Tag Archives: federalism

The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

 

 

The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…

 

 

When We Talk About “Systems” And “Structures”

Speaking of communication, as I did yesterday–Sometimes, it’s a good idea to define your terms.

I’m as guilty as anyone–I sometimes use terms without stopping to specify what I mean. In the interests of clarity, today I’m defining three structural labels that I use frequently–terms that identify aspects of America’s political environment that it’s past time to revisit and revise.

Federalism

Federalism is the name given to America’s division of authority among local, state and federal levels of government. That division recognizes realities of governance: state and federal governments have no interest in handing out zoning permits or policing domestic violence disputes, to cite just two examples. Increasingly, however, many original assignments of responsibility are no longer workable. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to chaos and misconduct.
Federalism also facilitates assertions of state sovereignty where there really is none. Federal highway dollars are conditioned on state compliance with federally mandated speed limits, and similar “strings” are attached to almost all of the federal funding that cities and states rely upon. There are also an increasing number of issues, including climate change and pandemics, that must be addressed globally.

Businesses need uniformity in state laws in order to operate efficiently across state lines. Problems with acid rain can’t be solved by municipal ordinance. The internet cannot be controlled by a state legislature–or even by Congress. Even in law enforcement, generally considered the most local of issues, multistate criminal enterprises justify an increased federal presence.
 
The world has changed since the Constitution was drafted. Today, where should authority for governmental responsibilities reside? What should federalism mean in the age of technological connectivity and globalism?

Home Rule

Despite the existence of an Indiana statute labeled “Home Rule,” efforts at self-government by Indiana municipalities are routinely pre-empted by the Indiana Legislature. Just in the past few years, lawmakers have prevented local governments from restricting the use of disposable plastic bags and dictated what modes of public transit cities are permitted to use and tax themselves for. In a particularly ironic ruling, a Judge found that the state’s Home Rule statute itself blocked Ft. Wayne’s enforcement of a “good government” ordinance intended to restrict “pay for play” politics. The ordinance would have limited the amount of money owners of a company could give elected officials and still bid on city contracts.

In Indiana, the absence of genuine home rule means that decisions affecting residents of urban areas are routinely made by representatives of suburban and especially rural populations (see gerrymandering), whose grasp of the challenges and realities faced by elected officials in metropolitan areas is limited, at best.

Indiana is not unique. The Brookings Institution has described the extent to which state laws preempt local control over public health, economic, environmental, and social justice policy solutions. In 2019, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.
 
There are clearly issues that should be decided at the state or federal level. (See Federalism) Policy debates should center on what those issues are, and state-level lawmakers should to allow local governments to make the decisions that are properly local. Right now, they can’t.
  

Gerrymandering

Every ten years, the Constitution requires that a census be taken and the results used to remedy population discrepancies in the succeeding year’s congressional redistricting.

In our federalist system, redistricting is the responsibility of state legislatures. Gerrymandering, or partisan redistricting, occurs when the party that controls a statehouse manipulates district lines to be as favorable as possible to its own electoral prospects. “Packing” creates districts with supermajorities of the opposing party; “cracking” distributes members of the opposing party among several districts to ensure that it doesn’t have a majority in any of them; and “tacking” expands the boundaries of a district to include a desirable group from a neighboring district.

Partisan redistricting takes its name from then-governor of Massachusetts Elbridge Gerry.

Studies have tied gerrymandering to the advantages of incumbency and to partisan rigidity, but by far its most pernicious effect has been the creation of hundreds of Congressional seats that are safe for one party. The resulting lack of competitiveness reduces the incentive to vote or otherwise participate in the political process, because the winner of the district’s dominant party primary is guaranteed to win the general election. Primary voters tend to be more ideologically rigid, and as a result, candidates in safe districts are significantly more likely to run toward the extremes of their respective parties. Gerrymandering is thus a major contributor to partisan polarization.

Thanks to the way gerrymandered districts have been drawn in Indiana, a majority of policymakers in the Statehouse represent predominantly rural areas. As a consequence, state distribution formulas that allocate funding for roads and education significantly favor rural areas over urban ones, and members of Indiana’s General Assembly are more responsive to rural than urban concerns.

When I use these words, this is what I mean.

A Follow-Up

Yesterday’s post was about Gavin Newsom’s challenge to Washington, and what it might mean for federalism, and for the divisions–both philosophical and partisan–between the more thinly-populated Red states (most of which are also “taker” states) and more urbanized Blue states (mostly “donors.”)

The Guardian also addressed the federalism issue, albeit from a different angle.The Guardian looked at the effect of Trump’s ego and behavior, focusing especially on Trump’s clear resentment of Puerto Rico after its hurricane, and–in the midst of the pandemic–his unmistakable message that he would be more likely to send needed medical supplies to states whose governors treated him “with appreciation.”

Clashes between presidents and states are nothing new. But according to government theorists, public affairs experts and political analysts, Trump’s rattling of the federalist compact, by which the 50 states are both autonomous and bound in a national union, is unprecedented in modern times.

“You’ve redefined the role of state governors,” said David Super, a professor at Georgetown Law. “Governors must grovel to the president. Governor [Gavin] Newsom [of California], Governor Andrew Cuomo [of New York] have understood that, and they’re doing it. Governor [Gretchen] Whitmer has largely refused, and Michigan is going through hell as a result.

“These governors are more like provincial chiefs under this system, and if we want to restore federalism in this country we will have to make some very dramatic changes after this is over. If we don’t, federalism is dead.”

Super calls the White House approach to the nation’s governors “flippant federalism.” And along with many other observers, he conveyed shock and concern over reports that the federal government is intercepting ventilators and other equipment ordered and paid for by the states, which Trump appears to be handing out on a political patronage basis.

“On the one hand, they’re telling the states they’re on their own,” said Super. “On the other, they’re seizing the supplies that the states get on their own.”

Martin O’Malley, a former governor of Maryland has called the administration’s approach “Darwinian federalism.”

“His [Trump’s] behavior is not in keeping with the office of president,” O’Malley told the Guardian in an email. “The notion that governors have to bow down and praise him in order for their citizens to receive federal disaster assistance is contrary to the very nature of a republic.”

In the wake of this pandemic, what happens to federalism, to democracy, to government legitimacy, to partisan polarization, the social safety net– are all open questions.

Every newscast, every performance, practically every Facebook post ends with “We’ll get through this– together.” I hope that’s true, but  I’m not so sure.

One thing I am sure of, however, and that is the importance of trust in a society’s institutions, based upon a belief that those institutions and structures are fair. Right now, Americans don’t have that belief and that trust.

Much as I detest Donald Trump and the know-nothings and predatory bigots he’s assembled, he’s not the cause of the multiple failures of governance we’re experiencing. He’s the pathetic result of years of civic apathy.

Our national motto was not originally “In God We Trust.” It was e pluribus unum–out of the many, one. The existential question we face is whether we can breathe new life into that motto–if we can use this horrible time to recommit ourselves to the values that once did make this country exceptional (although probably not in the way the nationalists believe).

Federalism isn’t the only institution we have to repair.

 

A New Nation-State

Apologies for yesterday’s accidental post-that-wasn’t. I clearly don’t do stir-crazy very well….

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Should the GOP manage to manipulate–rig– the 2020 election and somehow re-elect Trump–maybe I won’t have to move into my son’s house in Amsterdam, or go to Canada, which have been my choices so far.

Maybe I can just move to California. which Governor Gavin Newsom has begun referring to  as a “Nation-State.”

California this week declared its independence from the federal government’s feeble efforts to fight Covid-19 — and perhaps from a bit more. The consequences for the fight against the pandemic are almost certainly positive. The implications for the brewing civil war between Trumpism and America’s budding 21st-century majority, embodied by California’s multiracial liberal electorate, are less clear.

 Speaking on MSNBC, Governor Gavin Newsom said that he would use the bulk purchasing power of California “as a nation-state” to acquire the hospital supplies that the federal government has failed to provide. If all goes according to plan, Newsom said, California might even “export some of those supplies to states in need.”

 “Nation-state.” “Export.”

(Newsom’s “Nation-State” differs from what Mike Bloomberg and others have referred to as “the rise of City-States” in response to climate change.)

In what the quoted article calls “civil war by other means,” Newsom is sending a message, not to Trump (who lacks the intellect to decode communications in any event), but to both political parties.

The GOP has been waging war on democratic values, institutions and laws for a number of years. The Democrats have been playing defense (and arguably not very well).

The GOP’s politicization of the Supreme Court most recently led to the unconscionable ruling requiring Wisconsin voters to risk their lives in order to cast a vote. Despite the fact that Wisconsin voters took that risk, that should have been a wake-up call.

Perhaps it was.

It’s clearly past time for Democrats to go on the offensive. Newsom is Governor of the nation’s largest state; he’s in a position to put Republicans on notice. California’s  taxpayers account for 15% of individual contributions to the U.S. Treasury, and the article suggests the state is is “now toning up at muscle beach.”

Democratic state Senator Scott Wiener, a leader in California’s cumbersome efforts to produce more housing, said soon after Newsom took office in 2019 that reorienting the state’s relationship to Washington is a necessity, not a choice.

“The federal government is no longer a reliable partner in delivering health care, in supporting immigrants, supporting LGBT people, in protecting the environment, so we need to forge our own path,” Wiener said. “We can do everything in our power to protect our state, but we need a reliable federal partner. And right now we don’t have that.”

And that quote  was from before the federal government’s multiple failures to respond adequately to the pandemic.

Federalism has a number of virtues; as we saw in the 50s and 60s, however, “state’s rights” can also facilitate gross injustices. Its current operation is among the many governing structures we need to rethink and reorient–but that reorientation, along with all the other institutional “fixes” we need–will have to await the installation of a competent federal administration.

Meanwhile, states like California are increasingly at odds with the Republican playbook: California is a sanctuary state while Trump’s GOP is demonizing immigrants; its approach to marijuana is much more permissive than that of the feds; its position on guns is diametrically opposed to that of an administration co-opted by the NRA.  Etc. Now, Trump’s dangerous mismanagement of pandemic response has essentially left California and other states to manage on their own.

One conflict, however, encompasses all others, and could galvanize Californians into new ways of thinking about their state and its relationship to Washington. The GOP war on democracy is inspired by a drive for racial and cultural supremacy that jeopardizes the democratic aspirations and human rights of California’s multiracial citizenry.

It isn’t only California. The majority of citizens in our diverse nation live in urban areas and urbanized states, while the White Supremacy Party–aka GOP–is increasingly a rural phenomenon. The states with a majority of the country’s population are under-represented in the Senate; their citizens’ votes are minimized by the Electoral College and gerrymandering.  There’s no reason to believe that these continuing inequities of minority rule won’t trigger a counterattack–and good reason to believe they will.

As the editorial concludes:

John C. Calhoun, who used the theory of states’ rights to defend the institution of slavery, is not generally a philosophical lodestar for liberal Democrats such as Newsom. But if Republicans (or foreign friends) succeed in sabotaging democracy in November, Calhoun’s theory of nullification, which posited that states have the power to defy federal law, could be ripe for a comeback on the left coast. With the heirs of the Confederacy now reigning in Washington, turnabout might be very fair play.