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Former OSHA Chief Says Agency Should Be Doing More; President Trump Claims Total Authority Over States; Supreme Court of the United States to Hear Arguments By Phone for the First Time. Aired 7:30-8a ET

Aired April 14, 2020 - 07:30   ET



DAVID MICHAELS, FORMER ASSISTANT LABOR SECRETARY, OSHA ADMINISTRATOR: And that OSHA's job is to make sure every one of their employers follows clear rules, make sure that when they're working, there are 6 feet between every worker and other workers in the public, that workers have access to sanitation, to running water and soap, basic things. This is not rocket science. But again, OSHA, Secretary Scalia are just -- they've abdicate, they're missing in action.

ALISYN CAMEROTA, CO-ANCHOR, NEW DAY: You know, we had -- we've had some very heartbreaking stories on here with the families of workers who have died, and some of them, I mean, have really stuck with us. One of them is a woman named Leilani Jordan, she was just 27 years old. She was a grocery store clerk in Maryland. And it was her parents' strong impression that her employer was not providing her with the protection that she needed, that she had a hard time getting a mask, and she had a hard time getting gloves, and she had a hard time getting hand sanitizer.

The grocery store chain has disputed some of that, but for people like Leilani, whose responsibility is it for her to get all of that? Her family? The grocery store? OSHA? I mean, how could that have been done better?

MICHAELS: It is the -- it is or was Leilani's employer's responsibility to make sure that she's safe at work, that's what the law says. And OSHA's job and President Trump's job is to make sure every employer does that. And that's simply not happening. But if we're telling people to wear masks when they go out, and we're telling workers to wear masks, it's up to the employer to make sure everybody has a mask and they have enough time do what they need to do to make sure they're safe.

To take breaks, to wash their hands, to wear gloves. Every employer has to do that, and it's OSHA's job to make sure employers follow those rules. You know, it's interesting, Washington State OSHA, which is a separate OSHA overseen by the federal OSHA but with greater dependence. Washington State OSHA said that very clearly. They said these are the rules and if employers don't follow them, they can be issued fines, they can be taken to court. Federal OSHA needs to do that. CAMEROTA: Really interesting to hear how it's supposed to work. David

Michaels, thank you very much for all of your expertise.

MICHAELS: Well, thank you, Alisyn.

CAMEROTA: President Trump claims he has total authority over the decision to reopen states. What does the constitution say about that? We discuss, next.



JOHN BERMAN, CO-ANCHOR, NEW DAY: So President Trump getting pushback after insisting incorrectly that he has the authority to reopen the country for business and not state governors.


UNIDENTIFIED FEMALE: You said when someone is president of the United States, their authority is total. That is not true. Who told you that?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: OK, you know what we're going to do? We're going to write up papers on this. It's not going to be necessary because the governors need us one way or the other because ultimately, it comes with the federal government.

UNIDENTIFIED FEMALE: Has any governor agreed that you have the authority to decide when their state --

TRUMP: I haven't asked anybody because you know why? Because I don't have to. Go ahead, please.

UNIDENTIFIED FEMALE: But who told you that the president has the total authority?

TRUMP: Enough.


BERMAN: All right, so, we were feeling nostalgic this morning. So, joining us now, back from cryogenic hibernation, CNN chief legal analyst Jeffrey Toobin. We're just glad to see you.

CAMEROTA: How have you gotten younger?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Oh, you know, I'm so glad to see you guys too. You know, there are a lot of people on social media who have been asking me, like, are you OK? And you know, that's not a facetious question these days. So I'm very pleased to say that I am fine, my family is fine, and it has been such a privilege to watch you guys and watch CNN's coverage and just -- you know, be proud to be part of the family, but from a distance for the last month.

BERMAN: Well, thank you for that, Jeffrey. Look, you've had a lot of time to do nothing but read the constitution over the last -- TOOBIN: Yes, certainly --

BERMAN: Several weeks. So, tell us, right, how does what the president is saying now comport with reality?

TOOBIN: Well, it doesn't. You know, the powers of the presidency are defined in article 2 of the constitution. And the whole idea behind the constitution is that certain powers are delegated to each branch of government. Like the power of the purse is delegated to the -- to the -- to the legislature, to the Congress. The president's delegated powers clearly are -- do not include telling the states when to open or close their governments.

And to know that, you only need to know that it was the governors who closed their states. The governors said the -- so the idea that the president can come in and reverse that order is just simply untrue. And even in that press conference yesterday, you saw Mike Pence starting to back away from that. And the president saying, well, it doesn't matter because they really will follow me. That's very different from saying, I have the power because he clearly does not.

CAMEROTA: A lot of people agree with you, like the Supreme Court, and the constitution. But I mean, more -- even from some interesting corners, people felt compelled to correct the president. So Congresswoman Liz Cheney tweeted out, "the powers not delegated to the United States for the constitution nor prohibited by it to the states are reserved for the states respectively or to the people." She tweeted that out.

And then Jonathan Turley, who is the constitutional law professor, of course, you know who was the sole witness for the Republicans during the impeachment process, the inquiry.


He said, "President Trump stated that when somebody is president of the United States, his authority is total. The constitution was written precisely to deny that particular claim. It also reserved to the states an individual's rights not expressly given to the federal government." Just interesting to hear that people felt so strongly to --

TOOBIN: To denounce --

CAMEROTA: To correct the president.

TOOBIN: Alisyn, the law is full of ambiguities and unsettled questions. This is not one of them. This is really very clear. And it really goes to the heart of how the constitution is set up. The federal government only has the powers that are spelled out in the constitution. If it's not spelled out in the constitution, it goes to the states. That's been true since John Marshall was Chief Justice at the beginning of the 19th century. And it's just -- this is not up for debate.

BERMAN: Yes, there are only 10 amendments in the bill of rights so they're all a pretty big deal. And when amendment 10 --

TOOBIN: Yes, they are.

BERMAN: Actually is big enough to have a nickname, the reserve clause, you know, it's an especially big deal. That's what Liz Cheney is quoting there. Again, Jeffrey, if you've been up all night looking at Twitter, looking at amateur legal analysts, some people will say, well, what about the commerce clause? Doesn't the president have the ability to regulate interstate commerce? How would that come into play here?

TOOBIN: Well, the federal government does have the ability to regulate interstate commerce if Congress passes a law and the president signs it. Now, the scope of the commerce clause is what counts as commerce is something that the courts have debated for many years. You may recall that the Obamacare law was found outside the commerce clause but it was upheld by Chief Justice Roberts on the grounds that it was a legitimate tax.

But there is no argument that the Congress has done anything to authorize the president. Now, we can have an interesting constitutional debate about if Congress were to pass a law under the commerce clause, and the president would sign it relating to the closure of government businesses. But Congress has not done that.

And again, to know that, to see that, we only see that the president -- that the governors have been in control of this issue from the start. And, you know, there's no sign that they're going to change it. And all the governors, I know you just talked to Ned Lamont and you're going to talk to Governor Cuomo who said this yesterday, it's like, well, like where has he been?

Because he hasn't even tried to use this power before, the governors have done it by and large successfully, I would say. So, I mean, this is something that, as I say, is really not a close constitutional question.

CAMEROTA: Well, this has been an interesting academic exercise, and I use the term interesting loosely --

TOOBIN: Thank you, Alisyn.

CAMEROTA: I'm OK, well, I stand by it in that case. But practically speaking, OK, which is what I think we need to pivot to, the president thinks he has this authority. The president talks about it a lot. The president believes that he has total authority. This isn't the first time that he said that. So how do we think that will play out in -- as we go forward in this pandemic?

TOOBIN: Well, now we're in the realm of politics. And, of course, politics matters a great deal. A lot of people in the world want to get back to work, want the businesses and schools and government to start to open again. If the president of the United States says, I want this done by such and such a date, there will certainly be many governors who say, OK, let's get to work and let's do this and let's figure out a way to do it safely. So, you know, the president has the famous bully pulpit. He can say

things that certainly have an impact in the real world, and certainly in the states that are more sympathetic to him and less affected by the virus. There will be a lot of momentum to try to follow that order. But in terms of actual legal significance and legal binding, you know, the binding nature, there is nothing the president can do.

But you're right that in terms of, you know, just advising the government and the states, there is something that the president can do.

BERMAN: Very quickly, Jeffrey, you've written a book on the Supreme Court, one of your many books. The Supreme Court is going to hear remote arguments for the first time -- I'm sorry, two books on the Supreme Court.


But how big of a deal is it? Listen, he's back on TV for the first time in a month and like just, you know, correcting everything. How big of a deal is it that the Supreme Court will hear remote arguments?

TOOBIN: Well, you know, the Supreme Court is a conservative institution. And I don't mean that in the left-right sense. You know, about itself, it doesn't like change. And they have been very reluctant to do any sort of technological innovation, they don't do live streaming of their arguments.


This is a big -- this is a big deal. I think it's a very good -- it's a very positive development. It's good that the court can get its work done. I think, you know, it will be interesting for the public to listen to it live. The image of the justices doing their arguments in their bathrobes instead of their judicial robes is an excellent one that everyone should have in their minds, and so, I'm for that.


CAMEROTA: John and I are in our pajamas from the waist down, if you must know. Jeffrey, we've missed you. This has been fun.

TOOBIN: I've missed you guys, too, see you.

CAMEROTA: See you soon.


CAMEROTA: OK, New York governor and six other governors are joining forces to come up with a plan on how to reopen their states. Governor Andrew Cuomo joins us live, next.


[07:50:00] CAMEROTA: More than 10,000 people in New York have died from coronavirus. There have been nearly 200,000 cases in the state. But New York's governor sees promising signs. He says the worst is over for his state if people continue to socially distance. So joining us now is New York Governor Andrew Cuomo. Good morning, governor, great to see you. How do you know the worst is over here?

GOV. ANDREW CUOMO (D-NY): Well, Alisyn, good to be with you. We've been watching the numbers literally every day. Number of new hospitalizations, intubations, ICU, number of deaths, unfortunately. And the big first question was, can we get control of this virus? Can we stop the spread, right? Because otherwise, we would have really been in a difficult situation.

When will those number of new cases stop? And we're seeing quote/unquote, "flattening of the curve", another new expression, but the increase has slowed and has stabilized. It's not great news, but it says we can control the spread. And you see that in the numbers over the past five or six days that there's a flattening of the curve, a plateau, if you will.

CAMEROTA: That is really good news. So, I know that you're talking to neighboring governors about what next, about how people could get back to some semblance of normal. But this morning, we have this model from the University of Washington that the experts have been using, that the peak doesn't hit in Connecticut, one of the neighboring states for 12 more days. So, how can you even have that conversation with Governor Lamont there?

CUOMO: Well, it's a good point. And look, anyone who tells you, Alisyn, I know what comes next doesn't even understand the question let alone have the answer. Nobody has been here before, this is totally unchartered territory. And, you're right, you have different peaks of that curve and different areas. So we're not talking about the next two weeks or three weeks, we're talking about months, we're talking about a phase to reopening, and the safe reopening.

We're talking about a reopening that has a public health plan and an economic plan totally coordinated. Our behavior has stopped the spread of the virus. God did not stop the spread of the virus. And what we do, how we act --


CUOMO: Will dictate how that virus spreads.

CAMEROTA: But governor, what does months mean --

CUOMO: If I say --

CAMEROTA: In New York? I mean, when you say we have months, meaning nobody is going back to work or going outside or restarting the economy here for months yet?

CUOMO: No, it means a phased reopening. It means there is no light switch. It's not binary. Not everybody -- it's not going to be next Tuesday, we all go back, Amen, you can leave your homes. It's going to be a phased process. We have to bring in testing, so that with testing as we're doing this reopening so that we can gauge whether or not we're increasing the virus spread. We have to start with really what's an expansion of essential services, right?

Because it's not that the economy was closed down. You can get on a bus, you can get on a train, you can buy food, but expand that list of essential services.


CUOMO: And that phase, that evolution of the economic reactivation is what we're talking about.

CAMEROTA: But I've heard -- I have heard you say before testing, and that testing is key, widespread testing is key to being able to open effectively. But I've also heard you say that the state doesn't have the capacity for widespread testing, and for whatever reason, the federal government and the White House doesn't seem to have the appetite or -- I don't know, capacity for widespread testing. So where does that leave you?

CUOMO: Yes, in a conundrum, as we would say. But that is -- that is the tension. I understand the desire to get back to work quickly. I understand the desire to get out of the house, I have cabin fever, I see it on every level. My state is hemorrhaging economically. We have a $10 billion deficit. I want to get out of the house. Trust me. Everybody does.

But if you -- if you move too quickly and not smartly, you will see the numbers go right back up again, and you'll have to do another lockdown. We're watching other countries, Alisyn, that are going through this. And they've shown that when you move too precipitously, you create an issue and then you have to go right back to square one, and this is not about going back to square one.

So, we have to temper our desire and emotion with our intelligence. Start to reopen, watch how many infections are increasing, do testing, so people know that this is being done smartly, and you can watch the infection rate. And we have to develop that testing. Yes, that is a new challenge. We've never done it before. Nobody ever heard of it before. But we have to have that reality as we go forward.


CAMEROTA: And you think that in the next weeks or months, New York will have the capacity for that kind of widespread testing.

CUOMO: We have to be developing it, along with this phased re-entry. And the federal government has to be realistic about this. You can't just wish it and then, it is so, right? We went through a -- the first phase of this, if you will, let's learn from it, we didn't know what was happening then either. We learned that we had to develop additional hospital capacity and the Army Corps of Engineers built thousands of beds of hospital capacity, and we did things we never did before. That's going to continue. We have to do testing like we've never done it before. We have to do

disinfecting of our public facilities like we've never done it before. You have to clean trains and buses in a way you've never done it before. How do we do these things? But it's not, I want to get out of my house, so let's all run outside. We know what will happen if we do that.

CAMEROTA: The governor of Connecticut said for his state, not before May 20th, do you have any not before date for New York?

CUOMO: I don't have -- look, the Governor of Connecticut, Governor Ned Lamont is a colleague of mine, he's very smart. The -- and I tend to agree with everything he has said all through this situation. I haven't studied the dates. I don't know the dates. I know it's a process. I know we start and then we see how it goes, Alisyn. Nobody can tell you this, this is what's going to happen in June, this is what's going to happen in July.

We've just never been here before. And all the experts who did predict what was going to happen, it turned out they were wrong, including the White House and CDC, and all the great universities and the public health experts because we changed the trajectory of the virus by our actions. And that's the real important lesson to me.


CUOMO: Nobody knows, they have projections, but it depends on what you do.


CUOMO: You tell me the behavior of New Yorkers today, I'll tell you the infection rate in four days. So it's totally in our control, and if we're smart, we do it once and we do it right.

CAMEROTA: President Trump, as you know, said yesterday at the White House press briefing that, quote, "the president calls the shots. Governors can't do anything without the approval of the president of the United States." Your reaction.

CUOMO: We had this argument, it was done a long time ago, people by the name of Hamilton and Jefferson and Madison and Washington, and they concluded this. They wrote a document that's called the constitution of the United States. And it's an explicit and intricate balance of power between the federal government and the state governments. And it says the federal government does not have absolute power.

It says the exact opposite that the president said. It says that would be a king. We would have had King George Washington, and we didn't have King George Washington and we don't have King Trump, we have President Trump. And remember, the colonies created the federal government. The states created the federal government, not the other way around.

We have a Tenth Amendment that is explicit, certain responsibilities are state responsibilities, health, welfare, quarantine, those are health responsibilities.


CUOMO: So the president should not even think of going there. That would be divisive and political, and it would be totally contrary to everything we've been trying to do by working in a cooperative fashion.

CAMEROTA: But practically speaking, if President Trump orders you to reopen New York on some date, what do you do?

CUOMO: If he ordered me to reopen in a way that would endanger the public health of the people of my state, I wouldn't do it. And we would have a constitutional challenge between the state and the federal government, and that would go into the courts, and that would be the worst possible thing he could do at this moment would be to act dictatorial and to act in a partisan, divisive way.

Keep the politics out of it. I know he's running for re-election. I know this is a political year. I know it's a hyper-partisan environment. I know it's red versus blue. Not anymore. Not when it comes to this. This is red, white and blue. I have 10,000 deaths in my state. They didn't -- this virus didn't kill Democrats or Republicans. It killed Americans and it killed New Yorkers.

And I'm not going to go down a political road. And the president also argued last night, you know, he worked in a bipartisan way, and he worked cooperative.


CUOMO: Well, stick then with the cooperative theory as opposed to the dictatorial theory.

CAMEROTA: One last question, and that is, you know, the president had sort of washed his hands of some of the responsibility.