Civil Liberties in the Time of COVID-19

recent episode. Another is the law itself, specifically constitutional law, the law that governs the question of where public health stops and your individual liberties begin. That's an issue that's only beginning to emerge as central in our public debate around governmental response the coronavirus. To talk about this issue, I had a conversation with Professor Richard Lazarus of Harvard Law School. Richard is one of the leading Supreme Court

advocates in the country. His area of specialization is environmental and natural resources law, and that makes him truly expert on the question of how expertise in government judgment within government agencies interacts with the power of the federal government and the power of the courts. He's the author of a new book, The Rule of Five, Making Climate History at the Supreme Court, which gives you the inside story

of the most significant environmental law case of recent decades. Okay, so, Richard, let's just start with Many government institutions are trying to respond to the Corona crisis, and the Supreme Court is now the latest to have announced some steps. What's your sense of what the Court has in fact done. Well, what the Court is done is they've decided to take the quite significant step of postponing oral argument. The Court was supposed here oral argument in the last week of March,

beginning on Monday, March twenty third. The Court has announced that it's going to postpone the entire March or argument session, that's two weeks of argument, and then hold those cases instead for argument in April. And I expect as a good chance the Court may well hold argument in May. In addition to that, I mean, I understand they're leaving the door open for May, and we all hope that things have passed their worst end. But why would you

think that things would be so different in May. I mean, I don't see anything from any epidemiologist that thinks that things are going to be better then, especially in Washington, DC, where in fact the cases have been relatively slow to surprisingly slow to get going. Yeah, I think the court is one acting in a hopeful, optimistic way, the way many people are right now. All the different kinds of orders are only for three or four or five weeks, even if people assume it may take long than that.

So there's a chance this is a first step and the court may have to take further steps. But beyond that, the court can hear cases, and they can hear argument in ways that are not inconsistent with the measures being take to prevent the spread of the virus. I mean, like a FaceTime argument or a zoom argument. They can do a FaceTime market, they can do a zoom argument. They can have people only the lawyers in the courtroom, no one else, and the courtments have the lawyers and

the justices, the marshal, and the clerk. They can have only those folks there. They can have them spread out pretty well in the courtroom, and the justice can also I mean, you know, it's it's an insult to say it. And the presence of such a great oral advocate at the scream court as you. But they could also decide cases without the benefit of oral argument. They do that all the time. Yeah, there's certainly no requirement they have oral argument. They can limit the number of cases for

which they hear an argument. My guess is they'd only be hearing time sensitive cases anyway. In any case if they think really has no particular times sensitivity. If things get worse, those cases they can push in a heartbeat to October. It's only the case that see more time sensitive. I mean, give examples. The Trump subpoena cases are probably cases were more time sensitive. The McGann subpoena and the other electoral college cases, those are cases the Court needs

to decide. Yeah, we need to know what the answer is to those before we actually have an election exactly, So I think they'll feel a need if push comes to shove, they can decide that oral argument. They can certainly decide them with only some justices in the room. The Court has already done that. I mean, there are justices. When Chief Justice Renquist was ill during the two thousand and four term, you know, fifteen years ago, he would

vote on cases if his vote made a difference. By listening to the oral argument, something that you would listen to the tapes held listened to the tapes of the oral argument, and then he would vote. He otherwise wouldn't participate. So they can and the court, i believe is shutdown oral argument before during the pandemic in nineteen eighteen, the Spanish flew the court also, I'm pretty sure shut down

oral argument. So it's not without precedent. There are other institutions will be much more hard pressed to figure out how to function. Congress we much more hard pressed to function than the United States Supreme Court, an ordinary federal district court, I think. I mean, the Supreme Court is much more it's much grander, it's a much more formalized process.

There are a lot of you know, nine injustices sitting on every case, and they could do everything that they do in principle without oral argument because they have detailed written briefs. But not all of that will be true for every federal district court, and certainly not for local court houses around the country. Some parts of justice, like criminal trials exactly criminal constitutionally can't do them remotely. Probably

that's right. I mean, it requires you know, in person at least we've already always understood it to require in person presence. Yeah, you're supposed to be able to see your witness, supposed to under the confrontation clause. I mean, they're all kind of constution gives you the right to confront the witnesses against you, and so far courts don't think that's good enough to confront them on FaceTime. That's right.

So they're all kinds of challenges In other parts of the judiciary, it would be much more intense than the Supreme Court. Supreme Court can get its job done. For talking about the administration the criminal justice system of the United States at the local level, at the trial level, and by police and magistrates, I think the system will could quickly become overwhelmed in sort of a parallel to

what's happening with the hospitals being overwhelmed. The Supreme Court it can accommodate this relatively easily, I think as an institutional matter. But the local administration of criminal justice it's going to be a challenge. They don't have the resources or the expertise to do things remotely. Universities like Harvard and the rest we can switch to figure it out, yeah, exactly, And it's a challenge for us, but you're not going to be able to see that happen at the local level,

and they're going to face real issues in real time. Richard, what did it mean when the President said I'm declaring a national emerge? Well, to some extent, it meant a lot less than people might have thought. And they're much less unusual than people might think. We normally just don't hear about them. I mean, give you an example. I mean, there have been about forty eight formal declarations by the president United States of national emergencies in the last thirty

plus years. President Trump has done a whole bunch in the last year itself. It's usually about six every four years of national emergencies declared by the president. President Trump has had. In twenty nineteen, there were about eighty declarations of disasters. So that by itself means a lot less than people might think, because normally the declaration of emergency or the declaration of disaster is a very limited sort of salience. You have something which is quite narrowly defined.

We're upset about the Taliban, so we're gonna do export restrictions. That's a more classic declaration of national emergency, or there's been a flood disaster in a in state. That's a typical disaster declaration. This one is categorically different, which is why we know so much about it. But there's a result of that. It doesn't by itself mean that much.

It can trigger a lot. So for instance, when the President lasts Friday, just March thirteenth, declared a national emergency, and he did that under the National Emergencies Act, that's an applet named statute, and he also did it under

what's called the Stafford Disaster Act. Of the two declarations he made, the National Emergency Act by itself is a far less immediate legal consequence under the Stafford Act, by declaring it a disaster, that potentially frees up about forty five to fifty billion dollars which has already been authorized and allocated by Congress to be managed by the Federal Emergency Management Agency for natural disasters and other kinds of disasters, So that money is immediately freed up to some extent

it can be spent by the federal government. But what really then allows is the states to respond to that declaration by in turn declaring a major disaster within their states within their borders and then requesting assistance from the federal government. And if you take a look, President Trump made his declaration on March thirteenth. Immediately after that, all the governors that I can see, all the governors of all the states made matching declarations of disasters within their

state as the territories Guam, American, Samoa, Puerto Rico. Everyone did. Because what happens is that makes them eligible to receive that money to do all kinds of things to address the current crisis of the virus. Now note it doesn't allows them to get federal assistance, but is still by a formula. It's seventy five percent by the federal government and twenty five percent by the states. So it's not just free money. Now Congress could change that if they want.

On the current formula it's twenty five but that's what's going to allow state, through all kinds of things, to

shore up their public health resources. So now that you brought up the states, Richard, we're going to have to wade into one of the things that people around the world I think consider weirdest about the American system of government, and specifically about our response to Corona, and it's something where there's already I've already read some articles, not only from abroad, from within the US saying what are you

people doing? And that is the question of the relationship between the federal government and the state governments or what you know we in our business called constitutional federalism. So in Europe, if a central government, if the government of France wants to declare a state of emergency and impost conditions, the central government does it. And every single government official, down to the most local public health official or the rat catcher, they all respond to the same central bureaucracy.

It's a centralized system. Our system doesn't work that way. We've got fifty states, plus the territories, which are maybe a more complicated issue for federalism. We won't touch on them today, but we have fifty states, each of which has its own inherent constitutional authority to do a whole bunch of stuff, and especially stuff connected to public health

in the news. The way that's been playing out is that the first handful of states are starting actually to issue orders that limit movement or that close schools, and that authority, I take it they can exercise entirely on their own without federal authority. Correct, that's absolutely right. It's

sort of backwards people might think from other countries. First of all, the presidential declaration disaster into the STAFFORDAC would have be of limited significance if the states hadn't responded under the statute to say we agree there's a disaster here. The federal money couldn't be spent the way it was.

That's one issue. But then you're right beyond the Staffordact to the extent that decisions are going to be made to close schools, to stop crowds of more than twenty five or more here in Massachusetts, to close restaurants in bars in other places for public gathering. That's not a power which it's clear that the president United States has in the first instance. Those are powers that state officials

and local officials have in this country. What about restrictions on movement under conditions of quarantine, I mean, I think that it's straightforwardly the case that if states have laws on the books, which I think almost all states do, sometimes really old laws that authorize the governor or other public health officials in the state to issue quarantine laws, there doesn't seem to be any doubt that that's an inherent power of the states. Yeah, I think that's right.

It's inherent power of the state. It's sort of a classic police power, and the states in local governments. The more one looks at this, they exercise those powers. The idea of a pandemic and contagion is incredibly unsettling to all of us, but it was more the kind of thing people knew about in the early part of the twentieth century in this nation's history. So this was classic statement the local governmental action under the police power. My guess is that the federal government could do a lot

more than it does. So let's say, let's try to do a concrete scenario. I live in Massachusetts. For some reason, I need to cross the state line into Connecticut for something. I need to help a relative or you know, check in on a friend who needs special care, and then I want to come back across the border, and in the meantime, the governor of Massachusetts says, no one move

in and out of our state. Realistically, it's not clear to me whether that would be something that would happen, but let's imagine that it did, and things like that are happening in other places around the world. Would the governor probably have the inherent authority just to say I'm putting the state cops at the border, and I'm saying, hey, even if you live in Massachusetts, show us your driver's license, show us where you live, you can't come back in.

I mean, that sounds absolutely insane and crazy, but I think the governor would have that inherent authority. I think just a few weeks ago, maybe a few days ago, would have bristled at the idea. Maybe many people would now, But my guess is if the governor made such an order and backed it up with different kinds of scientific basis for what he did, I think you find right now that a court would be very wary in the midst of a public health crisis preventing the governor from

doing that. We'll be back in just a moment. So let's talk about the courts, which are our backstop that we're used to relying on under circumstances where the government takes steps that violate what we think of as our ordinary liberties. And let's start with a state case where let's say I'm stuck at the border and I want to get back into the state, and I go to court and I say Hey, government, you can't just exclude me from getting back home. That's not within your ordinary powers.

And let's imagine you were representing the state in court the same way you represented the federal government in the US Supreme Court many times. What would you argue to the court about why it was justified for the government to sustain that kind of an order. Well, I just basically I rely on two things. The first is the degree of the exigency, what the risks were of contagion,

to spread of contagion. And the second is the time sensitivity of it, that this is a true emergency, that there's not time to stay, this to wait and think about it and study it more. The cost to the public health be too great for the court to do what it might normally do, which is enjoying something which looks like it might be overreaching in order to basically let a more deliberative process be used. I think here i'd credit stress. We don't have that, we don't have

that luxury to do that. Now. I think the kind of government order that would be more suspect in a classic sense is it didn't seem neutral in its face. So if you had a government order which said every one of a certain ethnic origin, We're going to stop them. If it looked like it was deliberately targeting certain kinds of people and certain kinds of populations, then I can

imagine a court might well step in. But akin to sort of a First Amendment regulation, it looks fairly neutral in terms of time, place, or manner, and really looks like on its face it's geared to deal with a public health emergency. I think a court would be very hard pressed, federal or state, to second guess the governor whose advice appeared to be based on real public health information, you know, and to go to the point that you were making about how it seems hard to imagine the

state troopers stopping us at the state border. I wonder if we're not in some sort of gradually sliding scale of what seems weird to us. I mean, certainly the rumors which are are out there include constant rumors of the possibility if people being blocked from traveling at state borders.

I heard from a group of students recently who were trying to figure out whether they if they left campus they could come back to campus, and one of the issues that they were talking about was well, gee, if we crossed the state borders, even within the United States,

might we be blocked from coming back? And I give them exactly the response that you just made to me, which makes me feel a little better, namely that it seems hard to imagine the government doing that, but that it probably would be within the legal authority of the state under these conditions. And after saying it, I thought to myself, is it really so unimaginable now that I've said that? And it may be that just what seems unimaginable today may be less unimaginable tomorrow, and the next

day and the next day. Well, that's certainly how I think we all feel. In the last three weeks. Everything we couldn't have imagined it has become imaginable in some way. I don't want to suggest without limit. So if let's talk about the limits, right, So, if three months ago a governor of a state had announced that he or she thought there was some extraordinary virus affecting the state and try to shut down the borders, I have no doubt that a federal court would have immediately struck that down.

The reason I'm suggesting right now that we'd find greater willingness on the part of federal judges to defer not to second guests is what everyone's reading, what everyone's seeing. So it's not as though a public official governor can

sort of will he nearly do this. There's enough evidence in the air right naturally at the moment to take judicial notice that I think a public health official and a governor of a state has instant credibility and this issue, at least to the extent the court is not going to enjoin, it is going to allow to proceed, and then may well hold a hearing to have backed up

with a heavy presumption in favor of ruling in favor. Ultimately, though, especially if this takes place over a longer period of time, I can imagine that courts would gradually become less deferential as the crisis begins to be more managed and begins to recede, and might eventually require the state or the federal government to provide some clearer justification for why it's really necessary to block people's movement or to shut down businesses and so forth and so on. It isn't our

protection ultimately from the courts. The idea that there's only government authority to block our liberties if there's a compelling reason to do so, like pandemic, and if the government methods for doing so are closely matched to what is necessary, even narrowly tailored, as we sometimes say in the law, to what is necessary. I mean, that's our ultimate protection. I take it. Yeah, at the end of the day, I mean, the courts themselves don't have armies, they don't

have police forces. Even the federal government doesn't have necessarily unless they're going to bring in the army. It takes some level of public acquiescence. And this is going to

test the patients, the American public. It's one thing to do this for a week, another thing to do for two weeks, But when businesses are shut down for potentially weeks, if not months, schools the rest, it's going to really try the spirit of America to see whether or not willing the acquiesce in these kinds of very very stringent measures. One of the issues around acquiescence that immediately struck me

as criminal enforcement. So if the state has the power to make you not leave your house, then they have the power to arrest you and punish you criminally if you violate that rule. And ditto for the federal government. I mean, I discovered there is, in fact a federal statute that says that if the federal government is assisting the states and enforcing their quarantines or isolation orders, that violating the federal orders is itself a federal crime punishable

by prison time. It's hard for me to picture the governor of the United States actually exercising the power to arrest people and punish them under these circumstances. But I guess if they were widespread violation, or if someone was violating that to make a profit or some other bad thing, it's there as a potential sanction. That's right. The federal government can step in criminally, just like the state and local governments can, and they can punish people at a

huge cost to doing so. But the federal government found their authority being challenged, including maybe authority being challenged at some point by local authorities, we might well see the federal government step in and take action to make clear, as we all know, the federal law is supreme. What's the scenario you're describing there where a state pushed back. Well, you can imagine the federal government believes that a certain part of the country is posing a greater threat to

the rest of the country. Like Boston. We have an early outbreak and we have a big outbreak here, and the federal government itself doesn't want people from Boston and Massachusetts to go to other parts of the country. People in Boston might well want to leave. They might well want to get out and get to other parts of the country. I certainly know people, maybe you know people. I know people are headed to Maine. I know people

headed to Vermont, New Hampshire. They want to get out of an area which looks like it might be an epicenter, and it might well be. The federal government doesn't want that, but the residents of Massachusetts do want that. So you can imagine, in terms of the notion of isolation, the pressure will be from the rest of the country to isolate an area which as epicenter, and that area won't have that same incentive. Again, we're not there yet. That's

a scenario. It may not be that far from it, but but right now, a lot of people don't want to see people from Seattle. They might not necessarily want People in neighboring states might not want people from Seattle coming into their rural areas. So here, you know, my civil liberties senses start to tangle, because you know, we said that the courts would be suspicious of a rule that targeted certain people. If it targets people from a certain area, then the courts might say, well, you know,

maybe we need that. And our current president is not someone who I think would be at all worried about targeting people from areas that happen coincidentally enough not to be his political supports. And we've already seen him do that. It's under a litigation challenge right now, but we saw him do that when he said that New Yorkers could no longer get tsa PreCheck benefits because he was angry at the state government for the way they were interacting

with the immigration authority. So we know that he's more than capable of targeting people from a state. So how would you imagine a court thinking about it if there were sort of a ban on people from Massachusetts but no ban on people from some red state that also had an outbreak, and someone went to court and said, well, look, you know this isn't really justified. You're just targeting us because we're in Massachusetts, and you the federal government don't

like us, The president doesn't like us. I think what would happened is the courts in the first instance, we weary see immediate injunction in the context of public health crisis, meaning they might just let it. They might just say we're gonna we'll think about this. But for the meantime, this order is staying in place because of the public health games. I think you find a court very wary of doing an immediate and joining to stop the federal

government order. Then I think you might well see courts step in. They'd want to see some real evidence. But you're right, there is a perversity here. President's Trump's support right now is not in the major urban areas in the United States. His support is much more geographically spread out in this country, in the rural areas. It's even possible this virus could present a rural versus urban rift. And this president does all kinds of unprecedented things. There

are no norms that I found applicable to him. So the notion that he might well find the reasons not to do something extorting with perspect to urban area like Boston or the state of California, again, not a state which he has been sort of shy about disapproving of their actions undoudly not unrelated to the fact that he finds no political support there. It's not as far fetch

as one might have hoped. The legal scenario where the president orders a national shutdown, where the president says, look more or less as governors have done in individual states, everybody now stay at home. Every business other than you know, a food services business shut down or and you know, gas stations shut down. Does that seem to you within the scope of the president's authority under the current statutory framework.

I mean, it looks to me from looking at the statutes, like the Centers for Disease Control can order effectively quarantine or isolation features. So I think the president maybe couldn't just do it on his own. Maybe he would have to make sure the CDC was on board. But the CDC works for the president. And again this is not so crazy because it's half and in most other countries, does that look to you like within the realm of

constitutional reason. I'd have to look at the statutes themselves, because the president's inherent authority or this area is different than it would be pretty minimal. Yeah, than in other countries, look to the statutes. See the CDC authority, See who exactly the Congress has allowed it, and see who Congress has delegated that authority too. Within the CDC, it's not going to refer to the President United States by name.

It's going referred to certain people within the CDC is going to give them the authority and the first instance, And that by itself is a limiting factor. That's really important. Can we just drill down on that for one second,

because the point you made is so significant. When Congress authorizes the federal government to do stuff like this in the public health interests or the public safety interest, it doesn't say typically the President of the United States may it says the Centers for Disease Control or the Environmental Protection Agency, or it gives the authority, usually to an expert agency to exercise its expertise to make the determination

that this is genuinely required or necessary. But we have this three part system of government where in theory that agency is always under the command in some form or another of the president. So in real world terms, what limitation does that impose? What how does it limit the President's actions? When the statute authorizes someone who works for the president to make a decision like this, because we know this president will just want to say I did it.

He will not want to say the CDC did it. Well, he has to get someone in position authority in that agency to take the action he requests, and if they decline to do it, which has happened, if they decline to do it, he can fire them and hire someone else,

and hire somebody else. But that procedure by itself, if there are a whole series of resignations or firing and hiring an appointment of acting, that's going to then raise that kind of trigger concerns of federal judges in federal courts because they know there's a reason why Congress assigned

that to the officer in the first instance. I know of only offhand one statute which actually assigns that kind of authority the President United States as opposed to an agency, and that's actually the Federal Superfund Law that hazards waste law, And the statute is written in terms of the President. And that's because Congress couldn't decide whether to give that authority to the head of EPA or the head of the US Army Corps Engineers to address hands to his waiste.

So they compromise by giving it to the President in name in the statute. But that's highly unusual. And does that statute, that Superfund Statute, which is in your heart Latin of environmental law, does it require the president to make some factual findings of some kind before he exercises

that authority. It does certain kinds of endangerment fundings. But the President has by executive order immediately delegated that to the head of EPA, the Environment Rejection Agency, So he has basically made it as though the statute did that, but didn't. The President United States could anytime take that away, but he can't do that for the CDC. And the CDC is a particular agency that it's obviously got a

culture and a set of norms to it. So one could well imagine that a head of a CDC or an officer in the CDC would decline a directive from the President more than you could expect, you know, the Secretary State would, or the Secretary Defense Board, or the Secretary a Treasury would. And that's precisely why Congress when it passed those statutes and gave those kind of extraordinary authorities didn't just give it to the president United States,

but gave it to the CDC. The structural issue here, which you know, I'm really fascinated by, and it's been under attacked throughout the Trump presidency, which is our background assumption of what protects our liberties in conditions where expertise is needed to limit our liberties, is this idea that there are professional bureaucrats who are as close to rational objective as is possible for humans, who are embedded in these different parts of the government, and that when Congress

gives big authority to the executive branch, it's really trying to give it to those people, the people whom Donald Trump considers the deep state, you know, the people who are supposed to act based on rational judgment, cost benefit analysis and make decisions that are in everyone's interest. Trump has been so busy trying to erode and undercut that kind of authority and expertise that we really have had to think for the last you know, three plus years

about just how strong that resistance power is. And I'm not using resistance in a capital our resistance to Trump, but just in the sense of what bureaucrats who are supposed to exercise their authority are doing. And it does seem to me, given everything he's said and done already during the Corona pandemic, that he will be very unsympathetic to the idea that there are professionals who exercise judgment and who have to kick in with their own judgment

before heat tech steps. I can very easily picture him contradicting them in either direction, either to say I've said everyone has to stay home, and they have to stay home, or the other way when those officials say we think everyone should stay home, and you can imagine Trump saying, no,

you know, I refuse to do that. And this is a case where, you know, all of our worries about the separation of powers that we've been talking about over the last three plus years, I mean, I've been talking a lot about it, you know, are sort of coming to a head in a situation where it could really matter. I think that's absolutely right now. I've actually found it someone unsettling in the past four weeks. I expect others

have as well. To see the President United States surrounded by those public health officials and he seems to be trying to co opt them and to make them into public health in these sort of political spokes people for him to be. You know, they now congratulate him when they stand up and make comments on everything that he's doing. I'd like some separation there between the president United States and the public health officials and not make them seem

like their mouthpieces political mouthpieces for the president. I do worry that he's a rooting that kind of trust we might otherwise have, which are so important right now in a moment of crisis. This deserves its own conversation, and maybe we'll be able to have it going forward. But I have a worry in the back of my mind, maybe not the back, maybe the middle of my mind

about the elections. You know, there could be good public health reasons for justifying delays in some primaries, but that may not matter all that much, especially if the next few primaries end up leaving one of the Democratic challengers way ahead of the other. So maybe delaying those primaries isn't the end of the world. But the big worry,

of course, is the presidential election. Nothing in the Constitution as I read it, would allow authorized or even contemplate delaying a presidential election, but individual states have a lot of discretion in how they could enable that election to happen. States could put in place mail in voting, They could experiment with various online methods, provided those are protected from

Russian hacking efforts. But I think it might not be too soon to sort of put a marker down and say no, the President of the United States or Congress cannot delay a presidential election. Yeah. I think very little doubt that the President United States cannot do it on his own, that that would raise very serious constitutional issues. I don't think there's any worry that Congress would do it right now, given a democratic, democratic house. Here's the worry.

The worry is the states, to the extent that the President directed to the States to do it, to the extent that we've seen sort, to my sense, a shocking acquiescence in the presence demands by a lot of Republican leadership in this country. I don't think it's beyond the pale. I hope it is beyond the pale. The President United

States basically directed governors. I've not done a recent count of governors that are well by Republican, But if a sizable number of states responded to that by saying, we are not going to hold elections because of this disaster which inflicting us. And I'm sure we could find instances of fires, tornadoes, hurricanes, maybe even contagion in the past where elections were delayed not by order of the president United States, but by order of a local government official

or a state government official. I'm hoping that doesn't happen, but at the very least I can say with this president, I can well see him making such a request. And then the question will be whether or not those Republican governors view themselves as independent actors or not. As usual, Richard, talking into you not only teaches me a huge amount, but it enables me to think through the structure and

see the problems coming down the road. I think of you as the constitutional lawyers constitutional lawyer, you know, you're the person, as you know, whom I always come to it sometimes two in the morning to say, I'm trying to figure out this constitutional issue. Am I right? Am I wrong? How should I be thinking about it? And you've just been super, super helpful on all of these issues as we've been going through the Corona situation and in this conversation as well. Thank you very very much.

As I talked to Richard, I gradually found myself getting more and more nervous about the possible civil liberties consequences of the coronavirus pandemic. It's not our primary worry right now. Our primary worry is staying safe, and in a moment of trying to stay safe, we do tend, as Richard said,

to defer to the government's decisions. But as this pandemic continues, we should keep a close eye on how our civil liberties do end up being limited and constrained by the government, because those liberties are crucial to our human well being. They may not be as important as not being sick, but in the long run, they set the conditions for a healthy and free society. Deep Background is brought to

you by Pushkin Industries. Our producer is Lydia gene Kott, with studio recording by Joseph Fridman and mastering by Jason Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis Gera special thanks to the Pushkin Brass Malcolm Goldwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. I also write a column for Bloomberg Opinion, which you can find at Bloomberg dot com Backslash Feldman.

To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com Backslash Podcasts. You can follow me on Twitter at Noah R. Feldman. This is deep background