Deep Dive Episode 214 – Emergency Management Statutes: Lessons from COVID-19

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

On March 16, 2022, the Regulatory Transparency Project hosted a virtual event titled “Emergency Management Statutes: Lessons from COVID-19.” The following is the audio from that event. We hope you enjoy.

 

Jack Derwin:  Hello, and welcome to this Regulatory Transparency Project virtual event. My name is Jack Derwin, and I’m Assistant Director of RTP at The Federalist Society. Today, we’re very pleased to host the panel discussion titled “Emergency Management Statutes: Lessons from COVID-19.” To discuss this important topic, I’m pleased to be joined by a stellar panel of three legal experts ranging across the ideological spectrum. In the interest of time, I’ll keep these intros very brief, but please feel free to read more at regproject.org where their few bios are — full bios, excuse me. 

 

David A. Carillo is Lecturer in Residence and the founding Executive Director of the California Constitution Center at the University of California, Berkeley, School of Law. Before academia, Dr. Carillo was a Deputy Attorney General with the California Department of Justice, Deputy City Attorney in San Francisco, Deputy District Attorney in Contra Costa County, and a commercial litigation associate in private practice. Luke A. Wake is an attorney at the Pacific Legal Foundation, where his work has a particular focus in environmental, land use, and constitutional issues. Previously, Luke was a senior staff attorney at the NFIB Small Business Legal Center. And our moderator today, Braden Boucek, is Director of Litigation at the Southeastern Legal Foundation. Prior to that role, Braden served as Vice President of Legal Affairs at the Beacon Center of Tennessee and as an Assistant U.S. Attorney for more than nine years. 

 

After opening statements and discussion between our panelists, we’ll go to audience Q&A if time allows, so please be thinking of any questions you’d like to ask our speakers. And finally, I’ll note that, as always, all expressions of opinion are those of the guest speakers joining us today. Without further ado, Braden, I’ll turn it over to you.

 

Braden Boucek:  Thanks, Jack, and thanks for the kind introduction. I know I speak on behalf of all the panelists when I say we really appreciate the opportunity to speak on this timely and important topic. Of course, during the last couple of years, Americans across the ideological spectrum have become acquainted with the idea of emergency powers. Even if they didn’t know it, these are laws that have been on our books for a long time. And what I want to do today is we’re going to go through a list of questions. I want to give both panelists the opportunity to respond to these questions and have a freewheeling discussion. But I do want to build in plenty of time for Q&A and questions from the listeners, so please be attentive for opportunities to raise your hand and let us know if you got something to say because I think that those are some of the most engaging aspects of the conversation. 

 

So let’s begin. I think we all have a good sense as to what emergency powers are. Emergency powers are legislative enactments that give the executive branch authority to declare an emergency and then take actions and even spend money in the absence of legislative action in response to an emergency. So as we plunge into this broad topic, the first question I want to ask is first directed to Luke. Luke, what is an emergency, and is that term well-defined within statutes?

 

Luke A. Wake:  Well, thank you, Braden, for that. Yeah, I’m sorry to say that this still is a timely topic because, at least here in California and probably some other states, we still have an ongoing declaration of emergency. So emergency is defined differently in different emergency management acts across the country, but it tends to be that the definition of emergency in whatever state statute you’re looking at usually is somewhat open-ended. And there’s some reasons for that, I think. There are some states that attempt to enumerate what would be an emergency. 

 

For example, if you look at Florida—at least at the beginning of the pandemic, maybe it’s changed—it was very clear that their emergency management statutes were all sort of focused on hurricanes and riots. There was some question mark in some states as to whether an epidemic or a pandemic should be. But obviously, I think there’s good reason to make clear that pandemic should qualify as an emergency. I would say so. But the question then becomes whether there should be some sort of temporal limitation on it. 

 

But to sort of put a bookend on your question, there is, I think, an issue in having a very amorphous definition of an emergency so that it might invite a governor who wants to achieve ends through emergency orders. As we’ve seen, they have very broad powers when they can exercise emergency authority. If they want to achieve something that maybe the legislature itself could have achieved and it was sort of an evergreen issue, that the crisis, as it might be—as big as the stakes might be—there are certain issues like, for example, the climate change debate or concerns about the drug issues and whatnot, you can think of things that exist that are societal problems that may even be a crisis that once you question whether or not they should actually fit within the definition of an emergency. 

 

But again, most states are very broad. And California, in particular, I can say, defines it as such that an emergency declaration can continue and can be issued so long as the governor determines that there’s some threat to public health, safety, property. And again, it’s very open-ended. And so, I’ll leave it to, I think, David to offer his thoughts on that question.

 

Braden Boucek:  Well, David, let me turn the question to you then. Luke has characterized emergency powers as being both broad and open-ended. Now naturally, there’s a reason why the definition needs to be fairly broad so that the executive can have the ability to act in a nimble fashion in response to an emergency. But is it important that the definition have some kind of a limiting principle? Do you think existing definitions of an emergency are sufficiently cabined? What are your thoughts?

 

David A. Carillo:  Well, I think we do have a core definitional problem here. We do need to define emergencies. We do need to have temporal and other kinds of limits on them. The problem is that those are both very difficult to define. Emergencies are surprises, and it’s impossible to define the unexpected. So it tends to be much easier to see when an emergency starts than when it ends. 

 

I’m going to go all the way back to the Romans. The ancient Romans had a concept called the dictator. So when the Persians or the Carthaginians or Attila the Hun was invading across the Alps, they would appoint someone as the dictator to rally the legions and go and fight them. And then you had to give up the legions before you crossed the Rubicon back into core Roman territory. That’s the classic example of an emergency and granting emergency powers to a single executive official to combat the immediate and severe existential threat. 

 

The problem that we face is that modern emergencies are much more complicated, and there’s more of a sliding scale. So, yes, it does happen—the Nazis attack, or the Japanese bomb Pearl Harbor—but there’s a much broader category of emergencies that we have to combat all the way down to things like homelessness and endemic conditions like AIDS. Is the climate changing an emergency, or is it a chronic condition? Is the pandemic now still an emergency, or has it turned into an endemic condition? So again, the tail end of the emergency is often the hardest to define and determine when those dictatorial or emergency powers can and should be given up. We have a definitional problem. I agree with you.

 

Luke A. Wake:  Braden, if I can — can I just say something about that? Because I love the fact that you raised the Romans. I’ve raised that exact point in my talks quite a bit about emergency management statutes. And one of the points that I always raise when I raise the Roman thing is that there was always a time limit, a temporal limit. So that understanding we’re going to dictatorial power to Caesar whoever, and ideally, they’re going to give it back, that was expected after no more than six months could you exercise that power. And of course, we’ve shot well past that here. 

 

But one other thought is that it really is true, though, that emergencies follow some predictable patterns. And I think that’s important that we recognize — and it helps us in terms of emergency planning. But I think it is, on some level, difficult to imagine an emergency that hasn’t, in some shape or form, befallen mankind thousands of times over thousands of years. So I don’t know if it should be as difficult to define sort of actual categories of emergency. But I do think that one ought to have some degree of flexibility. The issue, if I was trying to draw an objective line for delineating what is properly conceived as an emergency or not, probably should have some sort of a temporal aspect, as I’ve suggested. But I also think that that line, some objective line, has to take into account the question of whether the “emergency” that is being proposed is really something that has just sort of existed already and that the society at large has just failed to take collective action on.

 

David A. Carillo:  Yeah, Luke, I — Braden, can I respond?

 

Braden Boucek:  Oh, absolutely. Please.

 

David A. Carillo:  Okay. I certainly agree that many kinds of emergencies that we face even in our advanced state now, they’re predictable in the sense that they are things that have happened before. Wars have always happened. Pestilences and plagues have always happened. Insects have always fallen from the sky. These things happen. They’re predictable in the sense that they’re not new to mankind. And along with that, California’s Emergency Services Act, it does include some of your more common emergencies. Enemy invasion, plague is specifically listed, fires, floods, earthquakes, we have those a lot here in California. But earthquakes are also a good example. They do happen. They have happened before. Sometimes, they’re quite serious. I’m probably going to get a two or a three on a Richter Scale while we’re on this Zoom right now, and I’m just going to walk it off. That won’t bother me at all. You know? 

 

So it’s the big ones that are both rare and unpredictable. And we tend to forget about them. So we have had pandemics before, but the last one was 100 years ago, and everybody had sort of forgotten about them. And the fact that that is specifically listed in the Emergency Services Act was a surprise to me when I had to go look that up two years ago and figure out what was actually possible at this point. It’s a surprise in the sense that we can’t see it coming, and we haven’t seen it happen in a while. 

 

That being said, I certainly agree with you, Luke, that things do abate. We’re seeing that now with a pandemic. The Ukraine conflict is a good example of this. Right now, it is a hot urban conflict. It could turn into an insurgency. At some point, you stop calling that a war. You stop calling that an emergency. It turns into something that’s part of daily life, for better or for worse. So I agree with you. There’s both a definitional problem here. There’s a time limit problem, and that’s closely connected to the definitional problem.

 

Braden Boucek:  We’re going to get into how to address those things as we move on down the questions. But we’ve just lived through this long pandemic with emergency powers being frequently invoked. Do you think we’ve seen abuses of those emergency powers? First Luke, then David.

 

Luke A. Wake:  Yeah, I definitely do. And I’ve talked a lot about this. I’m representing right now — I’ve represented a couple different businesses that were shuttered as a result of continuing emergency orders from state governors, including here in California. We have an indoor mini-golf facility in Fresno, California, called Ghost Golf. And Ghost Golf was totally shut down for over a year. There was like two days where they were allowed to actually legitimately open for a moment before being forced to reclose. So practically speaking, they were shut down for over a year. And when they were allowed to open up again in April of 2021, they were only allowed to operate at 25 percent capacity. 

 

And you see all sorts of examples of businesses being — a lot of the criticisms that, in the public eye, I think — about the way the emergency orders went down is a sense of, “Well, the lines were arbitrary.” They were arbitrary decisions that didn’t make sense—that they were allowing Disneyland to reopen, and they were allowing you to go into movie theaters. And you couldn’t step foot in a family entertainment center with just your kid. There was a lot of questions people had about how is this fair. And part of the answer is that, well, in general, when the government does something if they have authority to do it, courts are very deferential under a rational basis standard. 

 

But when it’s one man—or woman, as was the case in Michigan—making all of the decisions about who was closed and how long they had to be closed and whatnot, I think that the risk is all the greater that one may make arbitrary decisions. Especially when we’re talking about an insular executive, it’s much more difficult to get a hold of that insular executive to actually make your voice heard as compared to being heard in a legislative process. Decisions are made notoriously behind closed doors through issuing these emergency orders, so you don’t have the transparency. In fact, there’s absolutely no opportunity for notice and comment. So I think a lot of that played into a sense and part of many people — that the rules were sort of arbitrary and, in many cases, unfair and, in some cases, maybe favored some businesses over others where there was greater commercial interests involved. 

 

And then, as to the scope of the powers, I definitely think that there’s a constitutional problem—David and I, I think, disagree about this—but a constitutional problem merely with the breadth and the scope of the power that has been given to the governors. And we can talk about that more. But I think that in itself invites abuse because it means — I think it’s fundamentally contrary to the American system, where you have one man or woman exercising essentially autocratic rule.

 

Braden Boucek:  David, what do you think? Do you acknowledge or do you think there have been abuses of the emergency powers during the COVID pandemic?

 

David A. Carillo:  I guess there’s three issues here. One of them is the definitional question about abuse. The other is what practical effects we’ve seen. And the third one is the constitutional issues about sole dictatorial-esque powers in the hands of one person. So going in order, I think that the definitional question — this is mostly subjective. An emergency requires triage, and one man’s abuse is another’s prophylaxis. Some will argue that the Trump and DeSantis administrations didn’t do enough during the pandemic. Others will argue that the Biden and Newsom administrations did too much. 

 

That’s why I think this isn’t really a debate about executive power. It’s a policy discussion. So everybody’s guilty of a little bit of hypocrisy here. In the Bush 43 administration, conservatives loved executive power, but only because they liked the policy decisions. Now, in California recently, conservatives dislike executive power. Again, I think it’s because they dislike the policy decisions that are being made with it. So I think this is fundamentally less about executive power or the use of power, and it’s more about the policy decisions and whether we like those or not. 

 

The good news is I think that empirically, whatever definition of abuse you use — and there are serious debates over the balance struck between COVID restrictions regarding personal liberty versus collective safety. But the good news is that empirically, I don’t think we’ve seen many instances of what you would call abuse of power. Certainly, there are disagreements about policy decisions—wear a mask, stay home versus open your business, and let everybody in where they can give each other diseases. That’s a different debate. That’s a policy debate.

 

To me, the classic example of using emergency powers abusively would be using them for non-emergency-related things. So if somebody said, “Well, going to a shooting range is some place that you can pass COVID around, so I’m going to confiscate all your guns,” to me, that would be a clear abuse of power in a non-emergency-related way. And I think the reality is that we have not seen very many instances of anything even close to that. So that’s the good news.

 

Luke A. Wake:  Braden, can I respond to that?

 

Braden Boucek:  Yeah, Luke, do you agree with that assessment?

 

Luke A. Wake:  Yeah. No, he raises some legitimate points and some points that I need to push back on. On the legitimate — I mean, this is all legitimate conversation, David, so I really appreciate it. But I really agree on one of the first points that you made, which is sometimes, I think as much as people — and I think you could go back and look at what people were saying about administrations. You look at the Nixon administration, the Clinton administration, the Bush administration, Obama administration; everyone cries foul about executive overreach when someone that they don’t like is in power. I mean, —

 

David A. Carillo:  Totally.

 

Luke A. Wake:  — so you’re right. 

 

Now, I’m of the mindset that we need to take seriously separation of powers and these first principles. And it’s really fundamentally a rule-of-law question. So there’s that great line from A Man for All Seasons, where he said, “Would you give the Devil the benefit of the law?” And he said, “Yes, I would for my own safety’s sake. Because when the Devil rears around on me, I want to have something to protect me.” And so, I think we ought to be principled about saying, yes, we need to take separation of powers seriously. And so, my concern about what I see as a fundamental breakdown of separation of powers through the pandemic is, I think, deeply concerning. 

 

As to the policy — so you’re right. There’s a lot of disagreement about the policy. And people tend to sort of divide into camps on that. But fundamentally speaking, when it comes to deciding what policy the state should be operating on, that’s fundamentally, it should be –the default in a democratic system is that fundamental policy should be decided collectively by the people in a legislative assembly. And at this point—and frankly, by the time that infamous Blueprint for a Safer Economy was released in California with the color code systems in the fall of 2020—at some point, there’s just no longer an excuse for having one man or woman basically exercise autocratic or dictatorial rule because once the legislature’s actually capable of collaborating — convening and making those sort of fundamental policy decisions, there really is no reason not to have it happen. 

 

And there’s a number of just good government, normative political, philosophical reasons for preferring to have that legislative body make those kind of decisions as opposed to having one man or one woman. Madison would say—did say—that the consolidation of powers in a single body or a single person is the very definition of tyranny. And I don’t think he meant that in every instance there’s going to be someone rounding up all of your guns as the example you just gave. I mean, certainly that, I guess, is a — you’re right that we didn’t see Newsom act like Kim Jong-un. But nonetheless, even the most beneficent of an individual, when exercising, essentially, absolute power—at least, unfettered power to make the rules however they want—it invites them to make the rules without the sort of deliberative thought, without the transparency, without the public input that you would have in the legislative process. And I think all of those things are problematic. 

 

And that’s one of the reasons why the case law in a number of states, California included, has emphasized the need for safeguards, constitutionally required safeguards. So there should be both the — the legislature itself has to decide fundamental policy and provide standards that sort of adequately channel the exercise of discretion, but also there needs to be actual safeguards in place to prevent one man or one woman, or an agency for that matter, from just making the rules however they want to prevent things like favoritism and so forth. 

 

So that’s where temporal safeguards come into play. That’s where something like a notice and comment process, when we’re going to have ongoing emergency rule — okay, but there’s no reason you can’t give a 30-day notice for something that comes out 6 months into the ongoing emergency. So I’ve said a lot, but I’m sure David has some thoughts on that.

 

Braden Boucek:  Well, let me try and focus it a little bit, David, because I want to circle back on something Luke’s been alluding to. And that’s, given the open-ended nature of the emergency declarations, you can draw this distinction between things that are an emergency, like a hurricane or an earthquake, and then things that are just really big chronic problems that, for whatever reason, there’s legislative inability or unwillingness to tackle those problems. 

 

I’m going to give you a list of things that I’ve just assembled, issues that I’ve assembled where I have seen invitations of emergency authority or calls to address the emergency authority. And you can respond to this and say whether you think these things should be considered an emergency and whether or not existing definitions would allow for it. But just four examples that I saw were climate change, guns—which I think triggered an emergency declaration in New York, gun control measures—a governor of a border declaring that immigration is an emergency, conferring powers until the crisis was solved, and more recently, I saw an example last week of cities declaring homeless camps to be a state of emergency and then using emergency powers to clear them out. David, —

 

David A. Carillo:  Is it my turn?

 

Braden Boucek:  — would you respond — yeah, go ahead.

 

David A. Carillo:  Okay. I’m going to reframe it slightly, and I’m going to use the separation of powers framework that Luke did. Before I do that, two quick points. One is I need to thank and acknowledge the hard work that my colleagues at the California Constitution Center—Brandon Stracener, Steve Duvernay, and Dan Bromberg—have done on this. I should also point out a couple of things that Luke and I have referred to in passing involved a briefing that we were involved in a case called Ghost Golf v. Newsom and other people. We were amicus in that case. So in a couple places we’re going to be repeating some of the arguments me made against each other in our amicus briefing. 

 

So I would frame it in separation of powers terms like this, which is that underlying each of those specific examples you gave me, Braden, is a fundamental policy decision. And I agree with Luke that separation of powers doctrine—even though it’s different here in California than it is in the kind of classic federalist sense—even in California separation of powers framework, the basic policy decision still has to be, always has to be, made by the legislature. The way I would unpack that is that the fundamental policy decision here is to both define several specific types of emergencies. You have the common ones—war, flood, fire, earthquake, plague—and then also to provide broader, general categories of things that local governments cannot handle on their own, and the state government needs to step in. 

 

Emergency declarations are scalable. You can declare them against specific subjects. You can declare them in specific places. It doesn’t have to be statewide, obviously. California fairly commonly declares local states of emergency, and that’s just something that’s beyond the capabilities of the local government to handle. So that might be your homeless encampments in a particular county or city here in California. It might just be beyond the resources of that local government, and they need to call in the state resources. 

 

So declaring an emergency in that instance, it’s a proxy or another name for just yelling for help from a larger governmental entity because it’s beyond the resources of the locals, and they need help. So a disaster declaration in California serves the same purpose because it allows federal disaster relief, money, and FEMA to come in. So it doesn’t have to necessarily be about invoking supreme executive authority. It can simply be about money and resources. So each of those specific examples, they fall into one of those two categories. It’s either a fundamental policy decision that the legislature’s made at the outset that an enemy incursion is an emergency, and we are going to defer power to the executive to literally combat that with the militia. And then there’s a broader catchall category for unanticipated things that require quick action. 

 

One place where Luke and I are going to consistently agree with each other a lot is the need for some guardrails, some safeguards, some timeframes, some reporting. And there’s certainly potential for reform there. Canada’s emergency act—I forget the exact name—is actually a pretty good example. It automatically expires within a week, if I remember correctly. And then there’s both reporting and interaction between Canada’s parliament and the executive, which generally boils down to, “Is this still an emergency, and should we continue dealing with through emergency powers, or can we deal with it through the ordinary policymaking process?” 

 

So I’m certainly not here to say emergencies are great. We should declare them all the time. They should last forever. Gavin Newsom should be the dictator of California. I’m not saying anything like that. Obviously, an ordered system of government requires policy to be made in an ordered way. And I do think that executive power does have to end at some point. Emergencies abate. The floodwaters subside. The fire goes out. But as we referred to at the beginning, defining that, it actually can be quite difficult. And we’re experiencing that now with the pandemic. 

 

Braden Boucek:  Thank you. No, that was great. Very insightful. I’m almost going to take a step back and ask a question even more fundamental, and I’ll direct it to you first, David. This idea that you would consolidate powers within the executive and give them sort of supreme authority to respond to an emergency, how does this fit within our constitutional system? What’s the argument for their constitutionality in the first place? David, why don’t you start there, and Luke, I’ll give you a chance to respond.

 

David A. Carillo:  Yeah. So you’re essentially asking about the constitutionality of emergency measures. And what’s fairly interesting there is I started this by invoking the Romans, which are the classical republican example which many of the thinkers and drafters of our Constitution relied and were educated in. So as a matter of history and practicality and theory, that is where that comes from. But there’s also a very long tradition in American thinking and government that relies on executive power when it’s needed. John Locke referred to this. A number of the founders wrote about it. And I’m pulling up — Jefferson referred to it; Jackson referred to it; Justice Story referred to it. So there’s a rather dualist perspective here of the executive prerogative that conflicts with or contrasts with the people’s house and the power to make law and policy through representative government. 

 

And I think these two concepts, they exist in tension that is essentially irreconcilable. We desire, and it is beneficial to have, deliberative processes for making policy and law. But that is antithetical to quick action, deliberately so. It’s a fairly commonly made point that many features of the US government design and the Constitution are designed to slow down the policymaking process. Senate is frequently called the saucer that cools the tea. That’s great, and that works fabulously in ordinary times. The problem is, every once and a while, the Japanese or some enemy is going to attack the territory of the United States, and that requires swift action. Washington would not have done particularly well against the British if he had to depend on the Continental Congress to make battlefield decisions for him. 

 

Yeah. So this is our experience. Sometimes, you need swift action where decision-making power is vested in a single individual. And sometimes that’s terrible, and you want exactly the opposite of that. So I think practical reality and good government design, theoretical thinking, compel us to have both of those elements. And because they exist in tension, that’s why we have doctrines like separation of powers that contemplate those things existing in tension and creating checks and balances so that they can combat each other and avoid the concentration of power. We have to live with this duality, with this tension.

 

Braden Boucek:  Luke, do you accept David’s insights about the constitutionality of emergency powers? And a related sub-question that I want to ask you is, if you see constitutional problems with it, have there been any successful legal challenges mounted during the recent pandemic at either the state or federal level? And I want to specifically differentiate between applications of it to say the right to assemble or freedom of worship applications. I mean more broad-based, successful legal challenges to the existence of emergency powers in the first place.

 

Luke A. Wake:  Right. I mean, well, first of all, I do agree with David that emergency management acts can be done in a constitutional manner and that there is imperative for having an ability for swift action. You’re absolutely right that there is a reason we have these statutes in place. We need to be able to respond quickly without a tremendous amount of time when hurricane hits, when the Russians invade, whatever the case might be. Right? And so, that’s imperative. But one of the big sticking points that, constitutionally speaking, is about the degree, the scope of the, I would argue, unfettered powers that these emergency management acts have given to the governor. 

 

And one of the principal arguments for having very open-ended authorities to the governor during an emergency is, “Well, it’s an emergency. We need quick action. And just as a matter of necessity, we’ve got to allow maximum flexibility.” And whatever sort of moral force that argument may have, though — in the very beginning of the crisis, that argument quickly loses moral force, I think, once it becomes possible for the legislature to convene. Which is why we talked about — I’m not particularly familiar with the Canadian model, but I know that a number of states, Kentucky being one of them, have enacted statutes, were forming their EMAs to require — basically, once the legislature reconvenes, there is a threshold of 32 hours or something like that where they have to make a decision about whether to allow specific emergency orders to continue. And that means that the legislature has to assume ownership. 

 

Now you asked, Braden, about have there been successes. And again, I think we need to distinguish between people just sort of invoking ideas of constitutional rights and the emergency powers infringing on those. And those challenges were generally unsuccessfully. We could talk about those separately if you want. But I think you’re getting at, fundamentally, separation of powers issues. Does the governor, the executive — no one disputes that the state has the power, I think, to address the emergency. The question is does the executive have the power. Who gets to make the decision? 

 

And on that, most of the states we’ve seen throughout this pandemic have been — the state court’s been very deferential to the governors under existing EMAs, with the notable exception of Michigan and Wisconsin as well to some extent. But Michigan, I think, — the most notable decision on nondelegation grounds or the emergency powers of the governor’s act in Michigan violated this nondelegation doctrine—the idea that the legislature just can’t give a blank check to the executive to just do whatever it wants. That’s, fundamentally, the argument I’m presenting in the Ghost Golf case, by the way. 

 

So at the federal level, it’s a different story, and I think this is very telling. At the federal level, the eviction moratory cases, I think, are a very good example of how things have played out differently because the federal courts—especially the Supreme Court when these things have gotten in front of them—has been more rigorous, I think in actually seriously scrutinizing first the statutes in question and I think also very concerned about the nondelegation issues looming in the background—again, the notion that Congress can’t just give a blank check. And so, in the CDC case, for example, the CDC director was saying, under a statute from 1941, the Public Health Services Act, the CDC director can basically do anything, issue any orders that she deemed necessary to respond to the pandemic. And of course, that would mean that she could have done anything that Newsom or any of these other governors have done, again raising very significant nondelegation questions. 

 

And the courts consistently, when they got to the merits, said, “Whoa, whoa, whoa, we can’t just automatically assume that this — what, on its face, might look like a very broad delegation is that. We need to seriously employ the canons of construction and read it in context.” And when in context, the federal court said, “No, this is not as broad as they’re saying it is. They don’t have an authority to impose a nationwide eviction moratorium. That would require an act of Congress specifically authorizing that.

 

Braden Boucek:  Well, as lawyers, when we started studying these, all of a sudden, I think we all became familiar with this case, Jacobson v. Massachusetts, that nobody had thought about probably for a hundred years or so. But it might be a good time to spend a little moment here. David, what can you tell us a little bit about the Jacobson v. Massachusetts case? How does it have any relevancy to the present discussion about emergency orders? And then I’ll turn it to Luke with some questions as well.

 

David A. Carillo:  Yeah. I’m going to put on my legal academic hat here. All right, class, so Jacobson was a case decided about a hundred years ago. And it was decided in the same term as and cited in Lochner, another famous case that’ll probably come up here. In Jacobson, the US Supreme Court refused to overturn a $5 fine levied by a state against an individual who violated a state law that required vaccination against smallpox. The Court recognized the authority of the state to enact quarantine laws and health laws of every description. “The power of the states to enact and enforce quarantine laws for the safety and protection of the health of its inhabitants is beyond question,” said the high court. 

 

The takeaway here is that courts will only strike down such measures—public health measures—issued under the state’s police power if they have no real or substantial relation to the protection of the public health and the public safety. So this gets back to what we were talking about before about is your public health order actually related to public health, or just removing people’s individual liberty or taking their guns away or whatever. So Jacobson’s relevant to us now because the main quarantine or shelter-in-place or get vaccinated orders that we’ve seen in the past couple years, they all fall squarely into the Jacobson framework of appropriate uses of state police power.

 

Braden Boucek:  Luke, do you agree that Jacobson guides the discussion here? Do you think it’s on all fours?

 

Luke A. Wake:  Well, I mean, Jacobson absolutely was relevant insofar as people were claiming general liberty interests having to comply with these emergency orders. And certainly, it’s relevant insofar as the state is contemplating vaccine mandates or something. But Jacobson really only stands for—I mean, David, I think you described it perfectly—it stands for the proposition that it’s within the police powers of the state to respond to emergency. And I think that –.  

 

David A. Carillo:  Jacobson, also importantly, wasn’t an emergency measure. It was just a state law.

 

Luke A. Wake:  Well, to respond to public health issues, yeah. And so, no one – I don’t think anyone should — I don’t dispute that. What I think the big question, though. is that insofar as you’re relying on Jacobson as sort of your justification for, “The governor can do all of these emergency orders,” that doesn’t really establish that point because Jacobson doesn’t speak to who gets to within the framework of state government make those sort of decisions. And David, a moment ago, mentioned the legislature. We agree, at least, on this doctrinal point that the legislature should be making the fundamental policy decisions. I think where we disagree is what suffices as a decision on the fundamental policy. 

 

So if he says, “So it’s enough that the legislature has decided that this is an emergency and we want to enable some sort of response,” I don’t want to — David, please correct me if I’m mischaracterizing your position here, but my position is, “Okay, but that’s not enough.” When it comes to deciding questions of fundamental policy, there also needs to be actual fundamental decisions about the nature of what we’re actually authorizing the governor to do. So if he’s saying we can shut down all sorts of businesses, we need a fundamental decision from the legislature actually saying, “Yeah, you can shut down businesses, and here are some sort of criteria for how you go about doing that and under what conditions.”

 

David A. Carillo:  Yeah. I think we need to make a key distinction here which is between what Jacobson was talking about and what it wasn’t talking about. The underlying principle that drove the decision in Jacobson is the fact that the states, not the federal government, have the police power of general government. The Tenth Amendment reserves to the states all powers nondelegated to the federal government. And the federal government simply lacks a general police power, which is the generalized power of sovereignty to pass laws for the health, welfare, safety, and benefit of the population. That’s the power of the states and specifically reserved to them by the Tenth Amendment. So all Jacobson really recognizes is, is this police power of the states? And there was no basis under the federal Constitution for overturning this police power act of Massachusetts, I think it was, in Jacobson. 

 

So on the one hand, you have police power acts of the state in, for example, requiring school children to get vaccinated against the flu every year or measles or mumps or whatever. That’s a classic police power act. Where you run up against larger concerns, like separation of powers at the state level or running up against limitations imposed by the federal Constitution as a result of individual liberty guarantees, is where those police power acts run up against outside boundaries. And that happens all the time. 

 

So the fact that we’ve seen lots of litigation in the religion and church context here in the pandemic, that’s a current-events example of a very common dynamic. It’s just another example of an individual liberty interest that’s being asserted against a government act. That happens all the time. And it just happens to be in the emergency context here. So on the one hand, Jacobson establishes a foundational principle that is very important here. But on the other hand, it only goes so far. And where it stops is where we start talking about the individual liberty guarantees that push back against the police power act. That, I think, is the second part of what Luke was talking about. And that is an important discussion.

 

Braden Boucek:  So I take it then, David, you would agree that Jacobson doesn’t have a whole lot of relevancy when discussing federal action, such as the OSHA vax mandate or the CDC eviction moratorium.

 

David A. Carillo:  Right, right, right. I mean, Jacobson states a general principle, and that general principle largely concerns the power of the states within their boundaries to use their police power. There’s a secondary issue about the power of the states versus the federal government, whether the federal Constitution has anything to say about state police power actions. But I guess the third sort of declining tale of relevance is how relevant Jacobson is to federal government acts. I think it’s of limited help there.

 

Braden Boucek:  You and Luke seem to agree that there’s a need to put some sort of temporal or durational limit in the definition of emergency powers. Can you try and put some flesh on the bones there? What should it look like? How should it be imposed? I mean, essentially, I think we all recognize the need to ensure a way to return to the regular business of government.

 

David A. Carillo:  Can I go first? I’ll give you three-point examples.

 

Braden Boucek:  Yeah, go ahead.

 

David A. Carillo:  And they’re sort of on a spectrum, and you can arrange them on the spectrum depending on your starting point of view. So in no particular order, one example is California, which arguably lacks a temporal limitation. It does have a hard emergency brake, but it’s binary. It’s on or off. So the way our Emergency Services Act is set up is the governor can declare an emergency. The governor can end an emergency. And the legislature, by concurrent resolution, can end an emergency. Those are the only three options. It’s on, or it’s off, and two people can turn it off, the governor or the legislature. Otherwise, they can last forever. In fact, a week or so ago, Governor Newsom ended, by executive order, a number of emergencies that have been floating around for years. I think one of them was from Jerry Brown’s administration. So that’s one example. 

 

Another example is Canada’s—we referred to that earlier—where if I remember correctly, it lasts only seven to ten days. And it’s a hard stop. It ends by operation of law. A third example is Kentucky, where, if I remember correctly, its legislature is part-time, even today. And so, part of the justification for giving a governor in Kentucky emergency power is a practical one, which is that the legislature might not be in session. And they might not come back into session before the emergency runs its course or ends or kills everyone in Kentucky or whatever. So it might not be possible for Kentucky’s legislature to do something like what we have in California, which is gather to hold a hearing on whether the emergency should end or not. 

 

California also ran into a version of this problem at the beginning of the pandemic because the legislature interpreted the laws that applied to it to prevent it from meeting remotely. So there was a significant period of time where, not by law but by practical force, our legislature found itself unable to meet. So even if a legislature had wanted to end the pandemic emergency declaration in the first, I don’t know, six months or so—however long it took them to get their act together on that—they would have been unable to meet in a quorum and actually pass a concurrent resolution. They would have been practically prevented from doing that. 

 

So to wrap up, I definitely agree with Luke. You do not want dictatorial emergency powers to last forever. I don’t think anybody would be in favor of that. The question is, how do we impose these emergency brakes without removing the benefit of having these powers in the first place?

 

Braden Boucek:  Luke, what’s your version of how to end an emergency once the Roman soldiers cross the Rubicon?

 

Luke A. Wake:  Yeah. I mean, I think the Kentucky model is a fine one. The notion that as soon as the legislature is able to convene, it needs to take ownership and either decide that the emergency orders can maintain in place, and at that point, they take political ownership of the political repercussions of that. I also am fine with the idea of drawing some sort of a hard temporal line. And one can argue about where to draw that line. For whatever reason, six months stands out in my mind because it’s the Roman line. But you could draw that in different places. And if you were concerned, it seems that one should be able to — I mean, maybe there’s state constitutional restraints that inhibit this in some cases. But I would think if the governor’s emergency powers are predicated, generally speaking on these emergency management statutes — so it seems that you could craft the statute such so as to require the governor to call a special session of the legislature in many cases after a specific time period to debate whether or not the emergency should continue. 

 

In any event, yeah, having a just totally open-ended is a problem. And I would say totally open-ended is a problem even where there’s a theoretical possibility that the legislature might do something because, as a practical matter, the legislature has tremendous incentive not to accept political ownership of the decisions that are being made and to allow the executive to continue, and that, I think, is a problem. So I just don’t think it’s enough to say that’s theoretically possible. Separation of powers really only works in terms of maintaining the constitutional equilibrium that the founding fathers envisioned at the federal level. And I think probably they made — this is conversation from their time, David, to what extent the California founders thought these things were important. But I think, implicitly, they had to have thought so—a number of states did in expressly prohibiting the exercise of legislative powers in the executive branch and executive powers and other branches. And so, I think it can be difficult to say where that line should be. 

 

And if you’re going to allow just an open-ended, ongoing emergency, which I think is problematic, at the very least, you need to do two things. You need to have some opportunity for public input for new rules coming out six months in, and most importantly—and frankly, wherever you draw the line—I think it’s imperative that we put guardrails on what the governor actually can do in terms of channeling the exercise of discretion. And I’m not talking about tying the hands so that the governor can’t respond. For example, if we all think that it’s important that the governor has some ability to put restrictions on businesses, well, we should—especially with the retrospective knowledge we have today about how the pandemic played out—we should be able to say, “Okay, well, what sort of businesses should be subject to restrictions, and what sort of restrictions should be appropriate?” And there’s no reason why any legislature can’t have that debate right now.

 

David A. Carillo:  Can I follow up on two things, Braden? I know you want to get to questions.

 

Braden Boucek:  Sure.

 

David A. Carillo:  One thing that Luke and I, I think, will agree on is that any outside time limit is inherently arbitrary. And it’s going to be very difficult on the front end to have any chance of being anywhere near accurate in predicting when a particular emergency will end. I think that’s impossible. So I have difficulty with arbitrary endpoints. That’s a problem with Canada’s. But Canada’s statute solves that by requiring interaction between the executive and its parliament on whether the emergency still exists and should still be extended. 

 

And that, I think, solves another problem that’s inherent in one of the other solutions that Luke proposed, which is forcing the legislature to become involved and take on its policymaking role and assume political responsibility because, as I think Luke pointed out, there’s very strong incentives for the legislature to just hang the governor out. “You declared an emergency. You own this, and you’re going to live or die on that hill. That’s now your problem. We want nothing to do with that.” So a statutory scheme that basically forces or compels the legislature to get involved and take some ownership and, frankly, do its constitutional responsibility, I’m all in favor of that. That is a worthy reform to take up. So again, I think Canada’s requirements for executive and legislative reports and interaction, it’s a pretty good model for us.

 

Braden Boucek:  Okay. I want to give some chance for Q&A here. I see we’ve got exactly one hand up thus far. Shaun Callahan, can we hear your question?

 

Shaun Callahan:  Hi. Thank you. Yes. So my question’s about the state of case law and the definition of an emergency. And particularly on the state level, it seems like a lot of the results in the state cases suggest that state judges think that there’s some sort of Chevron City of Arlington principle. So we not only defer to what the executive decides to do to combat the emergency, but we defer to the executive’s interpretation of what an emergency is. And that’s probably false. 

 

But my question about the state of case law is, how many of these state cases have actually bit into the statutory language about what counts as an emergency and given us a framework of deference, shifting burdens, presumptions, some sort of gloss on what the words in these statutes mean? Another way to ask that question is I know the challenges—I’ve lost a lot of cases—but digging into those cases, how bad are those opinions for challenges going forward? How much have these losses actually clarified what the definition of the emergency really is and the role of the court in determining that?

 

David A. Carillo:  Luke. I’m going to suggest that I give California example and you give a non-California example. How’s that?

 

Luke A. Wake:  Yeah. You go for it. Yeah.

 

David A. Carillo:  Okay. Because my California example, I think it stands for two propositions. I’m going to talk of Macias, which is a California Supreme Court case from, I think, the ‘80s, and it concerned the medfly infestation that we had here in California. Medfly was a bug that ate grape leaves, and it was destroying the wine-making industry in Napa, which is a huge economic driver in the state. It was a bug, which doesn’t sound all that serious, but it actually was pretty important. And a plague of insects is something specifically mentioned in our Emergency Services Act, so it does qualify under the statute. 

 

So the medfly illustrates two things. One is things other than an enemy incursion or an earthquake that destroys San Francisco, things other than those classic examples can qualify as emergencies and properly so. And more to the point that the questioner just raised—and this is a good one—even though the medfly was such a nonclassical, noncategorical example of an emergency, the California Supreme Court was quite deferential to both the governor’s declaration of an emergency, and the case concerned how the governor handled that emergency. So it was less about is this an emergency—that was taken almost as a given, which I think is telling as an answer to your question—and it was more about the handling of it, which is the second part of your question. In that instance, the California Supreme Court set the standard that has applied for the last 40 or so years to Emergency Services Act cases in California, which is courts show great deference to gubernatorial emergency orders to combat an emergency once they are declared.

 

Luke A. Wake:  Yeah. I don’t disagree with David’s assessment. One of the reasons that Pacific Legal Foundation, when we were looking at what was happening at the beginning of the pandemic and possibly representing some small businesses that had been shut down by emergency orders — we ruled out pretty quickly challenging just the definitional challenges. I know there were some groups that did. I believe that New Civil Liberties Alliance had a suit in Massachusetts challenging on hyper-technical — not hyper-technical, but there was a serious canons of construction argument for why they didn’t think that there was actually an emergency under Massachusetts emergency law — management act. And the Supreme Judicial Court of Massachusetts likewise rejected that argument, as I understand. Again, I had only sort of tangentially followed that case. 

 

But it was very clear, especially —it was just broadly sweeping, as certainly the California Emergency Services Act is in defining what is an emergency. Again, it’s like anything — it’s not just the specific enumerated emergencies that David mentioned, but it’s anything that poses a threat to human health or property. Even that sort of catchall would cover the governor. I mean, it’s a good question. I think, in general, we ought to — but I think it’s a whole other conversation about when and under what conditions courts should give deference to the executive branch at all. I’m generally all in favor of the best possible interpretation of the statute. 

 

But I will say, I think especially when there’s a sense that — just general public sense in the zeitgeist, if you will that there is an emergency, I think you’d be very hard-pressed to get a judge to look very critically at that. So I mean, there’s sort of just a practical answer there. And that’s why I think that the real question ultimately—I mean, if we’re really concerned about emergency powers—has to go the sort of separation of powers issues that I’ve been honed in on about the nondelegation doctrine, and that is the scope of the powers actually given and whether or not, A, they’re sufficient safeguards to protect against arbitrary decisions, favoritism, but also whether or not there’s actually anything sort of channeling the exercise of discretion or whether it’s just a free for all and the governor can do whatever he wants.

 

Braden Boucek:  Another question we had come in—and I’ll direct this to David first—is, in situations other than the kind of core defined emergency scenarios—i.e., invasion, earthquake and the like, hurricane—would it be prudent to require the executive to release all the documents and statements which form the basis of the emergency declaration?

 

David A. Carillo:  That’s an interesting question. California has some very robust public governance statutes—Sunshine Laws, they’re called sometimes—that, in general, require documents be made public in nearly or most, not quite all, circumstances. The executive privilege doctrine that we’re fairly familiar with under federal law from the Nixon administration—thank you—it has limited application here in California. We just don’t have the kind of national security issues by definition that the federal government does because we’re a state. So in general, those documents, to my understanding, have to be released. It’s not can they or should be. I think they have to.

 

I know that there is a deliberative privilege, but I would think that it would have much more limited application in California than it would at the federal level, even in this context. So I’d be surprised if, number one, a lot of the pandemic deliberative documents or policymaking documents, to the extent that they — because I’d be surprised if they’re not already public, at least publicly available. And if they’re not, I’m sure someone at Pacific Legal Foundation will be happy to sue to retrieve them.

 

Braden Boucek:  Luke, what do you think? Have we seen sufficient transparency?

 

Luke A. Wake:  Well, no, that’s one of the issues. David, you mentioned that — I mean, I think we agree that they should be, if we’re going to be — I mean, one of the problems here, one of the reasons that I think that there’s not enough safeguards against is, these decisions are all made behind closed doors. And there’s nothing in the ESA that requires that they make these disclosures for –.

 

David A. Carillo:  No, no. No, I’m referring to the Public Records Act and Pacific –.

 

Luke A. Wake:  Yeah. But the public records, I mean, so you run into — I mean, I will tell you, I know for a fact that the Attorney General’s Office claims deliberative privilege on things that were decided behind closed doors.

 

David A. Carillo:  Yeah. I guess that’s a foundational question. Have these records been released? Have they been withheld?

 

Luke A. Wake:  My understanding is that there are things that have not been released. But that is — in any event, sort of the normative question would be is whether or not the predicate for these emergency declarations should be made public. And it sounds like David and I both agree that, at least normatively speaking, they should.

 

David A. Carillo:  Yeah. I don’t know if they have. Yeah. I’d want to know what things have been withheld and on what basis before I gave a complete answer to that.

 

Luke A. Wake:  Yep.

 

Braden Boucek:  Right. Right. Well, we’re almost up on our time, and I want to give Jack some time to wrap up. But Luke, I got to ask you one question. If you had to pick one fighter pilot from Top Gun, which one are you and why? I think that’s a very important question for you to tackle.

 

Luke A. Wake:  Oh, man. I don’t know. I always like Icebox, right?

 

David A. Carillo:  Iceman. Iceman was his —

 

Luke A. Wake:  Iceman.

 

David A. Carillo:  — name—Val Kilmer’s character.

 

Luke A. Wake:  Iceman. Yeah, that’s right.

 

David A. Carillo:  Before we sign off, can I paraphrase Elon Musk and say that I challenge Luke to single combat on separation of powers?

 

Braden Boucek:  Yeah, I would love to host that panel. Jack, —

 

Luke A. Wake:  We’ll combat.

 

Braden Boucek:  — sign me up.

 

David A. Carillo:  The stakes are California.

 

Braden Boucek:  Love it.

 

Luke A. Wake:  Well, we haven’t had a good duel in a while. But, David, I appreciate you. I mean, this was fun. Thank you.

 

David A. Carillo:  Yeah. Yeah. I enjoyed speaking with you.

 

Jack Derwin:  Thank you all so much. David and Luke, your back and forth was great. I’m glad it didn’t quite come to a duel—maybe next time. And as always, appreciate your moderation, Braden. And thank you to our audience for tuning into today’s virtual event. You can check out our website at regproject.org or throw us a follow on any major social media platform @fedsocrtp to stay up to date. With that, we are adjourned.

 

Braden Boucek:  Thanks, everyone.

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

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This has been a FedSoc audio production.

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