Israel is stemming the virus tide.
https://m.jpost.com/health-
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One of my long time friends, fellow memo reader and brilliant legal mind believes , under the current circumstances, president Trump has exclusive constitutional rights under the Interstate Commerce Law: "Yes, they’re several constitutional grounds under which, I think, the President could exercise national authority. The interstate commerce clause for one. It’s the basis of the FDA laws. If the governors act unilaterally it could be interference with interstate commerce."
I, in turn, believe this is what the Civil War was all about. The government dominates, under certain circumstances like the current one, or we are not The United States but a house divided which will not stand. I also believe sanctuary cities are illegal. But I do not claim to be a Constitutional authority.
I wish my dear friend Henry Abraham was alive. He would have an opinion which would have a great deal of authority because he was "the" authority on The Supreme Court.
I would love to hear opinions from my legal friends and fellow memo readers.
This is the first response to my request from one of the brightest legal friends I have and obviously a fellow memo reader. I have edited out all personal identities:
"You want me to take the bait and pontificate? Hmm.
Well, you get what you pay for, but here goes....
Article VI of the Constitution says that the "laws and treaties" of the United States are the "Supreme Law of the Land." To the extent the President is acting under powers authorized by a law or treaty, I think he is on pretty good standing. Further, I think he would even be on stronger grounds if he is was acting as the Executive under Article II by exercising "Executive Authority" in emergency circumstances -- for example, if the nation were under attack or during a pandemic.
The pandemic seems more like just such an emergency. I don't think a court would be willing to enjoin a president who justified his conduct by reasonable argument. After all, the court was willing to endorse some pretty severe acts by President Lincoln, and the interment of Japanese-Americans -- some third generation -- was upheld by SCOTUS (although the Court has more recently opined it was mistaken in that decision, and that leads me to say that the Court could not act unreasonably or in a manner that "shocks the conscience"). SCOTUS has refused to hold executive officials liable unless there was a loss of life, liberty or a property interest, generally in Section 1983 cases (a statute originally intended to allow claims against corrupt state officials acting at the behest of the Klan, but forgotten and resurrected in modern times by plaintiffs lawyers). But even in cases where the executive clearly acts in an unreasonable manner, as in the Duke lacrosse players cases, the courts carefully considered the charges carefully before undermining the executive's immunity.
Of course, the cases in this matter will not sound in damages (at least not initially), but in a dispute between two different executives, each asserting authority. I think the President has the authority to act in this manner, but the President rarely does -- how many times has the DoJ acted against state officials who have "legalized" marijuana even though the federal laws -- and three US treaties -- mandate that marijuana be maintained as a Schedule I drug? In that case, there is clear harm -- severe losses to life, liberty, and property (just read Alex Berenson), but no one has acted. The DoJ only acted to enforce the ban on Laetrile after 22 states had legalized it, but it was Steve McQueen's death on Laetrile that really brought the full hammer of the federal government down.
But as you can see, there are lots of rabbit holes you can go down in thinking about this. Could the President enforce a mandatory vaccination order for all citizens? I think a lot of people did not take their polio sugar cubes, but they endangered everyone in not doing so, and that vaccination was, as I recall, mandatory without religious exemption.
Could the President use interstate commerce authority to ban interstate commerce? The purpose of the Constitition was to prohibit inhibitions on commerce. Trump would have to argue that commerce in the rest of the states would not be safe if commerce were allowed in and between states that had not effectively controlled their outbreaks.
But this case will likely arise in an injunctive context -- can the President force X to happen, or can the Governor get an injunction reventing the President from doing Y? Like many legal questions, there is a political component to this question, and its outcome may depend on the facts that bring this case into the Courts -- or the court of public opinion. If the President is asking for a reasonable time to delay commerce, and is willing to use force to back it up, I don't think SCOTUS will step in without months of briefing. If he tries to shut down all commerce between states through the election, I think courts will step in sooner. As someone noted in an email to me today, Trump imposed a ban on travel to China on January 31 and the impeachment vote was on February 5. If he had imposed a full travel ban on all international flights on January 31 and imposed the nationwide ban on activity he ultimately imposed, would the Senators have self-quarantined and let the impeachment vote be delayed? Not without a full media blowout and probably insurrection on Capitol Hill.
So you are catching me off-guard a bit, and I hope everyone simmers down and acts reasonably. But there are so many people with a visceral reaction to Trump, and so many that distrust the Dims, that we could wind up with a full blown constitutional crisis.
But although S----- and I can't agree on Trump, I am glad that we talked you and Lynn into staying home! Glad you are well.
All the best,
B--"
Meanwhile Galston flunks Trump:
B--"
Meanwhile Galston flunks Trump:
Trump Flunks Federalism 101
He can’t overrule the states’ police powers, which include public health regulation.
By William A. Galston
With Covid-19 still raging and the U.S. economy tanking, the last thing the country needs is a constitutional crisis. But by threatening to reopen the national economy in a stroke, President Trump seems determined to provoke one.
The threat became public Monday with a presidential tweet: “For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect.”
At Monday’s press briefing, Mr. Trump doubled down. “The authority of the president of the United States, having to do with the subject we’re talking about, is total,” he said, insisting that governors “can’t do anything without the approval of the president of the United States.”
He is dead wrong. The U.S. Constitution creates a federal government, not a unitary system. Cities and counties are creatures of the states, but the states are not creatures of the federal government. States retain a sphere of sovereignty that the federal government can’t overrule.
Since the beginning of the republic, states have enjoyed primacy in what constitutional lawyers term the “police power”—measures undertaken to promote the health, safety and welfare of their citizens. In Gibbons v. Ogden (1824), Chief Justice John Marshall provided an expansive reading of the federal power to regulate interstate commerce. But the high court’s opinion also adverts to the “immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government.” Marshall proceeds to cite “inspection laws, quarantine laws, [and] health laws of every description” among the powers over which states retain primacy. The opinion remains authoritative today.
To be sure, the federal government doesn’t lack all authority over public health. As Adam Klein and Benjamin Wittes have pointed out, “the federal government’s quarantine powers derive from its power to regulate interstate and foreign commerce.” Section 361 of the Public Health Service Act grants federal officials the authority “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other state or possession.” But neither this act nor any other law the administration may cite gives the president the authority to cross Marshall’s line between the Commerce Clause powers of the national government and the police powers of the individual states.
This leaves open the possibility that Mr. Trump could do indirectly what he can’t do directly, by conditioning federal assistance to the states on their compliance with his order to reopen their economies. Unfortunately for him, Chief Justice John Roberts’s decision in NFIB v. Sebelius (2012), which invalidated a portion of the Affordable Care Act, slams the door on this strategy. Conditioning existing federal Medicaid funding on states’ expansion of Medicaid eligibility, he argued, represented a qualitative change in the relationship between the federal government and the states, crossing the line between an incentive and outright coercion. To borrow from “The Godfather,” the federal government was making the states an offer they couldn’t refuse—a clear violation of the Constitution.
Conditioning federal assistance on states’ compliance with a presidential order would be even more coercive today, because the Covid-19 emergency makes states especially dependent on help from the federal government. State attorneys general would rush to federal court to block this strategy, as they would a direct presidential order, and no doubt a judge would issue an emergency injunction.
Beyond these legal considerations lie political realities. If Mr. Trump were to issue a national back-to-work order that purported to override the 42 governors who have issued some version of stay-at-home orders, a substantial number of his grassroots supporters would follow his lead. Some people would congregate in public spaces, while others would reopen their businesses, whatever the effect on Covid-19 infection rates. This would upend plans for a phased reopening that many states are developing and risk creating a chaotic situation with no clear lines of authority. Evidence-based guidance from the administration to the states would be useful; a presidential decree would be anything but.
Just last Friday, Mr. Trump seemed to be getting it right. “I like to allow governors to make decisions without overruling them,” he said, “because, from a constitutional standpoint, that’s the way it should be done.” But then, hardly pausing for breath, he took it back: “If I disagreed, I would overrule a governor, and I have that right to do it.”
No, you don’t, Mr. President. The Constitution of the United States isn’t an advisory opinion. It is the supreme law of the land. And it is the president’s sworn duty to follow it—even when he doesn’t like where it leads.
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Exclusive Transportation secretary Interview: Airports and airlines will get billions for much-needed boost
MOON TOWNSHIP, Pennsylvania — Help is on the way for airlines and airports, Secretary of Transportation Elaine Chao said. During the coronavirus pandemic, the suffering is obvious to anyone who walks into an airport like this one: Pittsburgh International Airport has seen passenger traffic in and out of the facility go from 26,000 people a day to fewer than 400 people boarding flights.
Walking through Pittsburgh International is surreal. Restaurants, bars, boutiques, and coffee shops are shuttered. The arrival and departure signs, typically so full it takes several moments to find your flight information, are nearly empty. The flights that remain are mostly marked CANCELED in bright red. The parking lot is empty.
In an exclusive interview with the Washington Examiner, Chao said she is announcing on Tuesday $10 billion in grants for commercial and general aviation airports funded by the recently signed CARES Act. U.S. airlines of all sizes will get $50 billion in loans and grants in a package that will be finalized later this week.
In an exclusive interview with the Washington Examiner, Chao said she is announcing on Tuesday $10 billion in grants for commercial and general aviation airports funded by the recently signed CARES Act. U.S. airlines of all sizes will get $50 billion in loans and grants in a package that will be finalized later this week.
Click here for the full story.
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If one wishes to believe Michael Pillsbury of The Hudson Institute, who is an acclaimed China Expert, it is beginning to look more and more like the Chinese Military are pursuing the 7th Doctrine, ie. bio warfare, and what has happened could be intentional or a mistake and the information withheld. Perhaps, time will tell.
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All a matter of trustworthy citizens. Sweden has it New York does not.
Sweden Is a Viral Punching Bag
How the progressive utopia became an easy target for the no-tradeoffs crowd.
By Holman W. Jenkins
Sweden’s population is roughly similar to New York City’s (actually about two million more), and in every way a case study of how one size does not fit all in the coronavirus epidemic.
Sweden is a “high trust” society, which explains why its competitive economy can coexist with an extensive welfare state. People trust each other not to abuse handouts; citizens trust their government to use tax dollars efficiently in supplying services such as housing, child care and higher education that citizens might otherwise get from the market.
A high-trust society, it turns out, also allows Swedes to get by with less government when it comes to social distancing. Sweden has banned crowds and bar service, and has tried to protect the elderly and vulnerable. But otherwise it has expected business owners and their customers to decide how best to deal with the virus.
The U.S. is low-trust society, befitting a big, diverse, rambunctious country, operating under a federalized system of government, and with a strong taste for individualism.
New York, in a sense, represents an attempt to impose high-trust government on a low-trust population. More than 40% of residents rely on Medicaid, nearly a third of whom may be ineligible on income grounds, according to a recent study. Former Mayor Mike Bloomberg might even say they further abuse the privilege by not looking after their health. (His bans of smoking, trans fats and Big Gulps were framed at the time partly as solicitude for the taxpayer.)
The cost of these “comorbidities” that so worried Mayor Bloomberg is now proving high in the coronavirus crisis. New York is also rife with another kind of diversity less found in Sweden: Some 800 languages are spoken in Queens alone; many residents live in high-risk multigenerational households. In Sweden, more than half the population lives in one-person households, the obesity rate is almost 40% less than America’s, and their cultural affinities make it more likely they will hear and heed social directives.
One size doesn’t fit all. That lesson should also guide us in seeking a way out of our nuclear-winter approach to fighting the virus. Sweden’s experiment is still unfolding. Its death tally has been ticking up, but that may reflect the fact that Sweden can permit a faster spread because its hospital capacity is holding up.
Which brings us to a key point. Don’t believe those who claim Sweden’s approach is “radical.” Sweden is following the same flatten-the-curve strategy the U.S. and other countries are pursuing, aiming to control the infection rate to manage demand on its health-care system. It’s just doing so with rather more frankness about what the existence of a “curve” implies: Most citizens can still expect to be exposed to the virus in the year or two before a vaccine might become available.
Sweden, as a result, has been readily dumped on by the kind of critics who have failed to provide their own societies with a realistic lockdown endgame. Sweden, under its Social Democratic Prime Minister Stefan Löfven, has been an easy punching bag, but the real problem is public figures elsewhere who haven’t been candid with their citizens: Even when we have much better testing, we won’t really have a way of stopping the virus while still having an economy.
It doesn’t help that many pundits, news people and politicians are in the age group that arguably needs to be protected from the virus. Naturally, they find it hard to say that others should expect to be infected. I could name a certain business-channel commentator (and you could too) who is especially tangled up in this issue since he is smart enough to know that the alternative is laying waste to America and its economy.
When it’s all over, academics will look seriously at how the lockdown strategy compares with alternative strategies (not the mythical “do nothing” strategy). They will ask how much of our apparent curve-flattening to date was due to individuals taking precautions, how much to heavy-handed government intervention. How many lives (and, more realistically, years of life) were really saved by our efforts? How much of our apparent success came from overestimating the potential burden on health care in the first place?
Our indiscriminate shutdowns may eventually seem perverse for requiring the least and most vulnerable to shoulder equally the risk of the virus’s spread. This will certainly be so if we end up admitting the virus was always destined to become an endemic and recurrent feature of the epidemiological landscape. The strategy that made some sense for America’s biggest city may have made little sense elsewhere. One thing we can be pretty sure of: Under pressure of a fast-evolving crisis, many decisions will turn out to have been fairly bad.
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