Judge Napolitano Explains Constitutional Rights in a Quarantine.

[Music] with the new coronavirus kovat 19 prompting emergency responses across the nation today we'll look at one of the tools that governments can use to stop a crisis of contagion the quarantine hello and welcome to talks on law i'm joel coen our guest today is Judge Andrew Napolitano senior judicial analyst at Fox News and a visiting professor at Hofstra Law School where he lectures on constitutional law judge welcome back thank you today we're talking about quarantines I wonder you're someone who likes to look back at what the founders thought did these founders were they thinking about quarantine power mmm I doubt it I mean there's a there's a cartoon making the rounds it's a painting of the framers signing the Constitution and Washington turns and says to Madison let me get this right none of this counts if people get sick it's it's it's humorous today I mean but but it it points up the lesson that there are no emergency triggers or emergency exceptions in the Constitution well we'll get into due process in time of of contagion but maybe let's start with a definition what do we mean when we say quarantine there's actually several meanings to it one form of quarantine is confinement to home another is confinement to a medical institution the third and probably the most odious is confinement to a military base but you're talking about a fundamental Liberty the highest category of Liberty we have the right to go from A to B the government wants to interfere with that they have a very high standard to meet I think the courts would give them more of a benefit of the doubt where the pandemic was a true pandemic as we have today but they still have to meet the standard in individual cases when we talk about the power of the government to restrict your rights of movement to force you to either stay at home or in a in an institution where does that come from well we have to distinguish which government we're talking about the federal government does not have the authority to do this notwithstanding some of the which that comes out of the White House press briefing room so that the members adentro close the bars or tell you to stay at home he could not he could interfere with interstate commerce but he could not interfere with intrastate Commerce the power over health safety welfare and morality is reserved in the Tenth Amendment to the states and state governors actually have far more authority with respect to restraining human movement than does the president in fact his authority is limited to interstate commerce so he could close down the George Washington Bridge the Lincoln Tunnel the Holland Tunnel any clearly interstate means of transportation but he could not order any sort of a stay in place self quarantine or enforced quarantine some scholars will talk about a distinction between enumerated powers and the police power well well theoretically the federal government has no police power the police power is the ability to regulate for health safety welfare and morality so when the federal government wants to regulate for health safety welfare and morality knowing they can't regulate they bribed the state's example lowering speed limits from 65 to 55 lowering maximum blood alcohol content before a presumption of incarceration from point one zero two point zero eight the feds knew that if they enacted that by legislation the courts would invalidate it so instead of enacting it by legislation they give the states money to do it you have federal highways in your state we will repay those highways if you lower the speed limit got it so and and lower the maximum blood-alcohol content that happens all the time there's a Supreme Court opinion directly on point South Dakota versus Dole that basically says take it or leave it what do you think they did they took the money they're all gains a lot of money they're all care starved it's hundreds of millions so that when we're talking about quarantine power it really sits with the states at least for now unless the feds were to spend money to bribe the states but the feds have far more pressing issues on which to spend their money so the answer is yes the quarantine issues devolve around decisions of Governors so for most of the conversation will talk about the powers of the states but while we're on the topic of the various government levels let's touch on cities there is a view that the cities are divided deriving their police power from that state power that's true from the Supreme Court's perspective a city is nothing more than a Municipal Corporation authorized by and deriving all of its power from the state in New York that is especially true because of provisions in the New York state constitution which actually say if the governor declares a state of emergency and elected officials and cities are not complying with the state of emergency the way he wants him to comply with it he can remove them from office oh wow so if duration of the emergency not but not permanently but for the duration of the emergency so here in New York there's been some talk that there was a difference of opinions on how to handle a couple of issues between Governor Cuomo and mayor de Blasio right the power you're saying was on Cuomo aside yes if he wanted the opposite of what the mayor made he could order the mayor to step aside during the duration of the of the emergency now that's troublesome because the mayor knows far better than the governor could how to allocate resources in the city so he might be shooting himself in the foot but he does have the authority to do that in New York City was it the mayor or the governor who put in place the staying home order it was the governor the mayor threatened it for days and the governor went on national television including a network that employs me and said it's not gonna happen it's not gonna happen I don't care what he says and the little sudden it happened but with different terminology now the question is what happened you could still go out you could still walk in the streets and if the police stop you you can just say hi and keep on walking I mean I guess the difference there is as you were saying between quarantine and something that's voluntary well it depends on how you ask if you ask Andrew Cuomo and full disclosure a friend to mine but as you know since you're a friend of mine I disagree with almost all my friends if you ask Andrew Cuomo if these are orders he will say yes but if you ask a legal scholar if there are orders he will say no the governor does not have the authority to order any of this can the governor uses bully pulpit nobody uses a bully pulpit better than Andrew Cuomo he uses it brilliantly to cajole to entice to intimidate that's what leaders should do but when he says this is an order and if you don't obey it they'll be criminal sanctions he's got to go back to a constitutional law 101 because only the legislature we're talking more PR than we're talking about only the legislature can enact behavioural modes I'm using an amorphous phrase because I don't know what it is is that a rule is it a law if the legislature enacts that it's a law that has criminal consequences if you defy it when the governor issues a decree there can be no criminal consequences for defying it you may be shamed you may be embarrassed what about Universal and if you were fined it would have to be some sort of an administrative fine which means your your behavior is violating some pre-existing administrative regulation example is closing the restaurants right if a restaurant Tour opens up and because there's no Health Inspection that would be the way to find the person not because the governor decreed you shall be closed but because you're violating a pre-existing health regulation that bit that's a bit of a catch-22 but it would be a way to impose some sort of an administrative sanction but restraint of freedom meaning criminal prosecution forget about it some of what we're talking about is more theoretical it's the powers of various governments are there are there not laws in place that have anticipated this type of disaster yes there are and the vast majority of them are unconstitutional I can say that because they've never been challenged but comparable statutes have been challenged and the Supreme Court has informed us of its understanding of the Constitution so there is a statute which gives the governor of the state of New York vast emergency powers in a time of invasion or contagion obviously this is contagion the president says it's an invasion but it's a contagion and it allows him to take control of public accommodations and commerce but much of that is unconstitutional because of various clauses in the Constitution that insulate private commercial behavior and owners to ownership of property from intrusion by the state no matter what we're talking about property rights or government takings yes we're talking about the car the the contracts clause we're talking about takings we're talking about the right to associate in the First Amendment all these things that have been interfered with but Governor Cuomo's decrees some of them are direct on point violations of the language and meaning of the Constitution but as far as I know and I monitor this for a living none of this has been challenged which is amazing to me I do my best to set a gin up the challenges because I won't force the judges to rule to see how they rule it seems that people are just either accepting this supine lis or going about their business as if it didn't happen now if you operate a restaurant in defiance of this they will come after you but if you walk the streets in defiance of this they can't come after you let's talk about some examples in the streets where the government might go after you there's been cases where people have intentionally coughed on others or have theirs as a crazy person in New Jersey who got in an argument with a cashier at a Wegmans supermarket and then send loudly by the way I have coronavirus of this course and an immediate immediate and that's gangster serious assault it is it wasn't charged with assault it was charged with making a terroristic threat which is typical of governor overreach if if a stranger came up to me coughed in my face and and said now you have Corona in front of a police officer is there cause to hold him and him or me since I was coughed on in isolation probably probably yes I don't know about you I don't mean you personally since we're friends I don't know about the victim because the victim may very well be so like this cash register rich a cashier in the Wegmans incident the victim may be so terrified by this that wouldn't be necessary to restrain him or her she was tested immediately and went on to bed until the test results were self-quarantine correct but the person who did that if infected would have met both requirements actual container for a quarantine actual contagion and a refusal of self restraint now if he wasn't infected but just did this to get back at this woman in the dispute over the course of of the eggs that is a form of harassment and threat and assault and he could be arrested for that but it has nothing to do with coronavirus well once he is cleared of it then he'd get bail and he'd be set free there's a lot of question around that as well so one thing that I know that you want to make very clear is that quarantine is not an exception to due process you have a due process right even when it's a public health emergency all right so let's say you live in a city block in New York City and the mayor has quarantined the entire block sure you are healthy you know that to be so because you've been tested there is some test to determine whether or not you're even a carrier not a victim but a carrier and you know you're not and you're willing to restrain yourself can the government restrain you well the government probably could not survive a due process challenge meaning if you could get to a courthouse probably via a lawyer because they're not going to let you out of at a city block area you could force the government to demonstrate later that often these quarantine czar for a limited period of time so sometimes you don't get to the courthouse in enough time yeah no I was kidding when I said the courts are closed you can get to a judge and the prosecutors need to do that because the right to habeas corpus has not been suspended stated differently when someone is arrested the government has to bring them before a judge within 24 hours in most parts of the country here in New York is 48 hours but the judge has to be there either live and in person or via via remote right that's a whole nother topic how the judicial system is dealing with this crisis and certainly unprecedented in a time where technology so advanced all the more the Department of Justice under attorney general bar another friend of mine should be ashamed of itself because instead of wanting to use technology it almost seems like which is in this room with us now right they want to suspend the writ of habeas corpus again they've asked Congress to do it so they can lock people up and not have to bring them into a courthouse until they have time in which to do it then a Justice Department has asked yeah for the writ of habeas corpus to be repealed not in that language because that would really arouse people but they have asked for in debt the right to indefinite detention on people they arrest indefinite detention means no visitors no lawyer no being brought before a judge well the DOJ could arrest Bernie Sanders Tucker Carlson Judge Napolitano Nancy Pelosi and throw away the key until the coronavirus is over with under this proposal if it became law but my point is the DOJ should be ashamed of itself because with a couple of bright young kids in the DOJ they can accomplish via high-tech what they say they can't accomplish in person that's a federal judge friends who take these hearings via Skype in their homes I heard this morning from an attorney who's doing a bankruptcy deal and you know the judge is taking you know hearing the case from his kitchen right right that is less troublesome okay that's fine with me because that's essentially a civil dispute on both sides maybe to it the the issue does arise when the prisoner is in jail the prosecutor is in his office the defense counsel is in his office and the judges in his kitchen that's an issue why is that bother him because of the inability to communicate and to be confronted with the evidence against you so when I was doing arraignments down state court in New Jersey we would do a hundred and fifty between nine and twelve thirty and another hundred and fifty we would between 1:30 and four you got two or three minutes what is the evidence that the government has against this person the president goes I don't know the police just brought them to me well I'm gonna set him free if you don't make out a prima facie case because habeas corpus is meaningless if the jailer doesn't have to make out a prima facie case that is very difficult when they're in four different rooms when I can't as the judge see the look on the police face see if the prosecutor is telling the truth look for documents that they have in front of them and allow defense counsel and the client to speak with each other I'm not saying it's impossible I'm saying it's difficult and it's troublesome when all four judge prosecutor defendant defense counsel there's usually a fifth the arresting entity or agent when all four are all fiver in different places it certainly makes understanding the case harder for the judge it does and a lot of judges would tend to as most of them do most of them are programs this is gonna get me a lot of trouble prosecutors have black robes right they'll defer to me to the prosecuting authorities state or federal you're saying that there's a constitutional right to due process even in a quarantine you're also saying that you know sometimes you may not be able to exercise that constitutional right until after the quarantine well first it is the Supreme Court not I that has said there's this constitutional right you can exercise it as soon as you can get somebody to file something for you and in this high-tech world you know if you know what you're doing if you're a lawyer or a person who knows how to do basic research you might be able to file it yourself you might not get an answer until the crisis past's I mean one of the things judges do is is avoid making rulings constitutional rulings if the issue that they're addressing is a finite duration we'll just wait till it's over this kind of stay in his bedroom for two weeks than for me to make some major constitutional ruling that's going to affect the ability of the government to do its work that's the way a lot of judges would think others would say give me the case I'll rule right now yeah but I mean judges are people too they don't want to get sick they don't want to be blamed if their decision results in more people dying when I would get back to the to the email that I got what's the email that you get the picture of the framers signing the Constitution and watch that says the Madison I'll tell you what Madison's answer would be let me get this straight none of this is none of this happens none of this works if people get sick Madison would say what are you crazy we just wrote a document that guarantees natural rights come what may in good times and in bad so let's talk about what needs to be shown for the government to win if if you're able to challenge your quarantine and the quarantine ends up before a court and you're still in quarantine what does the government need to show actual contagion not that you live in a block where there's much contagion but that you the plaintiff or petitioner actual contagion and either an unwillingness to restrain or a propensity to expose it's a very difficult standard for the government to meet very difficult standard wait are you saying in you know let's take the kovat example some people can be infected and it might not show up on a test that's a government's problem not theirs so let's imagine a case where instead of 2% death rate or or 4% whatever the in the worst case is right now for perc Ovid 19 where it's a hundred percent we know that it takes 10 days to manifest we want to quarantine this entire block because we know there's people in there I would think that most judges would defer to the executive and would forget about to process but then that means due process is not a guarantee in times of contagion correct and there's no exception for that either historically or in the plain language of the Constitution very very few judges would take the the plain language of the Constitution argument that I making in a case of a hundred percent death maybe few would would take it even now I think most judges would defer to the executive right now which is why we haven't seen any of these although if I understand they're coming we haven't seen any of any of these challenges yet you know right now there's a lot of conversation about flattening the curve let's say we're in a world where the curve has been flattened and some of the risks have been avoided there you might imagine a judge thinking well let's let's look more closely at the constitutional law I hope not I hope that the close scrutiny of the constitutional law would happen would be there all the time butthat well sure because the right to travel is a fundamental Liberty and a fundamental Liberty the transgression of by the government of a fundamental Liberty necessarily requires a very high bar no matter what is going on in society it's not me that's the court we talked about what's happening in many states which is mandatory or I'm putting mandatory in some type of quotation marks but stay at home self-isolation if it were to be made mandatory by a governor would that hold constitutional muster because you just said quarantine requires actual yeah I don't think it would hold gar a constitutional muster they also don't think any governor in any large state would be crazy enough to try and enforce it because it wouldn't have the resources with which to do so and maybe they could do it forgive me in Rhode Island but you certainly couldn't do it in Texas or New York or California or even New Jersey which is watching rascally right what overwhelm the system this is a very serious and high anxiety time for all of us but indulge me if I want to do some hypotheticals let's test the limits of quarantine power how long can they be kept let's imagine the case of an individual who is quarantined with an illness of which he is the unique sufferer this is the typhoid mary case she was kept for 25 years I don't know the answer to that there's there's no there's a case in the modern era of a person like typhoid mary nevertheless back to that cartoon of the framers there's no exception for people that are second I would deny the quarantine and I would require the government that government somehow to keep this person away from other people but to allow him the freedoms that are naturally his but there may be a huge vacuum of freedom if you're restricted from ever going near another person I'm sorry the rest of your life yes I understand or until it cure it's been yes I understand that but if you truly believe in the natural law if you truly believe that our rights are natural to our humanity and it can only be taken away by a demonstration of fault the fault I guess would be an unwillingness to restrain himself in this bizarre hypothetical of you from from coming in contact with others correct what if you are in fact infected with a contagious disease during a time of a pandemic are there legal concerns that you may be knowingly spreading it may you be also breaking the law in the process oh this is the Rand Paul case Senator Paul was working out in the Senate gymnasium and was interacting with many many many people the previous evening and at 7:00 in the morning learns that his test was positive now in defense for him he had that test taken just for prophylactic reasons he had he had no reason he had no symptoms so that I don't think there's any liability on his part so a senator aside if someone did know or had a reasonable expectation that they might be infected if if this character in Wegmans really is sick that's a classic example he is willing to spread the virus he is a prime cover meant would win the due process challenge to incarcerate in quarantine first due process second because that's just the way the world works you don't have standing until you're actually restrained so quarantine first due process second then maybe criminal charges third well in this case the criminal charges yes would be immediate I don't even honestly know what happened to him he's quarantined now but they also know whether he's positive or not he has a propensity or a willingness to infect someone a lot of what we've been talking about today has been hypothetical and hopefully will remain hypothetical but let's talk about what's already being ordered in states like California New York Ohio and and many others where governors are coming out and saying you must shelter in place what happens if you ignore that theoretically nothing of legal consequence so the government can of course shame you if you are manifesting publicly and an unwillingness to stay away from others but because these are decrees issued by the executive branch they're not statutes enacted by the legislature they cannot have criminal consequences so even though Governor Cuomo again for whom I have a lot of respect and affection calls these orders they are not they are suggestions and decrees guys disguised as order but even even the governor said he's not going to go to the parks and arrest people he's going to go in and and and try and make people feel correct there are also the only arrests that I know of during the corona virus is crimes discovered under the plain view doctrine where the police just happened to be there in a separate a crowd so they see ten people in the park they go to separate them normally that's the end of it except somebody was selling not giving away selling alcohol without a license they could have said our it's a bunch of kids with some some sort of concoction drinking out of a common bottle but because this guy was charging for it they arrested him for selling alcohol without a license that has nothing to do with coronavirus that's a statute enacted by the government a hundred years ago and the police are perfectly proper to to enforce that what do the police do if you and I and the others in this room were walking in the street as a gaggle they would probably say hey come on guys just separate and leave me alone and if you didn't there's not much more they can do about it let's talk about a group that's already given up some of their rights how does quarantine affect inmates people are already in court incarcerated well they have certain due process rights but not not the way the rest of us do so they can be separated on the basis of behavior and they can be separated on the basis of suspicion they can't be physically harmed amid the Eighth Amendment prohibits cruel and unusual punishment they can't be knowingly exposed to someone else who has the disease that would violate the Eighth Amendment but the courts would be loath to second-guess the decisions of wardens so weren't you it has we're to move a sick person into solitary or move somebody else away from the sick person against their will doubt that that's actionable at all in fact some of what we're what we've heard so far are complaints in the other direction which is a failure by certain institutions to separate well depending upon the institution so if you're there against your will if you're a prisoner the Eighth Amendment protects you if you're not a person though the Eighth Amendment doesn't come into play they can't that the government can't protect you against everything that could happen to you in a jail we know that but if there is a contagion in the jail the government has a duty to isolate those who have it and protect those who don't and to provide medical ok yes yes yes you're in jail food shelter clothing and and and medical attention that's a given so are there are there exceptions I mean there's there's certain there's certain rights that are valued expressly by the Constitution well freedom of speech freedom of religion can can the government impose burdens on those you know it cannot so those express rights those fundamental constitutional rights but you can shut down a church in the time of question absolutely not they have but when the one that they went at the Catholic Church become an agent of the state so you're saying they can shut down bars and restaurants but they may not be able to shut down churches and shut down bars and restaurants in my view they cannot but they can talk you into believing that they have for some greater good this is the intimidation and bully pulpit you don't believe that the government has the ability to just shut down restaurants and bars absolutely not the contracts close the Constitution says the states can't interfere with a contract I have a least they can interfere with it they want to shut down your business they've taken it they have to pay you for it they don't have the money to pay you for it yeah but that's gonna happen afterwards that'll happen act well say the the compensation is never upfront even even in an orderly taking they want your townhouse because they want a widen 7th Avenue they take the property first and then you have the dispute over what it's worth right of the money is always at the end unless you are foolish enough to accept their own initial lowball offer same thing would be the case for shutting down a business but they are still subject to the 5th amendment to the contracts clause how about the First Amendment supposed Bernie Sanders says I want 2,000 people to greet me at the corner of 42nd and 6th and the the governor said governor says no groups ever 10th right and the real reason is I want you Biden to get the nomination but the subterfuge is too many people are gonna get sick how do we resolve that we resolve it in favor for the plain meaning of the Constitution so there should have a due process you could associate with whomever you want if you go there again show in the gun but if the governor can show that that rule was in place not to favor one political candidate it would likely be held up because it's a public place and because he's dispersing people but it's a very high burden for the government because the right to associate is a voluntary yeah well I mean we are committed let's say they're gathering together in protest of the law saying just to the corn to quarantine they can't break that up they absolutely cannot thank you no I think they might will they be quarantine Judge Andrew Napolitano probably if I keep up with us well it's always a pleasure to sit down with you I thank you for your time any time Joe Stacey and thank you for watching talk sunblock [Music] you

Channel: TALKSONLAW

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Keywords: TalksOnLaw, Joel Cohen, Judge Andrew Napolitano, Quarantine Constitutional, Is Quarantine Legal, Covid-19

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Length: 30min 58sec (1858 seconds)

Published: Tue Apr 07 2020