Covid-19, Presidential Succession, and the 2020 Elections: What the Constitution Says

         President Trump has the coronavirus.  While all should wish him well, one still has to think about

what happens if: 1)  he is incapacitated and unable to perform his duties as president; or 2) his health precludes him from continuing as a candidate for president of the United States.  What happens?

            The simple answer is that the presidential succession issue is easier to handle than is the election issue.  By that, addressing the issues of an incapacitated President Trump are easier to handle than that of an  incapacitated candidate Trump. Let’s review the law.

Presidential Incapacitation

            Section one of the Twentieth Amendment declares that a presidential term expires at noon on January 20.  This means that Donald Trump remains president until noon, January 20, 2021.   But what happens if he dies before that date?

            The Twenty-Fifth Amendment to the Constitution addresses this issue.    Section one is clear–in case of death or removal of the president the vice-president replaces him.

            But what if he does not die, but is incapacitated, such as very ill?  Section three of the Twenty-Fifth Amendment declares that if the president transmits to the Speaker of the House (Nancy Pelosi) and President Pro Temp of the Senate (Chuck Grassley) that he is unable to perform his duties, then the vice-president will serve as acting president.  This will happen until such time as the president again informs Pelosi and Grassley he is able to perform his duties again.

            But what if the president is too ill to communicate with the Speaker and the President Pro Temp of the Senate?    Here Section Four of the Twenty-Fifth Amendment addresses that.  It allows for a situation where if the vice-president and a majority of the principle officers of the executive departments (the cabinet) conclude the president cannot perform his duties, they will transmit a letter to the Speaker and President Pro Temp and the vice-president will serve as acting president until the president is again able to serve.

            But let us now say that the president and the vice-president die, or their offices are vacant.  What do we do?  If Pence becomes president he would remain so until January 20, 2021.  Section two of the Twenty-Fifth Amendment allows  him to nominate a new vice-president, subject to majority votes of both houses of Congress.

            If there are vacancies in the presidency and vice-presidency, the Presidential Succession Act of 1947 covers this.  The line of succession would first be Speaker of the House, then President Pro Temp of the Senate, and then the Secretary of State, Secretary of Treasury, and then to other prescribed cabinet positions.  The succession here would allow the person to become president until the end of the term on January 20, 2021.

 

Replacing the President as the Party Nominee

            What if Trump dies or can no longer serve as the Republican Party presidential nominee? Is Mike Pence the automatic nominee?  No.  The 2016 Rules of Republican National Committee (Rule 9) allow for the filling of a vacancy.  It does so by a vote by states in the RNC.  It could be that the committee picks Pence or someone else.  It is their decision.

 

 

Replacing Trump on the Ballot

            Replacing Trump on the ballot if he were to die or become incapacitated to run before the election is more complicated.  As of October 2, 2020, the US is 31 days before the November 3, election,  Ballots have been printed and millions have voted absentee or by mail. 

            First, there is the difficulty of getting Trump off the ballot and replacing him with the alternative Republican nominee.  At this point this is probably not possible with a November 3, election date.  The election cannot be postponed except by an act of Congress (law).  There is also a limit in terms of how long the election can be postponed because the Constitution ends congressional terms of January 3, the presidential term on January 20.

            The other problem is that  millions have already voted, and perhaps for Trump.  If he is dead do votes for him automatically transfer over th the new Republican candidate?  Not necessarily.  This is a matter of state election law.  Back in 2002 when Senator Paul Wellstone died 11 days before the election day for his seat approximately 25,000 absentee ballots had been cast.  The court in Minnesota Supreme Court ruled in Kiffmeyer v Erlandson that it would be a denial of the right to vote to automatically transfer the votes from Wellstone to his replacement Walter Mondale.  Other states may reach different conclusions but the issue on how to handle the ballot transfer or qualification issues is a matter of state election law that differs across all 50 states.

            The question is if Trump is no longer on the ticket but still on the ballot, how should the electors cast their ballots?  Several states have “faithless electors” laws that compel them to vote for the person who won the popular vote in the state.  If Trump’s name was still on the ballot the electors may still be required to vote for him, even if he were not alive.

 

Death after the Election

            Assume Trump wins the election, what happens if he were to die after November 3?  A lot depends on when he dies.

            Remember, if he dies after the election but before January 20, 2021, Pence becomes president to complete the existing term.  But who gets sworn in for the new term starting on January 20, 2021? Section three of the Twentieth Amendment partially covers this.

            Assume the president has died after December 14.  Why?  That is the date the electoral college meets.  If it has met and the Trump-Pence ticket received the required 270 electoral votes, then Pence would become president on January 20.

            If Trump died after November 3, but before December 14, then one would need to see how the electors vote.  If Trump-Pence win 270 then Pence presumably becomes president. But it is also possible that the electors could cast their ballot for someone else in state without the faithless elector law, or perhaps they would still be required to vote for Trump.

            Finally, assume no one received the required 270 electoral votes as a result of all this.  What happens?  The Constitution (Article II and the 12^th Amendment) state that the new House of Representatives elected this November and taking office January 3, 2021 would select the next president.  Here, each state would get one vote and it would take a majority of states to select the next president.

 

Conclusion

 

 

            The US is in historically uncharted territory right now.  This does not mean a crisis.  There are some law that covers what may happen next but it may not address all contingencies.

The Ethics of Lies: The Case of Donald Trump and Bob Woodward

 If Bob Woodward is correct in his new book Rage, President Trump lied to the American public

regarding the threat of the coronavirus.  He did that to avert panic.   Similarly, for months Woodward apparently knew Trump was lying but said nothing.  Both got it wrong ethically. No matter how noble or well-meaning, it is never appropriate for government officials to lie in the name of the public interest. Similarly, it is ethically wrong for journalists to withhold from the public information for a story when revealing it could have saved lives.

Lying is considered wrong, even children know this.   Often withholding information is as bad as lying.  Yet culturally some think  lies to children, the ill, or vulnerable are deemed okay to protect them. At one time it was acceptable to lie to dying patients so as not discourage them, but that is no longer a permissible medical ethics practice.  Despite a general cultural admonition to tell the truth, we create many exceptions to that rule.

Do these exceptions extend to public officials and journalists?   Should elected officials be allowed to lie to the public during the Covid-19 pandemic to shield them from bad news, prevent panic, or encourage them and make them feel better?

“You can't handle the truth” is the most famous line from the 1992 movie A Few Good Men.  Lying for the public good is premised upon this notion. There are several problems with arguing that lying to the public is ethically permissible, even for  altruistic reasons.

One, the correctness of lying is justified is left up to public officials and not the people to decide.  How do we know they are making the right decisions about what the public can bear if the latter lacks the information to make a judgement on what is right or wrong?

Two, how do we know the public official is lying or withholding information for the right reasons or motives?  It is easy for an official to say that my motives are well-meaning, but is that always the case?  Might not the basis for withholding information be to hide mistakes, avoid accountability, or simply further one’s own electoral or political interests? This is possibly what Trump did.  Letting public officials decide on the rectitude of their lies is a form of conflict of interest, letting them be the final judge of whether they are acting in the public good or abusing their position.

Three, once a public official has lied, they have lost all of their credibility.    In the future, how can we trust them? In part the erosion of public confidence and legitimacy of government stems from questionable veracity.

Four, lies might put more people at risk than telling the truth. People act in reliance on information they receive from public officials.  Giving false or misleading information may force people into making choices or assessing situations that put them at more risk than would telling the truth.

Five, in a free society the public is entitled to the truth and adults need and deserve correct information to hold the government accountable and make the appropriate decisions.  Lying for the public good treats adults like children, asserting they and not adults know what is in their own best interest. What Trump did was wrong–he lied to protect himself and used protecting the public as a pretext.  

But what about Woodward?  He did not lie but withheld critical information to produce a story and sell a book for personal profit.  That is just as bad as what Trump did.  Journalists are in the business of revealing not concealing information and Woodward violated that rule.  Moreover, journalists do not have a right to withhold information that could save lives. Medical doctors, including psychiatrists, often have a mandatory duty to break patient confidentiality if they have information that could protect the public.  Yes the First Amendment protects the press.  But when a journalist such as Bob Woodward gathers critical information such as he did and refuses to disclose so that he can sell a book for profit that is not about freedom of the press but personal profit at the expense of the public.  What he did in withholding information is as bad as what Trump did in lying.

But there is something more deeply wrong with Woodward’s Rage–it is a great journalist living on the afterburn.  By that, the last few exposes Woodward has written on presidents have been devoid of insight and perspective.  The 2018 book Fear, also on the Trump presidency, told us nothing we did not know about the Trump presidency then.  The same is mostly true of Rage.  It is just another what I call Trump porn book that is written to enrage audiences and make money.  Reading excerpts from Rage I walk away from it thinking that had a different journalist written it it would not get this attention, especially if this were an unknown one.  The book cuts corners, reports on facts, and fails to reveal things that raise questions about personal and journalistic ethics.  This is a Washington, D.C. insider book that appeals to other insiders but fails to do much to advance anything except to enlarge the criticisms about the media.

There’s no right to vote by mail. New lawsuits could change that

My latest appeared in the Washington Post's Monkey Cage on May 27, 2020.

Do Americans have a right to vote by mail in a pandemic? Yes and no.

Last week, President Donald Trump attacked voting by mail, threatening to withhold federal funds from Michigan and Nevada if they expand such voting to help slow the pandemic – arguing, without evidence, that doing so increases fraud. Meanwhile, Senators Amy Klobuchar and Ron Wyden have introduced a bill to expand such voting in federal elections so that, as they wrote in the Washington Post, no one should “have to choose between casting a ballot and protecting their health.” Meanwhile, older Minnesota voters and Texas citizens lacking immunity or otherwise fearing covid-19 infections have filed lawsuits asserting that since voting in person is dangerous, they should have a right to mail voting.

Is there a right to vote by mail?  So far, no – but that could change. Here is what law says now.

Is there a right to vote? Yes and no.

This is a complicated question. Nowhere does the original Constitution or Bill of Rights expressly state that there’s a right to vote. Originally, state legislatures chose senators and members of the electoral college, who chose a president. The states were left to decide who had a right to cast a ballot.

Over time, court decisions and constitutional amendments have changed that, expanding the right to vote. In 1941, the Supreme Court found that the Constitution’s Article I, section 2 gives citizens a right to vote for members of the House of Representatives. In 1966, the Court declared the First Amendment protects a right to vote in state and local elections.  The 15^th, 19^th and 26^th Amendments made it unconstitutional to deny the right to vote on the basis of race (1870), sex (1920), or age (1971). The 17^th and 24^th Amendments have given people the right to vote for their U.S. Senators (1913) and banned poll taxes (1964). And the 1965 Voting Rights Act expanded voting rights for people of color.

The right to vote can be regulated.

However, the right to vote is not absolute. The Supreme Court has ruled that states can deny the vote to individuals such as ex-felons. States can require photo identifications to prevent voter fraud, and can ban write-ins voting for candidates not listed on the ballot. Further, states can impose routine administrative limits such as the time, manner, place, or means of voting. Unless the regulation imposes a severe burden on voting rights, some regulation is permitted.

Further, citizens still have no individual right to vote for president. State legislatures have the discretion to allow citizens to vote to select the electors who will then select the president of the United States. And as the Supreme Court reminded us in 2000’s Bush v. Gore, when it ruled that Florida’s method of counting disputed presidential ballots was unconstitutional, states also have the authority to take that right away.

Given all these qualifications, U.S. citizens’ right to vote is strongest for in-person election day voting. This is where right is the most protected but even there it can be restricted. For example, states can ban write-in votes.

Absentee and early voting are merely privileges, not rights.

So far the courts have not ruled that there is a fundamental right to vote absentee, early, or by mail. All these are privileges subject to strict compliance with states’ regulations, including such requirements as valid signatures or submission deadlines.

Now, various groups across the country are arguing that there is a right to vote by mail. In lawsuits, they claim that the threat of coronavirus infection if they must vote in person imposes a severe burden on their right to vote, thereby violating their 1st, 14th or 24th Amendment rights.

While the Constitution lets the states determine the time, place and manner for holding elections, Congress may alter these regulations. But the Supreme Court has said that Congress may only regulate federal, not state, elections -- and so Congress could not force states to allow voting by mail for those states’ own elections. It could only require  vote by mail in federal elections.

But state constitutions may require voting by mail.

Nearly all states have explicit constitutional clauses that grant a right to vote. In some cases, states supreme courts have used these clauses to protect voting rights beyond what federal law or the Constitution requires. Some states, like Oregon, already conduct all elections by mail; other states or courts could change their laws to allow that.  A North Carolina group is suing under its state constitutions for this.   There are similar suits in Minnesota, Tennessee, and Missouri, among other states.

Some opponents of vote-by-mail say they’re worried it will increase voter fraud. Numerous studies have found little evidence of voter fraud  in U.S. elections, especially for in person voting. While some studies suggest a bit more risk of fraud with absentee or mail-in ballots, little evidence suggests such voting would lead to widespread fraud. Studies of states currently voting by mail find very little fraud.

What does this mean for the pandemic and the 2020 election?

Overall, there is no right to vote by mail. But a lawsuit might be able to establish that right under either federal or state law -- if the parties can prove to judges that the covid-19 pandemic has severely limited the right to vote.

Trump and the Logic of Racializing of Covid-19 (Blame it on the Immigrants)

There are four truths regarding the United States.  One is that it is a nation of immigrants. Two, it is perhaps the hardest hit country in the world with the coronarius.   Three, it is the richest  nation in the world.  Four, there is a US presidential election this year. Put these  four truths together and what do you get in an America under President Donald Trump?  An effort to blame the spread of Covid-19 on immigrants and immigration, thereby racializing the pandemic to hide his mismanagement of the crisis.
The United States is a nation of others.  No one, except for the original Indians, is native here.  Everybody came from somewhere else.  America sees itself as a melting pot of races, ethnic groups, religions, and nations.  Its history is one of welcoming, as it says on the Statute of Liberty in New York–”your tired, your poor,  your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.”  The US is a nation of others, of strangers who have come for the American Dream.
Reports document that the US already has had more than 800,000 infected with the coronarius, with nearly 50,000 dead.  In a nation so wealthy and powerful, many wonder how it could happen, placing  blame on President Donald Trump’s initial refusal to acknowledge the disease, and then his failure of leadership in confronting it.  As a result, Trump’s approval ratings have gone down, potentially threatening his chances at re-election this November.
Don’t count Trump out yet.    Instead of taking responsibility for the US pandemic, he is replaying his trick from four years ago, blame it on the other.  Four years he successfully ran for president by promising to build a wall along America’s Mexican border to halt immigration.  He called immigrants rapists, murderers, and drug dealers.  He attacked Muslims and sought to halt their immigration.  Trump ran on racism.  Now he is doing it again.
First Trump called the coronarius the “China Virus.”  He blames leaders in China for lying about the virus, says the World Health Organization for incompetence, and now he wants to halt immigration to the US for 60 days.  Obviously the coronarius is not our fault; it is the fault of others.  Trump is linking the coronarius to race and immigration much in the same way that four years ago he connected crime and the economy to race and immigration.
Yes in the past America screened immigrants who had health problems or infectious diseases and it might be legitimate to do that now.  But that is not what Trump is doing with the 60-day immigration ban.  In fact, the ban has a lot of exceptions to it and it is also not clear the president has the authority to issue the ban anyhow.  Instead, simply announcing the ban, like calling for the wall, is enough.  For his supporters, shifting the cause of the pandemic and the shutdown of the economy to immigrants is no different from what he said and did four years ago and it got him elected.  It might work again in 2020.

No New Yorkers May Enter: May States Ban Residents from Other States From Entering to Protect Their People?

            

            Viruses do not stop at borders.  But can people infected with viruses be stopped at borders?  Could Pennsylvania stop a New Yorker from entering the state  whether suspected or not of being infected to protect its people? Already some US states are trying to prevent residents from other states from entering as they seek to fight the coronavirus epidemic.  This problem of cross-border infection will only intensify as some states begin to open up their economies or end their shelter-in-place orders over the next few weeks.  Allowing infected or even healthy people to travel interstate could jeopardize  public health measures to confine the coronavirus.  Do states have the authority to limit or ban individuals from entering their state to fight the pandemic?  Current constitutional law says no.

            States have broad authority over public health measures.  What is called their police power allows them to impose  quarantines over persons and livestock within their borders to prevent the spread of a virus.  Many states have authority to limit importation from other states' vegetation and animals that could bring with them parasites or disease.

            Yet this police power is not unlimited, especially when it comes to interstate commerce.  The US Constitution gives broad authority to Congress to regulate interstate commerce, preventing states from interfering with it or discriminating against  other states in an effort to protect their own businesses.  Yet in some cases the Supreme Court has allowed for some interference with  interstate commerce if the purpose of the regulation is non-discriminatory and it does not impose a severe burden.  Would limiting or banning residents from other states to limit the spread of the coronavirus qualify as an exception?  The answer is no for two reasons.

            One, the general police power exceptions are limited to goods, services, or  the instrumentalities of commerce.  By that, states may be able to restrict the flow of animals, produce, vegetation, and other goods into their state, but the rules are different when it comes to people.

            Unlike animals, food products, and other goods and services, people have constitutional rights.  Specifically, they have a constitutional right to interstate travel.  In the 1930s when the Depression kicked in and the farm crisis across the central plains grew, many farmers packed up and sought to move to places such as California.  John Steinbeck’s classic The Grapes of Wrath tells the story of Joad family moving west.  In 1937 California passed what was called  an “Anti-Okie” law making it illegal to bring into the  state "any indigent person who is not a resident of the State, knowing him to be an indigent person".  In Edwards v. People of State of California, 314 U.S. 160 (1941), the  Supreme Court ruled that this law violated the Commerce Clause.

            In the 1960s as various states enacted welfare or other public assistance measures, some feared that the poor would migrate to their state for the benefits.  In Shapiro v. Thompson, 394 U.S. 618, (1968), the Supreme Court ruled that such laws violated a  fundamental right to interstate travel.  After Congress had enacted welfare reforms given states more control over benefits, California and other states adopted laws allowing them to pay  lesser benefits  to recent immigrants from other states compared to residents for a certain period of time.  The Supreme Court Sáenz v. Roe, 526 U.S. 489 (1999), struck down these durational residency requirements as a violation of the Privileges or Immunities clause of the US Constitution.

            While in some situations the Court has upheld laws that treat residents and non-residents differently in cases involving college tuition at public schools or in matters of child custody, generally the Court has been firm in ruling that actions that involve a state discriminating against residents of another state are unconstitutional.

            There may be additional clause of the Constitution that prevent  these border bans.  The Due Process clause of the Fourteenth Amendment may make random or arbitrary stops at state borders illegal. There is also the Equal Protection clause of the Fourteenth Amendment which is a tool used to address discrimination.  Unfortunately, and no doubt many of the individuals who will get stopped at state borders will be people of color.  There is also the privileges and immunities clause of the Fourth Amendment to the Constitution too.  The point is that there are many constitutional clauses banning this type of state activity.

            Perhaps the coronavirus and  the needs of  abating a pandemic  might be treated differently by the courts, seeing its regulation as a neutral protection of public health within state regulation.   After all, a pandemic virus is different from indigency or welfare.  It would take  an extraordinary argument to show that banning interstate travel is the only way to address the virus and current case law does not support that measure.

Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.

Is It Ever Ethical For Government Officials to Lie in the Name of the Public Good?

May government officials lie for the public good?  Responses to the Covid-19 crisis raise this question.  President Trump was accused of downplaying the pandemic to avert panic. The Minnesota Department of Health initially refused to name assisted living facilities in the state infected with the disease to protect privacy and perhaps to downplay fears.  No matter how noble or well-meaning, it is never appropriate for government officials to lie in the name of the public interest. 

Lying is considered wrong.  Yet white lies, such as “Yes Virginia, there is a Santa Claus,” are accepted to promote happiness.  Lies to children, the ill, or vulnerable are deemed okay to protect them. Hyping a resume or product is  defended  to get a job or sell a product. At one time it was acceptable to lie to dying patients so as not discourage them, but that is no longer a permissible medical ethics practice.  Despite a general cultural admonition to tell the truth, we create many exceptions to that rule.

Do these exceptions extend to public officials?  Is there a just lie? Should elected officials be allowed to lie to the public during the Covid-19 pandemic to shield them from bad news, prevent panic, or encourage them and make them feel better?  However tempting, lying in the name of the public interest is wrong.

“You can't handle the truth” is the most famous line from the 1992 movie A Few Good Men.  Lying for the public good is premised upon this notion. The public cannot handle the truth, candor can be destructive, and lying will produce more good than bad.  Lying to the public, for good reason or intention, promotes good social outcomes in dire times, such as with the death and destruction associated with the Covid-19 pandemic.

There are several problems with arguing that lying to the public is ethically permissible.
One, the correctness of lying is justified is left up to public officials and not the people to decide.  How do we know they are making the right decisions about what the public can bear if the latter lacks the information to make a judgement on what is right or wrong?

Two, how do we know the public official is lying or withholding information for the right reasons or motives?  It is easy for an official to say that my motives are well-meaning, but is that always the case?  Might not the basis for withholding information be to hide mistakes, avoid accountability, or simply further one’s own electoral or political interests?  Letting public officials decide on the rectitude of their lies is a form of conflict of interest, letting them be the final judge of whether they are acting in the public good or abusing their position.

Three, once a public official has lied, they have lost all of their credibility.  Years ago a local school superintendent lied to the public about a possible shooter in that district.  In closing the schools the superintendent offered a different reason for the closure.  Afterwards many said they could never trust the superintendent again.  How would they know in the next emergency or even routine decision whether the answer was truthful or a lie?  In part the erosion of public confidence and legitimacy of government stems from questionable veracity.

Four, lies might put more people at risk than telling the truth. People act in reliance on information they receive from public officials.  Giving false or misleading information may force people into making choices or assessing situations that put them at more risk than would telling the truth.

Five, in a free society the public is entitled to the truth and adults need and deserve correct information to hold the government accountable and make the appropriate decisions.  Lying for the public good treats adults like children, asserting they and not adults know what is in their own best interest.

Overall, perhaps withholding information to protect privacy is permissible and when at war to protect troops or  trick the enemy.  But intentional lying to the public is never justified as an ethical policy choice. 

Covid-19 Reveals the Weakness of the US Public Health Infrastructure

My latest appeared on March 25, 2020 in the  International Policy Digest.

The spread of Covid -19 across the US is perplexing.  If, in the words of Georgia Congressional Representative Buddy Carter: “We have the best healthcare system in the world,” why does it appear the US is one of the hardest hit nations in the world and on the brink of shutting economy down to try to prevent its spread?  Should not a country that spends more of its gross domestic product (GDP) than any other country in the world on health care be better prepared to confront this medical emergency than other countries?  The answer is no, simply because while the US may have a great private health care insurance and delivery system, it has an exceedingly weak public health system.

In 2019 the US spent 17.8% of its Gross Domestic Product (GDP) on health care expenditures.  Its next closest rival was Switzerland which spent 12.1% of its GDP.  Per capita, the US spends more than $10,000 per year on health care, 20% more than  Switzerland.  Despite this spending, the US ranks 46^th in the world in life expectancy, 55^th for infant mortality rates, and a prevalence of  incidence of   infectious  diseases at 9%, triple that of China and Japan at 3%, and 50% larger than the incidence of 6% in many European Union countries.  These three factors are traditional markers of health across the world. 

Moreover, compared to other advanced countries, 91.7% of the US population has health care insurance, ranking 35^th in the world and far behind most other rich countries across the world which have 100% or universal coverage.  In essence, the US has the most expensive health care system in the world and it does not cover everyone and it does not produce the best outcomes.  We pay too much for too little.  It is hard to argue that we have the greatest health care system in the world based on these statistics.

We pay too much and get too little for at least two reasons.  One, compared to other countries we have highest drug and administrative costs in the world.  But equally important, the US has among the weakest public health care delivery systems in the world.  By public health care, one needs to look at what we spend for example on long term care, preventive care, the gathering of health care epidemiology statistics, and perhaps even on nutritional and diet programs.  Looking at those factors we lag behind many countries in the world.  We have not built a public health care infrastructure that is as well suited as is other countries to addressing public health crises such as the rapid spread of an infectious disease as Covid-19.  As has become clear, the funding for the Center for Disease Control is behind what it needs to be to do the research and tracking necessary for health care issues, and there seems to be no federal infrastructure in place to coordinate a national health emergency.  States appear to be left on their own, ill-suited or prepared to address a national or global health emergency.

The US has a terrific private health care delivery system, for those who can afford it.  For those who want and can afford a doctor it is terrific.  For those who want and can afford elective surgery, it is terrific.  For those who want treatment for highly personal health care problems and can afford it, it is terrific.  For those who want can afford a wonder drug, it is terrific.

But in terms of treating or preventing basic maladies, the US health care delivery is weak.  It is weak because it is a system based upon a privatized notion of health and health care.  Health is a personal not a public issue, as is the cost or responsibility for paying for it.  Health and health care are seen not as public goods but as private or individual commodities that we each individually are responsible for.  Moreover, health care reform in the US has, at least since the failed Clinton reforms of the 1990s and the passage of the Affordable Care Act (Obamacare) of 2010 been focused on insurance and not on improving the structure of the actual delivery system for health care, let along for the public aspect of it.

The US spends a lot of its effort on providing insurance to access a health care delivery system seen as more of a private good than something that is universally important.  We have under-invested in the public aspect of health care compared to many other countries, rending the US far less prepared to confront a public crisis such as Covid-19 compared to other nations in the world.  If we have learned anything from the current crisis, we need to invest more in public health than we currently do.

Mandatory Vaccines and Quarantines: Public Health and the Constitution

I  teach constitutional law and health care policy.
I  have put together as a supplement  to my  Constitutional Law in Contemporary America, West Academic (2017) a packet entitled Public Health and the Constitution..  I put it together over the last couple of days so it is still a work in progress.  It contains an intro and four cases.

The intro is below.

Public health crises such as the recent concerns over the spread of the Corona virus (Covid 19) across the world and the United States in 2020 or spread of the detection of the Ebola virus in America in 2014 implicate concerns that test the intersection of public health and safety versus individual rights.  These are issues distinct from public security issues implicated by events such as the terrorist attacks against the United States on September 11, 2001.  In the case of the latter, concerns of future or recurrent military or terrorist activity against the United States may be viewed as criminal or national defense issues and treated as such under rules that address criminal due process rights or the scope of American military authority.
In the case of the spread of a virus or other public health issue, individuals who are ill are not criminal defendants.  Nonetheless, because they might be able to infect others, they pose a threat of harm to others.  Individuals seriously ill with easily transmitted diseases or viruses such as Tuberculous, influenza, measles, mumps, or small pox for example can threaten the health and safety of others.  If they are left to move about freely, they could infect others, jeopardizing others. Additionally, what if some individuals fail to take certain precautions, such as take vaccinations, and they therefore risk transmitting certain illnesses to others, what can be done?
One the one hand all of us are entitled to our personal freedom to move about or act in ways we wish.  Conversely, what happens if our actions endanger others, perhaps not to a criminal level, but still to a degree that it causes harm to us or others.  When can society take action?  Philosopher John Stuart Mill in his classic 1849 book On Liberty contended that there are limits that society has over an individual and that unless one’s action affect others, a person’s personal liberty cannot be restricted, even for their own good.  Respect for personal freedom is a hallmark of the Bill of Rights and the Constitution, but rights have never been held to be absolute.  There may be times when the government may need to act to restrict the rights of an individual to protect the rights of others.  Matters of public health raise that question.
Questions of public health are typically matters for states to address.  The reasons are twofold.  One, states possess something called the “police power.”  The police power is the authority of a state government to enact laws to protect the health, safety, welfare, and morals of its residents.  The police power is the basic authority of states to enact criminal and public health measures. The US Supreme Court has ruled that the police power is an inherent power of states, but that it is not a power given to the US government by the Constitution.
Two, for the United States Government to regulate health matters directly it has to rely primarily on it Commerce Clause authority as found in Article I, Section 8, clause 3 which states that Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  According to the Supreme Court in Gibbons v. Ogden, 22 U.S. 1 (1824), the US government cannot regulate commercial activity unless it affects interstate commerce.  While since that decision the Supreme Court has vacillated over the scope of the Commerce Clause, it is generally agreed today that if an activity can be shown to impact interstate commerce then the federal government may act.
What this means is that the US government has limited authority to take direct action to regulate public health; it must show that health matters such as the spread of a virus affect interstate commerce.    Until a few years ago few would have thought that the Commerce Clause would have excluded addressing public health matters.  Yet when the Supreme Court in National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012) struck down as unconstitutional the individual mandate to buy health insurance under the Affordable Care Act (Obamacare), it now raises questions about what Congress may do to regulate public health under this clause.  What needs to be shown is how a public health crisis, such as Covid 19, impacts interstate Commerce.
However, in the Sebelius case, the Court did uphold the individual mandate under a different part of the Constitution.  It was the General Welfare Clause located in Article I, Section 8, Clause 1.  This Clause empowers Congress to raise money and spend it for the general welfare.  Congress may be able to use this Clause to provide for lots of money to address public health issues, but its authority here may still be far more limited than what states have under the police power authority.
Four cases are presented here that look at how the Constitution addresses public health measures.  The first, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), examines the constitutionality of state mandatory vaccination laws.  Here the Court upholds them, finding that they do not violate any personal liberty interests or rights.
The second case, Jew Ho v. Williamson, 103 F. 10 (N.D. CA 1900), looks at the constitutionality of a state quarantine law.  What makes the case fascinating is that the claims in this case where that the arguments in favor of a Tuberculous quarantine law were challenged on two grounds.  One, there was no detected Tuberculous and, second, the claims that there were that necessitated it were a pretext to discriminate against Chinese-Americans.  The case is important for discussing how laws may be used to classify a group of people to be targeted by public health laws and how the courts will approach these laws.  In general, while wide deference will be given to their constitutional validity, the Courts will still police them to ensure that states do not exceed their authority.
In O'Connor v. Donaldson, 422 U.S. 563 (1975), the Supreme Court ruled that a person involuntarily committed to a state mental hospital because he was adjudicated to be mentally ill was unconstitutional.  More specifically, the Court ruled that the loss of liberty was a protected constitutional interest and that merely being mentally ill was not a ground to involuntarily deprive someone of their liberty.  There had to be a showing that the person posed a threat to himself or others.  O’Connor is important because it suggests that merely being ill may not justify quarantining someone; you have to show how that person posing a danger to self or others.
Finally, in Best v. St. Vincents Hospital and Bellevue Hospital, 2003 WL 21518829, a Court had to decide if the State of New York followed appropriate procedures in quarantining a person with Tuberculous.  The Court discusses how one cannot simply pick up and detain a person.  There must be some due process or hearing according to established procedures before the government can involuntarily detain and quarantine an individual.
Overall, these cases suggest that there are important limits on the ability of the US and state (and local) governments when it comes to some types of public health action.  Mandatory vaccinations or quarantines may be constitutionally permissible, but there will be a significant burden on the government to show real harm and that, at least in the case of quarantines, one is afforded due process and a hearing to challenge the decision.
As you read these decisions ask yourself these questions:
* How certain must the harm be to justify a public health measure such as a mandatory vaccination or quarantine?
* How serious of a harm or threat must the public health issue be to justify a mandatory vaccination or quarantine?
* Do public officials have the authority to ban or limit public gatherings to protect public health?  What if individuals wish to gather and protest an order regulating public health, would they have a First Amendment right to do that?
* Could a state target a quarantine against a specific group of people, such as people from China, whom they suspect have the Corona Virus?
* If a person is detained or suspected of having the Corona Virus, what type of hearing and when is required before they may be subjected to a quarantine?
* Is a geographic quarantine of an area constitutional? If so, under what conditions?