Are Quarantines Constitutional – With David French - With Coronavirus pervading our Nation, does the Federal Government have the right to quarantine? Tune in to hear more today!

Air Date: 03/20/2020

Guest: David French

On-air Personalities: David Barton, Rick Green, and Tim Barton

Today’s Links: https://www.stitcher.com/podcast/the-dispatch-2/advisory-opinions-2

Are Quarantines Constitutional?

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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

 

Rick:

Welcome to the intersection of faith and the culture. It’s WallBuilders Live where we’re talking about today’s hottest topics on policy, faith, the culture, quarantine, so all of those things and are going to hit that specifically today, but we appreciate you joining us. Make sure you visit our website today, wallbuilderslive.com.

What a great time, you’re stuck at home. If you’re stuck at home and you know, looking for something to do, catch up on all the episodes that you missed over the last few weeks or months. They’re all available right there at wallbuilderslive.com. In fact, it’d be a great time to catch up on those Good News Friday programs, if you need some good news, if you need a pick me up and I think most people might need that right now. Then that’s a great place to go so wallbuilderslive.com, you can get those archives there. That’s also a great place.

And I know this seems like a weird time to ask for this, because virtually all of us are taking some sort of financial hit during this situation. But even now, if you would consider that contribute button at wallbuilderslive.com. And it may only be $5, whatever you can do, it definitely helps us to stay on the air and continue to bring you some good news and bring you some good programs and we appreciate you considering us there as well. So wallbuilderslive.com is the website to check out.

My name is Rick Green. I’m a former Texas legislator and America’s Constitution coach. Normally, David Barton would be with us. He is America’s premier historian and the founder of WallBuilders and Tim Barton, national speaker and pastor and president of WallBuilders. But today, we’ve actually got David French going to be joining us to tackle some of these major constitutional questions. Can your church be shut down right now? Does a governor or a mayor have the power to say no meetings over 10 or 15 people or whatever it might be, churches can’t meet. Your restaurant, did they actually close your restaurant down? I mean, if this extends for very many days or weeks, it’s going to put people out of business. Do they have the option to do that? Is it constitutional, who can do it? Does it have to be the federal government? Can it be States? Is it governors and mayors? Is it the president? We’ve heard potential talk of a national quarantine. Does the federal government have the power to do that? And if so, to what extent and to what extent even your mayor and governor, can they make you stay at home?

These are real questions. Who thought we would be asking these questions? This would have all been theoretical, unless we were living in 1918 and 19 with the Spanish flu, but it is not 1918, it is 2020. And pandemic is upon us and many people are now in their homes. And there is definitely a serious situation just happening right now before our eyes, just look at the other countries and frankly, look at some of the communities in America where it is extremely serious right now, the number of people and then the rapid spread of the coronavirus and the number of deaths already occurring.

So, we’re going to talk all those topics and we’ve asked David French to join us, one of our favorite constitutional attorneys and experts and just fun guy to have as it is. So, we get to take on this serious, sometimes boring topic in a fun, entertaining way and we’ve asked David French to help us do that.

So, stay with us, we’re going to take a quick break. Now, as we go to break, I also want to encourage you to check out our website, constitutioncoach.com. Now, if you’ve listened to our program for very long, you already know that website. But it’s a place where you can become one of our Constitution coaches and use the Constitution class that David Barton and I did both in Independence Hall where the Constitution was framed, standing in the room, teaching it right there, where it all happened and also in the WallBuilders library with all the original resources, bringing those things out as well. You can use those resources. You can get a license to use those resources to teach your friends and family about the Constitution.

So, these topics we’re covering today, man, what a great way to have some community. So, I’m not suggesting you have a Constitution class in your home right now and invite people over. I’m suggesting you host a Constitution class online and we teach you how to do all that. You use our Zoom tools. And it’s a great way to have some community as well. But it’s a wonderful way to spend this time, getting educated on how you can be a great citizen and not only during these times, but going forward, how do you help us with restoring America’s constitutional republic. Check it out at constitutioncoach.com, we’re doing a really cool special right now. Not a discount but free. You can become a Constitution host for free and start hosting these classes literally tonight or tomorrow. It’s a great way for you to participate. Check out constitutioncoach.com today. Quick break, we’ll be right back with David French, here as our special guest on WallBuilders Live.

BREAK

Have you ever wanted to learn more about the United States Constitution, but just felt like, man, the classes are boring or it’s just that old language from 200 years ago or I don’t know where to start? People want to know, but it gets frustrating because you don’t know where to look for truth about the Constitution either.

Well, we’ve got a special program for you available now called Constitution Alive with David Barton and Rick Green. And it’s actually a teaching done on the Constitution at Independence Hall, in the very room where the Constitution was framed. We take you both to Philadelphia, the cradle of liberty and Independence Hall and to the WallBuilders library, where David Barton brings the history to life to teach the original intent of our founding fathers. We call it the Quickstart Guide to the Constitution. Because in just a few hours through these videos, you will learn the citizens guide to America’s Constitution, you’ll learn what you need to do to help save our constitutional republic. It’s fun, it’s entertaining, and it’s going to inspire you to do your part two preserve freedom for future generations.

It’s called Constitution Alive with David Barton and Rick Green. You can find out more information on our website now at wallbuilders.com.

Rick:

Welcome back WallBuilders Live, thanks for staying with us. So good to have David French back with us. Hey, brother, thanks for coming back on.

David:

Thanks so much for having me. I appreciate it.

Rick:

Man, I really enjoyed your podcast. always enjoy your stuff. But advisory opinions, the podcast, people got to get it. And yesterday, you guys took on some of the more complicated, some of them simple, but some complicated questions about what can government do during these, you know, public health crises, whether it’s quarantine or isolation or you know, whichever piece of this, but you all took this on. And so, man, I appreciate you taking time to come on our program, and share some of that with our listeners.

David:

Oh, happy to do it, happy to do it. It can seem complicated at first, but when you understand a couple of concepts, it gets pretty simple pretty fast.

Rick:

Well, you guys first covered and this was the first thing I tackled in my constitutional minutes as well. As just who has authority to do this? Is it the feds or is it State and local or if it’s split, how is it split? How do you summarize that for folks?

David:

Yeah, you know, the key way of summarizing it is look at it this way. The federal government is a government have a numerated powers. It only has the powers the Constitution gives it. State governments have something called the police power, means that they have the power of the sovereign limited by the Federal, the Constitution and by the State Constitution. And all the way going back, there’s an old Supreme Court case called Gibbons v. Ogden, and it was kind of about other stuff, but it had a useful explanation of State power…

Rick:

And actually, dealt with some quarantine questions in there.

David:

Correct. And it talks about that States have the power to quarantine and to make all kinds of laws regarding public health. And so, public health is traditionally within the State police power. And the federal government’s role has traditionally been, except when we’re talking about people coming into the country or traveling between the States, has traditionally been more of a resourcing role than it has been direct control over our businesses and our livelihoods and churches, etc.

Rick:

You know, I was surprised to see the, you know, I didn’t know this until I guess Friday or so of last week. But I started looking at even the rest regulations versus the statutes and the Regs that were dropped by the Obama administration the day before Trump took office, which not that they were doing it as a surprise, but that’s just what that happen, seemed to expand the CDC power more than the statute called for. And the Regs say, that the feds could call for a quarantine, the statutes only say they can do isolation, but you know, that’s in the weeds a bit. But that’s probably going to get litigated before this is over if they do call for a national quarantine, I would think.

David:

Well, and I do think that that would be litigated, especially if the national quarantine gets extended beyond sort of a relatively short crisis point. But the key thing is what we’re seeing right now is we’re seeing mayors which derive their power from states instead setting rules regarding gathering sizes. So, you know, nobody gathering above, say, 50 persons. Or San Francisco put in place a very strict regime of sort of sheltering in place. And people have said, hey, can they do that consistent with the First Amendment? And the answer is general…

Rick:

That’s the question we’re getting more than anything. Businesses, your private businesses, churches, you know, can they shut these kind of places down? So, are you about to give us the answer?

David:

Yeah. And the answer is in general normal circumstances, no, they can’t. But in extraordinary emergency circumstances, yes, they can. And yes, they can is written in this concept called Strict Scrutiny. The strictest possible test on government action is called Strict Scrutiny. And that says, hey, is the government operating under a compelling governmental interest? And using the least restrictive means possible? And they could easily at this point in time, go into a court and prove that there’s compelling governmental interest to stop a deadly pandemic that is bringing Italy to its knees even right now, for example, and that the least restrictive means are applicable because it spreads socially. In other words, and by preventing gatherings of people, you’re aiming directly at the precise cause of the spread.

Now, because they can do it now, doesn’t necessarily mean they can keep doing it on an indefinite basis, let’s say things ease up and the crisis passes and the government is reluctant to get to yield back some of the powers that grabbed in a crisis. That’s when you’re going to probably see if that happens, that’s when you might see a lot more litigation and questioning of the government’s actions and perhaps see if the government took some losses in court if it tries to cling to this too long. Which as we all know, governments have a tendency to do. But for now, in especially in those cities and States where there’s been a real outbreak, they absolutely have the power to do this in this moment, which is

Rick:

Which is a little bit unnerving. Because you know, like for me, at first, I was going, this can’t be, this is on America and you know, you can’t tell that bar over there to close down, but yet you let these people stay open and whatever. But almost every state statute I looked at, it’s clear, man, these public health officials, it’s almost a blanket authority of. When you press that trigger and you say, it’s a public health crisis or whatever their particular languages in their State, they can do whatever they think is necessary to stop it.

And I’m not objecting to that now that I’m looking at it and go, okay, somebody has to do that. You know, you have to have, this is an extraordinary situation. You know, David, how do you kind of encourage, at this point, some level of public trust? I mean, I’m not saying we just let this go on forever. But we do have to have a little faith that the experts, the doctors, that scientist, I’m not one of those, I mean, I don’t know how bad this thing is, we got to have some level of trust in the governors that we’ve elected to work with those folks who make good calls. Right?

David:

Right. Well, so here’s the good news first and then I’ll give you the bad news on trust. So, the good news is, there’s a lot of indications that the people have the most power to deal with it, which is kind of counterintuitive to think that it’s State, local governments have the most power because we focus so much on the president. But the people who have the most power to deal with this in our lives right now are our most trusted public officials and state local governments. The federal government has a lot of power to resource things, the bad news is least trusted. But the people who are most trusted are those who are at the State, local level.

The other thing that you can say is, for those people who are really worried or who are still and it’s fewer and fewer people. But for those people who are still thinking this is a big, much ado about nothing, this is a lot of overreaction. We can look overseas, and especially in Europe, which has a very sophisticated public health system, and which has the same kind of medical technology that we have, the same kind of medical sophistication even though they have different systems. Some of these countries are just absolutely and Italy in particular, its whole health system is being brought to its knees and so, we don’t have to say this is all hypothetical. And what are we doing, trusting computer modeling, because it’s shut down our lives? No, you can look across the ocean and see that nations almost as wealthy as ours, every good and sophisticated as ours are being brought to their knees by this.

And so, you don’t have to trust us a computer model. You can look at what’s actually happening in the real world. And then I think it’s good that our founders set up a federal system, where we actually are relying in a pinch in a public health crisis on the people who are closest to us and who are most accountable to us and that’s the State and local governments. And I think that can help build trust.

Rick:

Especially you know, when it comes down to something as extreme as truly, you know, limiting your liberty and in some cases, if you were to be isolated, if it got bad enough, where they actually were taking you somewhere to be isolated and all those things, I mean, that’s a major infringement on liberty. So, you want the closest level of government to have that police power and deal with that and then obviously, have the due process on the other side of that as well. A whole another topic. But you nailed it on terms of looking at these other countries.

Man, I mean, literally, I can remember we’re sitting in bed and my wife reads to me, one of the doctors from Italy, this was back when it first really, really got bad, I guess, a week ago. And she read that letter. And then five minutes later, I’m watching Glenn Beck read two other, you know, emails from a doctor and a nurse that he knew in Italy. And that was my moment of, okay, this is real and it’s coming our way and I started canceling events the next morning, you know, making plans and saying, okay, we got to figure out what is certain and remove enough uncertain to where we can remove uncertainty and just start controlling what we can control. Most of this is out of our control. So, people got to say, okay, what can you do with the time you do have at home and put some trust in those folks that are having to deal with this, certainly for the time being?

I know, government hasn’t been trustworthy the last few decades. We’ve lost a lot of that, you know, goodwill. But at this point, you know, we got to give a little leeway I think and you know, I’m not going to normally do that for government. But in this situation, I mean, I think we do have to, hey, stay calm, give them a chance to see what they can do with this.

David:

Yeah. And also remember concerns about pandemics, go back to the founding of our country and before. I mean, this is something that it’s not new. Our founding generation had to deal with these, with contagious diseases at a level that we’ve never had to deal with it…

 Rick:

Yellow fever, smallpox, I mean, they had all kinds. Yeah.

David:

Yes. So, our system knows how to deal with this. In our living memory, we don’t. But in our system, it sort of has the institutional memory to deal with this and the institutional capacity to deal with us. You know, the things that’s so frustrating, there’s something I’ve been thinking about.

When the Americans have a crisis, whether it is Pearl Harbor, with 911, we’re used to getting up and uniting together and going and actively confronting what is causing the crisis. This is when a lot of us have did not get up and instead of, sort of hunker down and shelter in place, especially older Americans and a lot of that runs contrary to that American nature and American spirit.

But I do think what we can, those of us who are healthy and those of us who have the capacity, you know, to still make a positive impact. Is you know, I’m making it a habit and I would encourage others to do, to check in daily on people, you know, who are more vulnerable, make sure that they’re okay, make sure they have everything they need. And even if it’s just been leaving some supplies on their front doorstep, so that there’s no contact, trying to make sure that people in your community, you know were vulnerable and know that they’re not alone and that they have access to supplies that they need. And even that small thing, I think, A, can make a huge difference in someone’s life and B, it also can give us a sense of purpose as we confront something that’s kind of requiring us not do anything, all because it’s very strange.

Rick:

That’s so good, you’re exactly right. I mean, because the more you can look for positive things to do with your time, the less you’re going to sit around and get frustrated and just complain and whine. I mean, you do something positive with your energy. And even like you said, just reaching out to people and man, what a chance to take advantage of this downtime to reconnect with folks over the phone or on Facebook or however and to just you know, read that book you’ve been meaning to read or you know, binge on that Show you’ve been meaning to binge on or you know, just sit around the family and read through the Bible for the first time maybe. I mean, you know, it’s a there’s some opportunity in this. I know it’s going to be painful, but you know, definitely some opportunity there.

I got to ask you before I let you go though, David. What on the due process side of things and we may have to do a whole another Show on this one. But if things do carry on and get in people start going okay, you know, I’ve been put on a list, says I have the disease, I don’t have it. You know, this would be a state and local thing. Right? This probably not a federal court challenge on most of this due process. As with the statutes I looked at have pretty decent measures for folks to be able to get in front of a judge, assuming courts or even meeting, of course, you talked about that on my podcast, too. But have you thought much about that on the other side of this yet?

David:

Yeah. You know, I think in the short term, as a matter of practical reality quarantines are going to be for any given individual, they’re going to be relatively short during a period of, you know, where the virus is potentially contagious. So, even if you don’t think the quarantine is justified, if you try to mount a court challenge, your quarantine will likely be over before the court challenges does.

 

Rick:

That’s true. Yeah.

David:

So, but on longer term, there’s wide a wide amount of consensus amongst legal scholars on the left and the right, that you’re entitled to due process in a quarantine situation and the best comparison to that would be sort of involuntary civil commitment. You know, when someone to involuntarily committed because of a mental break or they’re deemed dangerous to themselves and others and there’s robust due process protections there and they should lock in. The due process protection should lock in whenever, if quarantines are extending beyond a reasonable period of time. I think as a practical matter, and this is something we talked about on the podcast.

In the short term, right now we’re dealing with, Judges are human and there is not a Judge alive that every judge I’ve ever met, who would be happy to have on their record sort of releasing typhoid [inaudible 19:33] to the public.

Rick:

Right, exactly.

David:

And so, you know, if for some reason, you know, maybe you’re quarantined in the next few days and you have listened to this broadcast and you’re upset about it, you’re probably not going to get any to this or at least if it’s 2, 3, 4 months from now, things are easing and for some reason, you know, or somebody you know, has been in a quarantine type situation for an extended period for seemingly irrational reasons, then there’s probably going to be some judicial relief available.

Rick:

Yeah. And the thing is, I mean, that’s part of why, from what I’ve been reading and I knew nothing about this stuff until it’s all hit. But from what I’ve been reading, most experts, that’s why they recommend home quarantine. Right? So, it’s the least painful as possible and the more people are self-quarantined and if you will, I mean, and I guess that’s what I should call it. But you know, stay at home and just let’s do this on our own as much as we possibly can, the less likely we end up in one of those crazy situations where you have to be taken to some place. So, you know, I think the more we cooperate and follow the guidelines that are being given, the more likely we don’t end up in those bad situations.

David:

Right. And home quarantine has the advantage of not straining public resources. It’s just straining your personal resources, not to public resources. And so, yeah, that’s probably what you’re going to see more of and that’s why you know, orders are just shelter in place and where you’re comfortable, where you have your own stuff and you’re you have your loved ones. And that’s more likely to what we’ll see.

Rick:

I forgot I was going to ask you. One of our specific questions was churches and is it a violation of religious liberty? And you do cover this on the podcast. So again, I want to encourage people to listen to that whole podcast. But specifically on that, could you address that, I mean, do should people be upset that their churches not being allowed to meet as long as everybody else is not also, you know, being allowed to meet?

David:

Right. So, if a closure order was aimed at churches and not other public facilities, you would have a right to be upset and there would be probably almost certainly free exercise claim that would walk in there. But if churches are just being swept up and part of an overall ban on gatherings above a certain size, that’s what’s called a Neutral Law General Applicability. Under the current legal framework, there’s not going to be free exercise claim. But even if you’re talking religious freedom, Restoration Act, those States that have referees where that strict scrutiny comes in, which is, you know, compelling governmental interest with least restrictive means, even under strict scrutiny, under state referees, you’re unlikely to prevail.

For now, if you’re going to try to challenge a state closure order for large gatherings, because of the compelling governmental interest, because of that person to person transmission risk. Now that’s not to say if this doesn’t drag on, well, after the threat seems to have passed that there won’t be valid potential challenges. But for now, it’s very much the same posture for churches as for restaurants and bars, which is you’re going to have to comply for the time being.

Rick:

Alright. Well, folks at home, I know you’re going to binge on TV Shows too, but go binge on advisory opinions. Listen to David French, David, I appreciate you, brother.

David:

Thanks so much.

Rick:

Thank you so much for coming on. And let’s do it again. I’m sure there’s going to be a lot more topics come up on these things. But we’d love to have you back. But thanks for your time today, bro. 

David:

Well, thanks so much for having me. I appreciate it.

Rick:

That was David French. Be sure and check out his podcast advisory opinions. We’ll have a link today at wallbuilderslive.com to get to that one specifically on quarantine law. You can dive a little deeper into some of the things that he was covering for us today on the program.

And then also on our website today at wallbuilderslive.com, you can click on my constitutional minute videos that cover this topic as well. And we really dive into the details of the Federal versus State powers on this. What are those statutes at the federal level versus the regulations handed down by Health and Human Services say in terms of what the power of the federal government is? And then we also dive in a little more to these questions of can churches be shut down? Can restaurants be shut down? All of those things are covered in those videos, as well. So be sure to check that out. It’s all available right there at wallbuilderslive.com.

And in the last place I want to send you today is to constitutioncoach.com. As I said at the top of the program, it is a great way for you to spend this time at home. Number one, for yourself, to be able to go through our Constitution class. You can do it right there at home. You can use the digital workbook, it’s interactive. Watch the videos online, all of that. You can do it at constitutioncoach.com today by getting signed up as one of our Constitution hosts. And we are waiving that normal license fee for this time period at home here. It is normally a $97 a year license to be able to be a constitution host and share the videos with your friends and family on Zoom. We’re going to let you do that for free. Let’s take advantage of this time and redeem the time and have as many people as possible learn their constitutional rights and learn how to be a good citizen. So, you can do that. You can be the catalyst for restoring constitutional and biblical principles. You can use our materials to do that. Go to constitutioncoach.com today, get signed up as a Constitution host.

If you want to go ahead and become a Constitution coach, we’ve got other plans there you can do as well, but we’re waiving the Constitution host fee, which gives you the ability to immediately host a class from your home on Zoom. So, you can actually, you know, have your friends and family there, their videos on. You can be looking at each other and talking and interacting, it’s a great way to still have some community during all of this. And then also cover some great topics. And it’s fun, it’s entertaining, it’s inspiring, it’s educational.

Each time you go through one of those classes with your friends and family, you will have hope, you will be encouraged about the future of our country and you will learn how to do more, how to be a force multiplier that makes a difference right now in your community and your state in restoring those constitutional and biblical principles. Check it all out at constitutioncoach.com. Redeem the time, do it right now and look at ways you can get involved and also you’ll join our community of other Constitution hosts and coaches in our private Facebook pages and other things like that where you can engage in some great conversations and learn a lot of great things about the history of our country, what made it great in the first place and how to restore much of that greatness. Check it out there, constitutioncoach.com.

And then I already mentioned it, but wallbuilderslive.com is a place where you can catch up on the radio programs that you might have missed over the last few weeks or months. You can also do that through the podcast apps and other areas as well. But go to wallbuilderslive.com, because that’s also the place where you can make that contribution.

And yes, I know these are tough times. And I know that we’re facing some challenges ahead. And we’re just asking that you would keep us on your list for those donations and investing in freedom. It’s a great time to make sure that we’re still able to be out there giving, you know, sharing truth and giving great education and entertainment at the same time, as we teach these things that are going to save our republic.  We sure appreciate you listening today. You’ve been listening to WallBuilders Live.