//  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. 

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

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.