just have to do this. But it is a difficult and controversial issue. The second thing i want to to nadinesesponse point about malein balance , the supremece , says it yound cannot simply switch to the postal election because it changes the Postal Office into election officers. And post officers arent equipped to be election officers and it marginalizes the role of , our electoral election commission. Unless there is a major constitutional or legislative reform, it would not be constitutional. Obviously, it is a very different setting, but it is interesting, because it touched on the issues it raised. That so fascinating. [indiscernible] im not sure. Im not sure. But obviously there was a , pretextual situation where the ruling government thought that by holding the election sooner they would be more likely to be , reelected. So clearly that was going on. , i want to emphasize the point that surveillance and privacy issues are probably going to become more salient in this next phase than they were in the past. If you just say everybody has to stay home for a month, we are treating everybody alike. But when you get into a situation, especially on Contact Tracing, i know of cases in some states where people have been asked to quarantine. And an outofstater, completely asymptomatic, as to quarantine for two weeks, and the police come to your house week later to make sure you are still there. In other states, they have actually said, this is the honor system. And there is a lot of divergence there. But we are going to see in several states, some active surveillance and some big cases coming up. In listening to the justifications of these various measures that have been 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 law 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, just something in the immediate vicinity. And then in other cases, the strongest justification is that this is necessary for achieving an important Public Health goal that requires some substantial , amount, degree of individual compliance. That makes it like a vaccine requirement. Does it make a difference in how we assess these Civil Liberties burdens . The government is sometimes inconsistent. Its pretty clear these are being done for general public purposes, but government officials make it sound like you , better do this or you are going to get sick. That makes it much more paternalistic. So do i have the stronger case for challenging the effectiveness of these rules, based upon one purpose or another upon one purpose or what do you think about it, chris . I have not seen a case. Theres an enormous amount of debate about the effectiveness of the lockdown orders, and the effectiveness of many things being felt right now. I 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 of ineffectiveness. Am i wrong . [indiscernible] one is, is there a rational basis . And certainly, under the standard rational basis scrutiny, sure. Of course, of course. You could say is completely rational. And the fact that we do not know what is going to work and what is not makes experimenting with things on emergency basis more rational. The second thing is, how much does the government have to prove . And almost uniformly the courts have said, not much. This is not something we can expect serious proof because of the difficult, complex systems, the human body and human society, and jacobs versus but ihusetts, 81905 case, think the courts continued to treat this as 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 on,utive judgment especially in the context of a Public Health emergency. I think that remains the general view, and i think it is probably right. I think a judge is going to do a great job figuring something out. On Public Health experts dont know either. [indiscernible] yes, even more. Massachusetts,s 1905 precedent its not about , being vaccinated. Its about being fined. I think its really important that the court said the fine is ok. It was not about whether or not someone had to [indiscernible] chriss question about why there hasnt been challenges yet about the ineffectiveness of it i think , its just too soon. Because it seems to me the first stage, the courts are willing to look carefully at what the governments are doing, separation of powers and structural arguments and process arguments and so forth, but if but they really do seem to initially in least the short term, from scrutinizing any group. It seems the next stage, they should be able to tell me whether i have this right someone tell me if i have this likely to courts are decide 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. Nobody also is doing this. Its way more restrictive. And finally, we begin to see more examination of the subject. Examination of the substance. And i think that the examination of the site extends examination of the substance is going to come, and it has come already. And it is coming already. I would love to hear if my taxonomy is roughly correct or not. Think thats possible. The German Constitutional Court or the other courts in europe, they have said, explain this, why children up to stay home because its not clear theres any reason for singling out young people, for example. But i do want to also i guess, do what others have said, and push back on this idea of whether courts are not suitable decisionmakers here. Epidemiologists are not running the country. Government officials everybody , is weighing the same imperfect information. Its not obvious to me that the courts are in a worse position to judge this information than elected officials. Its not clear to me at all. I think it is important to check these questions, and i think i will see more of that going forward. There hasnt been any litigation about this technology, ideas that were floated, as far as i understand, the consensus was rejected because the consensus developed early on. There were suggestions that we could argue this mobile phone for Contact Tracing, but thats wrong, and in fact, it was tried somewhere, and the concern was that it was 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 cue on my page. Please wait until i call on you. When i call on you, our 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 aircraft mustnt and eric rasmussen. Well start with karen. Please unmute yourself, karen. Am i unmuted now . Im sorry, i didnt know. Yes, please proceed. 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 rarity 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 decided cases,s of free speech 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 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 [inaudible] totally understood. I dont think we expect great clarity in this area of the law, in large part because first of all, life is complicated. My father likes to tell you, they 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 facts on the ground are changing, and our understanding of the facts on the ground are changing. I like clarity in the law. I think in a lot of areas we should expect later. 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 of regulators. And at that point, when there are some historic facts about asymptomatic transmission or the lack thereof, then courts are picking then, picking up on what neil said, 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 like all the Health Experts say, there is no need at this point to have lockdowns. You just need to have everybody get there temperature measured to see if they are running a fever or something. Imagine that that is so. Its true that at that point the courts might be fairly well armed and fairly willing to strike things down, but its not clear they arent going to have anything struck down at that because its point, 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 facebook asymptomatic 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. Except judges are historically the branch that 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 things are no longer actions by , and large they are going to get shut down in most maces by the executive and maybe by the legislature before they get shut down by justices. 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 from cameron atkinson. Thank you. My question is for everyone. Ive been involved in two cases in the drafting 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. Tracksstopped did in our connecticut courts are 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. Nice to hear from you. Finally hosted me, prepandemic, at his law school. Its good to hear from you. Jacobson versus massachusetts, i would push back hard i think that thats a far weaker president 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. Im wondering how any Civil Liberties restriction can 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 . And why are some people complaining more about that . Because when they do talk, i hear trivial things like, if your neighbors 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 under our e quality fetish, our equality stalinism is what we bought. Stalin even as executions and , arrests were mostly random after 1930, it was just a matter of terrorizing everybody, and i wonder if they would say thats find in america, especially 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 what is illegal yet, if the courts havent ruled. Its like if you asked me if i can play the tuba, i dont know, i havent tried. Why arent you more worried . One of the things we have been talking about here, these are tremendous burdens of liberty burdens on liberty. We have been living under them for two or three months. Now they are already easing it will probably largely be gone in two or three weeks. But they are tremendously serious, but i think many libertarians are many people think they are not serious. Im not a libertarian, im libertarianish. A libertarian sympathizer. I think many recognize that in extraordinary times when the normal circumstances of the nonaggression principle, where we can go out there 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 such, especially if it is 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 last indefinitely, 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 some people believe saros some people believe shows sympathy four things 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 might not be justified at all if they are shown to be ineffective. I think eric makes a good point, that 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. And if we could have minor restrictions that are effective in getting us safely into a free realm, that thats definitely worth the cost. But 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 with nadine completely. I would add one more thing to and that. Put me in the category of the very concerned. I think we are at risk of what is called tyranny by model. Are not wrong, but some are useful, but these models that 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. So i am not relaxed about it. 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. I want to say youre a gem. Also, the question, will this pandemic allow for the courts to to be questions for allow the courts to be questioned abuses, there will be no 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 difference 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. Thank you very much. Let me interject that we have arrived at the end of our time. If the panelists are willing i willing, i would like to run over for five minutes until so let me 5 20. 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 right, i hope i get this eric. I want to say hi to everybody from law school. 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 the type of job, 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 Pennsylvania 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 the court had some sympathy for there was not really adequate procedures for making sure that its done fairly. That means this is a very serious issue. Its often an issue of stated 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, tax exempting end not tax exempting, regulated things and not regulated things, youre going to have to draw that line. And 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. So 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 for the next emergency of this sort. It may not be, right . It may be that the facts are so specific that we wouldnt get very far with that. But its certainly something as voters, i think, we should contemplate. Good. Eric . Thank you. And 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 created a system of 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. Asbe not in as robust a form you would like. Maybe not as robust a form as i would like. But whats occurred in the last particularly the state Supreme Court cases you were mentioning 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 where i follow these issues, part of the reason for congresss failure to exercise a robust checking function is because of committee timidity. Cause of they dont want to have to take responsibility, in the exercise of lawmaking powers, right . To deny accountability, deniability. 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. This has been a wonderful conference. My question regards court proceedings, and i was just wondering what your thoughts are, to what extent can you change or regulate Court Procedures to set 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 more readily accessible than in the past. But 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 normal,k to 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. And ive been told by the ninth circuit, in the past the fact , that they actually had videoconferences for oral arguments, especially from guam. I think well see a court call, as we already have. 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. Absolutely. A lot less traffic on the roads. A lot less admissions from the airplanes a lot less emissions from the airplanes such and , such. The second question is, how do you do jury trials which is a , 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 shout heres a drawing of our ,courtroom, and you would you have four jurors sitting in the jury box, and then you would have 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 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, cant for the many interesting questions that have been raised. Most of all, i would like to thank our distinguished nadine, chris, mila and eugene. And julia. Wait a minute. Our supervisor has another word to say. A lot of what i wanted to say you said in terms of thinking people, and i would like to thank all the panelists for all six panels. All those panels are Available Online on our website. Fedsoc. Org. We appreciate all the panels. One other comment, dont underplay the value of interpersonal relations. Zoom is wonderful, but it cant do everything. Thats just a wise crack, and thank you all very much as weve