COVID-19 Part 5: I Call for a National Lockdown and Habeas Suspension

by Michael C. Dorf

Yesterday Verdict published my call for a national lockdown and the suspension of habeas corpus as a means of ensuring that no court enjoins it. I am fully aware that the column takes some controversial positions, including positions that I would not take--indeed positions that would likely outrage me--in other circumstances. The boldest such position is my contention that Congress could invoke the Suspension Clause on the ground that a lethal virus that originated overseas and now threatens the lives of millions of Americans counts as an "Invasion." Today I want, not so much to defend that view, as to explain my approach.

As I have sometimes explained on this blog and elsewhere, I'm mostly a legal realist. I think that in a great many circumstances, the law is sufficiently clear to yield determinate results, but that in those circumstances it does not occasion litigation over contested legal questions. Thus I think that in most of the cases that high courts like the SCOTUS decides, the formal legal materials are substantially underdetermine. That is the sense in which I am mostly a legal realist.

That said, I still think formal legal materials provide substantial guidance even in underdeterminate cases. Put differently, I do not usually agree with the approach that retired Judge Richard Posner said he took. His approach: First figure out what a sensible solution to the dispute is; then impose it unless the law clearly blocks it. I agree with the standard, reversed, order of things: First figure out whether the formal legal materials require or strongly point in the direction of a result; if they do, that's the result; if they don't, then choose the all-things-considered-best result within the range of those results that reasonably could be said to implement the legal materials, understanding that people with different backgrounds and values will differ on what amounts to the all-things-considered-best result.

But while I do not usually agree with the Posner approach, emergencies call for departing from our usual patterns. If you are in the midst of a catastrophe, you figure out what to do to mitigate the damage; you then ask if there are legal obstacles; and if there are, you don't simply give up; you figure out a way around those obstacles. That was the spirit in which I offered my call for a lockdown and habeas suspension.

Watching our nation's grossly inadequate response to the public health catastrophe upon us, I find myself alternating between sputtering rage and despondency. I see no way out, but every remotely sensible analysis I have seen points to the same approach to mitigation, which is more or less what both Joe Biden and Bernie Sanders said last night: several orders of magnitude more testing and an enormous war-type mobilization of medical capacity. It's also clear that neither of those will happen in time to flatten the curve, so we need an Italy-style lockdown now. We really needed it two weeks ago, but we don't have a time machine. So lockdown it is.

That was and remains the main point of my column. If we get lockdown without habeas suspension, I won't exactly be happy, because nothing can make me happy right now, but I'll sputter a little less. That's everything important I want to say in this blog post. The rest covers secondary and tertiary issues.

(1) What do I mean by "lockdown?" Something like what's going on in Italy. The precise details aren't important to me. Closing schools and large public gatherings is a start. It's not enough. All but essential services need to halt, probably for at least a month.

(2) Do I worry about giving too much discretion to the Trump administration? Absolutely, but that's the administration we have right now. Even after everything, there are still a lot of super-competent dedicated public servants. If we survive this nightmare, a 200-foot-tall statue of Dr. Anthony Fauci should be erected on the Washington Mall.

To reduce the risk of giving too much power to the current President and other non-experts, I would want the legislation:

(a) to include a sunset provision (with a proviso for remote voting by Congress to renew in the likely event that in-person voting becomes too dangerous);

(b) to specify as many details as possible given the short time and the likelihood of the need for flexibility, which I acknowledge are competing concerns; and

(c) delegate to professionals like Dr. Fauci, rather than the President or other political staff.

Part (c) could run up against the so-called unitary executive. We will need to rely on political pressure to ensure that President Trump leaves the medical professionals in place and gives them free rein. He has a political incentive to do so -- the ability to avoid responsibility for the terrible pain that results. Is that enough to ensure that he will let the medical professionals take the lead? Not necessarily, but it's the best we can do.

(3) Is habeas suspension really necessary? Maybe not. I included it as an option in my Verdict column, because I wanted to run to ground the various legal objections. Commentators on Twitter, especially Prof. Marty Lederman, suggested that the dangerous precedent of habeas suspension would be unnecessary because the underlying order would be lawful and any rogue judge or court that held otherwise would be swiftly reversed by the SCOTUS before an injunction of the lockdown went into effect. He's probably right about that. Perhaps I invoked habeas suspension simply to underscore the gravity of the situation. If so, consider points (4) and (5) more in the nature of an answer to a law school exam hypothetical.

(4) Is a virus really an "Invasion" within the meaning of the Suspension Clause? I was a little cagey in the column about that question, because I think the best reading in context gives a negative answer. As one commentator on the column correctly noted, the linguistic context suggests military emergencies, not an all-purpose emergency power. So in my ordinary-times non-Posnerian version of myself, I'd say no, Congress can't suspend habeas for a public health emergency.

But again, that's not how I'm thinking about these issues right now, and I don't think it's how anyone should be thinking about them right now. Could a viral infection that began abroad be considered an "Invasion?" Sure. Why not? The constitutional text doesn't even say "foreign" invasion. It says "Invasion." COVID-19 invades our bodies, our very cells. Close enough for government work, at least right now.

Moreover, allowing Congress to suspend habeas only in cases of military threat is best seen as an oversight on the part of the framers. Deadly disease is an obvious reason why the government would deprive people of their liberty and would want to cut the courts out. Even in normal times we sometimes allow flexible interpretation to patch oversights by the framers. For example, there's no equal protection clause that applies to the federal government as opposed to the states, so the Supreme Court flexibly construes the Fifth Amendment's due process clause. Same basic idea here.

(5) Should the question whether a pandemic counts as an "invasion" really be nonjusticiable? I didn't take a position on that question in the column. I said that because the last time any Justices on the SCOTUS addressed it, both a liberal (Stevens) and a conservative (Scalia) said it indeed should be nonjusticiable. No other Justice expressed a view. Thus, I was essentially predicting that the current Court would likewise say the issue is nonjusticiable. Whether it should be justiciable is a different question. Here's an excellent article by Prof. Amanda Tyler arguing that it should be.

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Again, my main point--the only one I give a damn about right now--is to urge immediate dramatic action. For most of my readers, that dramatic action will mean inaction, i.e., staying home.

Postscript: For those readers confused about the numbering of my COVID-19 related posts, I am calling today's blog post Part 5. Part 1 was last Tuesday's discussion of the potential upside of coronavirus "panic." Part 2, though not labeled as such, was Professor Buchanan's introspective column of last Wednesday on why he had hitherto been in denial about the looming disaster of the pandemic. Part 3, which was also not so labeled, was my Verdict column last week, in which I raised the possibility that because the response to the pandemic makes demands of the young to disproportionately benefit the old, it might be thought to present a problem of generational justice. Based partly on a parallel with Prof. Buchanan's work on Social Security, I rejected the analogy. Part 4 is my lockdown/suspension column. Going forward, I will do my best to number these entries in a sensible way.