We the People

Some of Americans’ civil liberties—like the freedom to assemble in public, the right to travel, the ability to purchase a gun at a gun store or visit a reproductive health clinic, the freedom to exercise religion by going to church, and more— are typically exercised in person. As states enforce the stay-at-home orders necessary to prevent the spread of coronavirus, how will those rights be impacted? And what will happen to them after the crisis is over? This episode explores those questions as First Amendment experts Lata Nott and David French join host Jeffrey Rosen. Questions or comments? Email us at podcast@constitutioncenter.org.

Congress and the courts depend on meeting in-person, so how can they adjust to the coronavirus outbreak and the public health measures necessary to stop its spread – like social distancing – while continuing to meet their constitutional functions? Host Jeffrey Rosen explores that question with Norm Ornstein of the American Enterprise Institute, who’s worked since the aftermath of 9/11 on emergency-preparedness recommendations for all three branches of government, and lawyer and podcast host Ken White, who sheds light on how the pandemic is affecting his clients and the courts more broadly. They share insight into what’s keeping Congress from meeting virtually, how courts will deal with suspended arguments, what might happen to incarcerated people in the midst of the pandemic, continuing concerns about presidential succession, and more—in a wide-ranging conversation on how the U.S. government functions during a national emergency, and what reforms may be necessary to ensure it can continue to function in future crises.   A term that will be helpful to know for this episode — Quorum: a majority, in the House of Representatives and in the Senate. The Constitution requires a majority of senators, 51, for a quorum, and, when there are no vacancies in its membership, a quorum in the House is 218. Article I, Section 5 of the Constitution stipulates that “a majority of each [House] shall constitute a quorum to do business.”   Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

What are the powers of local, state, and federal governments to manage a public health crisis? What legal and constitutional rights do Americans maintain? Jeffrey Rosen explores that question and more with public health law experts Polly Price of Emory University School of Law and Ed Richards of Louisiana State University Law Center. Starting with the history of quarantines prior to and during the Founding era, they explain how the government combatted diseases when, as Ed puts it, “The colonies were basically fever-ridden swamps.” Drawing examples from public health responses to outbreaks of yellow fever and the 1918 influenza pandemic through the AIDS epidemic and SARS, they answer questions including: What restrictions can government authorities enact under the Constitution during a pandemic—from quarantines to isolation measures, to shutting down private businesses? How do the powers of state and federal governments interact during emergency scenarios? Would it be constitutional for the government to impose the kind of lockdown that has occurred in China or Italy, and, if so, would the Supreme Court intervene? What might happen next? Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

A challenge to the Louisiana abortion law that requires doctors performing abortions to have hospital admitting privileges was heard by the Supreme Court last week. Julie Rikelman of the Center for Reproductive Rights, who argued on behalf of the abortion providers in June Medical Services v. Russo, and Catherine Glenn Foster of Americans United for Life, who authored an amicus brief on behalf of Members of Congress on the opposing side of the case, joined host Jeffrey Rosen on this week’s episode. They presented the arguments on both sides of the case — diving into the facts, considering whether admitting privilege requirements are prudent and whether the “undue burden” standard established by the 2016 Supreme Court case Whole Women’s Health v Hellerstedt is workable, and explaining how they think this case might impact the lives of women. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

Richard Cordray, the first Director of the Consumer Financial Protection Bureau from 2012-2017, and Ilya Shapiro, the co-author of an amicus brief in support of Seila Law, joined host Jeffrey Rosen to discuss the Seila Law LLC v. Consumer Financial Protection Bureau case. This case, which the Supreme Court heard oral arguments in on Tuesday, is a challenge to the constitutionality of the leadership structure of the CFPB, and its outcome could affect the future of the agency as a whole. The CFPB is a regulatory agency responsible for consumer protection in the financial sector. Currently, the president can only fire the CFPB director “for cause,” i.e. only for wrongdoing, not for a policy disagreement. This lawsuit asks whether that restriction violates presidential power and the separation of powers, and, if it does, can it be struck down without invalidating the entire Dodd-Frank Act, which created the CFPB? This episode explores those questions and more. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.