Can Governors Stop You From Going to Vacation Homes?

also been traveled to second homes. The fact of the matter is it's still too dangerous to have people just out and about unnecessarily so, and so we have a pretty strict to stay at home order. Michigan has the third highest um number of deaths from COVID nineteen and we're not the third biggest steak. Lawsuits have already been filed by owners of second homes, claiming a violation of their fundamental liberty and their rights to do process and

equal protection. My guest is David super, a professor at Georgetown Law School. So can the governor forbid residents from traveling to a second home. Generally yes. Governors have very sweeping power to deal with public health emergencies, which this is. State law varies from one place to another. But in general, states, public health codes give the governor very broad authority to

respond to emergencies. Governors are the primary people responsible for dealing with domestic health problems in our system, not the president, and really more governors than mayors or county officials as well, So in most states, the governor does have sweeping authority to respond to a crisis like this. Some second home owners have already filed suit against the governor's ban on travel to their second homes. How strong are those claims. I've read the complaint and I think it's extremely weak.

This is something that the Supreme Court has said public officials have a lot of authority to do when there's a genuine emergency, and there's no question that this is a serious emergency. This isn't something the state does all the time. I'm not aware that Michigan has ever done this, so I think a court would give them wide lattitude. Do they come out and say I need to rest at my second home. Is there any substantial reason why

they have to go to the second home. No, they say that it's a pleasant place to be, that it provides rest, but from the hustle and bustle of law practice. My guess is that for most lawyers, the hustle and bustle has died down considerably. But they describe their second homes as pleasant places. But they don't describe anything fundamental about a need to go there or suggest that they're being harmed in any deep way other than not getting the benefit of their second homes and some other places

that they want to travel to. They complain, for example, they're not allowed to go to gun stores. In most states, gun stores are considered essential businesses. In fact, the n r A is suing New York because it doesn't consider gun stores essential, and Michigan apparently doesn't either. But again, the Supreme Court has given state's enormous flexibility to respond to pending emergencies, and indeed of upheld measures much more stringent than these, if they were tailored to fit an emergency.

The fact that someone thinks the gun store is or is not critical and and that state disagree on that is not going to persuade a judge to second guess the judgment of the elected officials of that state. Can you tell us about the Supreme Court case that you're

talking about, Well, there are several of them. For example, in one case, officials seized and destroyed someone's poultry that they were planning to sell, and they claimed they were deprived of property without due process of law, and the Supreme Court said that the government officials believed that poultry had dangerous bacteria on it, it would make people sick, and it needed to be destroyed right away, and the courts should differ or to experts on a crisis like that.

In another case, someone was selling pharmaceuticals that were apparently defective and risk making people sick. We're killing them, and the court again said, this is an emergency. We don't have time for giving people hearings and doing a lot of process. We need people in the government to keep us safe and supported the action. Governor Cuomo of New York said, the policies I communicated aren't worth the paper that they're printed on unless people decide to follow them.

In Michigan, I'm wondering how could they even enforce this. It's a difficult thing to do. Certainly, if people on mass ignore it, then the government doesn't have the capacity to pursue what The hope is that the vast majority of people will understand that we are in a crisis together and want to do their part to help by following these rules, and the few outliers can be addressed by law enforcement or by community pressure. Can a governor forbid people from other states from coming into his or

her state? Generally not unless there's a sound of public health reason for doing so. If a governor wanted it to hold up in court, they'd need to get some expert evidence that this is actually necessary, which I don't think they'd be able to do. The governor of Florida, Rhonda Santists, has imposed quarantines on people coming in from New York fourteen day quarantines. Is that within his power? I suspect it's not, because that's discriminating on peaceful coming

from one part of the country versus another. And the whole point of being unified country is it states don't get to do that. If he had strong scientific basis for doing it, he might be able to. But this disease is in every state in the Union, and someone is just as sick if they have the infection whether they come from New York or Wyoming. Part of the point of being a single country, being the United States,

is that we are all in this together. Supreme Court has said that the right to interstate travel is fundamental. Thank you so much. That's David super, a professor at Georgetown Law School. You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. President Trump says he has absolute power to and the coronavirus shutdown. When somebody is the president of the United States, the authority is total, and that's what it's going to be. The Constitution says otherwise.

Joining me is Richard, professor at Columbia Law School. So, rich what does the Constitution say about the president's claim of absolute power over the States? Well, of course, the Constitution doesn't address anything like that, and there's really nothing

in the Constitution that would support that. President is vested with executive authority, but that's with respect to the federal government present and has given really no direct powers over the states at all, except to implement those kinds of powers that Congress might give him. Obviously, the parent president has power dealing with national security and foreign affairs, but for the kind of domestic things that the states are doing. Our local business is going to be open, our local

school is going to be open. That's the kind of thing that has traditionally a matter for the states to decide, as they've been doing over the past month, because it's the public health. Do the states have a particular purview over the public health? Yes, I mean, I think the better way to put it, and this is the position that conservatives have always emphasized, is that the federal government

is a government of limited powers. It does have this power to regulate commerce, and of course, obviously coronavirus has a big impact on commerce, but that all the basic powers of government, including power over public health and public safety, are powers that are wielded at the state level until perhaps Congress it is used its commerce power might take something away. But the assumption that's basically all the governing power and states starts at the state level. Somethings can

be moved up by Congress at the national level. Some things have been delegated by the states to their cities. But the key assumption of our system is that the states are the basic blocks of government. Trump declared a national emergency. Explain why that doesn't give him the powers he's trying to claim, and what powers it does give him. The national emergency is something that basically is something pursuing various acts of Congress that gives the president certain emergency powers.

With perspective areas in the federal system we allocate sons to call into play the Events Production Act, it does give him various powers, and even in this setting, it might have provided some authority. You know, or when he shut down in international air travel or you opposed restrictions international air travel. I mean, Congress can get the president power to deal with emergencies. The irony here is I think the president might have been in a better position

to use emergency powers to shut things down. It's not clear he has any particular power to order things up. I mean, if his state decides it wants to close its school system, the president has no power to say it's got to be open. One of the state decides it wants to close its government offices, the president has no power. In the states, is issuing orders to businesses that you want to close, the President doesn't have the

power to say, no, you have to be open. In fact, he didn't even push several Republican governors who were slow to issues stay at home orders. But he seems to be trying to save face yesterday he said he was authorizing the governors to decide for themselves, when govern could easily respond, we don't need your authorization. The governors can pretty much do what they want. I mean, it is true that the president has ways of making governors do

what he wants, but not through orders so much. Obviously, the president or Secretary of the Treasury now under the CARES Act, has control over huge amounts of money in terms of allocation of funding for public health emergencies are other things the president and this president has not been shy about that can manipulate who gets the funding, who gets the ventilators, who gets the PPE, and the masks in ways that favor governors who are cooperative and disfavor

those who are not. So it's not that the president has no power. What the president doesn't have is the power to treat governors as subordinates. The president can try and persuade them, the president can try and pressure them, but what the president can't do is actually give them orders. They treat them as if they were junior members of his government. That is simply not our system. We did hear the president a few weeks ago, is it a few weeks ago? I don't know, it's this seems like

it's going on. It could have been days ago exactly. So he did say that the governors who are nice to him, who are going to be the ones that get what they need, which seems to be just an anathema to the way our system is supposed to work. Well,

that's certainly true. It shouldn't be a case where political or ideological favoritism or todaism influences where valuable funds, critical public health equipment and supplies where they're sent, they should be sent based on need, not based on the governor's saying nice things about the president. But in a way that though that statement also illustrates the whole point, which

is they don't work for him. He used the phrase, I think it was yesterday, the day before that mutiny, like you know, the mutiny on the bounty when the crew doesn't obey the captain. Well, that's not this. He's not the captain, or, as Governor Colma said, he's not the king. It's not mutiny. It's disagreement. It's disagreement amongst

people who have the key power in this area. He can give reasons, he can try and persuade he can suggest why he can even direct funds in certain ways to try and persuade or coerce, but he can't order in the way that the head of the department can order a junior in an apartment to do something. In his presidency, he's already said that Article two allows me to do whatever I want. Now. When he was asked at a press conference the other day, who said that

you have these absolute powers? He didn't say, but I wonder is it Attorney General Bill Barr, with his theories of executive power, well, and one has the impression that the president just sometimes makes these things up. I think the president is his strongest claim, and even then there's a lot of doubt about it that he can do anything he wants within the federal government. You know, everybody in the executive branch. Even then he can't command Congress.

The theory that a lot of people, the Attorney General to some extent others have the spouse is the so called unitary executive that everybody in the executive branch works for the president, and you can't have entities like an independent council, where you can't have truly independent executive agencies. And that's debated, but there's no theory that says that the governor's work for the president, or that the states can be commanded by the president to do whatever he

wants them to do. Has Congress basically, through many, many years, been allowing the president to exert more powers, been building up the executive branch to the detriment of Congress. I

think that's a fair point. That Congress has delegated a lot of authority to the presidents over the years, a lot of there's a lot of emergency legislation, a lot of wartime legislation that never got repealed, a lot of what the president did earlier in the administration in terms of imposing tariffs against products in various countries, including our allies, he's using delegated authority that Congress gave him. I mean, in theory, these were supposed to be based on national security,

and he's pretty much stretched national security. Congress has given the president a lot of authority through relatively unchecked delegations. But even here it's not clear that the Congress could give president of the authority to give the state's orders. Supreme Court, in cases going back several decades now, has developed this doctrine that as the anti commandeering doctrine, which says that the federal government cannot come and dear the

states to carry out federal commands. The leading case on that was actually a case involving gun control, the Brady Bill, which purported to require local sheriffs to enforce waiting periods and background checks. The Supreme Court said, Congress is free to adopt requirements like this, but they can't impose them on local officials or on state officials. The Congress can't come and do your governments to carry out their will, and the presidents certainly can't commend your state governments. Is

this Supreme Court more inclined to support executive power. It certainly has. But I think all the fights that we've seen until now have been the president versus Congress, or the president versus outside people, citizens or groups or people trying to enforce legal requirements against the president. It hasn't actually come up that. I'm more if the president has gone against has tried to impose something on states, and

that would be a different set of issues. The Court is very deferential to the president and has done so in several liberties issues like the so called Musli traveled, and the court has been deferential to the president. In other areas, states have sometimes tried to enforce federal requirements against the president, but I don't think we've seen a case in which the presidents tried to enforce something into the States. I'm wondering about the cases that are before

the court. It's a little bit of a detour. But the cases that are before the court on Trump's subpoenas. Yeah, I mean, what's your take on that? It's hard to say. I mean, that is one where I could see the court being protective. What's unusual is that this is a case where the president is arguing kind of the immunity of the president, not as an executive, not as kind of institutional president, but the president is a person meet Donald Trump, rather than the president United States. That argument

failed terribly. The PAULA. Jones lawsuit against the president went where he basically said, because I'm the president, I'm too busy and this case should be held off until I leave office. He lost that case, but some people have felt that there was more justice to his argument than the court recognized. But even then, these cases, a lot of them are actually not against the president. But against say,

his accounting firm to produce documents. So that even though though the President has gotten into the case, it's not clear that it's going to cost him any time or distraction to respond to the subpoenas the subpoena that his account that has to respond to. So you know, if one looks at President, the president as pretty weak grounds here. But you know, no, it's always hard to predict the

Supreme Court. I want to turn for a moment to the Defense Production Act, because he invoked it and said, you know, to alex Aser, okay, use this to get a GM, but it doesn't seem as if he's really

used it with the force that he could. For the Defense Production Act, I think goes back to the Korean War and reflects practice of the curser in World War Two, although I don't think it was on the book stand, in which the president has during a case of wartime or a national emergency, president has power to direct major manufacturers to stop making consumer goods uh and to divert their their capacities to making war material. Would have been you know, uh, tanks instead of cars. In this case,

it would be to produce um ventilators. Or other other valuable equipment that hospital needs to deal with the car crisis. UM president for city what he didn't want to do it, and then he finally got pushed and as I as far as I understand, he basically as and you're right, he's asked. He himself doesn't get didn't give an order. He gave an order to his one of his cabinet

members dave an order. My understanding is that the one thing he ordered, they were already do ink uh and so they had already said they were retooling to start

producing eventilators and other equipment. So it's not clearly he's I mean, he makes um kind of made a big show of that at the time, but I don't think what he did actually had any significance other than maybe symbolically explain the difference between what a president can do on the Defense Production Act and what Harry Truman tried to do during the Korean War with the steel mills, right.

Um So, the so called steel seizure was a situation where um so, during during the Korean War, uh and there was a dispute actually between them steel manufacturers and

the unions. UH and they reached the stalemate, and uh Truman, I think, basically to being somewhat sympathetic to the unions in that situation, basically said he was he was going to steal seize the steel mills um as a matter of his wartime authority because it's the Korean War, and to avoid a strike, to avoid right that the area was that um that if the negotiations between the manufact the employers and the union broke down, there would be a strike, and we couldn't afford a strike during the

middle of the Korean War. So his plan was to seize the mills um in order to make a settlement with the unions to avoid a strike. And that was the basic idea, and that was challenged by the steel companies, and ultimately the Supreme Court said the president lacked the power to do this. This is this that it was Congress had not given him this this power and and

sort of not even close. They said there were certain things where Congress has explicitly given powers, there were certa things where maybe it's implicit and what Congress has done, and there are certain things where there's just no support for it. And basically the president just simply did not have this does not have that inherent authority, uh, to see steel mills. The president maybe the commander in chief, but that doesn't make him the commander in chief of

the domestic economy. Um. And you need to have some clear or at least implied authority from Congress to do this. For the Events Production Act does give some authority, um and so UM it might be and he, you know, he he can in book it for certain purposes and that would be the basis for it. But the court I guess at the time of the steel seizure case, the president was not relying on the authority. And also here in the Defense Production Actor, president isn't seizing general motors,

auto plants. He's basically telling them to redirect what they're doing. So it's a less or he's asking, he's asking them asking somewhere been asking and telling. It's it's a less dramatic intervention than what Truman did. Thanks rich that's Richard Drafal, Professor at Columbia Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso, This is Bloomberg,