QUARANTINE POWERS: Governor vs Mayor

In our last in-person interview before the Covid-19 quarantine, we sit down with Judge Andrew Napolitano for a no-holds-barred conversation on the quarantine powers of the city, states, and federal government and on individual liberty during an epidemic: https://www.talksonlaw.com/talks/mass-quarantines-in-the-covid-19-crisis. More remotely-taped interviews and legal explainers coming soon! ► http://www.talksonlaw.com for more legal explainers and interviews with the titans of law. ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw ____________________ TRANSCRIPT JC: There is a view that the cities are deriving their police power from that state power? AN: That's true. From the Supreme Court's perspective, a city is nothing more than a municipal corporation authorized by, and deriving all of its power from, the state. In New York, that is especially true because of provisions which actually say if the governor declares a state of emergency and elected officials and cities are not complying with the state of emergency the way he wants him to comply with it, he can remove them from office— JC: Oh wow. AN: --for the duration of the emergency. Not permanently, but for the duration of the emergency. JC: So here in New York, there's been some talk that there was a difference of opinions on how to handle a couple of issues between Governor Cuomo and Mayor de Blasio. The power, you're saying, was on Cuomo's side? AN: Yes, if he wanted the opposite of what the mayor did, he could order the mayor to step aside during the duration of the emergency. Now that's troublesome because the mayor knows far better than the governor could how to allocate resources in New York City. So he might be shooting himself in the foot, but he does have the authority to do that. JC: In New York City, was it the mayor or the governor who put in place the "stay-in-home" order? AN: It was the governor. The mayor threatened it for days and the governor went on national television, including a network that employs me, and said "It's not gonna happen, it's not gonna happen, I don't care what he says." And all of a sudden it happened but with different terminology. Now, the question is: what happened? You could still go out, you could still walk in the streets, and if the police stop you, you can just say, "Hi," and keep on walking. JC: I mean I guess the difference there is, as you were saying, between quarantine and something that's voluntary. AN: Well, it depends on who you ask. If you ask Andrew Cuomo—in full disclosure, a friend of mine, but as you know since you're a friend of mine, I disagree with almost all my friends—if you asked Andrew Cuomo if these are orders, he will say yes, but if you ask a legal scholar if they are orders, he will say no, the governor does not have the authority to order any of this. Can the governor use his bully pulpit? Nobody uses a bully pulpit better than Andrew Cuomo. He uses it brilliantly to cajole, to entice, to intimidate. That's what leaders should do. But when he says, "This is an order and if you don't obey it, there will be criminal sanctions," it's got to go back to Constitutional Law 101 because only the legislature— JC: So we're talking more PR than we're talking about actual— AN: Yes, only the legislature can enact behavioral modes. I'm using an amorphous phrase because I don't know what it is. Is it a rule? Is it a law? If the legislature enacts it, it's a law that has criminal consequences if you defy it. When the governor issues a decree, there can be no criminal consequences for defying it.