– Good afternoon, I’m Meryl Chertoff, executive director if the Georgetown Project on State and Government Law and Policy, SALPAL. Welcome to the Constitution versus COVID: How Far Can Governors Go?. We’re grateful to be cosponsored by our Georgetown colleagues, the O’Neill Center, excuse me, the O’Neill Institute for Global Public Health. Before we begin, I just wanna say a few words about SALPAL. It’s a new project on state and local government, federalism and the relationship of state and local government to the national government. When we started in September 2019, we had little idea we’d soon be confronted with one of the biggest tests the nation has ever seen of the relationship between the different levels of government with 50 states confronting 50 public health emergencies, relying on 50 different state constitutions in a varied level of capacity for a public health response, funding and the ability to do burden sharing.
Let’s plunge in. To begin, a few words on the federal role in emergency public health response. The federal government’s primary role in a disaster is coordination of response and funding. The Stafford Act, one of the three congressional acts in a national emergency declaration is based on talks about disasters of a magnitude beyond the ability of state and local government to respond, which makes clear that the primary response lies with the states. Federal assistance is with respect to funding, coordination and logistics. Usually Stafford Act declarations come with natural disasters, and the Stafford Act was also used after 9/11.
So this is a relatively novel application of Stafford Act. The other important thing to think about is the federal response is also under a specific public health provision, the Public Health Services Act, and that’s what was used for quarantine for repatriated American, the Americans who were coming back from cruise ships and returning from outta the country. The federal government has very broad powers to exclude non-U.S. citizens in a public health emergency. What gets a little more complicated is restrictions on travel within the United States. After the Ebola epidemic, the regulations under the Public Health Act were amended, and in the waning days of the Obama administration they made the federal power with respect to interstate travel broader. This is one of the first tests of those amended regulation, and I hope my colleague, Larry Gostin will comment about that. But as I said, federal government is supposed to coordinate. The governors are the lead. That’s under the Constitution. Police and public safety powers are state functions going back to our founding. Most state constitutions explicitly speak about quarantine power.
Governors have used in this emergency, executive orders and declarations. All 50 states have declared public health emergencies which unlock federal funds. In a scramble to prevent community transmissions, states have enacted some draconian restrictions. Think about New Rochelle where there was a lockdown of an entire community, what Governor Abbott of Texas is currently doing in setting up roadblocks to Louisiana, what has happened in Florida with respect to exclusion or efforts to exclude, and then mandatory quarantines on people coming into the state, and Rhode island where Governor Raimondo has prevented some people from accessing communities in Rhode Island. There have also been some great examples of horizontal federalism. For example, the governor of Oregon sent 150 ventilators to New York. The governors have been in regular touch with each other through calls that I hope my colleague, Jeffrey Locke will talk about.
And then some of the governors have done a terrific job of doing briefings. New York Governors Cuomo, Ohio’s Governor DeWine, and Governor Newsom of California being notable. So here are some of the things we wanna talk about. We wanna talk about the constitutional issues, including the Privileges and Immunities Clause, questions about search and seizure, and questions about vulnerable communities. I wanna introduce the panelists, Esha Bhanari who is a senior staff attorney at the ACLU, my colleague, Professor Larry Gostin, university professor and founder of the O’Neill Institute. He’s also the co-author of one of the leading textbooks on public health law, which all of us have been relying on. Juliette Kayyem of the Kennedy School at Harvard, former deputy secretary at DHS and a CNN national security correspondent, Jeffrey Locke of the National Governors Association.
And I wanna start with you, Larry. I’d like you to talk a little bit about the case law in this area and how broad the powers of federal executives and governors are. What happens to the right to travel in a public health emergency? – Okay, so I think you’ve covered a lot of it. Under the Constitution, the states really possess the primary, what we call police power, the power to keep the public, to preserve the public’s health, safety, and that’s the primary.
So pursuant to that, the states have done a wide range of things. A number of them, they probably have jurisdiction to do, such as quarantines, isolation. The stay at home orders have really never been tested, but I think they would be accepted. Business closures, things like changing operation of businesses, well within governors’ and mayors’ powers. What the states can’t do, however, is restrict interstate travel. You can’t set up a border with an adjoining state and not let people into your state or out of your state. That’s very clear because Congress under the Constitution has got the exclusive power to regulate interstate commerce, including travel between states. Now, the question is is whether the president has that power, and that’s really unclear. The question is is whether under the Public Health Service Act, the Congress authorized the president to restrict travel among the states.
It’s not entirely clear at all because it doesn’t specifically state that. Many constitutional lawyers think that the president would not have that power, and certainly, the president has no power to go into a state and force a governor to either do a lockdown, open up a lockdown, go back to business or not go back to business. That is the governor’s exclusive responsibility. So in summary, virtually all that we’re seeing at the state level are justifiably state functions. – Meryl? – Okay. – There you go. – Sorry, unmuted. Okay, Juliette, you worked for DHS during the Obama administration, and you worked on H1N1 response, H1N1 flu.
How’s the present situation similar to what you worked on with H1N1, and how is it different? – Well, I’ll start with the different, which, as you were commenting, the magnitude of a 50 state crisis with 50 states operationalized, so they’ve all activated their, all of them are under some sort of emergency status. They’re executing on their massive powers under public health and public safety simultaneously is a stress on the federal government that’s probably not a legal stress. It’s just more as we’re seeing an operation stress with logistics, supply chain and some of the debates that you’re seeing around the Defense Production Act. So that is the difference. So where with H1N1, you had similar issues but just much more confined, and those similar issues are you always have the border management issue as a legal issue.
Do you close the border, and then what are you weighing that against? So H1N1 originated or the biggest threat was coming from Mexico, so previous concerns, like SARS, had come from Asia. This was at our border, and anyone that knows our U.S./Mexico border knows that 1 million people are crossing it a week. You’re not gonna be able to contain a virus. And so the issue of containment was very quick as both a practical and a legal matter that the idea of closing it just became not sustainable where I think that had there been closures early on, assuming transparency by China, of course, that might’ve been successful at least in buying us more time.
The second is the legal issues around school closures, social distancing, and first responder rights access all existed then, too. People forget there were massive school closings in Texas during H1N1, maybe four to six weeks. So all of those issues that we’re seeing played out now nationally exited then, all of them under the authority of the governor and the mayors. I think, also, where it’s different is I know that there were politics involved then, too, but certainly, it’s gotten more pronounced, obviously with Ebola and then with some of the challenges we’re having between the states and the federal government.
I think one of the things that happened with H1N1 is it was killing children, and I think that that fact made it much more pressing in terms of acting very fast with things that tend to be taking a little bit longer now, in particular school closures. It’s just the nature of the threat. I think everyone sort of leaned in, and so our timing was very, very fast, so when the emergency declaration was declared on the federal side, when we deployed resources.
Nothing compares to this. I’m willing to admit it, but there some lessons learned that are similar. – Thanks, Juliette. Esha, the ACLU has been focused in particular during this crisis on vulnerable populations. What have you been doing, and what are your concerns about quarantine and travel restrictions? – Thanks, Meryl. So I’ll focus on two things we’ve been doing. First is getting people out of detention, prisons, jails, and immigration detention, and the second is focusing on where the burdens of quarantine or shelter in place orders are following. On the first front, I think public health exerts have been very clear that detention facilities, prisons, jails, and immigration facilities, are potential tinderboxes. They endanger the health of the people who are held there.
They endanger the health of the staff and then the communities and families that the staff return to just because they’re not set up with the proper distancing. There’s not the proper hygienic provisions that are made. They’re just really a humanitarian crisis waiting to happen, and they endanger the communities around them. I think the news today is that the Cook County Jail in Illinois is now the site of the largest concentrated outbreak in the United States. – Wow. – So we have filed 15 lawsuits, the national ACLU and its affiliates in the states, at least 15 lawsuits seeking release of medically vulnerable people from immigration detention, and about a dozen state ACLU affiliates have also taken legal action to secure release of people from prisons and jails, as well, again, with the priority on people who are medically vulnerable but also focusing on people who can be easily and quickly released because speed is of the essence.
On the issue of quarantines or shelter in place orders or travel restrictions, what we’ve been really trying to focus on are the practical issues that affect people. So for example, even if you have a generally justified shelter in place order or some other restriction on activity, there will be people for whom this is a greater burden or a greater hardship, and particularly with quarantine because quarantine is an even greater restriction than shelter in place. So under most states’ shelter in place orders, people can leave for things like groceries or going to the pharmacy to get medication.
But if you’re under a quarantine that literally restricts you to your home, then the state has to ensure that you have access to food and medicine. Now, whether that means the state is itself taking on that responsibility or ensuring that there’s some delivery, that’s a really critical function, and I think that too many states have maybe taken this over-broad approach of saying we’ll quarantine anyone that comes from out-of-state or we’ll quarantine out-of-staters. But then we’re not gonna stop and ask the question, well, what if they can’t afford food delivery? What if they are quarantined in a part of the country where it’s not easy to access food delivery like it might be in metro areas, or those of us who’ve been trying to get food delivery or grocery delivery know, you’re waiting two weeks, three weeks possibly for a slot to open up.
So how are they feeding themselves for that two week period of time? So that’s a real concern that we have, and we’re monitoring that because it’s one thing for the state to take measures in the name of public health, but it cannot forget these practical details of how people will live and especially in getting the basic necessities. And then the third issue that we’ve been focusing on that I’ll mention is enforcement of shelter in place orders. Again, we’ve been emphasizing that public health is best advanced when people trust the government and trust the measures that are being taken.
That trust will be undermined if enforcement is only happening in over-policed communities, for example. If people see that wealthier neighborhoods are not being cited or arrested for violation of the order but they are, that will undermine trust in the necessity of the measures, the fact that everyone is in this together. But also, arresting people should really only ever be a last resort because it is completely counterproductive to put people in facilities that are themselves dangerous in the name of protecting public health.
So those would be three areas that we’re really focused on. – Thanks very much, Esha. Jeffrey, how is the National Governors Association sharing best practices? Are you coordinating responses between the governors, and are you serving as a traffic cop with some of the problems that we’ve seen with governors finding themselves in competition over various things like resources and protective equipment? – Thanks, Meryl, and to Georgetown Law for the opportunity today. Thanks, as well, to some of my fellow panelists. I know we’ve really leaned hard on Larry himself and Juliette in the weeks previous to this. You’ve been really helpful to governors and the NGA. And so let me just spend a minute on NGA and a couple minutes on governors and COVID to begin. The National Governors Association, for those that do not know, is the bipartisan or nonpartisan organization of our nation’s governors. I’m here in my personal capacity. I don’t represent the 55 governors and their particular administrations and views. I’m also not gonna comment on kind of single state actions and leave that to my fellow panelists, but out chair is Larry Hogan from Maryland who many of you are watching on the news, as well as our vice chair, Andrew Cuomo from New York, and their leadership at this moment we are grateful for.
At NGA, what do we do? We support governors’ senior staff through a number of different networks, so chiefs of staff, legal counsel, domestic policy advisors, which span the gap from health and energy to homeland security and public safety. We help advocate for their positions on the Hill and the administration, but where I sit is in the Center for Best Practices. So we’re a mix between a consultancy and a think tank for governors’ offices. My actual day job and area of expertise is more in criminal justice and drug policy, but over the last four to six weeks, I’ve been detailed to support the governors’ legal counsels. And what’s that mean? So in my actual job right now, it’s not giving recommendations to governors on legal issues. It’s instead kind of bubbling up the legal issues that they’re facing, highlighting some of the issues, thinking through what the case law looks like and then leaning on some of the experts here that we have today. And so inside the walls of NGA right now and on governors’ offices, obviously, they’re working 24/seven at every level of state government to respond on this.
I’m taking a lot of pride in how our nation’s governors are leading states. There really is uncharted territory here, both legally and otherwise. And what’s that look like? It’s a lot of sharing about what states are doing, what’s working, what’s innovative, what’s promising. It’s provided a lot of briefings for governors, advisors, cabinet officials, senior staff with experts that span the gap from public health all the way through homeland security, energy, economics, et cetera. We’re trying to look at issues of today but also try to game out what does this look like 90 to 120 days from now out through the fall, and in so doing, we’re hosting these conversations between governors and in between senior staffs themselves, and just to give you a flavor of what the legal issues we’re hearing about at the moment, and this is in no particular order, but everything from price gauging on key supplies to streamlining procurement practices using emergency authorities.
Obviously, we’re here to talk about isolation and quarantine and enforcement and stay at home issues, but essential business designations and non-essential designations, liability protections for frontline workers and acknowledging that frontline workers, that definition has expanded considerably to include folks who we may not have thought of even over a month ago. And then how can we be considerate about how do we open back things up here jurisdictionally going forward? How are we guided by the science in public health and the law in so doing? And then how do we also procure additional existing supplies and then prepare for new supplies to be manufactured and then distributed? So I’ll stop there.
– Thanks, I want to let the audience know that if you do have questions, if you can type them. We have a number of questions that came to us prior to the beginning of this webinar, but if you have additional question, we will try to ask as many of them as we can. I also have a bunch of questions. Of the questions that came in prior to start, the one that seems to be most occurring has to do with restrictions on travel within states.
And these fall into two general categories, people who are trying to drive through, that is trying to pass through roadblocks that have been set up, or drive through areas with restricted access, and then a second set of questions relating to people who have second homes or who are otherwise trying to access places that they are living where they have out-of-state plates or out-of-state ID.
And there have been a number of incidents in North Carolina, in Rhode Island, in Delaware where people have been denied access to areas that they were seeking to get to, and I wanted to throw it open to everybody, the legality and constitutionality of it and also, weighing that against the public health concerns. – Well, can I take on part of that, which is I think that some of these states where we’ve seen these, they’ve been irrational even from a public health perspective because they discriminate between similarly situated, habitual state residents versus not habitual state residents, right? If you’re only a second homer, just to give an example. If the theory behind the public health measure is that you’re coming from out-of-state and presumably out-of-state is more of a hot spot than in-state, there’s no justification for treating your own in-state residents coming from that hot spot differently than out-of-state residents, right? So for example, having a checkpoint that only pulls aside people coming from out-of-state with out-of-state plates, that presents major legal concerns.
It’s also just irrational as a public health measure because there’s no reason to believe that people with in-state plates were less likely to have acquired the coronavirus out-of-state. And I think that one of the concerns that these sort of irrational measures raise, or their example would be a checkpoint requiring government ID, which again, I don’t know that you could show a government ID requirement would distinguish between who is likely to be carrying the disease or not. States can look very much at measures that would induce compliance with restricting travel and staying home, but these kinds of measures don’t really seem connected to that. And again, I think the concern is externalizes the costs of these measures on out-of-staters, on people who don’t vote in your state, and one of the big protections that I think we retain even in a public health emergency is that restrictions on liberty should only be those that are necessary and the least restrictive measure possible, and they should be continually reevaluated.
They’re temporary measures. They’re temporary restrictions on liberty. So I thing that there is a problem of democratic accountability. If you have irrational policies that externalize these costs rather than social distancing measures, restrictions on leaving home that apply to everyone at large. – I think the question was about travel within the state rather than across state lines. And in terms of across state lines, many states have not discriminated against between residents and nonresidents, and a few states have. I think if you’ve discriminated against a nonresident or other factors, I think it clearly to be unconstitutional. The question is is whether or not you apply that quarantine to somebody that comes into the state simply because they’ve come into the state from a different state.
Now, one hand, it’s not really restricting the border because you’re letting them in, but it is, you could think of it as kind of a tax on travel. It’s an impediment to travel. But let’s assume that we’re just operating within the state under my public health statute that allows me to quarantine somebody. The question then is do I have enough evidence to be able to quarantine them? Do I know clearly that they have been exposed to a dangerous infection? Is it the least restrictive alternative? And so these are kind of questions I think are really difficult because simply because somebody comes from New York state doesn’t mean that they’re dangerous. They might’ve been isolating themselves. They might be from Upstate New York where you had very, very few cases. And so I think just on grounds of your public health statute where you have to do an individualized assessment of risk and to show that there’s a significant risk and use a clear and convincing evidence standard as the Supreme Court has suggested, it strikes me that by making some broad categorization that anybody from a certain area is dangerous does worry me quite a lot.
– Larry and Esha, let me drill down a little bit into this ’cause there are two parts of this that I think are interesting. One is the constitutional value. So since we are a law school, I’d like to talk a little bit about what legal theories could be employed here. But then the second question, and Larry, I think that you sort of raised this inside of what you were talking about, is are our inability to test and that the restrictions on liberty right now are over-broad because we don’t know who poses a risk to others. So let me ask you both to follow up on that a little bit. – Why don’t I just get a factual statement out there first? Under public health statutes, and I actually wrote many of them ’cause I did, for the CDC, I wrote the Model State Emergency Health Powers Act after the anthrax attacks of 9/11. So from a public health point of view, there are two separate powers we’re talking about.
One is called isolation. So if somebody tests positive for an dangerous infection, it’s absolutely certain that you can quarantine them for the period of time that they’re contagious. For others, they don’t test positive or you haven’t tested them, but you believe that they’ve been exposed reasonably with good credible evidence to an infectious disease, they can then be quarantined those are different terms, for the longest period of incubation of that infection, and in the case of COVID-19 or SARS-CoV-2, that would be 14 days. But either way, you need an individualized risk assessment and show with clear and convincing evidence that they actually do pose a risk to the public.
– I agree with that fully, and I would add to that that I think letting people know about procedural due diligence protections has been lacking because I think in terms of both making sure that that individualized assessment has taken place and ensuring constitutional values that people should be told. If you think this quarantine, I’ll focus on quarantine, assuming you are under quarantine without any test. If you’re under quarantine and you think it’s being wrongfully imposed or the extent of it or the limits on what you can do are unjustified, there should be a process for you to challenge that before a neutral decision-maker to say I actually am no differently situated than my neighbor who’s allowed to go to the grocery store, and so I should be allowed to go to the grocery store.
– Absolutely right, due process is critical. – Yeah, I think that Larry and Esha are picking up on the issues that is what a lot of governors are doing in asserting some of these legal authorities is inconsistent with a good public health strategy. I mean either we’re assuming that there’s massive community spread and everyone stays inside so you don’t do travel, whatever, or you’re assuming somehow you can still test and target, which most people think is not possible right now until we get more testing, until we come over the curve.
So a lotta times, or what you saw I think in various states, I won’t be particular, was an assertion of a legal authority that actually had absolutely nothing to do with the theory of how we’re gonna get over, flatten the curve, get to the other side, whatever words you wanna use. If you assume that there is massive community spread, which is the assumption, and social distancing is the only tool we have because we don’t have strong testing, we don’t have treatment yet, and obviously, we’re not close to a vaccine, then the idea of distinguishing residency is ridiculous.
It’s in every county, right? So that’s just one thing to think that this is. Sometimes I think that it’s just an assertion to the public that they’re doing something in the absence of other assertions of successful strategies is my, in those cases that I mentioned, Meryl. – So another question, what authorities do the counties and cities have as opposed to governors? And I know that’s gonna vary state to state, but that’s an important question.
– I know the answer, but I’ve spoken too much. – No, no, but I know the answer, so. – [Larry] Okay. – [Jeffery] (muffled speaking) This Larry. – Right. – Yeah, you know this. – I mean it does vary from state to state, and it actually varies from city to city. The power resides in the state. The state is the sovereign, but many states have delegated that power in one form or another to cities, to counties and to others, and in some cases, they’ve done so quite extensively like, for example, New York City with home rule. And so you need to look at what the delegated powers are from the state to the city and whether they’re operating within those powers, and you’ve got some court cases, and you certainly have them in New York City about when the New York City Health Department does X, for example, when it did its portion size for sweetened beverages, whether or not it was acting within the sphere of the delegated state power.
– And they lost that one, didn’t they? – In that case, the court said no. So it varies, but they’re all delegated powers. – Yeah. – Can I just reflect on that? I think Larry makes a really good point, and just to expound on that a little bit from a practicality standpoint, I mean I think at this point, you have 42 stay at home orders, seven with partial guidance or advisories. The importance of collaboration and coordination between all levels of government right now is paramount, and how these orders are carried out not only through chains of government but also entities within those governments. So Esha’s talking about law enforcement issues, et cetera, prisons. It’s a challenge, and I think, and that is something that governors are focused on every day in trying to kind of coordinate with their local authorities. You’ve seen some stay at home orders announced in tandem with mayors and cities, and then you’ve seen that not take place in other jurisdictions.
– And there are specific conflicts on this. For example, the mayor of Columbia, South Carolina wanted to do a shelter in place order and was told by the South Carolina governor that he couldn’t do that because only the governor could issue an order like that. So what happens in a conflict like that? – I mean it’s preemption, and states often preempt local governments. The question is is whether or not the state legislature has preempted it. So if the state legislature has delegated certain powers to the local officials and they exercise those powers well within their delegated authority, then the governor can’t then just go in and say no, you can’t do it. So it depends whether or not the the power given by the legislature resides with the state through the governor or whether it does in the city. Most of the time, it will be with the governor, and the governor certainly can in those circumstances preempt what local governments are doing.
Sometimes preemption is anti-public health tool, but if it’s used for true coordination, as Jeffrey’s pointed out, I think it’s a good idea. – And I would just add to that that question which I think to the average member of the public who doesn’t understand these complicated legal issues, where there’s been confusion and where the penalties come with criminal penalties, I think that raises a real vagueness problem that people aren’t on notice which governs. If you have to a lengthy preemption analysis and there are criminal penalties attached to getting it wrong, that’s also something we’re worried about. – Yeah, great point. – I mean I think the uniqueness in this is, Florida is also a good example where the preemption is arguably the more dangerous thing. – Right. – Not arguably, is the more dangerous thing. So what you saw the Florida governor do is delay, delay, delay. Then finally, the White House sort of makes it clear that we’d really like you to do this, and then as part of his order, he says, I, ’cause meanwhile, remember what had.
This is just fascinating from a governance, legal perspective. While everyone was focused on DeSantis, something like 70% of Florida was already under some form of social distancing orders because they were in cities or counties that had declared it, including Miami, which was under an overnight curfew, which most people didn’t even know at the time that DeSantis did his thing. So it’s is, it’s a legal, governance sort of constitutional architecture issue, but that to have a governor come in and say he would relax them at the very moment that the mayors are saying we’re about to hit peak. And for those of us following the national numbers, Florida is your flashing red lights right now. It was a very interesting type of preemption, I would say. – And in Louisiana, New Orleans was a little late to the party. They celebrated Mardi Gras first. Then there was a lot of community transmission, and then right after that, the mayor of New Orleans cracked down. I wanna get to some of the questions that have come to us from people who are online.
This comes from Dayton Daily Newspapers in Ohio. “Governors have already taken dramatic steps, “shutting down businesses, ordering people to stay home. “What other measures do they have at their disposal, “and how do the measures square “with the state and national constitutions?” Just a small question. – (chuckles) Well, I think some of the legal stuff. So I just wrote a piece for “The Atlantic” called “Staying is the Easy Part” for the decision are gonna have to make where you want them to get ahead of. So a couple of things that sorta come to mind, one is liability standards for hospitals as they begin to pick triage standards for who get help, then who doesn’t.
I mean everyone’s trying to create additional capacity through the military, but these difficult decisions, you want hospitals to have some sort of state protection ’cause they’re gonna be making these decisions in realtime. I think a second area that’s gonna come up is rules of essential and nonessential for public safety. You’re seeing about 25% of police forces in New York. The police force is either sick or in quarantine. We’re seeing similar numbers throughout the states. How do you define essential, nonessential public safety standards? We know a broken down car is not essential. A cat in a tree is not essential, but what about a verbal argument between a wife and a husband at a time when wife abuse is through the charts? Do you wanna expose police officers? How much PPE stuff do they have? And then the third one, I’m looking at, from the operational capacity on the what other authorities is.
At least the way, unless this changes, 18, 20, 24, 30 months from now when this thing really ends. So remember, whatever we’re gonna experience for the next two years is not the end. It’s adaptive recovery. It’s learning to live with the virus. It’s not true recovery as we think of in disaster management. – Until we get a highly vaccine. – Until we et the vaccine, right. So this time period, we’ve never. It’s the longest part of it, right? The social distancing will be some percentage of managing to live with the virus through. We’ll have treatments. We’ll have testing, all that stuff, but we’re looking at a long. The best case scenario’s 18 months. Anyway, from the legal perspective, the way the U.S. works is the distribution of vaccines goes through states through P-O-Ds or PODs, points of distribution. Those priorities under H1N1 of who goes first, second, third, fourth and fifth are generally set by governors. We may wanna change it for purposes of this coronavirus because of the national aspects of it, but with H1N1, the distribution went to governors. Almost all of them chose first responders first, but remember, vaccines don’t come 360 million doses at a time, right? There’ll be waves.
That’s something I don’t know. Legally I don’t, is this a right legal structure, and if it is, what will it look like? I don’t know what you think, Larry, but. – Well, I mean I think you stated it very well indeed. I mean during and after H1N1 influenza, many states, federal government, as well as hospitals put out novel influenza plans, and a lot of them had ethical allocation criteria, and I think you’re right, and I would totally agree that first responders should have first dibs on it. And so, and I think after that, you have to look about need, vulnerability and things like that, which those plans do. They would be useful in this case. I did write a very recent piece for the Hastings Center Report looking at the various ethical triage and how you would do that, but I hate to bring this. I know we’re talking about the U.S., but I’ve got a paper coming out in JAMA this week which talks about what are we gonna do about equitable sharing globally? That was an issue with H1N1, as well, with President Obama.
And so I think we need to begin to thing about that. What ethical duties do we owe globally? And with this administration, the attacking WHO and other things and China, I’m not optimistic, but nonetheless, I think we need ethical criteria for the U.S. but even beyond. – And let’s get back to states. Okay, so I got some audience questions, and I know we’re gonna lose Juliette from the conversation soon. “Governor Cuomo has been critical of a system “that has states competing with each other and FEMA “as they try to secure ventilators “and personal protective equipment. “Should FEMA be taking the lead role? “Is it taking the lead role, “and what’s the best way to get “what is needed to the states?” So Jeffrey, the it would be a good question for you, but that may put you on the spot.
(laughter drowns out speaker) – I’m maybe not best situated to answer that, but maybe let’s start with Juliette, and I’ll come back. – Yeah, and I’ll say my goodbyes. I apologize, I have a hard stop, and happy Passover to everyone who’s heading that way remotely. So it’s a great question, and it’s I think you’ve got the states’ rights issues, and then we’ve got the 50 state management issue that is encountering. So this is when a strong federal legal authority is absolutely necessary both from operationally. Just think of the supply chain management.
As I’ve been saying often, this is not rocket science. It’s just complex, right? You’ve just got multiple needs, multiple verticals, so to speak, in terms of what your emergency support function needs are, and then they’re dispersing to 50 states. It’s complex. It’s not hard. In other words, we have structures in place in terms of logistics and supply chain that know how to do this, right? And in its simplest form, we’re trying to get stuff from point A to point B and then possibly point C depending on if it’s reusable and can go to another state.
FEMA should have had an active role from the beginning. The governing structure that the White House had set up was inconsistent with where, I think, the expertise lied. HHS’s subject matter expert, but they don’t do what we call at DHS, muscle. DHS does muscle in the sense that they can move things by utilizing incident command and other things. So I think that delay hurt FEMA. Where I think you’re just, last legal point is the lack of use by the President of the Defense Production Act, which many of us were in January writing about, just from a operational perspective, we knew what the need would be, and you knew that China could not contain this, is just one, is absolutely, I’m being honest, just inexplicable from just a management perspective at this stage.
There’s been little hints that he’s invoking it or whatever, but the pieces of the act, we focus a lot on the manufacturing side, you know what is Boeing doing now, what are the are car companies now? The second piece of the statute, I would argue, and for students listening, I think it’s the more important piece, and you should people should write stories and law review articles about it. The second part of the statute is the one that essentially grabs what’s already in the market and sets fair market value because what we’re seeing, Meryl and everyone, the stuff is out there.
What we’re seeing is 50 states and the federal government fighting over the stuff already out there. So what the Defense Production Act would’ve done is it would’ve set fair market value. It’s not a taking. It just sets a fair market value and then does a distribution by the federal government to the 50 states. That piece of the legislation, which is often ignored ’cause we so focus on manufacturing, there is a lotta stuff in the market now.
It’s just a seller’s market, and that’s what’s killing the states because if California doesn’t wanna spend that much, or let’s do a smaller state, Delaware, California will spend twice as much for 50 million gloves. So I leave with someone’s next law review article, and thank you, all of you. Thank you, but Meryl in particular, congratulations. Thank you so much. – Thank you so much for joining us, Juliette, and I do wanna get Jeffrey. If you wanna do any follow up on this. Juliette, take care. – Okay, thank you, Meryl, we’ll talk soon. Bye, you guys. – Thanks, Juliette. That was helpful. Governors certainly, to get to some of the question here, are coalesced around key issues that include and are not limited to, but supplies, PPE, vents, et cetera. I mean increased availability in those issues is front and center. Additionally, continued and enhanced coordination on national supplies and logistics with FEMA is also paramount. Thinking into the future, cost share issues with things like FEMA and Medicaid, and to Juliette’s point around stuff already in the field, what’s the best ways to be using existing vehicles for those supplies to be moved? So that could be donations, which you referenced earlier, between states, perhaps cooperative purchasing agreements or EMAC is another tool that allows for the movement and procurement of goods.
– Tell us more about EMAC. – Yeah, so EMAC goes back 25 years or so where that has been used in disaster settings over the last couple decades where if you have a flood or a hurricane in a particular state. – And that’s Emergency, what’s the acronym? – Management Assistance Compact. I’m gonna miss. – Emergency Management Assistance Compact, so that’s a multi-state, and I think at this point, 50 state compact. – Correct, yeah, and that’s been passed in all 50 states, that statutory framework, which allows for when a state has an emergency, for other states to step in and provide supplies and personnel to help support and leverage that state’s existing resources.
So that’s another tool in the toolbox that states may look to here going forward. – I’ve got another question that has come in. “Which legal and constitutional issues relating “to COVID-19 do you foresee moving through the courts “and to the Supreme Court?” And the questioner asks, “For example, “the treatment of abortions in Texas.” So Esha and Larry, maybe that question might be for you guys. – Esha, did you wan to start? – Please go ahead. I can fill in after. – Okay, well, it’s hard to know what the actual litigation is gonna be. Certainly, the abortion issue seems to me just incomprehensible that some governors could say that abortion isn’t an essential service because by definition, it is because if you delay it long enough, the service is no longer available to you. And so that seems to be quite a significant impediment on reproductive rights that for many years, the Supreme Court has upheld. Now, nobody knows where this court’s gonna go with it, and I worry about that, but it does seem to me that that certainly will be challenged.
Probably the international border restrictions will not be challenged because the President seems to have such wide authority at that level. If there were any restrictions on or particular burdens on interstate travel, I would expect that to be litigated. Business closures I know some people have wanted to litigate, but I think governors have very, very strong authority. As long as they’re closing businesses and they have got good public health evidence, I can’t see a court doing anything about it. But broad quarantines, say a dormitory or an apartment building or categorical quarantines that apply to all nonresidents or all people coming in from a particular state or whether or not you can show ID, anything that’s kind of categorical and not individualized other than the stay at home order, which if it’s reasonably enforced and there are good exceptions to it for essential needs, I think those are the areas that we’re likely to see the most successful litigation.
Lemme just end by saying this. One day, we are gonna come out of COVID, and it depends on what our new world is gonna be and what the lessons we learn, and if we somehow think that we can relax our defense of human rights, the Constitution, the rule of law, that will be a really deeply adverse effect for the United States and the world. It could happen, and I certainly hope it will not. – Esha? – Yes, I mean I share Professor Gostin’s concern that we don’t see any rights restrictions outlive the crisis.
I would add to his list of issues voting rights. I think we’ve already seen that with the. – Oh, great point, great point. – Wisconsin. I think we’re in election season. – And another question we’ve gotten, to talk about Wisconsin, if you will. – Yeah, so I think what I would say is the current landscape is that many states have many different rules. We at the ACLU are pushing for vote by mail, no excuse, vote by mail for the November election and saying that the federal government also has to step in to provide resources to make sure this is possible because it’s not only a legal issue, it’s a logistical hurdle. Not every state is set up for this. It’s going to require a different way of thinking about running the election and physically staffing polls alone. But I think that there will be litigation across states on various issues, including postponement of primaries, which is what we saw with Wisconsin where the election went ahead. The Supreme Court essentially did not step in to say that people could have an extension of time to mail in ballots even though they had not received ballots by the date set.
I think this is exactly an example of that logistical problem. People did not receive their ballots in time because there was a surge of requests, much more than the average year, given that people are rightly afraid to leave their homes and stand in long lines. So I would say voting rights is going to be a big issue we’ll see in the courts and probably one that the Supreme Court will have to engage in before November. – Yeah, I mean, what you said, Esha, is so important. I loved Ruth Ginsberg’s dissent in the Wisconsin case. She basically said, “How could we say “that this is not an extra ordinary event? “It’s a once in a century event. “How could we possibly hold an election “consistent with the Constitution “that requires somebody to make a choice “between their health and potentially their life “and their civic responsibility to vote?” You’re going to voting places.
There are people that are congregating around you. You’re going into the voting booth, and you’re touching things. You’re making sure that you’re eligible to vote. Absolutely I support 100% the ACLU’s call for both national mail-in ballots, as well as the resources and logistics to be able to do that. That’s just public health common sense 101. – Let me ask one wrap-up question, and that is where do you see opportunities for positive change one year down the road, and what are we going to need to be thinking about long-term in terms of the role of governors and the relationship between the governors and the federal government in the context of public health response? – I mean I can jump in you want.
– Well, why don’t we start with Jeffrey from the perspective of governors? – Yeah, that would be better. – Sure, thanks again, Meryl, and to my fellow panelists. It was good to talk with everyone and get out of the same routines, perhaps, for the quarantine period here. But three things that I would be thinking about this in the coming weeks, and then what are we thinking about in the middle to long-term? So perhaps three things in the coming weeks to be thinking about, I think governors are laser focused on increased availability and procurement of needed PPE, vents, supplies, testing capacity, in short, trying to save as many lives as we can. And then secondly, cost sharing issues with things like FEMA, Medicaid, which I touched on earlier, and thirdly, addressing unemployment insurance and support for businesses in this period here and moving forward. I think in thinking about this in middle to long-term, how can we begin to strategically think about considerations for opening things up, guided by the best thinkings in public health and science and law, first? And secondly, how can we continue to think about increased coordination and collaboration with partners on all levels of government, as well as outside private sector partners regarding supplies and logistics issues as we prepare for the fall, which we haven’t really talked about.
And then thirdly, what other support for states and businesses are going to be needed here in the months and, perhaps, up to the year to come, Meryl? So thanks again. – Esha? – I think what what we would hope after when we get on the other side of this, hopefully having saved as many lives as possible, is just a recognition that a civil liberties and civil rights respecting response will advance public health, that overreach or neglecting the vulnerable is, in fact, counterproductive, and that we’re all in this together and that really democratic accountability coupled with respect for individual rights and engendering public trust is the best way forward. – Larry? – I think Jeffrey and Esha spoke beautifully about this. For me, I would focus mostly upon equity because, although many of these rules apply across the board, if we’re sitting here, we’re on Webex, we’re Skyping, we’ve got stocked fridges, we’ve got an income coming in, but many people don’t. So I think the equity part of this is enormous, and there’s a deeper part of equity, which has to do with kind of we’re revealing all of the shocking inequalities in our health system, and particularly, we’re seeing much larger numbers of hospitalization and deaths among African Americans.
I’m sure we are among immigrant and undocumented communities. We have to worry about the vulnerable in nursing homes, mental hospitals, prisons and other congregate settings. And so I hope that the lesson we learn is is that if we are all in this together, and I think we need to think of it that way, what are we gonna do for our fellow human beings? And so we’ve been talking about rights, but there are also ethical obligations to our community and to make sure that everybody’s treated humanely, decency, fairly and that everybody has access to high quality health services.
– Well, this is a great place to wrap it. I want to thank all of our experts for being with us today. We got a lot of questions, and we’re unable in this short hour to answer all of them. If you want to tune into our website, ww.law.georgetown.edu/salpal, we’ll be answering some of the additional questions on the website. Thank you, everybody for joining us here today. Stay safe, stay healthy, and let’s all bend the curve together..