Media Mentions

President Trump claims he has ‘total’ authority to reopen the economy, but state governors say otherwise. Professor at Harvard Law School Mark Tushnet joins Yahoo Finance’s On The Move to break down who has the power to reopen the economy.

An article by Noah Feldman: As everyone but President Donald Trump seems to understand, the Constitution doesn’t give the president any inherent authority to shut down or open up the economy in an emergency like the coronavirus pandemic. But Congress could lawfully give that authority to the executive branch. And there’s good reason to think that Congress should do exactly that, not for Trump, who has shown himself to be entirely unworthy of congressional trust, but for future presidents, who will almost certainly be better. A truly national crisis in fact demands a truly national response. That response should be centralized and based on expertise, not partisanship. The patchwork of coronavirus responses that we’ve seen across the states has been harmful and irrational. As soon as this crisis is over, we need new legislation that will guide future executives — legislation that will both empower future presidents to act decisively and also constrain them so that they must act on the basis of reasoned, expert judgment, not political gain.

A podcast by Noah Feldman: Carl Bergstrom, a computational biologist at the University of Washington and co-author of the forthcoming book "Calling Bullshit: The Art of Skepticism in a Data-Driven World," explains how to make sense of all the different coronavirus models and discusses the impact of misinformation on public health.

While discussing whether he or the nation's governors have the power to lift restrictions states put in place to fight the spread of the coronavirus, President Donald Trump declared at a news briefing Monday, "When somebody’s president of the United States, the authority is total." The president's unprecedented claim of total power met with immediate pushback from Democrats and Republicans, many of them arguing the U.S. Constitution explicitly refutes his claim to absolute authority...Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump's claim of total authority and said the real issue was that Congress had not passed any law granting Trump authority to order a national quarantine or stay-at-home directive. Fried said the 10th Amendment was a "bogus concern" in this instance and anyone making that argument is "barking up the wrong tree" or is a "10th Amendment nut." "People like Cheney just want to bring federalism into everything, but it's not a federalism problem," Fried told USA TODAY. Fried said the problem was really in the fact that Congress hadn't given Trump the power that he claimed. But he said it theoretically could under its authority to regulate business as outlined in Article 1, Section 8 of the Constitution. "And that's why I don't like referring to the 10th Amendment. It's not really a 10th Amendment issue. It's a rule of law issue," Fried said. "The president can't just say, 'I am the boss.'"

With many millions of Americans working or attending virtual school from home during the coronavirus pandemic, the longstanding gap between those who have reliable, affordable internet and those who don’t has never been so clear. Susan Crawford, a Harvard Law School professor, has said for years that America’s internet system is broken. She advocates government intervention to help finance and oversee online pipelines, as happened previously for essential services like telephone lines and electricity. Susan’s critics say she’s proposing an unviable government overreach. But it’s clear the status quo isn’t working, so I talked to Susan about her proposed solutions. How big is the problem, exactly? No one really knows, Susan says. Microsoft estimates that 157 million Americans — about half the population — aren’t using relatively fast internet connections. The government, using different counting methods, says more than 21 million Americans, mostly in rural areas, don’t have access to fast internet. Either way, a lot of people are being left behind. In rural and suburban areas, people may have the choice of only a modern version of dial-up internet. In cities where fast internet is widespread, many lower-income people can’t afford it. Americans pay more for worse service than our counterparts in many affluent countries.

During his April 10 announcement of the extension of the movement control order (MCO) to April 28, Prime Minister Tan Sri Muhyiddin Yassin used the phrase “the new normal." He wants people to accept that what was usually done before can no longer be done, citing examples such as shaking hands. However, whether the true meaning of “the new normal” is comprehended by many remains to be seen. Addressing the concerns of many parents, the PM also mentioned “home-based learning." I believe this does not refer to conventional homeschooling. Homeschooling was suggested as an alternative to conventional education by American educationalists John Holt and Raymond Moore. For parents who doubted educational reforms, homeschooling became an option. Elizabeth Bartholet, in an article that appeared in a law review journal and titled “Homeschooling: Parent Rights Absolutism Vs. Child Rights To Education and Protection," describes homeschooling as a realm of near-absolute parental power. Misuse of it could be detrimental to a child and the nation too.

An article by Samantha Power: Speaking before the U.N. in 1987, President Ronald Reagan said, “Perhaps we need some outside universal threat to make us recognize [our] common bond. I occasionally think how quickly our differences worldwide would vanish if we were facing an alien threat from outside this world.” Reagan’s focus was avoiding conflict between countries rather than within them, but the coronavirus must do the work of that alien invader, inspiring cooperation both across borders and across the aisle. History shows us that seismic events have the potential to unite even politically divided Americans behind common cause. In the U.S., the COVID-19 pandemic has already taken more than seven times the number of lives as terrorists did in the 9/11 attacks, but the outpouring of solidarity Americans have shown for one another has so far not translated into more unity over government’s proper role at home or America’s proper role abroad. Indeed, the virus struck in an era of the most virulent polarization ever recorded—an unprecedented 82-percentage point divide between Republicans’ and Democrats’ average job-approval ratings of President Trump. And so far that gap appears only to be widening, while internationally, political leaders are trading recriminations rather than coordinating the procurement of medical supplies.

Price gouging on face masks during a pandemic is pretty crummy behavior, but is it a violation of federal trademark law? 3M, the country's largest producer of crucial N95 masks, certainly thinks so. The consumer goods giant filed a lawsuit Friday accusing a New Jersey company called Performance Supply LLC of violating federal trademark law by trying to resell millions of the company's N95s to New York City at drastically increased prices. Later that day, 3M filed a nearly identical lawsuit against a Utah company for similar behavior. According to 3M, both companies were selling the masks at more than four times the list price...According to Rebecca Tushnet, a professor at Harvard Law School, 3M's claim that defendants illegally held themselves out to be "authorized vendors" is something of a stretch, supported by little discussion of what separates such an endorsed distributor from a plain-old vendor. "The vendor-authorized vendor issue is a really important distinction that companies would like to ignore so that they can kill the first-sale doctrine," Tushnet said. "But first sale provides important benefits to consumers and to competition." Those concerns aside, the protections of the first-sale doctrine do have limits, and experts like Tushnet say the defendants may have crossed them by holding themselves out as actually connected to 3M. For instance, in the New York City lawsuit, 3M says the defendant company misleadingly warned the city that "acceptance of the purchase order is at the full discretion of 3M." "3M doesn't need to kill first sale," Tushnet said. "It can go after the actual falsities alleged here, and N.Y.'s attorney general is ready, willing and able to enforce the anti-price gouging statute."

It's clearly not time now, but a big question on everyone's minds, including the President Donald Trump's, is how and when the country reopens. President Trump claimed Monday night he has "total authority" over the decision, but two groups of state governors, including a seven-state coalition with Massachusetts, say they'll make that call. We discuss with WBUR Senior Political Reporter Anthony Brooks and WBUR Legal Analyst Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

The Environmental Protection Agency (EPA) proposed to make no changes to certain air quality standards even though members of its staff raised questions about whether one of the standards is adequate. The agency on Tuesday proposed keeping the maximum acceptable levels of both fine and coarse forms of a pollutant known as particulate matter at Obama-era levels. Assessments have linked long-term exposure to fine particulate matter to as many as 52,100 premature deaths and suggested that stricter standards could save thousands of lives...The announcement comes on the heels of a Harvard study that determined that people who lived in areas with more exposure to fine particulate matter are more likely to die from the coronavirus pandemic...Critics also raised procedural objections, namely the EPA’s 2018 decision to fire scientists that helped the agency review its air quality standards. “It’s not just a bad result, it’s a fouled process that led to the result,” said Joseph Goffman, an Obama administration EPA official who is now the executive director of Harvard Law’s Environmental and Energy Law Program.

President Trump’s claim that he wielded “total” authority in the pandemic crisis prompted rebellion not just from governors. Legal scholars across the ideological spectrum on Tuesday rejected his declaration that ultimately he, not state leaders, will decide when to risk lifting social distancing limits in order to reopen businesses. “When somebody’s the president of the United States, the authority is total,” Mr. Trump asserted at a raucous press briefing on Monday evening. “And that’s the way it’s got to be.” But neither the Constitution nor any federal law bestows that power upon Mr. Trump, a range of legal scholars and government officials said...For Mr. Trump, the legal emptiness of his assertion fits with a larger pattern in his handling of the pandemic and more. Where President Theodore Roosevelt liked to invoke an African proverb to describe his approach to wielding executive power — “speak softly and carry a big stick” — Mr. Trump sometimes talks as if he has a big stick but with little to back it up. Despite his “extreme, proud rhetoric about how he can do whatever he wants,” said Jack Goldsmith, a Harvard law professor and senior Justice Department official in the George W. Bush administration, the story of the Trump presidency has been, with few exceptions, “talking a big game, but not in fact exercising executive power successfully.”

Here's the Radio Boston rundown for April 14. Tiziana Dearing is our host. President Donald Trump says he has the authority re-open the country for business. But Gov. Charlie Baker has joined the east coast states making their own plan. WBUR's Anthony Brooks and WBUR legal analyst Nancy Gertner break down the tension. We take listener calls and speak with people who are struggling to care for people at home during the coronavirus pandemic and what support they need most.

A podcast by Noah Feldman: Former Treasury Secretary Larry Summers helped get us through the 2008 financial crisis. He has some ideas about what to do to get through this one.

An article by Omeed Alerasool '22 and Ryen Bani-Hashemi '22: The coronavirus pandemic is straining healthcare systems and economies around the world. A failure to coordinate an effective global response and aid struggling countries at this early stage will only intensify an already dire reality. The quick spread of the virus since last December highlights the nature of contagion in a globalized world. One country’s inability to manage an epidemic can rapidly metastasize into a global pandemic. To defeat this historic pandemic, the United States must rise to the challenge and provide aid and support to all countries—allies and foes. And success in responding to this global crisis requires coordination with one of the hardest-hit countries, Iran. Alarming forecasts from Sharif University in Tehran predict a scenario of up to 3.5 million Iranians, nearly 5% of the population, dying from COVID-19 by the end of May. Continued sanctions and animosity create a nearly insurmountable obstacle in the way of Iran’s pandemic response, and, by extension, only hamper efforts to rid the world of the coronavirus. Global coordination is necessary to address the coronavirus pandemic.

An article by Noah Feldman: Yesterday, six governors from a string of contiguous eastern seaboard states stretching from Rhode Island to Delaware announced that they would form a working group to cooperate on reopening businesses in the region. This kind of state-level coordination is much needed. The federal government hasn’t taken the lead in ordering coronavirus lockdowns, and so it won’t take the lead in reopening economies. But the composition of the working group is also a little worrisome — because it reveals the potential effects of partisan politics in efforts to fight Covid-19. The original group included Connecticut, New York, New Jersey and Pennsylvania in addition to Rhode Island and Delaware. But why weren’t Massachusetts and New Hampshire to the immediate north initially included, or Maryland to the immediate south? What about Vermont, which adjoins New York, or Ohio and West Virginia, which adjoin Pennsylvania? It’s not because they don’t share common challenges and interests in fighting the coronavirus. It’s hard to avoid the conclusion that it’s because the initially excluded states all have Republican governors. The six states in the original working group all have Democratic governors.

An article by Cass Sunstein: It is alarming, to say the least, that people are even asking this question: Does President Donald Trump have the legal authority to postpone or cancel the 2020 presidential election? The answer is entirely clear: He does not. Start with the Constitution itself: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” The founding document reflects an unambiguous judgment that Congress, and not a potentially self-interested president, gets to decide when the leader of the United States shall be chosen. If the president could set the time of his own election, he could specify a date that is favorable to him – or postpone a specified date until the conditions are just right. Congress has exercised the authority that the Constitution gives it. A law enacted in 1948 says this: "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President." A finicky reader might respond: Those provisions are about selection of members of the Electoral College. What does that have to do with the popular vote? The answer is that the two are inextricably intertwined.

An article by Laurence Tribe: I am not one to underestimate the unspeakable pain that COVID-19 has already inflicted on the American people, with nearly half a million of us infected by the disease, with a death toll passing 20,000, and with the untold suffering that putting the economy into an induced coma has inflicted on all but the wealthiest among us. But the impact of this epidemic is going to spread beyond matters of health and economics. And one of the downstream effects is going to be an assault on constitutional democracy and its foundations. This assault is being obscured by the progress of the virus so that the contours of it have only just begun to emerge. But it now seems possible that when it flowers fully, it will threaten to end our centuries-long experiment with self-government. And what is clear already is that the institutions we have inherited to preserve the rule of law, protect individual rights, and enable the people to rule will not save themselves. Only we can save them.

Disregarding an emerging scientific link between dirty air and Covid-19 death rates, the Trump administration will decline to tighten a regulation on industrial soot emissions that came up for review ahead of the coronavirus pandemic. Andrew R. Wheeler, the head of the Environmental Protection Agency, is expected to say on Tuesday morning that his agency will not impose stricter controls on the tiny, lung-damaging industrial particles, known as PM 2.5, a regulatory action that has been in the works for months...Just last week, researchers at Harvard released the first nationwide study linking long-term exposure to PM 2.5 and Covid-19 death rates. The study found that a person living for decades in a county with high levels of fine particulate matter is 15 percent more likely to die from the coronavirus than someone in a region with one unit less of the fine particulate pollution. “The timing of this is unbelievable,” said Richard Lazarus, a professor of environmental law at Harvard. “There’s this big study that just came out linking this pollutant to Covid. This seems like a colossal mistake on the administration’s part.” ...Mr. Lazarus, the Harvard lawyer, said that he expected that E.P.A. would be legally required to incorporate the findings of the Harvard study into the rationale for the rule before it is made final, likely later this year. “It will eventually be part of the legal record,” he said. “Historically, Harvard’s public health studies have been central to E.P.A. public health rules.”

The Supreme Court, breaking with longstanding tradition because of the coronavirus pandemic, said Monday it will hear oral arguments by teleconference in May, including in cases about the potential disclosure of President Trump’s financial records. “In keeping with public-health guidance in response to Covid-19, the Justices and counsel will all participate remotely,” the court said in a written statement, adding that it will share more details “as they become available.” The court for the first time will transmit a live audio feed of its sessions, allowing the public to hear the arguments as they unfold...Lawrence Lessig, a Harvard law professor who will argue on behalf of so-called faithless electors from the 2016 election, said the teleconference format would present challenges. “It’s difficult to do an argument like this without the opportunity to have eye-to-eye contact with justices,” he said. “The most important thing in an oral argument is to understand where they’re getting what you’re saying, and where they’re not getting what you’re saying,” something advocates pick up from facial expressions and body language. “We’re going to be thinking through the strategy of what the right response to that is—do you package your points more concisely, or more comprehensively?” Mr. Lessig said.

The Supreme Court’s plan to hold its first-ever arguments by phone next month introduces special challenges for those presenting their cases, including gauging the full reactions of the justices, high court advocates said. “We’re in a new frontier here,” said Colorado Attorney General Phil Weiser, who will argue remotely in an election case on behalf of the state. While lawyers are thankful that the court is showing historic flexibility amid the coronavirus pandemic and moving forward with their cases beginning May 4, they wonder how things will ultimately work via phone... “The Court’s decision to allow argument via teleconference in some of its more time-sensitive cases” like these “perhaps reflects an awareness that it could be important to decide some of these issues before the next election cycle,” said Bryan Cave partner Barbara Smith, who clerked for Justice Samuel Alito in the court’s 2015 term...Perhaps the justices cherry-picked the cases they thought would be easier to decide, said Harvard law professor Lawrence Lessig, who will be arguing one of the faithless elector cases. And while telephone arguments are a first in the Supreme Court, some advocates have experience working remotely. Weiser noted that his office has been conducting virtual meetings during the Covid-19 outbreak, and Lessig said he’s gotten more comfortable with remote working by teaching remotely for the past three weeks.

An article by J. Mauricio Gaona: As the world speeds toward an unprecedented economic recession with billions of people and businesses across the planet under some form of lockdown — for weeks or months — amid one of the worst pandemics on record, counting more than 1.8 million people infected and more than 100,000 dead so far, the novel coronavirus will likely produce a yet more enduring change in a post-COVID-19 world: the replacement of humans as factor of production. Prior to COVID-19, the often-contested race between human productivity options and machine productivity advantages appeared less definite. In the last two decades and with aim of making humans highly productive, promoting general wellbeing and increasing business competitiveness, several ideas gained traction — namely, telecommuting, remote work, and co-working spaces. In fact, billions of dollars have been invested around the world in real estate (“co-working spaces”) to enable people to commute to their workplace by either just taking an elevator or walking a few blocks from home. Yet the very nature of the COVID-19 virus imposing social distancing as precautionary measure has made remote work our last available option to move on with our lives.