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On Tuesday, March 24, the New York Times made public a package of legislative proposals the Department of Justice submitted to Capitol Hill and reported by Politico on March 21. It is unclear whether any of these proposals will become law, but members of Congress are reportedly considering some—and outright rejecting others. It is especially unclear if any of the provisions will make it into the must-pass $2 trillion stimulus legislation to address the COVID-19 pandemic that has been the subject of intense negotiations on Capitol Hill for several days. The COVID-19 crisis is already posing challenges for the nation’s courts, trial proceedings, law enforcement efforts and prisons. The question is what new authorities are needed to address those challenges while balancing civil liberties. Civil society groups have already expressed alarm about the Justice Department’s ideas.
What follows is a summary of the Justice Department’s proposals, combined with some initial thoughts on the provisions—which are diverse in their subject matter, merits and responsiveness to the crisis. Indeed, the proposals range from quite worthy, to well intended but flawed in execution, to genuinely horrid. In what seems like a bizarre parody of Attorney General William Barr’s Justice Department, one proposal even contemplates deporting infected aliens to countries where they will face torture—and no, we are not making that up.
One initial general comment: The proposal is notably slapdash; it reads as if it were pulled together after a rushed all-call to Justice Department components for a wish list under the circumstances. The summary has typographical errors. Some pages are numbered incorrectly. There isn’t a standard format across the proposals. Some of the proposals lack justifications, and some of them have no suggested legislative language.
The presentation of the package suggests that this is not a prioritized, well-thought-through proposal that went through normal executive branch vetting. This has two effects. One is that the proposals responsive to the crisis are presented in a somewhat underdeveloped fashion. The other is that, no doubt, things got thrown in there that components of the Justice Department have been unable to get in prior contexts.
The following appear in the order in which they appear in the Justice Department’s package:
Extended Period of Antitrust Review of Merger Proposals. This proposal would amend the Hart-Scott-Rodino Act (15 U.S.C. § 18a) to authorize the assistant attorney general for the Justice Department’s Antitrust Division and the chairman of the Federal Trade Commission, acting jointly, to toll all premerger waiting periods for 15 days in response to a natural disaster, pandemic, lapse in appropriations or other force majeure. The tolling could be revoked early, or renewed as many times as necessary.
The proposal seems unobjectionable. Mergers are complicated matters that warrant close scrutiny—scrutiny that is tough to conduct when everyone is at home and economic chaos is the norm. Giving the regulators a certain degree of deadline flexibility makes sense. There is, to be sure, some potential for gamesmanship—the flexibility could allow the administration to string along a proposed merger for long periods of time. But the greater danger of not extending is that reviews that are necessary don’t take place because the resources to conduct them in a timely fashion are not available.
Tolling of Statute of Limitations for Criminal Antitrust Violations. This proposal would suspend the running of the statute of limitations for offenses arising under 15 U.S.C. § 1, 2, and 3 for 180 days from the date of enactment, or 60 days after the termination of the national emergency pursuant to 50 U.S.C. § 1622. The relevant crimes include price fixing, bid-rigging, and customer and territorial allocation, and are normally subject to a five-year statute of limitations. (The president declared a national emergency pursuant to 50 U.S.C. § 1621, because of the COVID-19 pandemic, on March 13.)
This proposal is a bit more complicated. The justification is that these are unusually complex cases, and the government’s inability to get information during a national emergency is hindered. Fair enough. But the government handles lots of highly complicated cases. Why these ones and not all the others? Moreover, the open-ended nature of the tolling here raises concerns. The president could theoretically game the statute of limitations indefinitely merely by leaving a national emergency declaration in place—thus keeping the threat of prosecution dangling over people’s heads.
Emergency Authority to Delay or Toll Judicial Proceedings. This proposal would add a new Section 1660 to Title 28 to allow the chief judge of any trial court of the United States to “delay, toll, or otherwise grant relief from time deadlines imposed by otherwise applicable statutes and rules of procedure” in the event of a natural disaster, civil disobedience, or other emergency situation requiring the full or partial closure of courts or other circumstances inhibiting the ability of litigants to comply with deadlines. (The explanation says that individual judges currently have this authority, and this new provision would enable the chief judge of an affected district to ensure that all judges in that district address these issues in the same way.) It would supersede all otherwise applicable statutes, including statutes such as the Speedy Trial Act, and any statutes or rules affecting prearrest, postarrest, pretrial, trial, and posttrial procedures in criminal, juvenile, and all civil proceedings. The chief judge of a court of appeals would have a similar authority to enter such orders governing appellate proceedings “for such period as may be appropriate.”
The idea of building flexibility into the trial system in the event of an emergency is reasonable. The idea of giving chief judges a certain ability to impose uniformity on their courts is not crazy either. That said, the delegation of power here is quite broad. By its terms, it would allow a chief judge, on his or her own motion or at request of the Justice Department, to toll statutes of limitations or filing deadlines—and to do so notwithstanding the terms of the Speedy Trial Act. It is not entirely clear why the current discretion granted to individual judges is inadequate. The proposal here may be a reasonable response if judges are behaving in widely varying fashions, but the necessity of this shift is not obvious.
Suspension of Statutes of Limitations Pursuant to State of Emergency. This proposal would add a new Section 3302 to Title 18 that would, “notwithstanding any other provision of law[,]” allow the chief justice of the United States to toll the statute of limitations for all federal criminal and civil offenses during a national emergency and for one year after the emergency ends, upon issuing a finding that “emergency conditions will materially affect the functioning of the federal courts.” (It would apply only for national emergencies described in 50 U.S.C. § 1621, a statute triggered by the president.) This provision would not apply to any cases in which the statute of limitations expired prior to enactment of the law containing this provision.
This seems like a bad idea. The power to toll statutes of limitations is a congressional power, not a judicial one. National emergencies that affect the functioning of the courts nationwide are rare. For Congress to give this authority to the chief justice, having already given the president the power to declare the national emergency in the first instance, would effectively allow two men to jointly suspend statutes of limitation for all federal crimes nationwide. The better approach, if Congress believes a tolling of statutes of limitation in this crisis to be necessary, would simply be to declare them tolled for the duration of the current state of emergency and for a year after it ends—rather than creating a general power in the hands of the chief justice to do so whenever the president declares circumstances as requiring a national emergency declaration. This is effectively what the department is proposing for the Antitrust Division above. At least as a formal matter, that approach seems a better one that the one reflected in this proposal.
Exclusion of Time Under Speedy Trial Act From Delay Due to National Emergency. This proposal would amend 18 U.S.C. § 3161 to provide for automatic exclusions of time under the Speedy Trial Act for suspensions of statutes of limitations under the new 28 U.S.C. § 1660 (above, triggered by the decision of chief judges of district or appellate courts) or the new 18 U.S.C. § 3302 (above, triggered by the decision of chief justice).
The provision flows naturally from those earlier ones, but it raises the question of whether those provisions are themselves good ideas. Should a single district court chief judge be able to wave her hand and amend the Speedy Trial Act deadlines for all defendants in her court? Should the chief justice really be able to do the same with statutes of limitations nationwide?
Prioritizing COVID-19 Testing for Federal Law Enforcement Personnel Testing Authorities. This proposal would require (uses “shall”) the Department of Health and Human Services to prioritize distribution of COVID-19 test kits to law enforcement components of the Justice Department, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration (DEA), the FBI, and the U.S. Marshals Service. It’s hard to object to this in principle, except that what it means is not at all obvious. Surely, the Justice Department does not mean that Health and Human Services should prioritize distribution to Justice Department components over, say, health care workers. What about active-duty military, who live in close quarters and whose unit readiness would be compromised by spread of the virus? The provision does not specify in relation to what Justice Department components should be prioritized. To the extent that the Justice Department is saying that ensuring the health of law enforcement officers is important, they will likely get no argument.
Danger Pay/Premium Pay for Marshals Service. The first proposal in this part of the package would take away the discretion the State Department has to decide whether Marshals Service employees overseas get danger pay. (Under current law, the Department of State makes the decision on whether a particular group of federal employees overseas can receive increased pay allowance on the basis of civil insurrection, civil war, terrorism or wartime conditions in that area.) This change would put the Marshals Service in the same position as their DEA and FBI colleagues—those agencies already have the authority to make overseas danger pay decisions for their employees. The second proposal is a more general exception to the limitation on premium pay in 5 U.S.C. § 5547(a). The effective date would be Dec. 31, 2019.
It is not entirely clear how these proposals relate directly to the current crisis. The summary page of the document states that waiving the pay cap is necessary “for all personnel who may be involved in emergency operations this year. With intense emergency operations and a possible degradation of the workforce due to illness. It is probable that many USMS employees may reach the annual pay caps this year.” It also states of the overseas danger pay provision, “The urgency of this proposal has intensified with COVID, as USMS personnel are now subject to additional risks when executing certain foreign extraditions.” Perhaps. But the proposal reads as though the Marshals Service has wanted these changes for a while and sees an opportunity now to get them.
Video Teleconferencing for Preliminary Proceedings. This proposal would remove the requirement to obtain a defendant’s consent to use video teleconferencing for initial appearances and arraignments in connection with preliminary federal criminal proceedings. It would also make it possible to use video teleconferencing for other preliminary hearings not currently authorized. The justification says that the aim is to limit disruptions caused by COVID-19 and ensure that defendants are able to access courts shortly after their arrest.
This is a significant change, almost certainly justified in the current crisis. But the change would not be limited to the current crisis, and Congress should not make it on a permanent basis without more consideration. Having fewer in-person hearings during a period of rapid contagion will help ensure the safety of court staff, judges, attorneys and defendants. So, we certainly don’t oppose loosening the rules regarding videoconferencing. That said, we see no reason to do this on a permanent basis based on what is presumably a temporary contagion. The right of a defendant to be present at hearings—not merely to be virtually present but to be physically present—is a serious matter, and the general principle that videoconferencing should require the consent of both parties seems right. Our suggestion is that this provision be recast in somewhat the same format as the statute of limitations tolling provisions discussed above. In the presence of a national emergency affecting the operations of the courts, judges should have the authority to hold preliminary hearings by videoconference at their own discretion.
Public Health Inadmissibility. This provision would amend 8 U.S.C. § 1182 to specify that “coronavirus, COVID-19, or SARS-CoV-2 or any disease associated therewith” is part of the existing provision making ineligible for visas or admission any alien “who is determined … to have a communicable disease of public health significance.”
It is not clear what work, exactly, this language is doing given that it seems clear that COVID-19 is a communicable disease of public health significance. In any event, it seems reasonable not to admit someone to the country who actively has COVID-19. But there is less clarity about how this provision will impact, for example, foreign students who apply for a student visa to attend a U.S. university for the fall of 2020. If the student has COVID-19 right now, that student likely will not have the disease in the fall of 2020. So it is worth considering whether this provision would prevent people from obtaining visas for entry later—which could have an unintended impact over the longer term.
Asylum. This provision would amend 8 U.S.C. § 1158 to not allow an alien to apply for asylum if the secretary of homeland security or the attorney general determines that the alien “is infected with a communicable disease of public health significance” or “is subject to a presidential proclamation suspending and limiting the entry of aliens into the United States.”
This is silly, and also potentially a broad delegation of authority to the president. It is perfectly reasonable not to allow entry into the United States of aliens who are carrying the virus. But asylum applications take a long time. The adjudications take even longer. Is the Justice Department proposing that migrants present in the country should not be permitted to make an asylum claim if they are infected? How would that protect the public health with respect to a person already present and seeking to make an asylum claim? The idea of not allowing someone even to apply for asylum while infected seems like a kind of non sequitur driven more by Trumpian anti-immigration politics than by public health concerns.
In addition, the language disallowing asylum applications by aliens subject to a presidential proclamation suspending and limiting the entry of aliens into the United States is potentially very broad—and its usefulness unclear. Clearly it would apply to the various proclamations addressing COVID-19 directly, like this one. It is unclear what would be achieved, from a public health perspective, by limiting such individuals—those already present in-country but to whom the presidential proclamations would apply—from applying for asylum. Moreover, what types of future proclamations might the president make that would trigger this provision? Granting such an open-ended delegation of authority to the president would be a mistake.
Detention, Release and Removal of Aliens Ordered Removed. This amendment would make it possible to remove someone to a country—even if that person is threatened there because of race, religion, nationality or political opinion—if that person has a “communicable disease of public health significance” or is “subject to a presidential proclamation suspending and limiting the entry of aliens into the United States.”
This provision is more than silly. It is cruel. For example, having disallowed asylum applications by people infected with the virus, the department now proposes that people with valid asylum claims, who happen to have the virus, should be deportable notwithstanding the threats they face should they be deported. The department offers no explanation of why the right answer for such people isn’t quarantine—why a brief period of potential contagiousness justifies sending a person with a genuine fear of persecution to the country where he or she faces that persecution. The department likewise offers no explanation for why those in-country, but subject to presidential proclamation suspending and limiting entry into the United States, should be subject to removal.
Protections of the Torture Convention in Removal Proceedings Would Not Apply to Aliens With the Virus. This amendment would add a new section to make any alien who has a “communicable disease of public health significance” or is “subject to a presidential proclamation suspending and limiting the entry of aliens into the United States” ineligible for protections under the Torture Convention.
No, Attorney General Barr is not proposing to torture aliens with COVID-19. He’s just proposing to let other governments torture them. The Torture Convention forbids, among other things, returning people to countries where they face a likelihood of torture or other cruel, inhuman or degrading treatment. This provision would remove that protection as applied to aliens with the virus, and aliens who are the subject of presidential proclamations suspending and limiting entry of aliens into the United States.
We would have assumed that this was the department’s April Fool’s Day joke, but April is still a week away. In any event, two weeks of quarantine for an infected potential torture victim is probably a better approach than defying the nation’s obligations under the Torture Convention by delivering the person to a country that will abuse him or her.
Expanding the DEA’s Ability to Monitor the Flow of Controlled Substances Delivered Across the U.S. This proposal would expand the Automation of Reports and Consolidated Orders System (ARCOS) to include all controlled substances, rather than just certain types of controlled substances. The proposal says it would improve the DEA’s visibility “over all prescribed drugs to ensure Americans have access to the drugs they need.” It would also switch a quarterly reporting requirement for manufacturers and distributors to every 30 days.
We are not qualified to evaluate this proposal. We do note, however, that its connection to the COVID-19 crisis is not obvious, at least not to us. The summary justification of this proposed legislative change as well as the one that follows says that the change would be “helpful to DEA to access to the data that would assist in determining drug supplies and supporting our role in public health and safety.”
Prescription Drug Monitoring Programs (PDMPs). This proposal does not include proposed legislative language but seems aimed at requiring states to share with the DEA information collected through the states’ PDMPs. The justification says that this data gap makes it difficult for the DEA to ensure an adequate drug supply and stop illicit diversion of controlled substances. It also makes it difficult for the DEA to accurately set the nation’s drug quota each year.
Again, this proposal involves policy areas in which we have no expertise, so we will not comment beyond saying that any current legislative efforts ought to be aimed at the functioning of law enforcement and the judiciary in the emergency context of the COVID-19 crisis, rather than at more general policy changes.
Bureau of Prisons (BOP). This proposal also does not include proposed legislative language but seems aimed at prioritizing the BOP’s ability to order and obtain personal protective equipment and test kits. The BOP is “currently competing and engaging the same landscape of vendors as all other federal agencies and private entities.” It also seems aimed at expanding the BOP’s use of home confinement past the current legal limits, in 18 U.S.C. § 3624, of 10 percent of the term of imprisonment or six months.
Because there’s no legislative language available, it’s hard to evaluate these ideas with any precision. That said, this idea seems very sound. Prisons are a cauldron for infectious disease. Getting people out of them into home confinement who don’t need to be incarcerated is its own form of social distancing. And making sure prison staff have adequate personal protective equipment and testing kits is certainly a worthy undertaking, particularly since the Justice Department notably left the Bureau of Prisons personnel off its list of components (described above) for which it wants the Department of Health and Human Services to prioritize testing.