//  3/12/20  //  Quick Reactions

Lots of people in my Twitter and podcast feed and in the New York Times have been critical of Trump’s handling of the coronavirus. Gail Collins suggested we call it the “Trumpvirus,” and Sam Harris analyzed the President’s statements in detail to explain how ludicrous they’ve been. And that’s true: the President’s attempt to minimize the virus, including by comparing it to the flu, claiming that cases will soon be zero, or arguing that reporting about it is fake news is criminal. It’s impeachably negligent governing. We are faced with what Bill Gates says is likely to be a “once-a-century” pathogen that is perhaps the greatest threat to our daily lives since World War II or even the 1918–19 Spanish flu, and Trump’s either pretending all will magically be well or blaming it all on foreign sources, whether from Asia or Europe. It’s a disgrace.  

But the truth is that governors, including in big blue states like California and New York, and local authorities are the ones who should, and legally can, take decisive action. The National Conference of State Legislatures notes that “State and local governments are primarily responsible for maintaining public health and controlling the spread of diseases within state borders.” Thus, every state has legal authority to order quarantines and isolation of people or areas. The CDC’s authority in this area is really only meant to be a backup: it can be used, per the NCSL, “if the state government is unwilling or unable to effectively respond.” 

Yet, while most state and local officials have not been as cavalier in their public statements as the President, they have been equally reluctant to take decisive action at the critical early stage when containment is possible. Our criticism should be directed their way, in addition to at the federal government. 

Take, as one illustrative example, the situation with the public schools in Los Angeles. Recent public statements show that the schools know they will close at some point, but, as of last week, the superintended said "we’re not there yet.” This is backwards: if they know they’re going to have to close, that should be done now, when it can actually help contain the disease, rather than later, after the disease has had another few weeks to multiple exponentially. After all, 13 countries have already shuttered all schools, and many colleges and universities have halted classes. It’s a matter of when, not if.  

There are many more examples of state and local authorities waiting to see what we all know they will ultimately see. Public health officials have been calling for sporting events to be played to empty stadiums for weeks, but only yesterday did the NCAA and NBA voluntarily close arenas or suspend games. State governors, mayors, and health officials could have and should have stopped those much earlier. Trump’s messaging didn’t give them any cover, but the decision was theirs. They failed to act proactively. 

The general protection of Americans’ health and welfare is, in the first instance, the job of state and local officials. State, county, and local officials have the authority to ban large gatherings, and, although extreme, to order some businesses to close. Trump surely will not save us, so it’s critical that state and local officials act confidently and decisively. And soon. 

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

Take Care

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Civil Rights Corps