FIU School of Law Hosts Panel On: The Real Constitution in the Real 2020

Professor Ediberto Roman on the top left corner. Professor Nic Terry on the top right corner. Professor Howard Wasserman lower left. Professor Marie Cornelius

Elise Gregg / Contributing writer

To mark Constitution Day, FIU’s School of Law hosted a panel discussion on the major constitutional developments in 2020.

Moderated by FIU Law professor Howard Wasserman, the panel explored several constitutional controversies that arose throughout the year. Issues surrounding the United States’ response to COVID-19, the relationship between police, the military, civilians, and President Trump’s impeachment.

Professor Nicolas Terry of Indiana University introduced the first topic of discussion: the constitutional challenges resulting from the pandemic.

Terry reviewed the U.S. response to the virus, governments’ failures to protect citizens and the nature of any kind of government enforcement in response to COVID-19 laws.

“Judged by any metric, the U.S. response to COVID-19…has been…a failure,” Terry said.

He said much of this failure is due to “laws and policies designed to reduce inequalities…[that] have been found lacking,” as well as poorly enacted protections for essential workers and vulnerable communities.

Particular failures involved housing security, food security, the economy, and the encouragement of competition between states for resources [to combat COVID-19], according to Terry.

Terry also discussed the implications of the 10th Amendment, which grants any powers the Constitution does not grant the federal government to the states or the people.

He explained that under this amendment, Trump does not have control over state and local issues, which during the pandemic includes policing, contact tracing, and quarantine laws.

However, he also pointed out that states can’t be solely responsible for “practically and constitutionally interact[ing] with federal powers”. 

“One by one…the administration broke the rules for dealing with a national emergency,” he said, adding that good science, calm leadership, and supervision of the national emergency have been neglected.

Terry said the Constitution did not prevent the administration from doing this.

“The Constitution was not designed to protect us against incompetence and malice,” he told attendees. “If it was, it failed us.”

He believes constitutional and healthcare reforms are likely to occur and says both the FDA and CDC should be reconstituted as independent agencies.

“I’m not sure the [solution] is constitutional…this is primarily a political question,” Terry said, summing up his overall view on the US’s response to coronavirus. 

The next topic was Trump’s impeachment, presented by FIU Law professor Ediberto Roman.

Roman said many people are confused about the meaning of presidential impeachment, which occurs after the U.S. House of Representatives votes to do so.

Roman explained the constitutional basis of impeachment and the reasons behind Trump’s and Bill Clinton’s impeachments.

The Constitution lists three grounds for impeachment: treason, bribery, high crimes and misdemeanors. Roman said treason is the only one explicitly defined by the Constitution.

“Constitutional interpretation as it relates to impeachment is political,” Roman said. “[And] most scholars view the actual process…as whatever the [House of Representatives] deems appropriate.” 

Roman compared the Trump and Clinton impeachments to demonstrate the nature of politics in the two cases.

“[In] most instances…politicians are…selectively principled,” he said, adding that he believes both Democrats and Republicans tended to narrowly interpret the Constitutional grounds for impeachment when the president from their party was being tried, but took a broader interpretation when the opposing party’s president was being tried.

Roman concluded by discussing the justifiability of presidential immunity, which protects presidents from being sued for their actions as presidents, in the impeachment and indictment processes.

Granting presidential immunity for crimes goes against democratic values, said Roman.

“Especially if the president attained [the presidency] through breaking the law,” he added, referring to Trump’s election.

FIU Law professor Eric Carpenter, introduced the third topic, the constitutional issues highlighted by recent protests in response to police violence.

These issues involve freedom of assembly and speech, the role of police, federal officials, and the military in domestic affairs, and power divisions in the Constitution.

Carpenter said the Constitution has many grey areas.

“Our Constitution is filled with gaps and holes that we’ve filled in…with norms,” Carpenter said. “Generally [those] norms have been respected…[but] in the last few years [they have started] to fall apart.”

He explained that the Constitution doesn’t say much about national security, and that even what it says there is not “followed to the T.”

Much of the current media narrative on national security and the protests is “inaccurate,” according to Carpenter.

“The first very basic rule…is that federal troops…are not allowed to do law enforcement duties,” he told attendees. “Our national guard…can’t [abduct people off the streets] if they’re in [their normal] federal status.”

While the status of military troops and the national guard prevents them from infringing on state issues, Carpenter said other federal agencies (such as the homeland security department) have been responsible for some of the events seen on the news.

But Carpenter said the Insurrection Act of 1807, which authorizes the president to deploy federal troops within the U.S. in certain situations, could potentially allow the president to use federal troops to arrest citizens and perform searches and seizures.

If a state requested help, the president could invoke this act bilaterally. If not, the only way the president could is if federal or state laws were not being enforced. 

However, because of pushback from states, the president has been unwilling to unilaterally invoke the Insurrection Act, according to Carpenter.

The panel concluded by commemorating the centennial of the 19th amendment’s ratification.

In place of the previous professors’ more textual perspective, FIU Professor Alexandra Cornelius drew from her own experience as a woman of color growing up in both Haiti and the U.S.

Cornelius discussed her childhood in Haiti, recalling fearing its tyrannical regime.

While she lived in a freer society in the U.S., she and her siblings faced racism from an early age.

“As children of the city…we learned quickly to be vigilant…but only when absolutely necessary,” Cornelius said. Due to U.S. society’s emphasis on race, she said she had no choice but to embrace her “blackness”.

She realized many racial issues were deeply connected to gender “my feminist consciousness came later,” she said.

“[The 19th Amendment] is a milestone along the way [of extending] women’s suffrage to all women,” Cornelius said. But she believes it doesn’t reflect the actual progress of women’s freedoms in this country.

“Instead of pretending that we can return the Constitution to an imagined past…we must integrate past and present,” she said.