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tv   Hoover Institution Discussion with John Yoo on COVID-19 Federalism  CSPAN  May 10, 2020 2:03am-2:50am EDT

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disparities in the covid-19 pandemic. be sure to watch c-span's "washington journal" live at 7:00 eastern sunday morning. join the discussion. >> next, university of california berkeley law professor john yoo, who served as the deputy assistant attorney general during the george w. bush administration on federalism during the coronavirus pandemic. mr. yoo explores the constitutionality of contact tracing, states rights to requisition coronavirus tests, and the presidential power to utilize the defense production act. >> today's briefing is from john yoo.
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it is entitled covid-19 and federalism. john is a fellow at the hoover institution and served in all three branches of government, including the u.s. department of justice, senate judiciary committee, and supreme court. prof. yoo: thanks for tuning in. i can see you on the others of the zoom. sometimes that can lead to very disturbing images. here, in terms of you guys, i can't call on you either if you have questions, so we benefit from the new world we live in. >> many appreciate that you can't see them. [laughter] i want to kick this off by jumping in the middle of the federalism debate. federalism is about division of authority amongst different political leaders at different levels. we have seen some governors be aggressive in embracing shelter-in-place and stay-at-home orders to flatten the curve. other governors have been more open, arguing the local conditions didn't warrant it. governors who adopted rigorous shutdown policies have been confronted by their citizens and city and local leaders.
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overlaying it all is the federal government, who have done some things to compete with what local officials are doing. my good buddy and i talk about this a lot. his take often is we don't have a plan. my retort is we have lots of plans. his concern is, who is in charge? how do we understand this from our system of government? prof. yoo: you just described the beauty and pitfalls of our system of government. we are not south korea or china or france, we don't have one unitary government where every policeman is an employee of seoul.
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we have a government with powers given to it by the constitution. everything else that isn't specifically given to the federal government is retained to the states, which we call the police power. the federal government doesn't have the right to regulate public health. it is not in the constitution. we assume the major frontline policymakers about public health, about pandemics, which existed when the constitution was written -- there was a yellow fever epidemic when the constitution came into effect -- that will be up to the states. the federal government has two specific powers to support the states in their choices. there are 50 different choices about policy. one is the right to regulate interstate commerce, which is the movement of people and services across state borders, which is of some use in this pandemic, especially if you want to stop people from coming into the country that might bringing
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-- be bringing coronavirus with them. we see congress's power to tax and spend for the general welfare. that is how congress is taking trillions of dollars now and pushing it out to support state policies by more generous unemployment compensation, by purchasing equipment, medical supplies, by providing expertise, and by encouraging research and develop of a vaccine. the downside is that you have 50 governors making up their own policies. there are two good defenses for that system. it may not act quickly, but it doesn't make mistakes quickly either. it is a risk-averse approach to government where you have trial and error. you have laboratories of democracy which allow for experimentation. we will see how things go here
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versus texas or florida, and other states can adopt those policies which seem to work. it also means that local officials who are more responsive to the people can make policies best suited to local conditions. the policies in california are not suited for new york city or chicago or texas or florida either. it means that offering of diverse policies means states and the federal government has to compete for the support of us, the people. if we don't like what states are doing, we can go to the federal government. if we don't like what the federal government is doing, we can press the states.
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the founders thought that competition would lead to good policy and protect our freedoms and liberty by making sure government doesn't overreact and take away our liberties in exchange for whatever policy crisis of the day is. >> so federalism distributes authority in public policy, and that distribution is enforced by the law. what is going on now is boiling down to specific things. one idea talked about is contact tracing, which is an idea that one public health officials can use to identify who has been infected, who else they might have infected to flatten the curve. how do we understand what level of government can impose that, and is it legal under our system? prof. yoo: tough question in part because we don't know. the means we would use for contact tracing now are much
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more effective because of smartphones and information revolution. the government has far greater tools now than 100 years ago. which level of government would do it? it would be the states. some states don't have to do contact tracing. some states might feel they want to. they are in charge of the police power. they have the right to do contact tracing. there is an important limit on the broad power of the states, the right to due process, the right to equal protection. here the fourth amendment right to be free of searches by the government that are unreasonable or require a warrant.
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that will be the main issue for contact tracing. contact tracing would primarily be done through high-technology, algorithmic programs using your smartphone. the supreme court a few years ago said if the government wants access to your smartphone, it needs a warrant from a judge. this was a case ironically involving robbers of cell phone stores. the government wanted to trace their cell phones every time the robberies occurred. the court said even though generally when you hand over your information to a third party you lose your privacy interests, the smartphone is so important today that you need a warrant from a judge. that sounds like contact tracing would be impossible. but there is an exception, that if the government is doing it not to track you down for a crime, but to protect public health and safety, you might not need a warrant. examples include drunk driving checkpoints, random drug testing
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-- >> security screening at airports. prof. yoo: exactly. the government is not trying to pin a crime on you, but do something randomized for public health reasons. you might not need a warrant. that is what this contact tracing approach will call into question, whether it fits into our protections for privacy generally. >> let's talk about lockdown policies. bruce asks, our county sheriff declared our state's stay-at-home orders are unconstitutional. he will not have his deputies enforce them. is he justified?
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do state police powers make him wrong? prof. yoo: they are not unconstitutional in the general approach. the state under the police power does have the right to shut down businesses for public health and safety reasons. until the 1930's, you might have had a constitutional right to keep your business open, to economic liberty, but that right was lost in the 1930's under the pressures of the new deal and fdr's effort to pack the supreme court which struck down early versions of the new deal. since then the court has not recognized this right to economic liberty. on the other hand, you do have some rights that are guaranteed by the bill of rights.
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those will have the most success challenging the lockdown restrictions. for example, a law about political protesters in a place like california or michigan. i think a state doesn't have the right to say no protests. if the government can achieve its purpose of public health and safety and respect those constitutional rights through less oppressive means, then the courts will require the government to do that. if you are a protester and want to show up on the capitol grounds, you can say we will keep six feet apart and wear masks like at the supermarket, how can you say we don't have a right to protest? churches -- i think the government doesn't have a right to shut down all churches if the worshipers can present reasonable alternatives that are going to respect social distancing like staggered services, sitting six feet apart in the pews.
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i saw drive-ins. i was a kid when we have drive-ins. i never thought they would come back. that is where the government is on shaky footing. it will be specific challenges based on the constitutional rights you have under the bill of rights. since 1935, that no longer includes the economic liberty to make a living, although personally i thought that would have been part of the right of americans, but the supreme court announced it wouldn't protect those anymore under the pressures of the new deal. >> gun stores. there is a constitutional right to bear arms. some states declared them an essential facility. prof. yoo: this may not be a popular answer in california, but i think this same approach -- if you have the right to bear arms, the government can't
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completely shut it down in the name of public health and safety if there are reasonable are -- are reasonable alternatives, if there are tailored ways the government can achieve its end. if the gun store said i will only allow one person in the store at a time or all customers have to be six feet apart and wear masks, i can do both. i can respect second amendment rights and maintain social distancing rules that exist at costco and target and the local supermarket. the gun store owner has a good argument. if the state is starting to apply these policies to me when i have a reasonable alternative,
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doesn't it look like the government is taking advantage of these lockdown policies to prevent people from criticizing the government or engaging in the right to bear arms? that is where courts will be extremely suspicious. >> can states restrict people from other states coming into their states to prevent covid-19 infections? prof. yoo: great question. rhode island was starting to do that. if i was rhode island, i would not want new yorkers in my state anyway, covid or not. [laughter] the constitution doesn't give that power to the federal government. it does give the government the ability to stop interstate traffic. police do have the right to prevent imports or people moving in as long as it is for public health and safety and not for some protectionist reason.
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the courts very suspicious when the state has some regulation effect of advantaging people in the state. you are not allowed to leave the national market of the united states as a state. it seems in the case of the covid pandemic, states have a reasonable public health reason, just as they would if there were diseased livestock or diseased food. states have long had that power. it is mentioned in the constitution that states have such a power. it seems to me that they could. it is another question where states ought to be reasonable. in rhode island, they weren't actually blocking people at the border in new york, but we will test you, go into self-quarantine.
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in those conditions, the courts would say it is within the constitutional power of the state. the courts will be suspicious of rhode islanders trying to isolate themselves from the rest of the united states and hoard its resources, which they are not allowed to do. >> the president used the defense production act to compel private companies to develop therapeutics. the states eventually end up with them and have to allocate their use.
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in maryland, governor hogan had the maryland national guard protect a shipment of tests to prevent the government from taking them. he even had the flight land in maryland as opposed to dulles airport, which is in dc. another question in a similar vein on using governor hogan as an example, he says he has testing kits in a secret location guarded by the national guard. can the federal government seize those supplies and redistribute it to other states? prof. yoo: great question. it raises this issue of federal government control over the borders. usually we respect the state right as a government to manage its own employees, its own property. hypothetical is the federal government cannot order a state where to have the capitol. the courts usually say the states are immune from federal regulation because they are sovereigns.
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states have every right to buy a mask. it is very complicated. what governor hogan did with his national guard, which could have been federalized -- i am not sure that is constitutional. you could say he has the right to property, but the federal government has the right to inspect everything that flies into the country. if this was a flight -- i think it was from korea that had medical equipment -- it seems to me the federal government has the right to inspect it when it comes in the country. the question about the defense production act is interesting. i would be wary of using the defense production act to say we can reopen the whole economy. if you look at its terms, it is a national security law about wartime, making sure the government is getting enough war material to fight the war. what the statute talks about is prioritizing federal requests for equipment, allocating resources so federal demands get met first. to use the defense production act in the way people are worried about would raise constitutional questions if you used it to seize things from states. that might run into constitutional difficulties.
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>> let's shift to the question of immunity. there has been debate about whether tort law should be amended to allow businesses and commercial operations who are reopening, to give them some immunity from subsequent claims that they helped spread the virus or sickened people. prof. yoo: that is a great question. you can see in certain emergency situations we assume an immunity to people because we don't want them to have to make decisions under the press of time, limited information, limited resources and have them think, am i going to get sued about this?
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the wartime, for example, soldiers have what is called combatant immunity. we don't have lawsuits against our leaders and generals because of mistakes they might make in war. a lot of the ways we are thinking about this pandemic has that quality, thinking of it as a war. first responders, doctors, hospitals don't have any kind of heightened immunity from lawsuits. this would have to be done by states. to me, it seems like a reasonable policy. if you think about new york city where we were rushing graduates of medical school to the front lines -- they are not going to be fully trained. they are not doing their residency and internships yet. they may have only seen a ventilator once or twice, but it might be better to have someone there rather than no one because of the under capacity of the hospital system for the waves of cases.
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if you don't have that kind of immunity, you are creating an incentive that prevents society from marshaling its resources. think about the next pandemic. suppose there is one five years from now. if you don't have immunity in place, will you get doctors to come out of retirement and volunteer and nurses rush right away to the emergency? you will impose this viability concern under conditions we don't want people to worry about, as opposed to normal everyday nonemergency society where we want people to consider the factors carefully. emergencies -- those are not the best times for the normal tort system. >> this question is on elections. what powers to the federal
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government or states have to modified the processes of the november general election? prof. yoo: that is not so fraught. the constitution gives congress the power to set the exact date of the election. there are already statute in existence -- and we went through this in 2000 with bush versus gore about when state results have to be counted and sent to washington. the constitution also has a hard date. there is a specific date in the constitution when the congress ends and when the president's term is over. suppose we never had elections.
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president trump's term is going to end in january. if there is no election, that means there is no president. pence is not president. it might mean nancy pelosi is president. so everyone will want to make sure we have elections. [laughter] one historical tidbit was seriously debated during the civil war. we might talk about an emergency, it would have been the civil war where one third of the country tried to leave. abraham lincoln was pressed by many people to postpone the elections.
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to lincoln, it was important that we maintain the steps to show the constitution could adapt to civil war. he wrote a note to himself for the next president that he assumed would be general mcclellan in the election of 1864. we were not sure lincoln was going to win. lincoln said if i lose, i will do everything i can to support and transfer power to the other party, even though mcclellan was campaigning on a peace platform. he would have repealed the emancipation proclamation. lincoln said it was more important that we observe the measures of government, election, and placement. that is true here. you could have the elections, you just have to do them with social distancing. it is hard for the government to claim because of the pandemic that we can just shut elections
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down completely if there are reasonable alternatives. we saw that in the wisconsin primaries. >> this is an important issue. suppose we have to undertake elections in a nontraditional way. what authority does the federal and state government has in ensuring voter identification to make sure it is a fair election? doesn't the current situation broadly disadvantage challengers as opposed to incumbents? isn't there a mandate that leaders address that problem? prof. yoo: very tough questions. the changing of the rules is interesting. it goes to your initial question about federalism.
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you could say federalism is hardwired into our system in many different areas. it is hardwired into elections, too. one thing i should have mentioned earlier was -- yes, the one reason the federal government can't open and close the economy simultaneously is because of all the resources, the people, the officers, the money for government are at the local and state level. that is just the statistic i love to throughout. the new york police department has more sworn officers than the entire fbi workforce. that is true of elections. under our constitution, the elections are to be run by states.
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most states often push that down to the county. time, place, and manner is up to the states. they can be overridden by congress. the voting rights act of 1965 to stop racial this commission. in general, it is at the state. the question you raised about voter id, about internet voting -- that is still up to the states. as long as they are not using the rules to try to advantage or disadvantage another party. in bush versus gore, the way forward in the way palm beach county was running the election was favoring one candidate over the other, or was so irrational that it didn't make any sense.
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a lot of these alternative ideas -- you could have an election with completely mail in voting. it is up to a state. others might adopt it or not. this is an issue about lockdowns. an interesting case came out of pennsylvania. the u.s. supreme court just denied an appeal on it. there is a plaintiff running for a seat in the assembly. i am from pennsylvania, hence this wawa mug, which does not exist in california because of the horrible nature of federalism. only the east coast. this guy is named danny devito. what is danny devito doing running for office in pennsylvania? it is a different danny devito.
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he says these lockdown policies protect incumbents. if you are in the state legislature, you are an essential employee. you are allowed to keep the operations of government going. if you are an incumbent, how do you challenge someone? you can't hold fundraisers. you can't hold events. his argued his right to challenge an election was violated by the lockdown. the supreme court said we will not hear it at this stage.
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i will guess the courts will say in this emergency period we will allow the lockdowns, but as infections are reduced, the government has to start considering less burdensome alternatives that still protect public health and safety that allow challengers to run a reasonable election. why can't a challenger for office have events under the same rules costco has? that will be harder for courts to deny as we get further along. >> let's get to the international legal front. this is about china. chinese doctors and scientists encountered covid-19 patients as early as november last year. they alerted chinese authorities, but beijing did not notify the world. should china be held accountable, and if so, what are the legal international remedies to do so?
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prof. yoo: yes, china should be accountable, not for any desire to punish china, but in order to encourage better behavior in the future. this is an appeal to the economist in me. when someone is doing something, you want them to internalize the costs and benefits of the decision so they can make the right choice. china has effectively externalized a lot of the costs of its choice, those costs now being hundreds of thousands died, millions being infected. their benefit was the chinese communist party prevented knowledge of the outbreak, prevented early study of it, prevented doctors and scientists from studying it from elsewhere in the world. there are studies that suggest more than 90% of the deaths and infections would have been stopped if china had been more transparent and open. the chinese government wanted to show they were competent, maintaining this image of competency means you don't want to bring to public light the kind of disasters we saw in wuhan in the early days.
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the chinese government realized the benefits of that. to stop that from happening in the next pandemic, you want china to realize those costs. how you do it is a difficult question. there is no international court that is going to hear a case like this. china is not going to cooperate. the south china sea is an issue a lot of hoover scholars are studying. i argue countries have to engage in self-help. they have to claim the chinese assets in their countries can be used to satisfy compensation claims by their citizens to pay for some of the costs.
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it won't come close, but that is a start. china has a lot of investments in other countries like india and italy under its belt and road initiative. those countries could refuse to pay back those debts, expropriate that property. they are doing it to pay compensation to the people in the country that were harmed by china's failures at the beginning of the outbreak. thomas: so looking for a remedy for the behavior the next time this comes around, is the idea? professor yoo: exactly. thomas: and help the rest of the world monitor outbreaks more rapidly, viruses from china. professor yoo: i'm working on one of our publications, defining ideas about what a post-pandemic who would look like. and as you say, you could give china benefits or impose sanctions, and economists are saying the same thing, they are just different points on the spectrum.
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you could also encourage china like, we are going to allow you to participate and play more leadership in the world, and in addition to sanctions, u.s. knowledge bad behavior. thomas: several times today, john, you set the power of local and state governments to dig into the bill of rights depends on their ability to declare a public health emergency. so the questioner asks, what is the criteria to declare a public health emergency? does it have to be a credible standard? if there isn't an objective standard, i think he is worried about being arbitrary. professor yoo: people have accused president trump and past presidents of using power at the federal level in an arbitrary way.
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for example, president trump declared a national emergency at the border, and you shift money out of defense department accounts to wall-building accounts. you could say the same arguments are true at the state level. each state and have its own system for when there is a public health emergency. here in california, there is a law that gives governor newsom pretty unbridled power to decide when there is an emergency. it sets some criteria, they are very loose and ambiguous, and you could say that is because the people of this state wanted the governor to have a lot of freedom to take in account new, unforeseen circumstances.
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that is the root of emergencies. and i think it is true at federal and state levels that, when the legislature write a law, it can't anticipate what is going to happen in the next emergency. that is why it is an emergency, because it doesn't really fit in the cases we saw before. that is the nature of executive power and that is the nature of successful executives, to respond. on, you are an executive at the hoover institution. hoover has responded amazingly to the crisis. it is an example of smaller scale, but if you want executives to have that ability, you can't write statutes that are so narrow, it ties them down for the next time. that is the balance you have to get. thomas: the next question is an essential part of being an executive. katie asks an ornery question. she wants to know your thoughts on the confederation of states that have formed coronavirus responses.
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professor yoo: katie should go back to the 18th century and visit the constitutional convention, because they did worry about this. they did worry about it a lot more than we do today. what happens if states try to group themselves by different regions, and try to pull away from federal authority? not surprisingly, they put a clause in the constitution that addresses this. it is called the compacts clause, and it prohibits states from making agreements and compacts with other states unless congress approves. generally, you are not allowed to. so the key is, is this really an agreement, or just state making promises they don't have to keep? that is the dividing line.
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so right now, these regional groups seem to be more like best practices, if one state violates them, there is nothing the other states can do to that state, but it is not a legal agreement. if that is the case, then it is ok under the constitution, i think. it is another way for states to compete with each other for the approval of their citizens and all of us who can move and may survive. thomas: interesting. i have a concluding question which is a fantastic question, and i am interested in your answer. it is a question about the future of federalism. it is asked by john newell. he says, since the new deal, the concept of federalism has become antiquated and today most people
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don't understand the concept. he goes on to describe what he defines as antiquated. maybe the pendulum will swing back toward state and local authority. what is your general prediction? professor yoo: i agree with john's description of what has happened. what is going to happen in the future is a prediction, people predicting a revival of federalism for the last 30 years, ever since president reagan came into office. the pendulum has swung back a little from the new deal and great society, but nothing approaching what was before the new deal. before the new deal, basically the federal government couldn't regulate production, agriculture, manufacturing, within a state. that is why baseball was not considered to be under federal power, because it was a game was played in one state at a time. i agree that you could see the pendulum shift back, because the successful responses to the
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pandemic of primarily been at the state level. you are seeing high approval ratings for governors, much higher than for the executive or legislative branches. so maybe liberals as well as conservatives now are starting to appreciate the virtues of decentralized government, in terms of competition, resiliency in institutions and protections of individual liberty. so yes, you could start to see, the supreme court has started to push the pendulum back a little, but it can't happen successfully unless it is not just congress on the president, but also state governors now, taking advantage of the good jobs they have done, popular support they have, to not lead us into the recovery and an effective and efficient way that is more balanced, that gives voice to people who are demanding a right to make a living, to reopen their businesses, not to be so ideological about a shut down everywhere at all times.
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that would do a lot to restore respect for federalism and use of federalism in the future. thomas: great. john, thanks. what a wonderful conversation. we are glad you joined us today. ♪ >> sign up today for c-span's a, --viding new updates daily c-span's daily newsletter. sign up today, it's easy. go to and enter your email in the word sign-up box. panel held asenate hearing on the impact of the coronavirus pandemic on the aviation industry. we will show you that hearing in a moment after a brief portion
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of what sara nelson had to say on "washington journal." she's little over 100,000 flight attendant the international president of the association of flight attendants. -- she's the president of the international association of flight attendants. of voluntary leave or furloughed. at the restaurant not necessarily going to work, because demand dropped to only 3% in march. arethere are others who continuing to be paid because of what we accomplished in the cares act, but that only goes through september 30. host: what does the overall situation look like for commercial air, air passenger travel in the u.s.? you've have talked about demand being down, but airlines have to keep the airplanes running for maintenance reasons and other reasons, correct? guest: that is correct.
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aviation is the backbone of our economy. it is necessary. alls an essential service across this country for all of our communities, large and small. while air travel demand is down, the aviation industry must continue to provide service, otherwise communities would be stranded without the goods and services they need and without the connection they need. we are moving essential workers around the country, to be able to address the virus. and there are people who still have urgent reasons to travel. so part of what was in the cares act was not only funding to continue to keep workers in their jobs connected to health care and off the unemployment line, but also to make sure that airlines can continue to deliver service to all those communities. host: are the airlines -- what are they doing to ensure that their workers, the gate attendants, pilots and flight
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attendants are safe in the current environment? so this is really difficult because we have experienced -- for decades and at the association on flight attendants has a communicable disease a checklist of that we pull out every single time, and its recommendations from the government, airlines and for members. often times, we are able to stop the spread of a communicable disease at transportation's door when you take swift action and everyone works together. so this is a bigger crisis, a bigger health crisis than we have faced in the last 100 years. and we do not even have the essential personal protective equipment for our health care providers on the front lines. so what we would normally demand is masks, gowns, gloves, sanitation wipes, and other that areour virus kits
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simply not available to flight attendants. that is why we made such a big deal when we started to see full flights again with the airplanes getting pulled down, demand picking up ever so slightly with the talk about opening up our economy again in some states, also from the white house. we saw a little bit of an increase in the passenger loads, even some full flights, which made it all important to demand that masks be mandated across the board for everyone, because we do not access to >> on wednesday, the senate commerce, science, and transportation committee looked at the impact of coronavirus on the aviation industry. several industry representatives testified, including former armors -- army secretary eric fanning, who is now president and


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