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So to Speak podcast transcript: The Constitution in the age of COVID-19 with Professor Josh Blackman

Constitutional law expert and professor of law at the South Texas College of Law in Houston, Josh Blackman.

Constitutional law expert and professor of law at the South Texas College of Law in Houston, Josh Blackman.

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host, Nico Perrino, and today, we’ll be talking about your First Amendment rights in the age of the coronavirus. With the vast majority of the country under shelter-in-place orders of one kind or another, what does that mean for the five freedoms of the First Amendment: The right to attend religious services, to speak out in favor or against the government, for the press to cover the latest news, to assemble in protest, or for your right to petition the government to change its policies?

These are not abstract questions. In late March, Florida arrested a pastor for holding a worship service despite an emergency order banning large gatherings, and earlier this month, police broke up a group of people protesting the shelter-in-place order in Raleigh, North Carolina because they said – the police said – that too many people were too close together. And, what about the states that allow for ballot measures to change the law? In California, for example, you must gather over 600,000 signatures to place a measure on an upcoming ballot. How do you gather those signatures when you aren’t allowed to leave your home for non-essential purposes?

Joining us to help us break it all down is Josh Blackman. He’s a professor of law at the South Texas College of Law in Houston, and he specializes in constitutional law and is the author of three books on the subject, including most recently An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. Professor Blackman, thanks for coming on the show.

Prof. Josh Blackman: Thank you so much for having me.

Nico: So, not a day goes by where I don’t get a text from a friend or family member asking me about the constitutionality of all that’s going on right now. They think that because I work at FIRE, I should have all the answers, but of course, I do not. I am not a lawyer, I’ve never lived through a pandemic, and I don’t know anyone who has lived through a pandemic. That’s not to say that nobody in American history has. Has America had to grapple with these legal questions before, and how have they done that?

Prof. Blackman: Historically, the courts have been very deferential to the Executive Branch in times of pandemics. Hamilton wrote that the courts were the least dangerous branch, and the executive was marked by vigor and flexibility and energy, and I think that dynamic is most present when we have these sorts of health crises. It falls to the executive, whether the federal executive branch or the governors of the states, to quickly and hopefully thoughtfully make changes for society to deal with these sorts of health conditions.

Invariably, these orders run into freedom of speech, they run into freedom of exercise, they run into the freedom of assembly and association, and people always go to the courts. They tell the courts, “We’re not having our rights respected. We’re having our rights violated. Do something about it.” And, in almost every case, the courts say, “Ehh, not for us to – we’re going to sit on the outside and look in,” and that’s really been the story of – as we say – law in the time of epidemics.

Nico: But, the government can’t just do anything it wants, right? Legally, although the courts have given executives, whether they’re state or federal executives, broad leeway to address these public health emergencies, they can’t use any instrument they want, right?

Prof. Blackman: Well, a couple things to keep in mind. Every state in the union and the federal government has laws on the books. The legislatures have delegated vast amounts of authorities to the executive to deal with public crises and public health measures. Usually, these are fairly minor. Someone has smallpox, and they’re forced to be quarantined, or perhaps someone comes back from Africa with Ebola and the governor of New Jersey has to detain them.

These measures usually exist, and we never hear about them because they’re fairly minor. What makes these measures so different now is they affect huge swaths of population. Can the governor do whatever he wants? No, no, he can’t, but there is power, and let me explain a concept that might be helpful.

In law, there’s something called a law of general applicability. What does general applicability mean? The law applies to all people on an equal basis, so it’s not group X must take some health measure, but group Y doesn’t. The law applies to all people. Generally, when you have a very stringent law that applies to all people, that measure will probably be valid.

So, as a general matter, when you impose a community-wide social distancing measure, it’s a law of general applicability. Where people get upset is when you actually don’t have these laws enforced entirely equally. Some businesses are deemed essential, some workers are deemed non-essential, so some people are able to go out and about and go to their work, and other people aren’t. You can have a drive-through Wendy’s, but you can’t have a drive-through church. People can assemble in an airport and sit on an airplane, which might be quite congested, but they can’t assemble outside of the state capitol to protest.

And, invariably, the government starts drawing lines about what you can and can’t do, and it’s started drawing these lines moving away from laws of general applicability that the constitutional authority to act becomes more in doubt. We’ve seen early glimpses of these sorts of challenges. We’re only in basically, I guess, Month 1 ½ of this lockdown. If this lockdown stretches through the summer, I think some of these challenges might start gaining steam.

Nico: So, when I think about the First Amendment and government restrictions on First Amendment activity, I often think about the requirement that it must be narrowly tailored to serve a significant government interest, and can’t burden more conduct or expression than is otherwise necessary to serve that interest, and you were talking earlier about how, whether you’re dealing with Ebola or smallpox, often the government would require someone to give up their rights to assemble, travel, or leave the house in order to force them into quarantine.

But here, as you were saying, it has a general applicability to most of society. Even those of us who do not have coronavirus are restricted from going out. Is there any distinction in the law that matters there, or not? I guess it doesn’t matter when you don’t have the testing to test everyone, so you don’t even know who has coronavirus.

Prof. Blackman: Right. So, we always ask with constitutional scrutiny is there a least restrictive means for the government to act? In other words, is there some other way for the government to achieve their interest without violating someone’s rights? So, let’s just say there was some sort of test that, within a span of one second, you can instantly determine who is and who is not infected. Perhaps you can also tell if you’re a carrier or not – you’re infected, but you’re not symptomatic.

If the government could easily tell who was and who was not affected, then you probably wouldn’t need such broad measures, or maybe masks. Imagine the government says everyone must wear a mask outside, and the mask reduces the risk of transmission to 0.1% – I’m making up numbers here. If you can show there’s a least restrictive means to achieve your goal, then these broader measures – these quarantine measures – may not be valid.

But again, at this point, courts are starting to assess the efficacy – the effectiveness – of the health measures the government chooses, and the leading precedents say it’s not up to the courts to decide what does and does not work. The government might be able to take a more, how shall I say, restrictive approach – a “better safe than sorry” approach.

Nico: So, you see some of these conversations surrounding privacy as well – not baked within the First Amendment, but an important and somewhat adjacent right. You see companies like Apple and Google right now trying to develop apps that can trace who has the coronavirus and who they come in contact with. Were the government to require Americans to have an app like that or to have some sort of tracing technology carried with them, would that be constitutional? It would be generally applicable, but it would also seem to strike me as some way fundamentally different. It just makes my stomach turn, almost.

Prof. Blackman: Yeah, right. We hear about contact tracing. People don’t really know what that means. Contact tracing is basically the government deciding who you’ve been in contact with, and then they trace all those contacts and contact those people to tell them, “You might be infected by John Doe.”

There’s been a lot of praise for South Korea and some of the Asian countries of how effectively they’ve dealt with corona, and one of the ways they’ve done this is through massive contact tracing, where they basically snoop on a person’s phone, track their location data, check their emails, check their texts, see who they’re contacting with, and figure out everyone they’ve been in contact with, and then force those people to quarantine.

Maybe people don’t realize this, but in South Korea, if grandma gets infected, grandma doesn’t stay at home. They take grandma out of the house. If little Suzie gets infected, they take Suzie out of the house. They separate families. Maybe that’s an acceptable option in some other cultures; I think in America, that would be a very hard thing to swallow, right? In other words, there’s no quarantine at home. Once you’re infected, you’re basically made into a sort of pariah, and everyone you’ve been in contact with gets that sort of treatment.

Could this be done through Apple? Apple tracks all of your motions through your iPhone, and then they say, “Oh, you were in the same vicinity as John Doe and Jane Roe. Let’s go tell them that they may be infected, and we’ll test them.” Again, this is extremely effective – maybe ruthless effectiveness – but it perhaps doesn’t sit well with the civil libertarians in this country.

Could the government do this? There was a case in the Supreme Court a few years ago involving GPS tracking, and generally, you need a warrant to track someone with GPS – basically, putting a GPS on their car if you want to do that – but you may also have cell location data. Where you travel may be subject to the Fourth Amendment. So, I don’t know how these policies would even work in this country.

Nico: Yeah, and it’s even more difficult with all of the laws that we have surrounding health data and revealing that. So, yeah, it would be challenging. You mentioned civil libertarians. A lot of civil libertarians run in my circles, and I’m starting to see more frustration with what’s going on right now.

Knowing that there are certain populations that are more susceptible to the virus – those with diabetes, suffer from high blood pressure or obesity, who are older – and younger people are saying, “Well, I’m healthy. I know the virus is out there; I know if I leave my home, I could get the virus. With all this information and all this foreknowledge, why can’t I make the decision myself to go out of the home if I want to?”

Now, naturally, there will be other people who leave the home for essential activities who might come in contact with that person and put them at greater risk as a result, but there is a sort of personal autonomy consideration to factor in there, and as we understand more about the virus, people will be able to make more rational decisions about the risks that they’re willing to take.

Prof. Blackman: Look, the classic libertarian – the no-harm principle – “I can swing my arm as I wish unless I hit someone else’s nose” – infectious diseases are different. If we were in a situation where – “I don’t wanna wear a motorcycle helmet. Screw you. If I kill myself, that’s my choice.” That’s a classic libertarian argument. That’s fine, but when you don’t wear a helmet, you’re not gonna hurt other people. In fact, if you’re on a motorcycle, you’re in an accident, and you fly through someone’s windshield, a helmet may actually hurt someone more. A helmet would actually fly through the windshield and hurt someone.

But, with corona, you might be a silent carrier – that is, a 20-year-old millennial just finishing Atlas Shrugged for the fifth time – I’m sure that doesn’t exist – might carry – I’m never invited on this podcast again – he might carry the disease, and go around, and spread it to his friends, and spread it to his friend’s grandma, and spread it to some kids, et cetera. So, it’s almost where every person is no longer an island unto themselves. Each person – invariably, with this ailment – will harm others.

Nico: But, isn’t that true of any ailment, whether it’s the flu or the cold? I know plenty of people who refuse to stay at home, and instead, go to work, and as a result, probably infect other people. I don’t know that there are any lawsuits that would establish any legal precedent surrounding that, but the stakes might be higher in the coronavirus, but the principle would probably be the same.

Prof. Blackman: It is, and I think the lethality – or, both the ease of spread and both the lethality of this disease perhaps warrants a separate treatment than the common cold. I’m sure I’ve gone to school when I’ve had a bit of a cold, and whatever.

Nico: Yeah, all of us – I think we can admit that.

Prof. Blackman: I had perfect attendance throughout all of K through 12. I never missed school, thankfully, so maybe I was guilty of that a few times. But, maybe the flip side answer is we should take the South Korean approach, isolate those who are vulnerable, and let those who aren’t rule the earth, so to speak – let people who are healthy and young do their business and people who are vulnerable to getting infected aren’t.

This is getting more into a question about science that I feel remotely comfortable answering, but legally speaking, can the state make the judgment? Can they say, “We don’t think it’s effective enough to isolate the vulnerable people; let’s isolate everyone and save resources”? I don’t have enough knowledge to say which approach is right or wrong, but I think as far as the courts are concerned, they don’t want us to be in the business of deciding this measure is too restrictive, this measure is not restrictive enough.

Nico: How do you think that states can or should approach ballot measure requirements – I’m thinking in particular about California here – that require people to gather signatures? You can’t gather signatures because you have to shelter in place. Is there anything that the law might say about that, or is that more of a policy question that lawmakers are gonna have to grapple with as they come up on these future elections?

Prof. Blackman: I think the variable is how long these measures last for. To be perfectly frank, at some point, I think people are gonna start getting annoyed at these measures and say, “Okay, enough of this already. You tell me I still have to wait 18 months for a vaccine.” And, at that point, you might have to see the courts become a bit more saying, “Okay, get on with it already. What’s your endgame? We can’t keep people locked up forever.” So, I think that might be where we’re headed, although I don’t know how quickly that’s going to happen.

Nico: And, does your analysis before about generally applicable laws apply in the context of protests outside of statehouses as well? Do you think that governments can flat-out ban them? Because that not only raises an assembly and a speech concern, it also raises a petition concern. Or, do you think that their regulations should be more narrowly tailored and say, “Okay, you can come out here and protest, but, for example, you’ve gotta stand at least six feet apart. If you’re not standing six feet apart, you get a warning, and then maybe a fine”?

Prof. Blackman: I find the protest cases really difficult. I find the religion cases also difficult. So, here’s one argument. Can you pray by yourself? I guess you can, but for some faiths, prayer in groups is more effective. Indeed, in my own faith – the Jewish faith – unless you have a minyan, a quorum of 10 people, you can’t say certain prayers. Certain prayers require a quorum of 10 people. Social distancing makes it very hard to do that. You have people basically standing on roofs and standing on porches and shouting so they’re able to make this 10-person quorum. Can you protest by yourself? That’s not very effective at all.

Nico: No.

Prof. Blackman: In fact, the purpose of a protest is a signal to the world that you are protesting, and you’re protesting at the seat of government – the state capitol. I don’t know that there’s any way to protest effectively a quarantine ban unless you protest the quarantine ban with other people. I don’t think there’s any least restrictive way of doing it. You’re stifling the only channel. I guess you could protest on Twitter, have a group chat, but if you wanna signal to the lawmakers, you have to do it in person.

So, in some regards, I guess the protest cases are tougher than the religious cases, although the religious cases are very difficult. I would be very hesitant to start arresting people or fining people for protesting. I don’t think that would stand in any context. It’s… There’s no other way to protest than to protest. That’s the only way you can do it. You can’t do it any other way that I can think of that achieves that message.

Nico: And, you do have some states that are identifying protests or First Amendment activity as essential. I think Ohio is one of the states that does that. I wanna ask about travel because one of the big restrictions that we’re seeing right now are restrictions on travel, which could have a downstream impact, I guess, on assembly as well because you need to travel in order to assemble, and if the underlying assembly is deemed nonessential, then the travel would be deemed in violation of whatever executive order.

So, how do you look at travel? I guess for our listeners, can you give us a little bit of background on the constitutional protections for travel? Because it’s not an enumerated right in the Constitutional, although it might be assumed in certain rights – as I was mentioning, like assembly.

Prof. Blackman: Right. The Constitution doesn’t speak of a right of travel. It’s been sort of – I don’t wanna say “inferred,” but it’s been suggested that this is a right that’s unenumerated. There’s a provision in the Constitution known as the “privileges and immunities” clause.

Nico: Oh yeah. I used to work at the Institute for Justice, so I’m very familiar with that one.

Prof. Blackman: Right. Well, article – there’s two provisions. There’s the 14th Amendment, which has a privileges or immunities clause, and Article 4, which has a privileges and immunities clause. If you remember, because Article 4 comes first – “A,” “and,” it comes earlier in the alphabet – the 14th Amendment, “or,” “O” comes later in the alphabet.

And, the courts have long said that one of the privileges and immunities of citizenship is a right of travel. What does that mean? You don’t need the government’s permission to move – to move around from state to state. This might sound obvious, but it wasn’t always so. For some time, slaves were not able to travel because they were not citizens. Some courts so held that they would actually need permission to move from place to place. So, this right of travel is very important.

We’ve seen right-of-travel cases in bizarre contexts like police checkpoints, where police won’t let certain people into an area where there is a suspicion of crime, but we’ve never really seen states erecting borders stopping from other states. My home state of Texas was basically stopping cars from out of state, saying, “Where are you going?” Quarantine – you’re from Louisiana. I think there were governors from Rhode Island or maybe New Hampshire who were stopping people with New York license plates. It’s stunning. If I told you this three months ago, you’d say, “What, are you insane?” It’s like, “Yeah, whatever, that was Tuesday.”

Nico: Yeah, and it’s odd because you can travel to these states via airplane. No one’s gonna stop you. They might ask you to quarantine when you get there, but –

Prof. Blackman: Yeah, you actually have Texas Rangers at the airports giving people forms saying you must quarantine for 14 days if you have a flight from New York. So, the short answer is there’s no precedent on this. This has never been done before. So, people are able to move, but they’re putting restrictions on those movements.

Nico: And, are you seeing people start to challenge these restrictions in court? Another unique quirk of this whole pandemic is that courts are delaying cases. You’re not getting hearings on your cases. The Supreme Court, I think, is hearing only a very few cases. They’ve delayed the other ones. It would take a while for one of these cases to get up to the Supreme Court. But, how can these even be challenged right now, and are they?

Prof. Blackman: I think we’re unlikely to see any challenges that go anywhere. I think the courts are generally going to be deferential, although maybe I’m wrong. We’ve seen cases involving abortion where judges have gone both ways. We’ve seen cases involving free exercise where courts have intervened. I think you’re gonna have very narrow cases where you have relief. The general argument “I don’t wanna be subject to a quarantine” – those are not gonna fly. There has to be a very specific constitutional right that’s at issue.

Nico: I was talking with some friends and doing some research before this podcast, and we were mentioning at the top of it that there is some history in the United States of governments taking extraordinary measures at extraordinary times, and I think it was Walter Olsen over at Cato who pointed me to John Adams’s second annual address to Congress, which happened on December 8th, 1798.

People forget – or, not often know – that smallpox seemed to come and go almost every year. During America’s founding, there was a significant smallpox outbreak at that time, and John Adams – in the first paragraph of his second annual address – this is essentially the state of the union, which used to be written to Congress, but is now given in the chambers and often televised. But, John Adams –

Prof. Blackman: It should be in writing. Again, we should get rid of the television part. We should go back to writing.

Nico: Why do you say that?

Prof. Blackman: It’s a waste of time.

Nico: You just think it’s a sideshow?

Prof. Blackman: Yeah.

Nico: Because you have Supreme Court justices falling asleep and people standing and clapping, yeah. I can see that argument. But, in this one, John Adams is acknowledging it’s nice that things are starting to get back to normal, and then he says, “When we reflect that this fatal disorder has, within a few years, made repeated ravages in some of our principle seaports and with increased malignancy, and when we consider the magnitude of the evils arising from the interruption of public and private business whereby the national interests are deeply affected, I think it my duty to invite the legislature of the union to examine the expediency of establishing suitable regulations in the aid of the health laws of the respective states.”

And, that’s very interesting to me for a number of reasons, one of which is that John Adams, being a principal framer and founder of the United States, sees it within the scope of the Constitution’s powers to place restrictions in 1798. The other thing that’s interesting is it speaks so much – it’s almost like it could have been written today. “The interruption of public and private businesses” – and then he goes on further in the address to talk about commerce, and I think he sees that because these viruses are often transmitted through trade, that the commerce clause empowers the federal government to place restrictions on trade in order to fight the virus.

So, I found that very interesting, and then, also, I think Pacific Legal Foundation wrote a little bit about this, but that 1798 yellow fever outbreak also resulted in the governor of Pennsylvania banning travel between Philadelphia and New York. So, have you thought at all about what the commerce clause might empower the federal government to do here? Because I don’t see that argument being made.

Prof. Blackman: I have an idiosyncratic reaction to this situation. Much of the criticism of President Trump is that he has not been as proactive as he should have been, that he should have done more to set a national policy.

Nico: I wanted to get into this, too, so I’m glad you’re bringing it up.

Prof. Blackman: I’m not a Trump fan. I don’t particularly care for most of the things he does. I actually like this part. I don’t think it’s the federal government’s prerogative. I think the states should have responsibility. I would not wanna live in a world where the feds tell the states how to manage their health conditions. I don’t think that’s a good idea. In fact, one of my principal objections to the Affordable Care Act is exactly that. It federalizes healthcare. I think there is significant cost of going down that road.

We’re in a weird space where states are having to work on their own to get their own testing, to try to find their own path forward. Good. We should do that more. That’s the correct order of things. It’s too easy to simply rely on the federal government. When you rely on the federal government, there are gonna be winners and losers. Trump will pick some states he likes and other states he doesn’t. You have someone in Washington deciding New York only needs this much and California needs that much, and invariably, when you have that sort of discretion, favoritism will kick in. It’s impossible not to.

I suppose you can have it by per capita, but infections are not distributed easily. Maybe you can do it by number of infections, maybe some other measure, but you’re still not gonna have any fair approach because you’re having members of Congress putting their hand in the cookie jar and taking what they want. Trump has his favorites, and other members of Congress have their favorites. So, I’m not troubled by it.

Now, does the federal government have the power to order states around? They don’t. Can the federal government impose restrictions on interstate travel? Probably. There was some discussion whether Trump could ban people from going to New York. I would reluctantly say that might actually work. If there was some really bad contagion in New York and the only way to stop its prevalence was to shut down the borders or shut down the island of Manhattan, like some of these dystopian movies – I Am Legend – I don’t know that that’s unconstitutional if the need is severe.

I think we’ve seen that the curve is – keeps flattening – I don’t know – we don’t talk about the curve anymore. That was so two weeks ago. But, it seems that we’ve entered something of a stasis where the urgency seems to have faded, and now it’s almost this weird holding pattern where we just can’t leave our houses anymore.

Nico: Well, you had the president initially claim that he alone – I think he said something like, “When you are president, your authority is absolute,” that he alone would have the power to open up the economy, and I guess if you wanted to make that argument – you were a creative legal thinker – you could argue that through the commerce clause, he could have – I’m reading the second half of this first paragraph of John Adams’s inaugural address.

He says, “For these being formed on the idea that contagious sickness may be communicated through the channels of commerce, there seems to be a necessity that Congress, who alone can regulate trade, should frame a system which, while it may tend to preserve the general health, may be compatible with the interests of commerce and the safety of the revenue.” If you make an argument that opening up the economy is necessary to get commerce going so that goods can cross borders so that someone who places an order in the state of Iowa can have that order shipped to someone in the state of North Carolina – but, you don’t see that as being all that compelling of an argument.

Prof. Blackman: Not really. I think the states have their autonomy, but ultimately, when you get to interstate stuff in Congress, I think the federal government would be able to jump in.

Nico: Libertarians – you were mentioning civil libertarians earlier – might say that they envision a narrow role for the federal government, but there are certain things that are so big and so catastrophic if they were to happen that the federal government should be in charge of coordinating the response.

You might think natural disasters or famine – arguably, pandemic – but at the same time, there’s also the point that you were making earlier: Essentially, that states should be the laboratories of democracy and should be setting – I hope I’m not misquoting you here – setting more or less their health policy in their responses. What role do you see or envision within the legal framework in your vision of the Constitution as there being for the federal government in something like this?

Prof. Blackman: I don’t have an objection if the federal government wants to set guidelines that all the states have to follow, but we should be candid that those are guidelines, and the states don’t have to follow them. They can deviate, and the states can also enact their own policies. I think that’s necessary and proper for our federal system. So, the fact that you have a weak federal leadership – that might be an indictment on Trump, but as a constitutional matter, I don’t see any shortcomings there. The policy in New York need not be the policy in Wyoming.

This virus spreads through density. Most states do not have density. Most states have the opposite. It’s sparsity. People are spread apart. The penetration rate when you have to ride the subway to work is gonna be different when you’re on a farm where your nearest neighbor is two miles away. So, I think that states can have different approaches, even to something as harsh as the corona outbreak. If you don’t have urban centers, you can handle things differently. So, once again, I think federalism does have something to say about the situation.

Nico: So, on the federal and the state level, you’re often seeing these orders come from executives, be they governors or the Executive Branch if we’re talking about the federal government. I am not a scholar in this area of law, but is that the appropriate legal vehicle to issue these orders? It seems as though the legislatures have no say in the matter. And/or does that change – should it change as the crisis prolongs itself? I understand maybe the need for an executive to act immediately, but…

Prof. Blackman: I wouldn’t quite say the executives are acting unilaterally. Most of the executives are citing authority that was enacted by the legislature. The way it works is that the legislature enacts a public health code that says, “In the event of an emergency, the governor can do X.” The governor now is doing X. So, the legislature is involved, just not directly. Perhaps the executive is stretching authorities and is using powers in ways the legislature didn’t intend. I think that’s a separate question. But, this is not a case of executives just asserting decreed powers. They’re ruling based on statute.

Nico: That actually raises an interesting question and a more global question. Can these legislatures essentially abdicate their responsibilities under state or federal constitutions – give them to an executive? I think about trade here, for example. We were talking about John Adams’s second annual address to Congress. He says, “There seems to be the necessity that Congress, who alone can regulate trade, should frame any of these systems.” But, we see this in the trading context that most of the stuff that’s happening with trade has nothing to do with Congress recently. So, what do the courts say about the legislatures giving some of their authority to the Executive Branch?

Prof. Blackman: Well, I think we have to separate state and federal. The state governments have what’s called a broad police power. The state governments are not limited to enumerated powers; they have very broad powers. So, I don’t see much of a problem with the state legislatures giving the state executives – the governors – authority. As for Congress – the federal government – there should be limits on what legislative powers the federal government – Congress – gives the President. I think there’s limits on what can be delegated.

But, there’s a problem. The Supreme Court has basically said, “We’re not interested,” that the Executive Branch can exercise rulemaking power that looks like lawmaking power, and this is an old horse that’s not – an old issue that’s not being resolved here. But, the states should have the primary responsibility in this matter, not the federal government.

Nico: Is there a particular legal question that you’re most interested in seeing unfold as this pandemic moves forward? You mentioned earlier that courts might be more willing to give authorities the ability to regulate public health measures at the beginning, but tat that might wane as the crisis prolongs.

Prof. Blackman: Yeah, I think we might see it the context of institutionalized persons – that is, people who are in prisons, people who are in old-age homes, people who are in different types of institutional facilities where they can’t care for themselves – immigration detention facilities, among others. And, I think you might see some courts ordering, if not releases, scrutiny of how these facilities are being run during these difficult times. That might be one area where the courts are eager to get involved as time goes on – not right now, but maybe over the summer.

Nico: Interesting. Well, I think we’ll leave it there, professor. I really appreciate you taking the time to talk with me today. Can you just remind us of the books that you have out that our listeners, if they wanna learn more about your work, can check out?

Prof. Blackman: Yeah, sure. The most recent one is a book I wrote with Randy Barnett at Georgetown. It’s called An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know, and it includes an 11-hour video library of all the famous cases people should read about, so go to Amazon and get a copy.

Nico: Oh, wonderful. Does that video library – it’s obviously not video of the cases, but what’s featured in there?

Prof. Blackman: We produced a video library of audio from the Supreme Court decisions spliced with our own commentary. It’s a very ambitious project. I think your listeners will very much enjoy it.

Nico: Wonderful. Well, for our listeners who wanna learn more about Professor Blackman and his work, you can visit his website at Again, he is a professor at South Texas College of Law in Houston. Professor Blackman, thanks for coming on the show.

Prof. Blackman: Thank you for having me.

Nico: This podcast is hosted, produced, and recorded by me, Nico Perrino, and edited by Aaron Reese. To learn more about So to Speak, you can follow us on Twitter at, or like us on Facebook at You can also email us feedback at, or call in a question for a future show at (215) 315-0100. We take reviews, so if you enjoyed this episode, please consider leaving us a review on Apple Podcasts, Google Play, or wherever else you get your episodes. Reviews do help us attract new listeners to the show. And, until next time, thanks again for listening.

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