Emperor Newsom’s New Clothes
2021-01-24 · Guest: Daniel Dew (Pacific Legal Foundation) · 52:05
Executive emergency powers and representative government
Bob Zadek and Daniel Dew of the Pacific Legal Foundation discuss the unprecedented expansion of executive emergency powers during the COVID-19 pandemic. They explore the historical skepticism of executive authority in state constitutions, the legal standards used to challenge lockdowns, and the emerging legislative efforts to restore the balance of power between governors and legislatures.
Topics: Emergency Powers, Executive Overreach, Separation of Powers, COVID-19 Lockdowns, Pacific Legal Foundation, Constitutional Law, Essential Liberty, Strict Scrutiny, Rational Basis, Kelo v. City of New London
Speakers:
- Bob Zadek — Host
- Daniel Dew — Director of Legal Policy at the Pacific Legal Foundation
The Death of Representative Government [00:17]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning. This is, this morning and always, the show of ideas, never once the show of attitude.
I guess I must have missed it. It might have been in the news and I just wasn’t reading the news or listening to the news that day, but I didn’t realize that our country decided we have had enough of representative government; that the legislature was just a big waste of money, which it may very well be, was a big waste of time, kind of silly, maybe archaic, and we no longer have our behavior in society regulated by the legislature. We have decided that we will do much better if we cede all legislative power, or most of it, or the important legislative powers, to just one powerful, autocratic, tin-horn, if you will, chief executive and let him or her or it decide how we ought to organize our lives.
At least that’s what it feels like. For the past nine months, we have been governed. The smallest parts of our behavior, our liberty or the denial of our liberty, has been taken away not by the legislature, not by our representatives, but by our chief executive—our king for a day, except the day is now nine months and counting. Do you ever wonder how we got here? Is this the system of government which our founders gave to us? A system where at the stroke of a pen or the announcement through the media, that essential liberty has been taken away temporarily—don’t you believe temporarily—been taken away temporarily by a governor? Well, what about our representatives? Aren’t they representing us and protecting our liberties? No, I don’t think so. At least that’s not what it feels like.
How did we get here? Did we vote for something and not realize it? Well, it’s time after nine months and counting to take a giant step back and look at the environment we are now living in and ask ourselves: How did we get here? Do we like it? And if not, how do we prevent it from happening in the future? Whenever we have these important questions, I always dust off my contacts list and go to one or the other of the many organizations that care about these important issues. In this case, I’m happy to welcome to the show Daniel Dew. Daniel is with the Pacific Legal Foundation, a very important, very influential, significant public service legal law firm which protects our rights. They legislate effectively. They have an almost unblemished win-win-win-win-win record in the US Supreme Court protecting our property rights, protecting our civil rights. Daniel directs their legal policy at the Pacific Legal Foundation. He was prior to that with the Buckeye Institute in Ohio, a state-level organization that also protects property and civil rights and protects those who need protection as against the power of the state. Daniel has spent almost his entire career protecting all of us and quite effectively at that. Daniel is on the show to help us understand the creation, the growth, the scope, and the limitation of emergency powers exercised by chief executives, whether they be governors, mayors, county executives, or the like. Daniel, welcome to the show this morning.
Daniel Dew: Thank you so much for having me. I really appreciate it.
Historical Context of Executive Power [04:54]
Bob Zadek: Now, Daniel, we’re talking about emergency powers. So, we have a system given to us by the founders which has worked perhaps better than expected, or maybe as good as expected in general, historically, where we have a system where Americans at all levels of government elect representatives who represent us in the legislature, which the founders believed to be the most important of the three branches of government—the legislative branch. They enact legislation, and all power perhaps sits, or at least it starts, in the legislature. And if we don’t like the laws, we vote the legislators out and we express our dissatisfaction at the ballot box.
Our system of government then has an executive branch, and the purpose of the executive—the mayor, the president, the governor, etc.—the purpose of the executive is to carry out the laws. In other words, he’s the manager. He manages the place, and he makes sure the laws are faithfully executed and enforced. Over the past nine months, all we have heard about is directives and edicts from chief executives and precious little from the legislature. So tell us first of all the legal structure. How did chief executives—and let’s focus on governors to begin with, but it’s the same analysis—how did chief executives get the power they are beginning to exercise, and is there any limitation, if any, on that power?
Daniel Dew: So first, you’re absolutely right in your description of our system. It’s what we learn about in elementary school social studies. And the way that it’s come about is actually pretty fascinating. So going back to when states were formed and state constitutions happened, the states were very skeptical of a powerful governor. Before the Revolutionary War, a lot of the abuses that the people in the colonies suffered were at the hands of these governors from England. And so they didn’t want to give a lot of power to them. That’s why most of the power is spread out amongst people in the form of our legislatures. You’re absolutely right; the framers actually said that it’s the legislature that is the most dangerous of any branch because they have the power to make law.
Now, what has happened over the years is that when an emergency happens—usually it’s in the form of some sort of natural disaster or something like that—back in the day, there wasn’t technology where we could gather over the internet or over Zoom. And so the government needed to act quickly. So for that purpose, state legislatures started coming up with these Emergency Powers Acts where governors would be granted these extra authorities so that they could deal with things swiftly. Now, some of them were written more judiciously than others. Some of them put time limits, some of them didn’t. I think that California, Arizona, and others are incredibly broad where they basically say that the governor has the police power of the state when an emergency is declared. So that’s kind of how these things got started.
The Night Watchman Analogy [09:01]
Bob Zadek: Now, what’s important is that we understand that the ceding of power under emergency conditions by the legislature to the executive was not done because the chief executive—we’ll use governor—was any smarter than the collective wisdom of the legislature. It was done for purely practical reasons. Somebody has got to be in charge. When everybody goes home, you have a night watchman just to be there to alert people if something is going wrong and needs attention. And the night watchman is only there till the daytime. The emergency powers are only there for practical reasons until practically the legislature can meet.
But that concept of temporary, practical, not designed to cede decision-making power for as long as he or she wants, but only done until it’s daytime and the night watchman gets support—so that’s where it all started. So now, under these statutes, we’re talking about 50 states, of course, so we have to be a little bit careful about generalizations, but we have to talk generally just so our friends out there can understand how this all works. So under most statutes, who gets to decide if there is an emergency? Congress gets to approve the action of the president in a declaration of war or other emergency. So mechanically, if you can speak generally, if a generalization is helpful, who decides if in fact an emergency exists? Is it self-enforcing by the governor, or does a legislature have to say, “Okay, you’re on”?
Daniel Dew: So that’s what makes the state issue so broad is that in almost every case, it’s the governor who just unilaterally says, “I declare that there’s an emergency. I make this official proclamation and it is.” In some instances, the legislature can come in and undo it by joint resolution or something like that, but the actual declaration, the governors can declare that themselves.
The Expansion of “Emergency” [11:41]
Bob Zadek: Now, in an article you recently wrote in The Hill entitled “Enough is Enough”—I couldn’t agree more with that—subtitled “It’s past time to rein in governors’ emergency powers.” It certainly is past the time. Now, in that article, you scared the heck out of me when you pointed out that since governors have the power and nobody has really challenged it for the past three-quarters of a year, just to really put this in context, you pointed out that since governors get to declare their own emergencies, and given perhaps the fact that the Democratic Party has gained increasing control in the last election, it wouldn’t surprise you, you mentioned, that governors could—get ready, my friends out there, this is going to not make you happy—declare a state of emergency because of opioid addiction, a state of emergency because of homelessness (and in LA, for example, it would be perfectly appropriate, by the way, as an aside), or declare a state of emergency because racism is rampant. And just imagine a governor saying racism is so bad it is an emergency and it requires emergency action. I can just imagine a legislature cowering in fear saying, “Oh my God, if we challenge the governor, we will be seen to be pro-racist, so we better be in the program.” So tell us how unfar-fetched that concern is, because you did mention it in your article. Is this—am I just stirring up the crowd, or is it at least legally possible for this to happen?
Daniel Dew: So that’s a really interesting question. And so the first thing I’ll note is that those emergency declarations are not hypothetical. Those are actually things that we have researched and we have seen where governors or mayors have declared an emergency dealing with those things. The opioid epidemic—at least seven states have declared that an emergency. And up to this point, the declaration of emergency has been, you know, so that they can move some money around or so that they’re eligible for federal funds that are available when an emergency is declared.
But the fear is that what we’ve seen with the pandemic will embolden governors that there isn’t that pushback. And what we’re really doing is we’re confusing emergency with seriousness. I like your watchman analogy to start the show because that is what it’s there for. It’s for that emerging serious issue where property or life is on the line if quick action isn’t taken. Of course, all of those things are very serious issues and there are policies that can be done and put in place. But the question is: Do we want to embolden governors to be able to act unilaterally in every area of policy and law that those serious issues touch? I mean, just the opioid epidemic affects criminal justice, it affects Medicaid, it affects a bunch of different really heavy topics that I think that we want our legislature involved in making state policy.
Deprivation of Core Rights [15:52]
Bob Zadek: I like my own metaphor—I find it to be helpful—on the night watchman because the night watchman is only there because somebody has got to be on the job until the true organization holding the power can assemble and get in charge. So the night watchman is there to call out help if he needs help, to hold the fort if you will—I don’t want to get too dramatic—to hold the fort if you will until the powers that be can assemble and take control. The night watchman, once he detects or she detects an emergency or a problem, is not in charge forever because he or she is the night watchman. He’s only in charge until the group—in this case, the legislature—which has the power to do something can assemble. It’s only there for practical reasons, not to formally cede power for three-quarters of a year. And that’s what the governors have done.
Now, this is not simply myself and perhaps Daniel complaining about the wrong body is exercising power. It’s not simply that. It’s the fact that once the governor has assumed the power under a state of emergency, which was the case in March as Daniel points out in his piece, once the governor assumed emergency power, albeit very temporarily one would hope, now how has that emergency power been used? It’s been used to deprive Americans of so many of their protected rights—protected by the Bill of Rights, protected by state constitutions. And what Daniel, I’d like you to discuss for a bit if you will, is give us examples of the core rights that citizens of a state have been deprived of. These essential rights, these rights for to protect we go to war to protect these rights. We go to war so that nobody takes away our rights—“Don’t Tread on Me” and the like. And yet we have been kind of sheepish, kind of passive in standing by for so long—and this is not a call to arms, of course it’s not, it’s a call to understand what’s going on. So help us understand how governors have taken away—and the phrase is “Essential Liberty”—from all of us under the guise of a temporary emergency. Flesh out, if you will, what rights have Americans lost by the unilateral action of governors unprotected by our so-called representatives in the legislature?
Daniel Dew: Sure. I mean, the biggest number that I can point to is 316 million. That is the number of people that since March at one point or another were under stay-at-home orders from their governor. The right to travel is a protected right; it is a right recognized by our Constitution and by our Supreme Court. Businesses have shut down, some of them permanently, due to emergency orders. The way that we worship in our churches has changed. I mean, one of the things that we’ve seen is that your local large big-box store has been treated better than our local church congregation. So I mean, it’s really interesting talking about this because I think that maybe we’ve grown accustomed to it over the last nine months, but every single person has been impacted by these governors’ orders and it’s really affected almost every single phase of our lives.
Legislative Passivity [20:42]
Bob Zadek: Now, I have spent the first part of our show complaining—yes, complaining—about the passivity of the legislature. I spend many shows complaining about not that legislatures are doing too much, but that they are not doing enough. It’s not a cry for more government; it’s a cry for legislatures simply doing what they are hired to do, which is to protect us and to pass laws that protect us. So this is not a cry for more government. But this is a complaint about the passivity, the way that legislatures hide, let the governors get the flak, and they get reelected and they get free parking in the statehouse. So this is a complaint about the legislature.
Now, in the statutes, do the statutes have, when they empower governors under executive power, the night watchman, when they empower executives, do these statutes—are they open-ended? Could you divide them into various classes? How usually, how long does an executive power over an emergency—one emergency, if you can think that way—how long does it typically last in the legislature and in the statute, and does it really last for nine months unfettered?
Daniel Dew: Yeah, so that depends on the state. Some states—I would say a small minority of states—actually will say that there’s a certain number of days that an emergency can last before it expires or it has to be submitted to the legislature. That’s a small fraction. But I think that the majority, when these were contemplated, they were thinking natural emergencies, they were thinking riots, they were thinking those kind of things, things that are very short by their nature. I mean, that’s truly the definition of emergency. And so perhaps it was shortsighted by those legislatures, but most of them don’t have a set time limit when these orders have to expire.
Judicial Review and Legal Standards [23:02]
Bob Zadek: Okay, we have been speaking about so far the executive and the legislative branches of our government. We haven’t yet, but are about to, talk about the role of the judiciary. You, your organization, PLF, and many others have been challenging specific and even more general exercise of “emergency powers.” When you go into court, does the court have anything to say about this, or is it simply the case the chief executive, the governor, can do whatever the heck the governor wants once an emergency is declared? Is there any role for the judiciary, and if so, what are the outside limits on what the governor can do? Can a governor just declare under the political cover of state of emergency: “Nobody is permitted to work, everyone must stay home”? Or are there limits, and if there are limits, what are the limits the court will apply in testing the action of a chief executive?
Daniel Dew: Sure. So what courts have done and what courts should do, I think, are two very different questions. But there are a number of ways that these orders can and have been challenged. For example, some states like California have a separation of powers clause within its constitution. It specifically says, you know, that it is the legislature’s duty to make law; the governor executes the law and so forth. And so I think that that’s a valid way to challenge these things.
I mean, one of the things that Justice Scalia used to always say is that every banana republic has a Bill of Rights. And what he was trying to point out is that it’s actually the structure, the separation of powers, these independent branches each performing their specific role that is what really protects individual liberty. And I think that this has been highlighted by what we’ve seen in the pandemic and the rights that we’ve seen be infringed.
But there are other ways to challenge these things. We had a client that had a nail salon, and for some reason, one of the governor’s orders—this was in Connecticut—one of the governor’s orders allowed hair salons to open but not nail salons. And so we argued that there was no rational reason for them to exclude nail salons while allowing hair salons to open if they adhered to the same standards and same protocols. So there are a number of ways to challenge these; they’ve been challenged under, you know, the First Amendment where churches have been not allowed to meet. And I think that as we’re getting into, you know, nine months and counting, courts are becoming a little more skeptical. But I think at the very beginning, a lot of courts were just punting and saying, “Hey, this is an emergency, we don’t want to touch this.” So I think that there’s definitely a role for the courts and they need to step up and evaluate these things and really scrutinize them. But hopefully, they’ll do more of that going forward as these seem to never end.
Bob Zadek: In this discussion, you and I know, Daniel, but I’ll ask you to help our audience, our lay audience, understand how this—the words that you and I are accustomed to using, which are “Strict Scrutiny” and “Rational Basis”—help us just flesh out a tiny bit about how the court system, ultimately the Supreme Court, but of course the trial courts and the appellate courts, how the court system goes about deciding if a chief executive in a specific action taken has gone too far even though there may be an emergency. The courts just don’t do it on the standard that “doesn’t sound right to us,” say the judges. There are standards, and just so that we can, when we read about these cases, how can we understand what the rules of the game are when these governmental actions get tested?
Daniel Dew: Sure. So typically, there are a few standards of scrutiny, or like you said, the tests that’s applied that a court will apply to see whether the government really can do what they’re saying that they can do. So most times, it’s just Rational Basis. Is there any rational basis? Is there any reason that the legislature could give for doing this? And that’s what’s applied to most statutes.
But when a constitutional right is implicated—so free speech or the right to worship the way that you want or things like that—they apply a higher level of scrutiny called Strict Scrutiny. And the test for that is the government has to have a compelling government interest—so it has to be really important—and it has to be narrowly tailored, meaning it has to be the government should be doing the bare minimum or as close as possible to the bare minimum to accomplish their goal without unnecessarily infringing on somebody’s right.
So, you know, in the context of the nail salon v. hair salon example that I gave earlier, if it is truly necessary to protect people from these services, if that’s really going to cause spread of COVID-19 and people are going to get sick and die from these things, then what a strict scrutiny analysis would do would say, “Is it possible? Is there a reason why the hair salon can open and adhere to these standards and keep people safe while the nail salon can’t? Or for some reason is people getting haircuts a more compelling government interest than people getting their nails done or something like that?” So those are the kind of analyses that courts should be applying in these cases.
The “Essential” Litmus Test [30:27]
Bob Zadek: Daniel, I’m now going to segue into a word that I predict in about three or four years will find its way into high school civics, if there is such a thing, textbooks as part of the core policy in our country. And that is the word “Essential.” We have been hearing ad nauseam for nine months that essential businesses get to remain open, unessential businesses have to close. “Essential.” Now, that word is in the news every single day. That word appears nowhere in any legislature, certainly not in a founding or important document. So tell us about, if you can, how did this word get to be so important as the litmus test for executive action, and is it appropriate?
Daniel Dew: Yeah, I think you’re exactly right. It doesn’t appear anywhere. So what that really means, I think—not to be too skeptical, but I think that it is a word that sounds really important and sounds really good, but nobody can define it. And so it can be fluid. And you know, if you remember, it’s not quite as bad now, but in the early days, I remember we would get up and turn on the news or read the news to see what would our government allow us to do that day. What are we allowed to do now? And by using the word “Essential,” it could be fluid, and powerful lobbies could get to the governor and they could be included in essential workers while, you know, the small business couldn’t. And so I think that it was just a word that was used to give the governors latitude and quite frankly, so that they could discriminate against unfavored businesses or help out their favored businesses.
Bob Zadek: You’re too kind to governors. It gave them political cover. Once they could put some kind of an objective gloss on their decisions, and they can decide that boating by yourself was unessential and therefore could be banned by Governor Whitmer, I believe, in Michigan, and all these activities that are random, that are minor activities, are either essential—and you were praying your activity and your job was essential or unessential as determined solely by the governor, which means solely by the political process, which means solely to reward the governor’s friends and punish the governor’s enemies, or because the governor listened to whoever the governor listened to. But we didn’t have the check of our—here’s the word—representatives. Nobody gave us collectively a seat at the table. And so the word “Essential” became the most important word. And people, as Daniel, as you said, they woke up in the morning and hoped that the right they wanted to exercise was deemed essential. “Please God, let my activity be essential so I can do it.” That is not the way citizens in a free society have to live, hoping that some chief executive randomly decides that your activity, whether it’s earning a living or taking a walk, is essential enough to pass the test. So the word “Essential” somehow has found its way into our vocabulary in a most unpleasant way.
Legislative Reform and the Veto [34:36]
Bob Zadek: Now, I would like you to just, before we leave this topic of government and the relationship—you mentioned earlier in the show checks and balances. I was hoping you were going to say that, and we’ve mentioned it a little bit. But under our system, as opposed to the system of, as Justice Scalia referred to, banana republics or systems that have presidents for life—two major hallmarks of authoritarian government—under those systems of government, there are no checks. There is no branch of government which vigorously controls the other branches of government. And thus we have, as Scalia has mentioned, during the emergency period, the legislature exercised no check on executive power. None. There’s—I don’t know of one instance, Daniel, and maybe you can cheer me up a bit, where the legislature has said, “Okay, we’re in charge now. You can go home, Governor. We will have hearings and enact legislation on an informed basis to regulate activity during the pandemic.” Has that ever happened in the nine months or so of the pandemic, when a legislature has exercised its representative duties and pulled back the power from the executive? And Daniel, am I correct that a legislature could do that if it chose to do so?
Daniel Dew: Yes. So a legislature can choose to do that if it would like to do so. And the good news is that there are state legislators across the country who have recognized that this is a problem. Legislative sessions across the country are starting now, and in about half the states, there has been legislation introduced that would limit governors’ emergency powers and would redistribute that and allow the legislature to provide a check on the governors’ emergency powers. So the good news is that there are state legislators who recognize that that’s a problem.
But there are additional problems with that because as you’re changing statutes, if you’re changing the law, the normal course is that it goes through the House, it goes through the Senate, and then it’s presented to the governor. And almost every governor, regardless of party, does not want to give up that additional power that they have or their own power. So these things are likely to be vetoed. Michigan passed one that was vetoed by the governor. Unfortunately, I don’t believe that they have the supermajority required to overturn the veto. But we have a really good—we have hope for reform in Kentucky. So the Kentucky legislature passed emergency powers reforms overwhelmingly, and it was just vetoed last week by their governor. But it’s expected that the Kentucky legislature is going to override that veto early to middle of next month.
So there are people who are really working on this. Part of my job is to work with state legislators to help them craft policies to restore the separation of powers, and we’ve come up with some model policy to do so. But so there is some hope. There are some people who are really fighting on this issue and there are state legislators who are really interested in it. The hope is that there’s enough will from the legislature, regardless of party and who’s in power, that just for the sake of good government and restoring the structure of government, that they’ll want to pass these reforms.
Bob Zadek: Daniel, you didn’t hear what I’m about to say, but I did. When you were telling us about this movement—if that’s not too grand a word—of legislatures starting to take back their appropriate powers, what you didn’t hear but I did is around the country there was a wave of applause and a sigh of relief. You didn’t hear it because you were speaking, but I did, and it’s great news.
Now, a political question if you will, Daniel. How could any governor—and you mentioned Michigan—when a governor vetoes that legislation which just says your executive power in an emergency is not unlimited—that’s all the legislature says: “You have executive power, just sorry, Governor, it’s not unlimited”—how does a governor justify vetoing a bill in effect saying, “Oh yes, my power is unlimited”? How do they do it and get reelected?
Daniel Dew: Well, we’ll see about reelection. I don’t know that many of those governors have been up for reelection. But not to get into the political, but I always think of this interview that Governor Beshear in Kentucky gave when the bill was introduced that would limit his emergency power. He talked about, if the will of the people—if the people as a whole didn’t have the will to do the right thing, he needed to be there to help them and to enforce it. And I think that that’s the nice way of saying that he doesn’t think—he thinks that the people of Kentucky are too stupid to do the right thing and do what’s best for them, and so he, being the superior intelligence, is going to tell them what to do. That’s not what he said, but that’s how I interpret it. And I think that, you know, while this is a specific problem for emergency powers, I think that this is an explainer for big government overall. It’s, you know, there are an elite few who think that they know what’s best for everyone, and so they’re going to dictate to everyone what they should be doing. And the opportunity that has come through this is that now people understand the immense power that government actually has and that it needs to be—we need to be careful with how much power we give to government and especially to one person.
PLF’s Model Policy [42:30]
Bob Zadek: I’m going to ask you in a moment, Daniel, because PLF, Pacific Legal Foundation, has been so active in this reform legislation, I’m going to ask you to go into a little more detail on what are the elements of the ideal legislation to rein in emergency powers. But before I ask that question, I’m just going to offer an observation to see if you have any thoughts. I equate what we are talking about today—the exercise of emergency powers and then the legislation that you’re about to explain to us—I equate that in a way to what happened in the aftermath of the Kelo decision. My listeners will recall—and I’ve done many shows on Kelo—that way back, what seems like decades ago, but it wasn’t that long, the Supreme Court in an almost universally criticized decision allowed the state of Connecticut to use eminent domain to take away private property from one group of landowners for the sole purpose of giving it to another private property group so they could build more desirable—make more desirable use of the property and raise taxes. And that was so offensive that the Supreme Court ultimately apologized for this decision, more or less. But then that created such a backlash that at the state level, there were, in I think about 45 states, states enacting legislation to rein in its own power of eminent domain as a reaction. And I just—this sounds to me, Daniel, like that’s what’s happening. We experience governmental overreach—in Kelo, it was the courts’ (in my opinion) overreach or wrong—and now it’s overreach of governors. We experience that, we say to ourselves, “This is what it feels like, and it doesn’t feel very good.” And then there is a state-by-state reaction to that to rein in, to undo what we have experienced. So with that observation, Daniel, just wanted to—if you have any thoughts, I’d love to hear them. But if not, help us understand the type of legislation, the elements, the bullet points of the legislation that you are encouraging states to pass to rein in, without destroying the essential need for the night watchman, without destroying something to fill the gap, how you would propose to rein in and control executive power.
Daniel Dew: Yeah. So on your first point, I really hope that’s true. I think that there is that stirring. The problem is the presentment clause where governors have the authority to veto these things. And so I’m hoping that there’s momentum building and people see that this is a structural problem and not even necessarily a criticism of how their governor handled things. You know, you may have a governor that you really like and thought that they did something appropriate, but you never know who your next governor is going to be. You never know what’s going to come down the pike. And so that’s why we shouldn’t be trusting government to just do the right thing; we should put those structural safeguards in place. So we’ll see on that, but I do think that there is momentum building to get something accomplished.
So the model policy that we put forward is we’ve said that these emergency orders should last no more than 30 days without being approved by the state legislature. That is plenty of time that even in part-time legislatures for the legislature to assemble and to approve or disapprove of an emergency order or to come up with their own legislation. We’ve also included a piece that would allow legislatures to meet virtually so that if there is some sort of natural disaster that doesn’t allow them to meet together, or if it’s a pandemic where we don’t want people gathered in close together, they can meet virtually. It subjects these orders to strict scrutiny that we talked about before—really justify to the court why this is so important that this emergency order goes into place. But also it provides for expedited judicial review. These things move quickly, businesses close quickly, people are discriminated against, and the very nature of it being an emergency requires swift action. So this tells the courts that they have to look at these things quickly so that people get the relief that they need. It says that—and that would apply to state and local orders. It also has a mechanism that for part-time legislature, it incentivizes the governor to bring the legislature back into session. So it takes the existing emergency powers that are there—it’ll work in any state—it takes the existing emergency powers that are there and just places these safeguards up so that the legislature and courts are restored to their proper government function.
Essential Liberty [47:57]
Bob Zadek: Now, what about governors—some states have 30-day, as you had pointed out, limitations on how long the governor can act under a claimed emergency. And Governor Cuomo in New York and Newsom in California and many others have simply extended it unilaterally. Is that a workaround, or does your proposed legislation deal with that issue as well?
Daniel Dew: Yeah, I’m so glad that you asked about that. Yes, that is a workaround and that we have actually seen in some of these states where there is an existing order. And so part of our 30-day limitation is that it prohibits a governor from issuing a substantially similar order afterwards. So that way they’re not on the 29th day rescinding their original order and creating a new one. So this really narrows that opportunity for them to work around the reform.
Bob Zadek: So when I listen to your list that you have thought through—you being PLF—thought through in this model, if you will, or proposed or recommended, if not legislation, the bullet points, it points out—it’s wonderful for our friends out there to listen carefully to that, because in listing the reforms, you highlight the problems. And the problems are: it starts with the fact that we have—and I use the phrase more than once on this show because it is important—Essential Liberty. Liberty is not a throwaway; it’s not a disposable right. It is what the country is all about. And it raises the protection of liberty to a higher standard. And it says before you mess with my right to earn a living, my right to speak, my right to worship, before you mess with my rights, there are burdens that you have to overcome. You don’t get the right to declare that. And that’s what’s really important about this legislation.
Now, PLF has been very active in this, in this protection of liberty, especially during the crisis. So tell us about—we have about a minute left, Daniel—about what PLF is doing with defining liberty and the program you are running. We have about a minute.
Daniel Dew: Yeah, so every Friday for this month, we’ve been doing a series called “Battleground America” where we’ve been looking at different issues, including this one, identity politics, and other issues that are really at the forefront of politics and policy right now. We’ve been doing that, having these great speakers. We’ve had, you know, people from government, academics, lawyers who litigate in these areas. So they’ve been incredibly useful. They’re about an hour long. And for more information on those and to watch past events, you can go to pacificlegal.org/events.
Bob Zadek: It’s of course available as a podcast, I presume, and you can listen to it at your leisure. And these are very important podcasts. If you listen to only an hour a week or so of podcasts, this is a must-listen because you will get so smart so fast. You will confidently watch what’s going on. Bob Zadek thanking Daniel Dew for his work at PLF and thanking PLF for all of the work that they do. While we sleep, they protect our liberty. So thank you so much, and thank you to my friends for sharing this Sunday morning with me. Thank you.