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Aired On Tuesday, March 31, 4 AM, On KGO 810.


I read Andrew McCarthy of the National Review online and we're joined by our colleagues that is McCotter of American greatness and they have very good evening to you it seemed a moment in time when the president suggested I believe it was beef before the weekend that he was going to make a decision about whether he was going to order the quarantine of the New York area that would be New Jersey New York City and Connecticut the commuter area that we live in that caught the attention of governor Cuomo and I believe the other governors because of the fact that this seems extreme severe and also restricting the travel of people from the New York area without you know without explaining before hand was apparently arbitrary alarming now governor Cuomo had some sharp words but you look into the law of it so just a general question the Supreme Court in the past has commented on this the constitution doesn't have the word travel in it but it has other words that are consistent with travel can a president of the United states say if you don't stay home we're going to detain you good evening to you and good evening John I think it's an interesting question federalism it's an interesting question constitutional authority about the state level and from Washington and I think the easiest way to look at it is to say that there is the courts have derived a fundamental right to travel interstate for American citizens as if it were grafted in the constitution it actually does appear in the articles of confederation and the courts have treated it as if it was so fundamental to the understanding that was altered in the formation of the union that it says this FAQ article from the articles of confederation were incorporated in the constitution even though as you say it's it's nowhere to be found so the courts have found such a right and the federal government is supreme when it comes to matters of interstate commerce interstate travel that is travel between two states are two or more states the internal shares of the different sovereign states are supposed to be within the authority of the state that is to say the federal government does not have a a general or residual right to control intra state commerce or intrastate travel so the number of what the controversy that arose over the weekend was weather and president trump as you as you say he backed off he didn't ultimately issue an order but he floated the idea that he has the power to quarantine people within the state and what I would say is that in an emergency situation involving transmissible diseases a pandemic like we have now the federal government does have an interest in in cracking down on or or trying to prevent the spread of communicable diseases but I do not believe the federal government has the authority to order a quarantine and certainly not in peace time when when the courts and the state governments are opening function status Randy water reduce and places like Rhode Island with the governorship talked about potentially quarantining individuals coming in from the state of New York we see metal Florida as well what kind of power to they have to do that do they have any powers at all I think it depends on state constitutions in Penn state law although I would say that the the ability to travel for an American citizen while it can be limited when there is a when there's a powerful government interest and again the spread of communicable diseases are preventing it is a is a powerful government interest but these are fundamental rights even as against the state B. the federal rights under the Fourteenth Amendment and as the constitution's been interpreted I I think the state governments would have very limited authority to restrict people's movements but you know that if this goes to what we talked about a couple of times now which is that I think in in times of crisis we like to think that we rely on the law and the tradition or the history of of the country is a lot of this has to do with what politically governments perceive they can get away with on the basis of how actually frightened people he'll buy whatever's threaded the big difference to me in this situation versus other episodes in history where we've been under martial law because it's actually been more time is that because this is a communicable disease you could in theory just go to the go to court if the courts remain open and operating and get an order from a judge it's a different state government goes too far which would be something that you know probably would not be possible in a wartime situation if we actually had shots being fired you know a hot war inside our borders but you know that's that's speculation on my part we really don't know what will happen a puzzle here and if I understand correctly in your essay the president in a presume because when a science fiction novel you can presume anything presuming there's a catastrophe in this case it's a pandemic but it could be a fire or an attack or radiation in some fashion in an area that you can identify as greatly at risk and the president says you can't leave that area people are going to want to flee they're gonna run run run away that's really what you would be doing from covert nineteen can the private do I read you correctly say the president has the power to say those of you and reach of the pandemic in New York because your numbers cannot flee I believe that the president could give such an order because the courts have said that the federal government has an interest a powerful interest in preventing B. did it in preventing the spread and federal statutory law and regulatory law identifies the prevention of transmissible diseases as one of the government's interests that would allow the restriction of travel so the bottom line is I do think that the president could prevent interstate travel east restricted when you don't talk about fundamental rights with governments are supposed to do is only restricted by the least restrictive means necessary so in theory if there was some other way that you could protect people without having to confine people within the state the government would have to do that rather than you know try to quarantine the state's other people couldn't travel out of it but John where you know we're we're talking in a speculative way because this is a sort of an unprecedented situation we don't know exactly what the government could do and I think that you know there again the history of the country is that while these crises are under way the Congress and the courts have tended historically to give a wide berth to the president again while the crisis is ongoing and often what ends up happening is there's this legislation and there are court decisions but they tend to happen after the crisis is over and they may create enormous but the next crisis but they don't they're kind of cold comfort to people whose what we write to restricted while the present crisis is on balance but there is a fantastic image that is mentioned Rhode Island and it's unclear whether the house that that's going to be resolved of stopping New York plates at the border with Russia or seeking to knock on the door of people who've come from New Yorker identified as having second homes in Rhode Island we also know that many people have gone to Florida I have just you know pulled up stakes and laughed so you can imagine the states seeking people from New York and having them tested and maybe even send them back to New York the president has the power to do all that Andy I mean it's quite fantastic to me well the set the federal law John the regulatory law talks about the federal government being able to take action when there is a reasonable basis to believe that the person against whom they are seeking to take action hazard has aids infectious disease that could be spread on the theory that the government has the authority to try to prevent the spread of infectious diseases so I think again if this got tested in court the question would be is the government acting reasonably that is do you have a reasonable basis to believe that the person that you're questioning trying to detain and perhaps even trying to subject to or a quarantine do you have a reasonable basis to believe that that person has a transmissible disease if they act in a way that's arbitrary I guess the person who but as to whom there is no basis I don't think they'd be allowed to do that if they had a basis they would have to show that they were trying to do the least restrictive means of interfering with a person's ability to travel but ultimately if push came to shove I do believe the government to detain people as to whom it had a reasonable basis to believe they had an infectious disease yes Andrew McCarthy national view online that is from Qatar American greatness when we come back law enforcement in the time of the virus and that is has a story about law enforcement in Detroit in the time of the virus I'm John bachelor this is the John bass Russia I don't walk up to.

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