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okay now for our interview with

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constitutional law expert Robert moose

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you definitely see a red state versus

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blue state thing going on here if you

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looked at a map of the country and saw

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which states are opening in which states

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are really being uber slow in opening

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New York in California being the two

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that jump to mind probably Michigan in

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Illinois you could throw when they're

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also four very prominent blue states

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compared to prominent red states like

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Texas and Florida that are moving them

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much more quickly so what is the public

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to make of this obvious difference in

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handling the crisis yeah yeah I sadly I

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think so much of this in the very

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beginning has been has been very

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political you know and you know I'm here

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in Michigan and our governor you know

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even from the from the very beginning

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she's kind of backed off a little bit

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because I think her handlers have

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probably advised or her messages and

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getting across too well was all about

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attacking you know President Trump for

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everything he did or allegedly didn't do

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in the in the face of this a coronavirus

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i I see you know and in those in those

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in those states that you mentioned I

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mean they tend to be the nanny states as

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well right they're the ones who want to

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control and dictate everything that you

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do remember Mayor Bloomberg and the city

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New York want to decide you know what

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size soft-drink you could that you could

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use so it's not necessarily surprising

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to me that those states which have

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political leaders and political systems

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that are very much a nanny states where

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they they want to control every aspect

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of your life and so many ways that that

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this is their tendency during a time

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like this so if I had to guess before

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this all set it out and you were gonna

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say okay which states do you think

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you're gonna be more restrictive which

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are the ones gonna be more tyrannical in

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many ways which are the ones that are

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going to be more restrictive of your

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liberty which are the ones I can impose

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their will upon the people more than

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others I would have picked the blue

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states over the red states even without

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just knowing the nature of the

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politicians and the in the difference

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between being a conservative and being a

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progressive liberal and how they view

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the role of governments and I think

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we've seen that play out in this in this

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pandemic as well

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yeah I think the nanny state is probably

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the best explanation for why those

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states are going so slow it's the most

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innocent explanation for them because it

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starts to getting more nefarious when

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you start thinking about the political

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side of it I mean you know there's some

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people speculating that they want the

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economy to be in the trash can come

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November when the elections come to

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accuse them of that that's that's pretty

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strong I mean if anybody is thinking

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along those lines that's pretty

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disgusting

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considering the absolute carnage that is

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being wreaked upon society right as a

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result of this so you know there's the

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famous Bill Maher comment where he said

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that hey I'd be willing to throw the

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economy in the trash to get rid of Trump

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it's that important so that's a semi

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comedian saying at whether governor's

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are really thinking that you certainly

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hope not but it does seem to me though

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they are heavily invested in the

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narrative that Trump did not handle this

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well from the beginning this is a really

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big deal that he should have moved much

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more quickly on and once you're invested

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in that idea of trying to make Trump

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look bad for being slow to respond to

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this then you're invested in this thing

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being really big so despite new evidence

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coming out all the time indicating that

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actually it turns out that it probably

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is not as big as we originally thought

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the death rate turns out to be far lower

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we're not having the overcrowding of the

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hospitals that we expected and so on but

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these governors are clinging to that

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narrative as a way of continuing to be

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anti Trump right and you know when you

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think back you know the Democrats and

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the house were and in the Senate were

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busy with his impeachment nonsense

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meanwhile you know President Trump was

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closing travel from China which was

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probably one of the most important

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decisions that was made to spread to

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stop the spread initially than anything

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that has been done since then and I

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think a lot of the problems that New

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York is seeing is because a large number

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of travelers that came from from Europe

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into the yeah it's in New York City and

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Trump closed down travel there and every

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time he tried to make one of these bans

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on travel it automatically became he's a

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racist a xenophobe and and everything

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else went at the end of the day that was

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quite one more point decisions

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but you know the the thing these are

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these are local issues right I'm all for

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federalism in a sense that let these are

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the states the governors are the ones

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that should be most prepared their

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hospitals prepared not the federal

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government you know this is where our

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federal government should have less

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power not more power in this state

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should be the ones and they do another

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Constitution they have police powers

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they have brought up powers they're the

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ones that should be handling this this

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situation at the local level not so much

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at the federal level the federal the

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federal levels role is to provide

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resources to bear which President Trump

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has done so and so much so that we're

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not even using them I don't even think I

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that you know the hospitals that were

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built in New York have even been used

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for this remember they what was the the

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basis for the lockdown was was

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principally to slow and forestall any

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run on the hospital's right that was

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their that was the primary concern it

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wasn't even so much that you know the

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the virus gonna spread low the death

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rate so it was all about look we don't

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we don't want to overwhelm our health

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system well from the reports that I've

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seen it's our health system has been

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able to absorb it in right now we have

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excess capacity for the co vid 19 and

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one of the problems we're seeing is is

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the volume of people coming in for

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things like stroke heart attack and

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other cancer procedures and so forth and

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I'm seriously concerned about what are

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they gonna be that was gonna be the

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fallout from that side of it on the

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medical I think if you look at what the

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hospital situation is I think that lends

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itself the same like you we ought to be

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opening up a lot more than what we are

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than what we are doing currently and we

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know who the mostly who the those that

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are at most at risk that we should take

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measures to protect those people and not

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so much just you know one size fits all

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and lock everybody everybody now well

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the yeah the issue of the hospitals kind

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of CEG's into some of the legal

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arguments here because if you're going

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to restrict people's liberty you better

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have a good basis for doing it and you

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better do it in the least restrictive

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way possible so when they came out and

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announced these severe restrictions on

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Liberty meaning even healthy people are

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quarantined young healthy people are

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quarantined to their home and can only

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leave for very limit

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two reasons you got to have a good basis

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to do that and they said that their

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concern was overwhelming the hospitals

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and they showed us the charts that

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showed that if you have it peak that's

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gonna overwhelm so we need to flatten

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the curve they weren't necessarily

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saying that we're gonna reduce the

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number of cases overall if you look at

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those charts that we hardly see those

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charts anymore by the way

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but those original charts just show the

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curve being flattened but being pushed

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out further you continue to get cases

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for a longer period of time why because

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if you don't flatten the curve you get

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herd immunity that much more quickly so

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it was never about reducing the total

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number of cases it was about not

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overwhelming the hospital's now that no

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hospitals have been overwhelmed maybe in

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New York you could argue that they were

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overwhelmed maybe it sounds insensitive

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to me to say even maybe for New York but

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keep in mind this ship that Trump sent

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over there never used the Catholic

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Church that was closed and turned into a

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hospital never used so I'm not saying

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things weren't bad in New York City but

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it never got so overwhelmed that they

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need to do you use either of those so

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and I and I can also remember whatever

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the news cameras go into the hospital's

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trying to show how overwhelmed it is I

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never saw a good picture of it over them

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they talked to a doctor and he's acting

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super relaxed and calm and there's a

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nurse acting relaxed and calm I mean I I

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never saw it as much as TV wanted to

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display it so but anyway let's say I'll

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grant that New York City was overwhelmed

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there's not in any other place I think

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that was anywhere close to being

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overwhelmed so if that was the standard

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as soon as you saw that we hit the top

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and they're not overwhelmed it's time to

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start giving us our liberties back

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immediately

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I'm not saying give them all back

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immediately but they should have started

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immediately they have not they clearly

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have moved the goalposts

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so that seems to become now a weakness

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in any court case that they're in

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because the original basis for denying

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our Liberty they no longer seem to be

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using that as the basis yeah when the

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burden always when you're restricting

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especially a

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which requires the government to have a

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compelling interest that's narrowly

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tailored and least restrictive way over

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reducing it but anytime you're

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infringing on a Liberty it's not a

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burden to establish facts to prove our

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freedom it's the government's burden to

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establish facts to not only improve to

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prove that they have this compelling or

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substantial government interest but then

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the measure that they took was the least

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restrictive means to accomplish that

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objective and that's where a lot of this

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breaks down you know we filed a lawsuit

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in the city of New York late last week

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challenging mayor de Blasio's latest

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edict that all out tour you know protest

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activity First Amendment fundamental

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first minute if 'ti is banned in the

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city of New York yet he's got this open

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streets initiative where you know groups

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of people can cycle and and walk and do

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other things on these public streets

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that aren't constitutionally protected

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but yet if you're if you're a protester

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with a sign and you're even maintaining

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social distancing it's forbidden

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I mean they've essentially suspended the

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First Amendment in the city of New York

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and when you have all these exceptions

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and that's one of things when you look

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at so many of these lawsuits and ours

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lawsuits is well one of the things we

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highlight typically is how irrational

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these decisions are in Michigan for

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example you you have this random

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selection of which businesses are going

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to be open which ones aren't going to be

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open and I saw some one of the

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legislators made a comment in the news

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of the effect that you know you show up

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at one of the governor's press

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conferences and you wait for her to call

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your name that your business is open and

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okay now we're magically open it doesn't

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explain the decision-making that's going

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into this you know and we know that

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Tesla just filed you know filed a

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lawsuit in California and it's really

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going to that point you have different

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counties who are issuing different

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orders based on what it's it's just

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irrational how this is all being played

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out why one business and why one car

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factory in one County can operate

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successfully and safely but then you

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know in another County it can't quite

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what was the what was the justification

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why these two counties have different

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different rules when when actually it's

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the governor's executive order that was

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issued that that you know should Trump

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over everything so it's just an

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irrational way that all this is being

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handled is what I think is very

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upsetting to to most people and quite

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frankly is also the strongest position

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we have as a matter of law challenging

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all these provisions whether they

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restrict fundamental liberties or

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whether they restrict property interests

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or any other liberty interest that we

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might have and what about these

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emergency orders that are giving these

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governor's mayor's County officials this

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carte blanche to be making the decisions

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I've looked into it here in California

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and it appears that there's no time

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limits to the governor's declaration of

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a state of emergency you would think at

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some point legislature comes in and can

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weigh in on it

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but as far as I can tell and talking to

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a couple California attorneys about it

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and me doing a little bit of my own

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research couldn't find any limit in

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California now in Michigan I think you

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guys did have a limit there and tell us

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about the battle between the state

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legislature and the governor there where

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they're trying to put checks on her yeah

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that's Michigan's an interesting an

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interesting example and I agree with

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your concern about California like when

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do these emergency powers ending even

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like in Michigan there was a of a 28-day

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you know state of a declaration of a

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state of emergency but then can you

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renew that on you know day 27 for

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another 28 days

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what's various thing about Michigan and

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you know we had this conversation the

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last time that we spoke that Michigan

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has in place a measure for legislative

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oversight for the governor as there

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should be and every way and hopefully if

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there's one of the after action items at

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the end of all this is every state

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legislature needs to go back and look at

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what their emergency orders are and

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whether or not they put in place

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provisions that there is legislative

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oversight there has to be one person we

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don't have a king or a queen one person

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cannot be the one that's the sole had