Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The opinions expressed in this commentary belong to the author. View more opinions at CNN.
The Supreme Court got it half right, half wrong with its decision, announced Monday, to postpone oral arguments on several pending cases, including the dispute over President Donald Trump’s tax returns.
The court did the right thing by deciding not to hold in-court sessions as the nation grapples with the growing coronavirus pandemic. The current justices of our Supreme Court are, to be blunt, old. Justice Ruth Bader Ginsburg just turned turned 87. Justice Stephen Breyer is 81, Justice Clarence Thomas is 71 and the other six justices range from the 69-year-old Justice Samuel Alito down to the youngster of the group, Justice Neil Gorsuch, who is 52.
Most of the justices fall within or near the demographic group – people older than 60 – that is at higher risk of becoming seriously ill from the coronavirus. The Supreme Court chamber holds a tightly-packed capacity of approximately 400. It is, in short, not a safe place to be at the moment. The same goes for other courtrooms around the country.
But the Supreme Court went too far in postponing oral arguments altogether when it easily could have conducted those arguments as scheduled through live video feed. The court’s decision may well reflect a long-standing antipathy toward readily available technology that could enable it to continue doing business as usual.
Indeed, the court has long resisted efforts to place video cameras in the courtroom to provide the public with a live video feed. At a 2019 House hearing, the court offered unconvincing explanations for its reluctance to adopt modern video technology. Justice Elena Kagan said the topic of video feeds in the Supreme Court had not been discussed internally since her appointment in 2010. And Justice Alito expressed concern that a video feed could come “at the expense of damaging the decision-making process” – without specifying how exactly live video might degrade lawyers’ arguments or the court’s decision-making.
But the time has now come for courts across the nation to demonstrate flexibility, to modernize and to put aside stuffy, outdated notions of judicial pomp and circumstance. Most court proceedings – and all Supreme Court proceedings – can be held by video conference, without legal impediment or practical downside. Attorneys can make legal arguments to judges, and parties and the public can observe and participate as needed, through video linkage.
All state courts allow video in at least some circumstances. At least some states permit certain criminal proceedings, including a criminal defendant’s initial appearance, to be done by video conference.
Trials pose the only real limitation (of course, the Supreme Court does not conduct trials). The Sixth Amendment of the Constitution gives defendants the right “to be confronted with the witnesses against him.” Courts have interpreted this to mean that, except in extraordinary circumstances, a defendant has the right to physically see and (through counsel) conduct live, in-person cross-examination of the prosecution’s witnesses. And it would be difficult or impossible for jurors to fully observe courtroom proceedings through a video screen. Much of a juror’s decision-making relies on his or her live, in-person assessment of a witness’s demeanor, mannerism and credibility.
But trials are only a small fraction of what actually happens in courtrooms, day to day. Fewer than 5% of all federal criminal cases result in trials. So put trials on hold, temporarily, until we are through the coronavirus crisis, or at least the worst of it. Until then, our courts should use video conferencing technology for everything else. Crisis has a way of forcing innovation, and crisis is here.
Now, your questions:
Brad (Michigan): What legal authority does the government have to declare quarantines and how can a quarantine be enforced?
Our government has broad power to order and enforce quarantines. The federal government, acting through the Department of Health and Human Services (HHS), has authority to order quarantines as necessary “to prevent the introduction, transmission, or spread of communicable diseases.” Using this quarantine power, HHS can order isolation of specific individuals, or can impose large-scale quarantines. The latter happens very rarely; the last mass-scale federal quarantine happened over a century ago, during the influenza pandemic of 1918-1919. All 50 states also have laws enabling governors or other officials to order quarantines.
Ideally, quarantines would be self-enforcing, and people subject to such orders would comply. But given that this is not always the case, quarantines can be enforced by fines or, in some cases, by arrest and prosecution. Violation of a federal quarantine is a misdemeanor, punishable by a fine of up to $1,000 and up to one year in prison. Breaking a quarantine order is also a misdemeanor in at least 24 states, and a felony in four states. As we may soon see, our governments have extensive power not only to order quarantines but also to enforce them.
Stuart (New Jersey): Various elected leaders have declared states of emergency. Legally, what effect do those declarations have?
Over the past few weeks, we have seen various public officials make emergency-type declarations. Here’s how they break down:
Federal declaration of national emergency. President Donald Trump formally declared a national emergency Friday. A formal declaration of national emergency has two primary effects. First, it frees up federal resources – in this case, as much as $50 billion – to combat the emergency. Second, a national emergency declaration can activate more than 100 other federal laws relating to public health, military and national defense, criminal law and other areas of federal interest.
There are more than 60 currently active national emergencies, many of which deal with emergencies that are old, obscure or narrow in subject matter. For example, one still-active national emergency dates to 1979 and prohibits certain transactions with the Iranian government. President Trump issued a controversial national emergency declaration in 2019 relating to the southern border with Mexico.
Federal declaration of public health emergency. The secretary of the Department of Health and Human Services has the power under federal law to declare a public health emergency.
HHS Secretary Alex Azar issued such a declaration January 31 relating to the coronavirus. A public health emergency enables HHS to access and distribute certain federal funds and streamlines certain administrative procedures relating to contracting, investigations and hiring of personnel. A public health emergency has a narrower effect than a presidential declaration of national emergency; the former applies only to HHS, while the latter applies to the entire federal government.
State-level declarations of state of emergency. State governors hold the power to declare states of emergency. While the legal effects differ by state, generally, a state-level state of emergency does two things. First, a state of emergency can activate other existing laws. For example, it can empower a governor or other state officials to declare a quarantine. Some states require a state of emergency before a quarantine can go into effect while others don’t.
Second, a state of emergency can cut through red tape and streamline the process of obtaining and deploying necessary aid. For example, it can eliminate procedural requirements normally applicable to state contracting (allowing authorities to obtain necessary supplies more quickly) or can suspend waiting periods or other delays usually associated with state spending and deployment of resources. A state of emergency therefore can help a state respond to an emergency situation more quickly and efficiently than normal.
Three questions to watch:
1. Will we begin to see quarantines imposed by federal or state leaders?
2. How will federal resources be deployed to assist in state and local efforts to combat coronavirus?
3. How extensively will coronavirus disrupt our normal civic functioning including courts and elections?
