January 4, 2021

Episode 48: 'The Final Days'

Episode 48 of “What Trump Can Teach Us Con Law,” “The Final Days,” explores President Donald Trump's failure to overturn the results of the presidential election and what the Constitution has to say about pardons. Listen to the episode

November 30, 2020

'Trump Con Law' episode 47: 'Lame Duck'

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

As of late November, most states had certified the presidential election for Joe Biden and his running mate, Kamala Harris. But Donald Trump continues to deny the results of the election and insist (without a shred evidence) that he lost because of voter fraud.

Episode 47 of “What Trump Can Teach Us About Con Law,” “Lame Duck,” explores what the Constitution has to say about the transfer of power. What if Donald Trump fails to concede? What does the constitution say about the period of time after an incumbent loses but remains in power?

Listen to the episode

September 28, 2020

Episode 45: 'SCOTUS without RBG'

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

On Sept. 18, Justice Ruth Bader Ginsburg died at age 87. She was a trailblazing jurist who fought for the equality of women before the law. But her legacy is in peril, as President Donald Trump and Senate Republicans prepare to push through a conservative successor. What can Democrats do to alter the course of the SCOTUS? And what does the Constitution tell us about so-called "judicial supremacy?" Listen to episode 45 of "What Trump Can Teach Us About Con Law"

August 29, 2020

Episode 44: 'The Hatch Act and the Election'

Episode 44: “The Hatch Act and the Election”

[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

Episode 44 of the “What Trump Can Teach Us About Con Law” podcast explores the legality of President Trump using the White House as a backdrop for the Republican National Convention under the Hatch Act, explains the Electoral College, and tackles the president’s recent comments casting doubt on mail-in voting. Listen to the episode

August 3, 2020

Episode 43: "The Trump SCOTUS term"

 

[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

Episode 43 of the “What Trump Can Teach Us About Con Law” podcast reviews some of the big cases of the past Supreme Court term and considers the constitutionality of the federal policing of the Portland protests. Listen to the podcast

 

June 29, 2020

Episode 42: "Police, Race, and Federalism"

[Cross-posted from trumpcon.law]

By Elizabeth Joh

Episode 42 of the “What Trump Can Teach Us About Con Law” podcast: As people around the world continue to protest police brutality, Republicans and Democrats in Congress have proposed bills that would reform policing across the U.S. But in the American system, states are given a lot of latitude over law enforcement, down to the use of tactics like chokeholds and tear gas. Given the Constitution, what can the federal government actually do to make things better? Also, why was the ever-obscure Third Amendment trending last month? Listen to the episode

June 1, 2020

Episode 41: "The Socially Distanced Supreme Court"

[Cross-posted from trumpcon.law]

By Elizabeth Joh

"What Trump Can Teach Us About Con Law" podcast, episode 41: The Supreme Court may not be able to meet in person, but they are still doing business over conference call. This month, they've considered three cases about Donald Trump's finances, and whether they should be released to congressional committees and prosecutors in New York. What does history tell us about these cases which could have major consequences for executive power? Listen here

April 27, 2020

What Trump Can Teach Us About Con Law, ep. 40: 'COVID and Jacobson'

[Cross-posted from "What Trump Can Teach Us About Con Law"]

By Elizabeth Joh

In mid-April, 2020, states began to explore ways to reopen their economies amid the global coronavirus pandemic. But with states devising their own paths forward, many are wondering what powers the government has, even during a national emergency. Are the states violating our civil liberties by enforcing these lockdowns? To answer this question, many legal scholars are looking to a 115-year-old Supreme Court case, Jacobson v. Massachusetts, for answers. Listen

March 19, 2020

What Trump Can Teach Us About Con Law, ep. 39: 'Quarantine Powers'

By Elizabeth Joh

[Cross-posted from Trumpconlaw.com]

During a health crisis, what is the government allowed to do? As the novel coronavirus spreads across America, there have been closures and lockdowns across the country. In this episode, we look to history to understand who has the power to quarantine, and how the office of the president can be used to slow down a pandemic. Listen to episode 39 of the '"What Trump Can Teach Us About Con Law" podcast 

 

March 19, 2020

Yes, states and local governments can close private businesses and restrict your movement

[Cross-posted from Politico]

By Elizabeth Joh

Can the state tell your favorite local restaurant to close, or tell you that you must stay at home unless it’s absolutely necessary to leave, because of an emergency? The governors of New York, New Jersey and Connecticut have closed down bars, movie theaters and dine-in restaurants. Six counties in the San Francisco Bay Area have imposed a shelter-in-place order that allows people to leave their homes only for essential activities.

In response to these drastic measures intended to slow down the spread of coronavirus, there are plenty of voices on social media, and even some in government, denouncing such measures as unprecedented, un-American and unconstitutional. Most of us have never imagined such impositions outside of a situation of armed conflict, but allegations that those measures in the current circumstances are unlawful are wrong. And this is a case where legal misinformation can exacerbate a public health crisis.

States—and their cities and counties by extension—possess what has long been known as a “police power” to govern for the health, welfare and safety of their citizens. This broad authority, which can be traced to English common law and is reserved to the states by the 10th Amendment, is far from radical; it justifies why states can regulate at all.

The police power of the states has been invoked on multiple occasions by the Supreme Court, often in contrast to the limited powers of the federal government—for example, in Chief Justice John Roberts’ opinion in the 2012 Obamacare case. This power also has been recognized in the context of public health for decades. In a 1905 Supreme Court case that upheld mandatory smallpox vaccinations, the court observed that “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

What does this mean for the drastic coronavirus responses we’re seeing across the country? State and local governments can indeed decide to force even unwilling businesses to shut down, require people to stay mostly at home, impose curfews and even threaten noncompliance with arrest if necessary. (Thankfully, with COVID-19, we have so far seen mostly peaceful, even if begrudging, compliance to “flatten the curve” so that our health care workers and hospitals are not overwhelmed.) But, you might ask, don’t I have individual rights, even in a pandemic? Of course you do. We possess constitutionally protected rights to assemble and travel, for instance. State and local governments must be careful to make sure that measures they impose to protect people are not overly broad and are taken only for justifiably important reasons.

Our legal history is filled with cases where government has had insufficiently important reasons to justify restrictive measures, or where the measures themselves are overly broad. Or even cases where government restrictions turn out to have been implemented for impermissibly discriminatory reasons, such as when the city of San Francisco targeted only its Chinese residents in a bubonic plague outbreak in 1900. Not all exercises of the police power will withstand constitutional scrutiny.

But the very existence of this framework—the balance between the need to protect the public and individual rights—assumes that there will be times when there are truly compelling emergencies justifying severe measures. A global pandemic that spreads even among those who are asymptomatic and could exceed the capacity of the American health care system would appear to be just such a compelling situation.

When prominent voices tell the public that these drastic measures are somehow inherently unlawful or obviously unconstitutional, they detract from the social solidarity we need right now. People who are misled about what the government may do, and confused about its established powers, might not take heed of the necessary measures to protect their own health and that of their communities.

At some point in the future, we could see a coronavirus response that has gone on too long or is too broad to justify its burdens. Or we might see instances of people who were denied civil liberties without real justification. Even now, you might feel that these measures are too little, too late, or that they are drastic, and burdensome. But if we are facing a window of opportunity that is rapidly closing, to say that the states cannot try to use their most basic authority to save lives is not only wrong—it might be deadly.