The Mini-Administrative State
2020-07-30 · Guest: Glenn Roper (Pacific Legal Foundation) · 52:02
Separation of powers and executive overreach during COVID-19
Bob Zadek interviews Glenn Roper of the Pacific Legal Foundation regarding the erosion of the separation of powers during the COVID-19 pandemic. They discuss how emergency executive orders have bypassed legislative processes, leading to arbitrary distinctions between “essential” and “non-essential” businesses and the long-term implications for economic liberty.
Topics: Separation of Powers, Administrative State, COVID-19, Emergency Powers, Economic Liberty, Pacific Legal Foundation, Constitutional Law
Speakers: Bob Zadek, Glenn Roper
Madison’s Definition of Tyranny [00:00]
Announcer: You’re listening to the Bob Zadek Show, a full hour of libertarian discussion with the smartest guests on radio. Live, spontaneous, and thoughtful, it’s the show of ideas, not attitude. Now, your host, Bob Zadek.
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show which has always been and always will be the show of ideas, never once the show of attitude. Thank you so much for listening this Sunday morning.
James Madison once observed: “The accumulation of all power, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny.” The accumulation of all power, legislative, executive, and judiciary, in the same hands. Wow, does that describe how we are living in many states today with the accumulation of all powers—legislative, executive, and judiciary—in the hands of governors, mayors, county executives, and, as if it could not get any worse, in the hands of health department officials who have received delegated authority and they are dictating how we organize our lives, whether we can or cannot earn a living. The definition of tyranny. Pretty scary stuff.
To explore this important concept, perhaps the most important single concept which dictates how our state, local, and of course federal government is structured—the core structure is reliant upon the separation of power. Those are not empty words. Those words, as we will learn this morning, say it all. Once we lose the separation of power, we are subjecting ourselves or we will become subjected to tyranny.
To help us explore and really understand the history, the importance, and what is going on today in the governance dictated by the pandemic concerns, I’m happy to welcome to the show Glenn Roper. Glenn is a practicing attorney, he’s a litigator with the Pacific Legal Foundation. Pacific Legal Foundation—I almost cannot say the phrase without forming goosebumps on the back of my neck and profound admiration for the work of PLF, which Glenn will be happy to share with us. They are an important public interest firm, law firm, which litigates on behalf of us, our individuals, for individual liberty, separation of powers, rule of law, and of great importance to this morning’s show, economic freedom and private property. Glenn has had a wonderful career; he has served in government, he has served in the high levels of the legislative and judicial branches of state and federal government, and he brings an enormous amount of wisdom and understanding about what’s going on under the hood of government. Glenn, thank you so much for joining us this morning and welcome to the show.
Glenn Roper: Thank you, Bob. It’s a pleasure to be with you and thank you for those very kind words about Pacific Legal Foundation and the work we’re trying to do.
The Mission of Pacific Legal Foundation [04:56]
Bob Zadek: Now, before we get into separation of powers, just only because of my profound admiration for PLF, help our friends out there understand just briefly what is the mission, because you have been unbelievably successful in the courts. Eight or nine—I lost track—successive victories in the US Supreme Court on behalf of our friends, the listeners to our show and all Americans. So tell us the mission of PLF, tell us the work you do.
Glenn Roper: Yes, of course. Something I’d love to talk about. And with this last Supreme Court term, I think we’re actually up to 12 victories in the United States Supreme Court. But Pacific Legal Foundation, like you mentioned, it’s a nationwide nonprofit public interest law firm where our mission is to protect individuals and entities against government overreach. We promote property rights, economic liberty, the separation of powers, equal protection, and we do it all without charging our clients a nickel. We provide pro bono representation for people who need this sort of assistance and can’t afford it on their own. We’re entirely donor-funded, 501(c)(3), and it is our mission to protect constitutional rights against government overreach and abuse.
Bob Zadek: And I will just mention—and it sounds like I’m just—this is a paid commercial for PLF, but it’s not. This comes from my heart and my mind. PLF, in the most profound sense of the word, represents the little guy. The smallest of proprietorship and independent business person or property owner. Small people trying to make an honest living, cooperating with others to create wealth and jobs. And these are—your plaintiffs are always the people who, without PLF, would have no voice whatever. And to give a voice and to actually produce results for people who are taking on the entire majesty of government, and to take on government and to universally prevail—and not only when you prevail, you don’t prevail for your single plaintiff who has a legitimate beef with government, but your cases establish precedents that help through the multiplier effect tens of thousands of other similarly situated small business people and small property owners. So the multiplier effect of your success is just incredible. So I thank you so much at the outset, and I will probably not be able to—I will do it again at the end. Thank you so much for your work and the work of PLF.
The Structure of Liberty [07:25]
Bob Zadek: Okay, let’s roll up our sleeves and let’s get into this morning’s work. We have a lot of interesting concepts to understand so we can resist the overreach of government. So, separation of powers. Those words sound like they’re something out of a high school textbook, and I’m sure they are. They are not empty words. They are where it’s at in terms of the control of government. Help us understand when the founders looked at the concept of the separation of powers, what did they have in mind, and tell us why, in the dynamics of government, that concept is so important in our political lives.
Glenn Roper: Well, separation of powers is a fundamental American idea and ideal, and it is really what helps protect us. You know, one of my heroes, Justice Antonin Scalia, he used to say that before he unfortunately and untimely passed away a few years ago, he used to say the foundation of our freedom is not based in the Bill of Rights. And you know, I’m a constitutional litigator, I’m fighting every day to promote the freedoms and liberties in the Bill of Rights, but he was emphatic about this: it’s not the Bill of Rights.
And he used this colorful phrase: he would say every tin-pot dictator has a Bill of Rights. And it’s really true. You go to nations—you can go to North Korea and find in their constitution a Bill of Rights protecting freedom of speech and freedom of the press, when we know those kinds of rights are really not available to the average citizen. But Justice Scalia would say what ensures our freedom is the structure of government. And if you look at the Constitution, the Constitution itself, apart from the Bill of Rights and the other amendments, it is the structure that is set up, the checks and balances between the different branches of government that really help hold each branch accountable and help to protect our freedom and our liberty.
You’ve got the legislative branch with Congress, you’ve got the executive branch headed by the President, you’ve got the judicial branch, and there’s push and pull between them and boundaries between them. And that push and pull and check and balance is really what helps to protect our freedom and our liberty much more than any of the rights listed in the Bill of Rights.
Bob Zadek: And what’s interesting is there has been a lot in the media, there is a constant conversation about we are ruled—some of us believe we are ruled by this cadre of quote “elites,” people who take themselves to be smarter than the rest of us, and they are the wise men and they know—or women—and they know how to run our lives better than we do, and therefore they deserve to have the power over us because if they do not, we would ruin our lives. And the founders, of course, in the concept of the separation of powers, they acknowledged that no, there is not a single group of elites who know better than others how life should be organized and how the country should be run. And by pitting groups—political groups, the legislative against the executive and perhaps against, if that’s the right verb, the judicial—you end up with the collective wisdom which is better than the wisdom of any single branch of government. So you end up with—it’s just, if you will, common sense that the more branches of government that are involved in the process, checking each other’s excesses, that produces less excess and better decision-making. So the corollary is, Glenn—and we’ll expand upon that during a good part of the show—is that when that separation of powers disappears and power ends up being collected, in this case because of the pandemic, in the executive alone, that’s where bad decisions are made because we lose the checks and balances.
Emergency Powers and the Pandemic [12:20]
Bob Zadek: So now, when we talk about checks and balances and separation of powers, one can observe that this executive authority during periods of crisis or emergency—whatever the word is in the appropriate statute or constitution—tell us about this concept of what has happened in the pandemic, the state of emergency, because it’s kind of unprecedented. And how has power—what happened that all of a sudden power came to reside in the executive branch for such a long period and with such strong powers at that? How did that all happen?
Glenn Roper: Yeah, great questions, and you raised a number of fascinating concepts that hopefully we’ll be able to explore a little more. But just like with the federal government with the separation of powers, every state has the same kind of separation of powers. So you’ll have legislative bodies and executive bodies and the judiciary. And what you have there is not just—you know, it’s funny, people talk about these being unprecedented times and oh my goodness, we’ve got to change things because of the pandemic. Well, the founders and people who studied these at the outset of the country, they were not unfamiliar with emergencies and with problems. You know, they’d just come out of the war against England as they formed the Constitution. And so they did not kind of blindly set up the separation of powers in ignorance of the fact that you could have emergencies that needed to be dealt with.
And so because of that, there isn’t just kind of a general exception, you know, the emergency exception to everything in the state and federal constitution. Instead, what you have are legislatures, state legislatures, will enact laws that give some measure of emergency powers to the executive. They recognize that there may be a need to act swiftly and efficiently in the face of an emergency, and so you’ll have legislation that kind of lays out: here’s what the governor or other officials are allowed to do, here are the restrictions on it, here are the limitations on it. And it’s not an unprecedented or something that nobody thought of, and it’s not an unbounded power. The executive will be allowed to declare certain types of emergencies, such as a public health emergency. And those are the kinds of powers that we’re seeing here now. Unfortunately, the problems that we’re seeing, and part of what PLF is focused on, is the limits not being respected. And that’s where you get some of the erosion of the separation of powers and the checks and balances that we need to have and that we expect to have.
The Temporary Nature of Emergency Power [15:18]
Bob Zadek: One of my observations about the use of executive power is that obviously, obviously, the legislative process often takes quite some time. It cannot act on a dime, although the declaration of war after Pearl Harbor took a second and Congress acted with remarkable speed. Regrettably, after 9/11, so legislators can act fast, but they are not known to act fast. So therefore, in recognition of the fact that government must on occasion be nimble, when states of emergency or whatever the phrase is are declared by the executive, for that period of time, the executive is then automatically granted powers that otherwise would be nothing short of dictatorship.
But what has been forgotten in my opinion—and Glenn, I’d like you to speak to this if you could—what in my opinion has been forgotten is that the reason that we have this extraordinary seeding of power to the executive is only to give—and this is the phrase I want to focus on—it’s only to give the legislature time to react as legislators do. That is, it’s a stopgap. It is the exception, not the rule. And therefore, the governor or the executive declares a state of emergency, makes the immediate, immediate decisions that must be made until and only until the legislature steps in. So what has happened is the exception has become the rule. And there’s no—there’s no mechanics, and Glenn, help us understand this, for the executive to voluntarily declare, “Okay, the fun’s over, the state of emergency is now over, so legislature, I’m transferring power back to you and I now await the laws which I am supposed to enforce.” How does it stop, and hasn’t the concept that it’s supposed to be very temporary, hasn’t that been lost in the wash?
Glenn Roper: Yeah, and again, you raised three or four different issues that we could talk about there. But the first thing that I thought of that your comments sparked is you’re exactly right. The power is given to the governor not because the legislature made the determination the governor’s the smartest person in the state or, you know, is the best able to handle balancing the different competing considerations. It’s just a matter of we need somebody to be able to act decisively and nimbly at a time when, you know, the legislature might not be in session. You may have legislators spread throughout the state who have difficulty in an emergency situation getting together and convening. And so the governor is given these temporary times of powers.
And you know, we’re speaking generally here. Of course, we’ve got 50 different states and 50 different solutions, 50 different approaches. So to some extent, we’re generalizing a little bit, but there are states where often these emergency powers have explicit time limits: 15 days or 30 days. I think even where the legislation itself does not have that kind of a written time limit, it’s still understood that these are intended to be temporary times of powers.
And your question as to how do we enforce that, how do we make sure that happens? Well, unfortunately, sometimes there’s no way to address it other than bringing in the third branch, going to the judiciary and bringing a lawsuit and saying the governor or mayor or county official, whoever it is, is going beyond the kinds of powers that are granted in the emergency act. And you know, you’re hitting on—a lot of these restrictions are going to be things like closing businesses. That’s what we’ve seen happening across the country. And you know, it really is important to keep in mind that it’s one thing to impose kind of a temporary stopgap—the term you used—closure so that people can assess and understand a new disease. Unfortunately, what we’re seeing is something much bigger, more of a power grab, more of a paralyzing of economic activity and really kind of turning it into a central planning situation where you’ve got officials who are saying, “Well, I’m able to determine what kinds of businesses we should or shouldn’t have, what’s essential, what’s not essential.” And unfortunately, sometimes the only way that we can push back against that is bringing lawsuits on behalf of the people who are harmed by these kinds of orders.
But we are also seeing, I should mention, a little bit of a movement among state legislators who are looking at the rules and many of them are saying, “Wow, we may have granted a little too much power to the executive here.” And there’s about 20 or so states that are now considering legislation to cut back on the governor’s emergency power. And now that they’re seeing the fruits of it in action, they’re taking some of those steps. So there’s a legislative route to fix some of these concerns that we’re seeing, there’s the route of people bringing lawsuits to try to hem in and enforce the limitations on the governor’s power. Hopefully, the governors themselves—you know, there’s the power of the voting booth where when they are abusing these powers, when election time comes, people can go and make their voices heard and their dissatisfaction heard and maybe make a positive change at the polling place. But it is a problem that we’re seeing with people going beyond the power that is intended to be granted to them and treating this not as a temporary kind of stopgap measure, but taking it as an opportunity to grab more of the power that should be separate.
Arbitrary Distinctions and Economic Rights [21:55]
Bob Zadek: Now, has there been even one instance where any governor or mayor has said, “Okay, legislature has had enough time, things have—there is enough time now for the legislature to act, and therefore I am undoing my declaration of emergency, I no longer—we no longer have the exigency of time, we have had three months to think about the problem, so legislature, do your job, I’m going back to normal because that’s my role as an executive. I am like George Washington or like Cato, going back even much farther. George Washington at the end of the war handed over his sword and said, ‘I’m going back to be a planter in Virginia, my work is done here.’” When has a—is there any instance, even slightly, where a governor has four months or so into the crisis said voluntarily—not under the pressure of the ballot box or the pressure of the legislature, which will only happen if they’re in different parties of course—where the executive has said, “Okay, legislature, do your job, I am done.”
Glenn Roper: I’m not aware of something like that specifically. And I think we have too few people who model their service after George Washington just in general. But we there has been some difference in how it’s been approached. You know, Governor DeSantis in Florida and Governor Abbott in Texas specifically, they have taken a what I consider a more measured approach to some of these things. But boy, I really can’t think of an example off the top of my head where somebody has said, “Okay, legislature, you’ve had enough time, I’m now going to rescind some of these orders.” I just have not seen that happening. And I think it really highlights why we need these checks and balances, because you know, there’s—it is that ambition that we talked about and that James Madison talked about, where the incentive and the path that they follow is to try to aggregate power, pull in more, do more. And that’s—it really just highlights for me why we need a strong, robust separation of powers.
Bob Zadek: Of course you haven’t seen any examples. That was a loaded question, Glenn, and you knew that I was sandbagging you because there is no such—so I wasn’t trying to humiliate you in front of my—or under the ears of my audience. Of course there is no such instance of that because it just about never happens that power is voluntarily released and ceded back. It only happens under great pressure.
And I think I once read, Glenn—you probably know the exact number because you’re so much involved in interactions with government—but as I recall, at the federal level, there are something in the low 20s existing, still remaining states of emergency going back 20 or 30 years. So states of emergency, which have the effect of creating unusual accumulations of power during a quote “temporary” crisis, they never go away because it’s too good for government. Why would you ever want to relinquish power? It just doesn’t happen. So let us all watch and let us give a free copy of Profiles in Courage to the first governor who voluntarily says, “Okay, I have done—I have gotten us through the tough stuff, so legislature, do your job. It’s not that I, the governor, am unwilling to do it, and it’s not even that I’m not capable of doing it. It is simply not my job. And out of respect of good government and good government alone, legislature, do your work.” That just hasn’t happened, and it is so interesting to look and see if it ever will happen and how—what will it look like.
Now, when we have this accumulation of power in the executive, the next word, Glenn, I’m sure in your mind as well as mine, the next word that pops into our cynical brain is “arbitrary.” Once you have unchecked power, then you have the holder of the unchecked, almost unlimited power exercising it in a way that is arbitrary. And that translates into everyday discussion into “essential” and “non-essential” businesses. An almost laughable distinction. So tell us how the absolutely predictable accumulation of power in the executive, which the founders abhorred because they abhorred any accumulation of power anywhere in government or in the country at large, give us some examples, if you will, and there are hundreds of course, of how this accumulation of unchecked power—unchecked by the legislative or the judicial—how that has resulted in arbitrary, almost humorous except it’s so painful, decisions. Give us just some examples of how the accumulation of power plays out in everyday life.
Glenn Roper: Yeah, and you know, I think you’re hitting on a key point. When the legislature is enacting legislation, they will hold hearings, they’ll propose bills, they’ll discuss, they’ll compromise, they’ll listen from different interest groups. We’re not seeing any of that when the governor bypasses sort of the normal legislative process and takes upon him or herself the—I don’t want to say tyrannical, but the extraordinary power of deciding what economic activity can continue and what needs to stop because I say so.
But one of the best examples of the arbitrariness is a case actually that Pacific Legal Foundation is litigating right now in Connecticut, where the governor has issued a number of different orders, sometimes conflicting, sometimes changing, but drawing these arbitrary distinctions not just against who can—who needs to be closed, but as to when they can reopen. So the state of Connecticut, the governor and his economic development office went through and kind of put different kinds of businesses in different categories and then decided who can reopen when. Well, our client, Luis Ramirez, owns a nail salon, and the governor issued an order saying that, “Okay, it’s time to start reopening. We’re going to allow hair salons to reopen, but not nail salons. You have to stay closed.” And so we’ve brought a lawsuit on behalf of Mr. Ramirez and his business challenging this kind of arbitrary distinction.
And the arbitrariness of it is really highlighted in the fact that the governor himself and his health and economic officials, they specifically categorized nail salons and hair salons as having the same risk profile. So they did that on the one hand, then on the other hand, they said, “Nonetheless, we’re going to draw a distinction and say that one can reopen and the other cannot.” They gave no reason to justification for this. There’s no reason why the same sorts of precautions can’t be taken in the nail salon. And in fact, Mr. Ramirez has spent some of his own increasingly dwindling funds to implement some of these precautions so that when they reopen, he’ll be ready to go with the masking and the distancing and all the precautions that they recommend. But still, there are just these arbitrary lines that get drawn. And you mentioned laughable—it is laughable in one sense, like okay, you can get your hair done but not your nails done. But it’s not laughable in that these are real decisions affecting real people who are trying to make a living, who are trying to support their families, and who for no reason other than government say-so are just closed down. And it’s very damaging and it’s very dangerous, and it highlights some of that arbitrariness that we are seeing in these shutdown and reopening orders.
Bob Zadek: In the litigation in Connecticut, is there any indication—has the state of Connecticut offered any rationalization? Have they—is there any pretense that it is a data-driven, considered conclusion, or is it just “we can, therefore we will”?
Glenn Roper: That litigation is ongoing, so the state has moved to dismiss our complaint and we’re in the middle of briefing that right now. But really, they can’t make that kind of distinction because they’ve already issued these risk profiles grouping nail and hair salons together. So they haven’t given some sort of, “Well, we analyzed the scientific literature and conducted studies and it turns out that there’s this differential kind of risk.” No, it really is just kind of a naked exercise of arbitrary power.
Economic Rights as Second-Class Rights [32:14]
Bob Zadek: And what’s important in this discussion of separation of power, I think anybody who is even a casual student of government and the relationship between citizens and government, even a casual observer would have to say, “Well, of course it is important to preserve the separation of power.” But then there is the issue that given we start with an exercise of executive power for far too long, far longer than is necessary, and with the executive enjoying more power perhaps than King George III had over the colonies—and hopefully not for as long a period of time, but that remains to be seen—but once we start with something that is clearly, I’ll say unconstitutional, and by that I mean it’s violative of America’s first principles, here I am sitting here in my home and you are in your home and people around the country are starting to get angry. There’s no real way to enforce that and to compel the governor to surrender—cede power back, to undo the executive order. The problem is of course one that lawyers, Glenn, such as yourself, will say it’s a standing issue. So tell us about the mechanical problems. Here we have PLF and perhaps lots of other organizations which would like nothing more than to get to the heart of it and to undo this unconstitutional seizure of power for too long. You have no direct remedy, do you?
Glenn Roper: Well, you mentioned standing, and that’s an important requirement that the courts have set up, which is you can’t go in and challenge a policy just because you don’t like it or because you see problems with it or because you can identify constitutional violations. Instead, you have to show that you are concretely impacted in a substantial way and that by bringing this lawsuit, if you were to prevail, if you were to win the lawsuit, that that would help remedy the problem that you’re facing. So Pacific Legal Foundation, we can of course analyze the laws and the orders and find all sorts of problems with it, but until we have a client who has been concretely affected, any lawsuit we bring would just be thrown out.
And that’s why we really rely on our clients who really are the heroes in these situations. These are the everyday ordinary Americans, men and women who are trying to run their businesses, live their lives, and support their families. And we really rely on finding those people, hearing about those people, and being able to bring lawsuits on their behalf because you’re right, you can’t just go challenge a policy because you don’t like it. You have to be able to show that you have someone who’s affected by it and who can, by challenging it, can potentially get some relief. The courts have said that’s the extent of how we’re willing to exercise our judicial power. And so we really do rely on these heroes who are willing to go up against the huge, gigantic government, who are willing to put their names and faces out there and stand up for their rights and for what they believe in.
The Hierarchy of Rights [36:05]
Bob Zadek: What’s so interesting about this whole laboratory showing us the adverse effects of the violation of the core principle of separation of powers, what’s so interesting to me is it requires government and therefore the country as a whole to make what seems like a profoundly apples and oranges distinction, but it must be made. And that is this clash between protecting the health, welfare, and safety of citizens, which is perhaps the most important single mission of government besides preserving the rule of law. So protecting the health, welfare, and safety and protecting the economic well-being of the country, which means the clashing or the focusing on what we call economic rights. The right to have your contracts enforced, the right to enter into a bargain with another consenting adult and have that contract, if it doesn’t harm anybody, be enforceable.
There is a whole range which Pacific Legal Foundation is so profoundly aware of, which is the protection of what we call economic rights. And just imagine if under the guise of the pandemic a governor declared, “Okay, I’m shutting down the newspapers because they are fomenting dissent which is contrary to the public order,” or something like that. I hope that’s far-fetched, I hope that it is. So if the government were interfering with freedom of the press or free speech or freedom of assembly or freedom to practice your religion, then there would be of course angry protests and it couldn’t survive. But yet there is not the same rising up in protest when the government is interfering with economic rights.
So it is interesting to me, Glenn, and I wonder if you have any thoughts on this, at how the country at large seems to have been drilled into them that economic rights were every bit as important to the founders in the sense that there are provisions in the Constitution and first and founding documents that protect freedom of contract and the like. But economic liberty as opposed to political liberty—free speech, worship, things of that nature—economic liberty has become a second-class set of rights, and therefore it has been relatively easy for the executive branch to further deny people the economic rights, the right to earn an honest living. So if you can speak to that, and then Glenn, I’m going to have a what I hope will be a really interesting follow-up question.
Glenn Roper: Well, one of PLF’s important missions and values is to re-enshrine the value that is given to economic rights. And you know, we use this term “economic rights,” that can sound a little bit, you know, hoity-toity, but it’s really, as you mentioned at the end there, it’s just the right to make a living, the right to run your business, the right to seek after and pursue a profession of your choice. And unfortunately, over the years, that right really has been given this kind of second-class status to the extent that when we challenge some of these regulations under economic rights or economic liberties, courts will apply what they call the “Rational Basis” test.
And really, the Rational Basis test, what courts mean by that is if in drawing these distinctions that harm economic rights or economic liberties, if that is—if we can identify a rational reason for why they would have this restriction, then we will uphold it. So unless you can show that the legislature or the governor was actually acting irrationally in a way that makes no sense, then they will uphold these restrictions. And unfortunately, we’re seeing it go even further than that, which is where courts will say, “We’re not only going to look at the reasons that the government gives for the restriction, we’re also going to try to imagine other reasons that they may have for coming up with this restriction. And if we can imagine a rational reason for why they would have this restriction on economic rights, on the right to own and use your property, to run your business, to make a living, if we can imagine a rational reason for this restriction, then we’re going to uphold it.”
And that really is a far departure from the understanding at the founding, of the understanding throughout much of American history of the importance of allowing people to live their economic lives, just as much as we want people to be able to live their religious lives, their social lives, who they associate with, to be able to speak freely. We at PLF also believe it is very important that people be able to live their economic lives in the way that they see fit and the way that they think best for their family. And it’s unfortunate that that has dwindled in importance, and we think it’s important at PLF to re-enshrine that. So that’s something that we’re working toward every day.
Individual vs. Class-Based Regulation [42:10]
Bob Zadek: On the principle of extraordinary executive power during a state of emergency, and states of emergency by definition should be short-lived, but they are not. They seem, up to now, they’ve been endless so far. But one of the powers traditionally that government has is to restrain, take away freedoms temporarily, but only after a showing that as to this individual and this exercise of this individual’s freedom, it has a harm to society. That is, in every instance, due process, if not simple fair play, dictates that you cannot lump an individual simply as part of a group and say, “We know nothing about this individual’s behavior, but this individual is part of a larger group, and since the larger group poses a danger, then this individual does and we can deny this individual liberty.”
Think of something that seems to be totally irrelevant, but it’s not. Think of the core principles of Black Lives Matter, for example. The core objective—and I don’t mean to minimize it—but the core objective is that Blacks are complaining that as a class they have been harmed. Not every single Black has been harmed, but as a class. And they are complaining against not being treated as individuals but as members of a class and being treated unfairly. Well, the same principle applies. When you say that every nail salon must be closed, there’s been no government finding that this specific nail salon poses a threat. And therefore, because this nail salon is in general a business, and businesses as a whole might pose a threat, this specific nail salon, your client in Connecticut, must close. And the same thing with stay-at-home ordinances. When I am ordered to stay at home, nobody has made a finding that I constitute—me individually—a danger, but I am part of a class of humans who may collectively pose a danger. So I think this is kind of unusual in American jurisprudence that substantial liberty has been deprived to us not because of our individual behavior, but because of simply being a member of a broader group. So if you would feel comfortable speaking to that issue about government making decisions that regulate a class rather than an individual.
Glenn Roper: Well, Bob, we could spend the whole hour talking about that, but I think you really have hit on one of the key problems that we see with these kinds of orders. And stepping back, I think as Americans we are for the most part try to be reasonable people. And I think we recognize that when there’s something that’s unknown, uncertain, potentially very deadly, I think most Americans broadly speaking are willing to give a little bit of the benefit of the doubt in the early days of a pandemic like this and recognize, “Okay, you’re trying to deal with things at an emergency level, maybe you’re painting with a little bit of a broad brush, and for the most part will recognize that some restrictions may make sense while we try to figure it all out.”
But as things continue, and we’re what, four, five, six months into recognizing the danger of the pandemic now, I think it is long past time to step back and say these kinds of things are a big problem. You know, another one you didn’t mention are the travel restrictions that some states are trying to impose, saying if you have touched foot in the state of fill-in-the-blank, you must be quarantined when you come back to our state, with no analysis of were you infected, were you in danger. It’s this kind of broad-brush painting, putting people in different classes without the sort of individualized determination that government should be implementing. And particularly at this point where we’re months into the pandemic, these kinds of broad-brush, across-the-board restrictions really don’t make any sense anymore.
We’re learning more every day about the virus, about what danger it poses or doesn’t pose. And in particular, drawing the broad brush of because you are a business, because there is money or goods changing hands, we’re going to impose broader restrictions than any other sort of human activity really doesn’t make any sense and is much more damaging. You know, when you allow people to get together and play cards but don’t allow them to do somebody’s hair or nails or exchange goods, it really is a problem.
And going back to the arbitrariness, I’m just reminded—and sorry if I get a little bit heated about this, but it’s really important to me because I see the danger and the damage that it’s doing to people’s lives—but you will have governors—Governor Whitmer in Michigan is a particularly egregious example—of issuing orders that say you can go to Home Depot and buy plumbing supplies, but you can’t go to Home Depot and buy paint for your home. Or you can go and buy furniture at appliances at Walmart, but if you’re an appliance store specifically, you have to be closed. So the arbitrariness and the damage that it does from these broad-brush paintings that government does is really causing a problem and it lacks the sort of individualized assessment. And part of what we do at PLF is we find these individuals and we take them to the courts and make them pay attention to the individual circumstances and say, “Here is someone who is harmed and who is challenging this, and listen up government, you have to pay attention to these individual circumstances.” It’s not enough to just put people into classes and apply these restrictions across the board. So I don’t know if that was exactly responding to your question, but those are some of the thoughts that come to mind for me when I think about the way that government is addressing people as classes rather than individuals.
Closing Remarks [51:00]
Bob Zadek: And my last thought—you’re right, we could go on for a semester on this topic—but one of my last observations is that implicit in all of the arbitrary actions taken by all of the governors who have taken upon themselves extraordinary, almost dictatorial powers, is they have made a decision that writ large, people staying healthy is more important than people earning a living. Remember Governor Cuomo said, “Even one life is priceless.” Governor Wolf in Pennsylvania said, “First we deal with life, then we deal with livelihoods.” Utter insanity. So we have government making this non-data-driven decision to subordinate economic well-being to health well-being, an utterly irrational decision. Now, Glenn, we have only a minute to go before the end of the show. Help us understand how all of our friends out there can follow your writing and the work of PLF.
Glenn Roper: Yeah, well, again, thank you so much for letting me be on with you today, Bob. These are very important issues and the erosion of the separation of powers is something that we’re very concerned about. You can find more information about PLF at pacificlegal.org. We’ve got a number of attorneys there, we’ve got a blog that includes both my writing and the writing of other of our attorneys here on these and other issues that are important to us. And I’d love to have your listeners go to our website, learn more about what we do, and if they’re aware of something, a way that we can get involved to help push back against government overreach, please give us a call.
Bob Zadek: Thank you so much, Glenn, for your time this Sunday morning. We know it’s valuable. And profound thanks to all of our friends at PLF. Bob Zadek saying so long for now, I’ll be back again next Sunday sure as anything. Have a nice Sunday.