Have you noticed something different about CNN in the past few weeks?
Sure, its round-the-clock coverage of the COVID-19 coverage is repetitive, urgent and filled with expert opinion and commentary. You’d expect nothing less from the cable network. I know I can turn the station on at any time for an update.
But in the past few weeks, I’ve noticed a glaring gap – the absence of legal commentary. What’s become of The New Yorker’s Jeff Toobin, or the surrogates for the various presidential candidates? It’s as though this pandemic were evolving in a legal vacuum.
Oh, the law gets referred to time and again.
Last night, New York Gov. Andrew Cuomo was on camera stating that should President Trump quarantine New York and several New England states, it would be civil-war like. The governor also announced he might file suit against Rhode Island on behalf of New Yorkers harassed upon entering seeking refuge there from the viral hotspot that has become New York City.
You would think that might get the lawyers talking. After all, we endured endless discussions about what obstruction of justice entailed during the recent impeachment of the president. And we heard hour upon of hour of speculation about just where Special Counsel Robert Mueller’s investigation of Russian meddling might lead.
These were important controversies, and they merited the attention of the viewing public. Lawyers contributed greatly to understanding what was at stake.
The pandemic yields more fundamental challenges, changes that will affect us all, not just the political elite.
This virus changes everything, we’re told, over and over again. And then we endure coverage of mass quarantines, the shuttering of business, travel restrictions, and states treating one another’s citizens as foreign invaders.
Do we get a discussion of whether these steps and moves are justified as a matter of state and federal law? What about the shifting balance between state and federal powers, a perpetual theme in a federal republic? What about the right to interstate travel? What about fundamental rights, and role of reasonableness in shedding light on constitutional doctrine?
Or how about an examination of the corrosive impact that panic can have on legal doctrine?
Or what to do about vindicating fundamental rights when courts throughout the country are all but closed? Not a whisper. Not a whimper.
Instead ,we get the Cuomo brothers – Governor Andrew and anchor Chris – engaged in on camera brotherly jousting that gives an entirely new and insipid meaning to the term nepotism.
Instead, the medical profession governs. Dr. Sanjay Gupta is on morning, noon, and night. The message is always the same – a medical prescription for what ails us. That prescription is offered to a body politic of a certain sort – our Constitution defines our properties. Shouldn’t the doctor, or at least CNN, give at least passing consideration to whether the cure prescribed can take hold given the patient’s constitution?
Can you quarantine a free people any more than you can teach a butterfly to walk? Not a word.
Yes, Donald Trump is inconsistent, a prevaricator, a blowhard. Yet his approval ratings increase, as do those of national leaders in times of crisis. What value does endless repetition of his acts and omissions have? But yet, you can count on Anderson Cooper, Wolf Blizter and Erin Burnett to list them all. It’s like being scolded by your spouse for comments made at dinner party a decade ago.
By all means, focus instead on Dr. Anthony Fauci and Dr. Gupta. They are reliable doctors. They know medicine and public health. I learn from them.
But rather then tell us to follow their prescriptions blindly, at least discuss with us the legal environment in which the momentous changes in our lives are taking place. What will the republic look like when the pandemic passes? Where do people turn to what the courts are closed and government overreaches? Can the checks and balances of the separation of powers doctrine work when the courts are closed?
CNN can do better. It routinely does.
The shock of this new world of ours is passing. It’s time to get back to basics, and to discussions of the basic laws that govern our lives.
So ordered, CNN. You just reported Dr. Fauci's latest estimate that as many as 100,000 of us will die in the pandemic. Tell us what that means for the 371,100,000 who will survive.
The president has spoken, sort of, announcing hours ago on Twitter that he is considering a quarantine order for portions of New York, Connecticut and New Jersey. I write from Connecticut, an easy drive from New York City. My message is simple: Don’t do it, Mr. President.
Creating federal precedent for a public health quarantine would forever darken constitutional doctrine in this country. Long after the COVID-19 crisis has passed, and it will, we will be left with precedent more terrifying than the virus itself.
During the influenza of 1917, 650,000 Americans died. We had no federal quarantine. People hunkered down. We marshalled the resources to fight the illness as best we could, and we soldiered on. We did not resort to martial law.
Under our federal system, the police power, the power to act in the name of the health, safety and welfare of the public, belongs to the state governments. Asserting a federal police power in a time of crisis is an experiment with lasting consequences. At a time when we should be focusing of combatting disease, the president is considering wasting resources policing the streets.
It’s crazy. Utter madness. I join the chorus of those wondering whether the president has quite literally lost his mind.
In a matter of days he’s gone from asserting the crisis will pass to the cusp of a declaration of something akin to martial law.
You lack the lawful authority to take this step, Mr. President.
We have from time-to-time lurched in the direction of expanded federal powers in times of crisis. I think of the internment of Japanese-Americans during the Second World War. Years after the war ended, we came to our senses and realized the error.
Does the president really think it is better to ask forgiveness than permission?
Will President Trump’ s lasting legacy be the creation of a federal police power?
When will use it next? To confiscate firearms because each year 40,000 Americans are killed by them? Or perhaps we’ll mandate automatically driven cars, since nearly 40,000 of us are killed in self-driven cars each year? Or perhaps to harness the nation’s resources to address climate change? Aren’t these public health crises demanding a solution as well?
Yes, this is a terrifying pandemic.
I write this from my home, a place I’ve not left in days. I sit looking with guilt out the window as delivery people leaving things on my doorstep, regarding them as something like heroes for taking risks I won’t.
And last night, there was a meltdown of sorts among the folks with whom I work. We let each person in the office decide for themselves whether to work from home or alone. Now some feel taken advantage of. Clearly, I didn’t think things through well enough.
But who among us has lived through something like this? What are the rules? What is the right thing to do?
The virus in our midst will kill thousands. Already nearly 2,000 Americans have died as a result. We’re called to rally together, to stay calm, to work together to fight the disease, find a vaccine, and then begin the work of repairing the damage caused this sad chapter in our lives. But no pandemic justifies altering the fundamental compact we have struck with one another. Disease does not justify damage to the Constitution. When this virus is tamed, we will still be a people bound together by the rule of law.
COVID-19 is no excuse to amend the Constitution on the fly, by executive decree. President Trump, if you truly care about the Constitution you swore to uphold, then hold fast to fundamental principles of that document. You lack the authority to impose a quarantine. It you enact it, you will have done more damage than the virus ever can do to our way of life.
The Constitution is not a suicide pact, folks said in the wake of 9/11, when civil liberties were up for grabs in a nation wracked by fear. That fear is more fundamental now – every handshake carries the potential lethal consequence of a suicide bomber.
But tonight, more than ever, we need a president clear-eyed, courageous and principled. Fight the virus, yes. But don’t abandon principle in the name of panic.
Viruses come and go. The Constitution was meant to endure crises large and small. It has survived far worse than this. We have a republic; let's see if we can keep it.