AIER: Fed District Court Holds Stay at Home Orders Unconstitutional

AIER has an article on a recent court decision from the federal District of Western Pennsylvania – Federal Court Holds “Stay-at-Home” Orders and Mandatory Business Closures Unconstitutional. The author hopes that the judicial branch is here to finally save people from executive overreach, but there is a way to go before one district court decision spreads across the land.

or six months, Americans in 43 states have lived under unprecedented executive orders restricting freedoms as basic as whether they can work, leave their homes, and expose their faces in public. These mandates are not duly enacted laws — they are orders issued by one of the three branches of government. They constitute a system of one-person rule — something none of us expected could ever happen in the United States — and no one, apart from the 43 newfound state dictators, is sure when it will expire.

Today, after six months of this, a Pennsylvania Federal Court in Butler County v. Wolf reviewed the indefinite “emergency” restrictions imposed by the executive branch of Pennsylvania government, declaring limitations on gathering size, “stay-at-home orders,” and mandatory business closures unconstitutional. Refusing to accept the alleged need for a “new normal,” the Court stated that an “independent judiciary [is needed] to serve as a check on the exercise of emergency government power.”

About time. The Judicial Branch is coming to save us.

The Judicial Branch exists to check Executive authority even in times of emergency.

Abraham Lincoln once said, “Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” In 2020, sad to say, there are numerous governors across this nation who have perverted the Constitution — New Jersey’s Phil Murphy even declared its interpretation “above his pay grade” — with unprecedented orders restricting Americans’ rights to peaceably assemble, practice their religions, earn a living, travel freely, engage in commerce, and even manage their own health and exposure to risk. While global pandemics pose challenges for governors — particularly when the population is panicked by a hysterical mass media — entire populations cannot be indefinitely subjected to tyranny and deprived of fundamental rights and liberties. As the Court said today:

“There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat. Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment.”

We cannot allow our freedom to become “ink on parchment.” Many of our governors seek to do just that — they won’t even designate an endpoint to their “emergency” powers. When does the “emergency” end? This should be easy to say — X number of deaths per million, X number of deaths over X number of weeks — yet they will not say it. They want us to live under the constant threat of house arrest and livelihood deprivation, even though all we ever agreed to was a two-week effort to “flatten the curve.” We never agreed to an indefinite or permanent “new normal,” or to do whatever our wise governor dreams up and declares necessary to “eliminate infections.”

“In times of crisis, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions — while expedient in the face of an emergency situation — may persist long after immediate danger has passed.”

Thank you, Judge Stickman, for recognizing our predicament, and for taking the first step towards restoring our freedom today by reminding those with authoritarian leanings that “governors cannot be given carte blanche to disregard the Constitution for as long as the medical problem persists.” The response to an emergency cannot undermine our system of constitutional liberties, or the system of checks and balances protecting those liberties. Liberty before “governor-guaranteed safety” — this is the American way, famously stated by Benjamin Franklin: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

“Stay-at-home orders” are so draconian as to be presumptively unconstitutional.

Substantive due process is “a recognition that the government may not infringe upon certain freedoms enjoyed by the people as a component of a system of ordered liberty.” Plaintiffs in Butler County v. Wolf argued that the governor’s “stay-at-home order” violated substantive due process in restricting intrastate travel and freedom of movement in a manner that exceeded legitimate government need and authority. Incredibly, Governor Wolf responded that his stay-at-home orders are “not actually orders at all, but merely recommendations,” and that they are constitutional because they do not “shock the conscience.” I’m willing to bet that Pennsylvania citizens would beg to differ.

In analyzing the constitutionality of “lockdowns,” the Court first traced the origin of the concept to its source — Wuhan, China — and recognized that population-wide lockdowns are “unprecedented in American law.” Even during the Spanish Flu, the deadliest pandemic in history by far, “nothing remotely approximating lockdowns were imposed.” Although the United States has faced many epidemics and pandemics, “there have never previously been lockdowns of entire populations — much less for lengthy and indefinite periods of time.” Quarantines are legally recognized, but refer to the isolation of sick people and those known to have been directly exposed to sick people. They are statutorily limited to the duration of the incubation period of the disease — a period which Governor Wolf’s “lockdown” plainly exceeded.

Not only have lockdowns never been imposed in American history, but they are not even mentioned in recent pandemic management guidance offered by the Centers for Disease Control and Prevention (“CDC”). In its 2017 guidelines for managing pandemics, the CDC recommends numerous protective measures such as hand washing, limited-duration school closures, and cancellations of mass gatherings, but nothing “even approximating the imposition of statewide (or even community-wide) stay at home orders or the closure of all [‘non-essential’] businesses.” Even for pandemics of “Very High Severity,” the CDC recommends only voluntary isolation of sick persons and their household members. “This is a far, far cry from a statewide lockdown such as the one imposed by [Governor Wolf’s] stay-at-home order.”

The Court speculates that United States lockdowns were imposed due to a “domino effect” instigated by China, a nation “unconstrained by concern for civil liberties and constitutional norms.” In the United States, by contrast, the default concept is liberty of movement. Our government has never before dreamt of implementing mandatory house arrest, no matter the threat — it has always used far less restrictive, voluntary means to manage pandemics, similar to those used by Sweden during COVID19. (Notably, Sweden has lower per-capita mortality for weeks 1-33 of 2020 than it did for weeks 1-33 of 2015 — a far better mortality outcome than heavily locked-down U.S. States such as NJ, NY, and MI).

Ultimately, the Court concludes that lockdowns are so draconian that they are nearly “presumptively unconstitutional”:

“The stay-at-home components of Defendant’s orders were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of lockdown may render this a high bar, indeed.”

This bears repeating: the burden of proof that “lockdown” is absolutely crucial to achieve a scientifically-substantiated goal rests with the government. The burden does not rest with the people to disprove the necessity of lockdown. Liberty is the default!

Mandatory business closures violate the Fourteenth Amendment’s guarantee that every citizen may support himself in an occupation of his choosing.

Mandatory business closures, like “stay-at-home” orders, are utterly unprecedented in American law. There is not even any historical jurisprudence for the Court to consider in its analysis of the issue — a rare event, indeed…(continues)

EFF: COVID-19 and Digital Rights

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Here are their thoughts on threats and opportunities arising from COVID-19 response, COVID-19 and Digital Rights.

Surveillance. Governments around the world are demanding extraordinary new surveillance powers that many hope will contain the virus’ spread. But many of these powers would invade our privacy, inhibit our free speech, and disparately burden vulnerable groups of people. Mindful of the stakes, we ask three questions when analyzing proposals that would provide greater surveillance powers to the government: Would the proposal work? Would it excessively intrude on our freedoms? Are there sufficient safeguards? Different proposals raise different issues. For example:

Government has not shown that some intrusive technologies would work, such as phone location surveillance, which is insufficiently granular to identify when two people were close enough together to transmit the virus.

Some surveillance proposals are too dangerous to a democratic society, such as dragnet surveillance cameras in public places that use face recognition or thermal imaging, mounting such technologies on drones, or giving police officers access to public health data about where people who have tested positive live.

Some technologies, such as aggregate location data used to inform public health decisions, need strict safeguards.

No COVID tracking app will work absent widespread testing and interview-based contact tracing. Bluetooth proximity is the most promising approach so far, but needs rigorous security testing and data minimization. No one should be forced to use it.

Many new government surveillance programs are being built in partnership with corporations that hold vast stores of consumers’ personal data. We need new laws to protect our data privacy.

Free speech. The free flow of ideas about COVID-19 is vital. This includes anonymous whistle-blowing about containment efforts, online criticisms of government responses to the crisis, and prisoner access to social media to tell the world about outbreaks behind bars. Governments will inevitably abuse any new powers to censor what they deems false information about the virus. When online platforms increase their reliance on automated content moderation, in part because human moderators cannot safely come to work, those moderation “decisions” must be temporary, transparent, and easily appealable…

Government transparency. Government decision-making about the virus must be transparent. When governments temporarily close the physical spaces where they make decisions, for purposes of social distancing, they must adopt new transparency accommodations, such as broadcasting their proceedings. While government responses to public records requests may be slower during this public health crisis, the outbreak is no excuse to shut them down altogether…(continues)

AIER: Why Didn’t the Constitution Stop This?

Robert Wright at the American Institute for Economic Research writes about Constitutional issues surrounding the pandemic and lockdown orders in Why Didn’t the Constitution Stop This?

The genius of the U.S. Constitution is that the Framers, especially James Madison and Alexander Hamilton, saw it as a constraint on bad policymaking. Given the number of really bad policies that various US governments and officials, from school boards to POTUS, have implemented, especially recently, it is high time to restore weakened or lost Constitutional restraints against arbitrary rule.

Five forces threaten Americans with destruction: 1) nature; 2) foreign powers; 3) the national government; 4) state and local governments; 5) themselves. The threat from 3, 4, and 5 is double-edged, meaning that Americans can be harmed by the actions of those forces as well as by their inaction.

The national government, for example, can harm Americans by being insufficiently prepared for natural catastrophes and foreign incursions, as with Hurricanes Katrina and Rita and the 9/11 attacks. It can also harm Americans, though, by doing too much, as with the invasion of Iraq and the way-too-long occupation of Afghanistan. (Relying too much on FEMA instead of states or private initiatives may be another example, but less clear cut than the needless wars.)

The national and state governments are supposed to check each other’s power, so that if one overreaches, the other can thwart it. We usually think about this in terms of “states’ rights” but in fact federalism, as the concept is sometimes called, runs both ways: the states should check the national government when necessary but the national government should also check the power of the states when they overreach, as they sometimes do.

Advocates of states’ rights often cite the Tenth Amendment, which reads in its entirety “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the word “expressly” does not occur before “delegated” in the ratified version of the amendment, however, it is among the weakest parts of the Constitution.

Traditionally, though, the states retained primary control of so-called “police powers,” the powers that form the legal basis for the economic lockdowns that have imprisoned most Americans for over a month now. Books have been written about this stuff so obviously I cannot relate all the details and nuances involved but ultimately they matter little in the present case. The key point is that police powers, national, state, or local, do not provide carte blanche to governments. Specifically, the Constitution constrains state police powers in numerous ways.

Importantly, courts see Constitutional rights as tradeoffs between conflicting interests. So while the Constitution says that the national and state governments cannot infringe individual speech rights, they can pass laws that make it illegal for an individual, for example, to falsely yell “fire” in a crowded theater. The notion is that the property and natural rights of the theatergoers trump the free speech rights of the liar.

Similar restrictions apply to the right of assembly. All Americans have the right to assemble with other Americans for any lawful purpose but state police powers, the positive duty of states to protect the physical safety of assemblers and non-assemblers, mean that governments may restrict assemblies through permit systems.

Similar arguments are made to defend the pistol permit systems common in many states. They are bogus but show how far courts go to balance one person’s rights with those of others. If you believe that gun control laws should be followed because they are laws passed by democratically elected representatives you have missed the point of the Constitution, which, again, is to constrain policymakers, to protect individual Americans from the national and state governments and also other Americans.

Just because a majority wants some policy doesn’t mean that that policy is a good idea, after all. I imagine at one point in March 2020 a majority of Americans might have thought it a good idea to deport, tax, infect, or maybe even kill Chinese-Americans in order to make “them” pay for what “they” did to “us.” (I don’t want to link to evidence of that … just look at your social media feeds if you need evidence.) That is a typically ugly human reaction to trauma but one that would have been proven empirically wrong as well as morally bankrupt and economically inane (sunk costs). Thankfully, the Constitution remained strong enough to prevent that horror.

It did not, however, prove strong enough to prevent state governments from taking their police powers too far. They engaged in fancy word play to hide the fact that they acted without a shred of precedent. What they imposed is not a quarantine, which constrains the movement of sick people, nor a cordon sanitaire, which locks people into an afflicted area, nor a protective sequestration, which locks people out of an unafflicted area. Instead, they have implemented partial martial law (military rule essentially) by imprisoning Americans in their own homes without due process of law and stolen their property by shuttering their businesses. (Some recompense has been attempted but of course only bluntly and at a cost to all taxpayers, including those in states that did not shutter most businesses.)

Remember, just because a state has general police powers doesn’t mean it can do whatever it wants, whenever it wants, simply because its actions are popular, or passed into law, or urged by some scientist. Imagine, for example, if some executive thought everyone ought to drink bleach, crazy as that seems, and actually mandated it. Would you do it? (Hint: Don’t do it! Even if some guy in a suit or lab coat tells you that you must.) What if some leader believed that the coronavirus is spread primarily by clothing and mandated that we all go naked in public, except for our masks and gloves of course? Or if one thought an EMP (electromagnetic pulse) would solve the problem (and destroy all computers in the process)?

Any promulgation that violates the Constitution, in any way, shape, or form, is null and void. A federal judge has the authority to declare any state law or executive order unconstitutional and demand that it be revoked. Judges generally give governments broad leeway to protect “public health” but the policies must be rational and they must weigh the rights of all involved parties. Historically, many government epidemic responses never got litigated because the crises passed before suits could be brought and because quarantines, cordons, and sequestrations can make rational sense in specific situations. But, again, state governments for some reason have tried to combat the novel coronavirus with novel policies that come with huge negative side effects for everyone — workers, consumers, and taxpayers — and that have and will continue to cause deaths, minimization of which is the ostensible goal of lockdown policies.

Why draconian lockdown rules have not yet been deemed unconstitutional I still do not know, but the fact that a former federal judge who teaches at Harvard apparently does not know the difference between a quarantine and a lockdown might provide a clue…(continues)

Click here to continue reading at AIER.

16th Leg. Dist. Republicans Open Letter to People of Benton County

The Benton County Republicans for the 15th Legislative District have written an open letter to the people of Benton County about the county commissioners and their saying that they have no authority to resist the governor’s stay at home orders. The letter reads, in part:

…Shon Small, Jerome Delvin, and James Beaver made the statement “The Benton County Board of Commissions does not have the legal authority to override the Governor’s ‘Stay Home, Stay Healthy’ proclamation…” The Commissioners’ job is to oversee the county and also, we firmly assert, to protect the citizens from overreach of power by the capital. All three of our Commissioners are either willfully ignorant or just negligent in their role…

It is time to get business’s open and the people back to work. We firmly believe that every
person in Benton County is essential. We know there are veritable public health concerns and
those who ought to stay home, can chose to do so. The working people of Benton County
know what is best for them, not the Governor’s boot-licking Commissioners, whose income
rolls in whether they work or not. It’s time the Commissioners earn their paycheck and protect
the good and hard working people of Benton County from the bureaucratic double speak of
Olympia. The woes of King and Pierce County are not the identical worries of Benton
County; we are a different demographic, climate, economy, and culture. The citizens of this
community possess an undeniable right to make decisions autonomously from our State
government; to tailor our county government to serve the people of this area as is fitting to the
citizenry of this particular locality. Top down, authoritarian mandates from the capital are ‘one
size, fits the capital alone’ decisions – they are made without a thought of us here! We are
calling on the Commissioners to do what is prudent for Benton County; they are elected to a
very well compensated position, as a public servant, and ought to conduct themselves
accordingly…

Click here to download the letter in PDF format.

Independent: WA Gov. Inslee Says Trump “Fomenting Domestic Rebellion”

In a classic case of the pot calling the kettle black, Washington Governor Jay Inslee on Friday accused President Trump of fomenting domestic rebellion for daring to plan for the reopening of states. This despite Governor Inslee’s own efforts throughout his tenure as governor to destroy the liberties and property enjoyed within his own state, creating an antagonistic divide between Eastern and Western Washington. Inslee accuses Trump of “anti-democrate rhetoric” while his own actual actions have been dictatorial in nature – executive orders with no representative approval.

Jay Inslee, governor of Washington State, has accused President Donald Trump of “encouraging illegal and dangerous acts.”

In a statement released on Friday afternoon, the governor said the president’s “unhinged rantings” could lead to violence and were “fomenting domestic rebellion”.

He also warned that the president was putting millions at risk of contracting the coronavirus.

The governor was responding to the Mr Trump’s comments earlier on Friday about “liberating” parts of the country from lockdowns put in place to stem the spread of the Covid-19 pandemic.

Mr Inslee says that while on Thursday the president stood alongside White House officials and public health experts, saying that science would guide his plan for easing restrictions, with sensible guidelines to resuming economic activity, “Less than 24 hours later, the president is off the rails.”

“He’s not quoting scientists and doctors but spewing dangerous, anti-democratic rhetoric.”

(continues)

Rainier Redoubt: Prepare For At Least Six More Months of Social Distancing

As the virus spread has appeared to slow in Washington state, it’s easy to begin thinking that things may return to normal soon. Here’s Rainier Redoubt talking about why that may not be so, Prepare For At Least Six More Months of Social Distancing and Stay-At-Home Orders.

On March 24, 2020 we asked the question COVID-19, When Will It End? In this blog post we suggested that it pays to start planning for strong social distancing for at least the next six months.

On April 2, 2020 Washington State Governor Jay Inslee extended end date of the state’s “stay-at-home” order from April 6th to May 4th.

On April 6, 2020 the Govenor and the state Superintendent of Public Instruction, Chris Reykdal, announced that both public and private schools in Washington would remain closed for the remainder of the school year. The school year in Washington normally ends in mid-June, so this adds an additional six weeks of school closuers beyond the current end date for the state’s stay-at-home order.

As of April 6, 2020 there were 1,346,299 confirmed cases of COVID-19 world-wide, with at least 368,000 of those cases being in the United States. State and Federal governments must weigh the risks of the spread of the COVID-19 virus and perhaps a million deaths, against a complete collapse of the economy with millions of people out of work and small businesses never being able to recover from the financial loss.

The government must decide at what point it is medically safe to allow businesses to reopen and to lift restrictions on social distancing. Even if the government removes these restrictions prior to October 2020, we still strongly recommend caution in your social interactions through at least the end of the year.

COVID-19 is not going to just suddenly disappear. Until an effective vaccine and treatment are developed and distributed there will be a significant health risk from the virus.

In the absence of a vaccine, cure, or massive testing and quarantine, lockdowns and stay-at-home orders will need to last for months. However, the US faces a unique challenge because only half the states have adopted aggressive intervention, and done so at varying times. Even if these states achieve control or containment, they may be vulnerable to contagion from other states that were late to do so. (SSRN)

According to an article in Business Insider, Ultimately, experts say that social-distancing measures will be necessary until we have a vaccine, and that’s 12 to 18 months. But that doesn’t necessarily mean we’re all in our homes for 18 months, it means maybe we’re avoiding public gatherings for that amount of time or limiting the amount of travel internationally, but it’s not necessarily as restrictive as what we’re seeing now.

Click here to read the entire article at Rainier Redoubt.

See also The Organic Prepper – We Won’t Be Getting “Back to Normal.” Not Soon. Not Ever.