Jurisprudence

“If We Stick to the Ethics That We’ve Got, It Should Steer Us Right”

How to navigate the coronavirus crisis with our rights intact.

A group of young people wear protective masks as they walk near the Washington Monument.
A group of young people wear protective masks as they walk near the Washington Monument on the National Mall on Wednesday.
Alex Edelman/Getty Images

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On this week’s episode of Amicus, Dahlia Lithwick spoke with Ian Bassin, who served as associate White House counsel from 2009 until 2011 and co-founded Protect Democracy, a cross-ideological project that has used litigation and policy advocacy to protect core democratic values in the era of Donald Trump. They discussed how the government can respond to the coronavirus crisis without defying the Constitution and why we should perhaps be more worried by what the Department of Justice is not doing right now than by what it is. Read a portion of their conversation, which has been edited and condensed for clarity, below.

Dahlia Lithwick: We have seen this virus contained with measures that would probably horrify us in the United States. We’re seeing clamping down on free speech in Hungary; we’re seeing lockdowns in Italy that probably violate their constitution. We’re seeing the Israeli government shut down its own parliament and use its domestic government surveillance apparatus to monitor quarantines. Some of these measures are probably effective in stopping the spread. What do we do when we actually do want the federal government to take strong, decisive, very, very draconian action, but we just don’t trust it with our civil liberties?

Ian Bassin: The first thing that we need to remember is that of the countries that have had successful responses to the virus, they’re not all authoritarian, right? There are democratic countries—South Korea, places like Taiwan that are more democratic—that have been very effective in their response. We need to dispense with this notion that only authoritarian countries or only authoritarian measures can meet the moment. That’s clearly not true.

The second thing we need to remember, and this is something that we were reminded of after 9/11, is that our Constitution doesn’t have special provisions in it for emergencies. It is designed to protect our rights, our system of government, even at a moment of great strain. Thankfully we are a country with constitutional norms, with constitutional guarantees, and with constitutional freedoms. And so we need to lean on them heavily here in this way. We absolutely need the government to do certain things that are relatively extreme. The social-distancing, shelter-in-place measures that we are seeing and frankly should be seeing in more parts of the country—we need the government to be doing those things, but we need them to do it consistent with two things: law and facts. I think if we rely on those things, they can help us respond to this in a way that is democratic and a way that is consistent with our Constitution, our laws, and our system of government.

Part of the problem is that when you’re looking forward, it’s awfully hard to know what is appropriate, and then obviously when you look back, we are very good at saying, “Well this was wildly inappropriate.” How do you do that in real time?

It’s in these moments that the systems we have in place need to be relied on and hugged even more closely. There is this temptation at moments of crisis and chaos and fear to abandon the way we normally do things and to make certain shortcuts or exceptions. And that’s the real danger. We don’t have to do that. If we stick to the ethics that we’ve got, it should steer us right.

I think that what you’re describing is not only a system of norms but a system of trust, right?

The things we need to be really on the lookout for are when people are trying to change those rules. You saw that in Hungary with Viktor Orbán trying to basically give himself essentially dictatorial powers during the current crisis, and one has to imagine he will keep those afterward. In Israel with the sort of suspending of parliament, it’s those extra-ordinary measures that we need to be really, really suspicious of and fight back on.

Those powers don’t often get ratcheted back, right? A lot of the powers, things that were alarming in the Patriot Act when we first saw it, they don’t dissolve unless Congress agrees to dissolve them. And a lot of the fears we have about authoritarian power grabs in emergencies is that they hold onto those powers long after the emergencies have passed.

That’s exactly right. It’s these crises that are moments that autocrats seize power. We don’t really have a normal United States president in office right now; we don’t have a normal U.S. government. We have a very autocratic one that is supported by a party that has basically abdicated its duties in order to enable a president who is autocratic, so we need to be especially careful at a moment like this.

One possible ray of hope is that there is an effort on the Hill to rein in emergency powers that have been granted to the executive branch by statute. Sen. Mike Lee, a Republican from Utah, has introduced something called the ARTICLE ONE Act, which would really rebalance the powers that Congress for way too long has delegated to the executive to use in the case of emergency. The ARTICLE ONE Act would reform the National Emergencies Act to create a sunset provision that anytime a president tried to use certain emergency powers, they would be automatically for a short term unless Congress explicitly and affirmatively moved to authorize them and extend them. That is a flip from the default way things work now, which is that if a president invokes an emergency, in most cases, that emergency stays in place until Congress overrides it. That is a critical change that we need. There is bipartisan support for it on the Hill, and that’s the kind of change that I think needs to especially be in place at a moment like this.

I’ve been surprised we haven’t seen a big old crazy power grab from the Justice Department. What’s your theory on why we haven’t seen much more autocratic action coming from the Justice Department?

One thought that came to mind as you were saying that is: My, how desensitized we have all become. That the proposal that was reported on that DOJ was looking for powers to petition a judge to be able to detain an American indefinitely without process beyond the judges’ signoff, that that doesn’t fit the bill. I think we should have been very alarmed by that. And thankfully the two members of Congress that I saw speak out first and most forcefully against it were the independent from Michigan in the House, Justin Amash, and again Mike Lee from Utah, who I think said, “Over my dead body,” in response to it, so that was a positive sign. The other maybe also depressing point on this is I wouldn’t make any assumptions about what DOJ and William Barr are or are not doing. I think we just don’t know yet.

I think the jury is still out on what the Department of Justice is or isn’t doing in this moment. And there are other things where it’s not what the Department of Justice is doing, but it’s what the Department of Justice is not doing that are really troubling. The Federal Bureau of Prisons is not taking aggressive enough action to protect the federal prison population, who are really sitting ducks for this virus. The immigration courts are reopening in a bunch of places as we speak to process deportations in situations in which that is not in the best interest of public health or necessary in an exigent kind of way. We need to be asking not only what is it that we should fear that the DOJ might do, but also what should we be concerned that they’re not doing, which is taking prudent public health measures to protect detained populations and those who are currently facing immigration proceedings.

Listen to this episode of Amicus below, or subscribe to the show on Apple Podcasts, Overcast, SpotifyStitcherGoogle Play, or wherever you get your podcasts.