Constitutional expert examines questions of presidential authority during pandemic

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Constitution

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In a recent episode of the Mark Meckler Show, host Mark Meckler spoke with Michael Farris, CEO and founder of Alliance Defending Freedom, about the constitutionality of the federal government’s response to the COVID-19 pandemic.

The 30-minute conversation touched on a wide range of topics – from President Trump’s authority to institute a national quarantine, whether he could shut down entire industries, and how the takings clause of the Fifth Amendment could play out for business owners and employees affected by the shutdowns meant to try and slow the spread of the novel coronavirus.

As for whether the president can order a national quarantine, the constitutional lawyer says that’s a big question.

“This is a real question of whether President Trump has the authority to do it,” Farris said. “Governors have more power in this zone for a reason. States have police power, and the federal government does not.”

Farris suggests that if the president were to get the cooperation of all of the state governors he could order a national quarantine. 

“The federal government has unilateral authority over our borders," Farris said. "[Trump] can order our borders closed, and he’s done that on multiple levels. Airline travel is international and interstate by nature, and he [could shut down that industry].”

Farris argues Trump cannot order restaurants closed and that commerce is meant to focus on shipping goods, as outlined in the commerce clause in the Constitution. According to Farris, those orders should be issued on the state and local levels, not by the federal government.

“So far President Trump has shown a decent amount of constitutional restraint, respecting the division of authority between state government and the federal government,” Farris said.

When it comes to the takings clause of the Fifth Amendment, Farris says that businesses could have a case against the federal government that the shutdowns deprived them of their property and their ability to get a fair return--and that they should be paid for what they lost.

“An emergency can override the taking, but would not override the need for payment,” Farris said.  

The Alliance Defending Freedom founder also theorizes that an employee who lost their job could have a case for repayment from the taking because, in some states, contract rights are considered property rights. However, Farris cautions this is all theory, and is not proven case law.

Listen to the episode here

Meckler is a podcast show host who promotes “having respectful conversations with people whom we disagree.” He founded Citizens for Self-Governance in 2012 and the Convention of States Project in 2013. The Convention of States Project is an effort to call a convention under Article 5 of the U.S. Constitution, restricted to proposing amendments that would limit the power and jurisdiction of the federal government, impose fiscal restraints and impose term limits on officials.

Farris, president, CEO and general counsel of Alliance Defending Freedom, is also the founding president of Home School Legal Defense Association, as well as Patrick Henry College.

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