The Constitution Still Matters, Right?

So purple Arizona filed the first State lawsuit against President Biden’s federal vaccine requirement. Interestingly, the filing is not based on federal government overreach, or the emanations from a Constitutionally-unstated privacy penumbra for Americans (popularly: “My Body My Choice”), or the violation of the ADA that prohibits Americans being asked about their health and medical status:

The Equal Employment Opportunity Commission has found, for example, that an employer may not release an employee's medical records even if they are subpoenaed in a lawsuit, unless the employee consents.

Which law are we supposed to obey, and which violate? I’m confused.

States being superior in our form of government, superior Arizona is suing the inferior federal government based on the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution  through which the States created – and limited the powers of – the federal government.

It can perhaps be said that the Equal Protection Clause is at the core of the 14th Amendment. After all, this amendment was passed in the wake of the Civil War in attempts to remedy some of injustices that led up to that war, like racial inequality and slavery. While slavery is specifically dealt with in the 13th Amendment, inequality is dealt with here. Though race and racial discrimination are still at the heart of the Equal Protection Clause, any unjust government classification – the singling out of one group or another – can be a violation of the Constitution.

The clock is ticking...

By exempting illegal aliens and Afghan immigrants from a mandate for the rest of us, Biden’s diktat “singl[es] out of one group or another” of the population and treats these groups differently. (You may recall we once had a war over this.) This mandate and the exemptions are pretty much the opposite of the Equal Protection clause of the Fourteenth Amendment, (and the Due Process clause of the Fifth Amendment) and inarguably violate the Constitution. Arizona noticed and is suing to put the feds back in their Constitutional box where they belong, saying, “Yes, the Constitution does matter.”

Perhaps one of the SCOTUS precedents Democrats always demand never be overturned (“stare decisis”) has been un-overturned and reinstated and the Plessy-Ferguson “Separate but Equal” doctrine is again in force? I must have missed that memo.

If Biden’s marionette team wants to grant exemptions to employees of the Executive branch, well, that is indicative of this not being about healthcare. These employees are in every State and nearly every city in the nation spreading their unvaccinated covid viral load among the vaccinated (obviously unprotected by the “vaccine” or why worry?). Mandating the behavior of their employees is completely within the authority of the Executive branch.

Perhaps you noticed other groups exempted from the mandate, namely the Legislative branch and its staffs and the Judicial branch and its staffs. Why? Separation of Powers: The Executive cannot mandate behavior among separate, co-equal branches. The Executive can mandate behavior only to employees of the Executive Branch.

And, guess what? I’m not an employee of the Executive Branch. Separation of Powers and non-Enumerated Powers. Zero Constitutional authority was granted to the federal executive to mandate my behavior. Since I am not their employee, they can’t police my behavior. The states did not grant that authority to the feds.

We're from the FBI and we're here to help.

Why? The superior states also did not grant to the inferior federal government “general police powers;” these were reserved by the states. What does that mean? It means the feds can’t “police” me. States reserved police powers, as well as all powers not specifically granted to the feds. See Article 1, Section 8 for a listing of those specific enumerated powers. Healthcare is not among these, nor is any power over what to inject into your body.

See the Ninth and Tenth Amendments – the final two amendments of the Bill of Rights, without which the Constitution would not have been ratified, nor the nation created – for all powers not granted to the feds.

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. [Ninth]

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. [Tenth]

But, wait, you say? The Executive Branch, via “rule making,” creates arbitrary rules governing individual behavior all the time. True. And yet, the very first sentence of the Constitution reads:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

Let me repeat that: “All…”

What is the difference between legislation ("laws") that can deprive Americans of life, liberty or property and “rules” that can deprive Americans of life, liberty or property? Spelling.

The honorable gentlelady: Congress at work.

Congress loves to dispose of its accountability by tossing too-hot-to-touch issues over to the Executive branch. Say, like a mandate for an injection you may not want to take. Nothing in the Constitution (to which they must take an oath to support in order to be seated in Congress – and should be expelled for violating) authorizes their doing so.

So the feds lack the power to police the behavior of individuals, and the feds must treat all Americans equally, and the president cannot make law. All of these are violated by the vaccine mandate; only Equal Protection is being tested by Arizona.

Now we shall see, again, whether the Supreme Court, also a creature of the federal government and also limited by that same Constitution to the powers and authority that limit the Executive and Legislative branches, is going to find a way to interpret a power the inferior federal government lacks (i.e. “invent” or “usurp”) to the detriment of the states that created the feds as their creature, and to the citizens of those superior states...

… and whether the Constitution and Rule of Law still exist in America.

Why Can't We Go to the Hairdresser?

The cynic in me thinks the press will urge a nationwide lockdown unless and until a Democrat sits in the White House at which time they will take a harder look at the diminishing Covid-19 fatalities and the increasing cost of the lockdowns. In the meantime frustrated, increasingly broke Americans are asking what happened to such rights as free speech, assembly,  worship, freedom from unreasonable searches and seizures, right to bear arms, right to due process in criminal cases and privacy.

Fundamentally, why can’t we go to the hairdresser or the gym, make routine visits to the doctor, the dentist, get elective surgeries, visit our families and friends, shop without looking like masked bandits?  The answer is not that complicated. Unless the state governments, which have imposed these often-draconian measures, can justify them in court, you can. But you have to get them judicially enforced by civil suit or in defending a criminal action against you. Your rights are not self-enforcing.

Yesterday, for example, a circuit court judge in Clay County, Ill., found that Governor J.B. Pritzker's extension of a previous stay-at-home order was illegal, handing at least a temporary, narrow victory to Republican state representative Darrin Bailey with a restraining order -- which, however, only applies to Bailey himself. Pritzker vowed a swift appeal in a higher state court.

There are other means, of course.  If you want your fundamental constitutional rights back sooner you can move to those states run by Republican governors who did not mandate a lockdown, or  you can work to make your state legislatures to rein in your governor’s dictates. Short of that there is only judicial redress.Some states have never issued mandatory stay at home orders: Arkansas, Iowa, Nebraska, North Dakota, Oklahoma, South Dakota, Utah and Wyoming. Meanwhile, Georgia, Oklahoma, Alaska, and South Carolina have allowed some business openings and plan to relax more rules this  week; Maryland’s governor Hogan announced he anticipates a gradual reopening beginning in May.

Colorado’s Democratic governor Jared Polis says he will allow hair salons, barbershops, and tattoo parlors to reopen on Friday and has permitted curbside pickups at retail stores. Florida’s GOP governor DeSantis has opened some beaches and some have reopened in California, but not in Los Angeles. In some states-- to add to the confusing disparities -- city mayors have issued their own rules about what is permissible.

The most draconian rules of all were those issued by Michigan governor Gretchen Whitmer (D) which, inter alia, banned state residents travel to in-state vacation homes, prohibited the selling of seeds and gardening tools, home improvement materials, baby care seats and the use of motorized boats. Last week the Michigan state senate passed two bills to curb her emergency powers. She’s threatened to veto any such attempts and it’s unclear whether this legislative effort will be successful unless Democratic voters in the state are angry enough to support the move to clip her wings.

Who Can Exercise Power in a National Emergency?

The Emergency Powers of the President and Executive Branch are extensive. The Brennan center has prepared a 42-page compendium of their powers and legal basis. In addition to these, under the Tenth Amendment, state governors have substantial powers to issue mandates once an emergency is declared. The extent of the powers of a governor is determined by the constitutions of the various states and any applicable state law. But under the Fourteenth Amendment, per substantial case law for almost 100 years, most of the rights guaranteed under the Bill of Rights are applicable to the states (the "incorporation doctrine"). The question is whether the rights you have in normal times apply in an emergency.

Short of cases dealing with known methods of preventing a disease (smallpox vaccinations) or short-term emergencies such as hurricanes, we have few legal cases dealing with Covid-19 restrictions. Covid-19, after all is new, and we do not have conclusive studies of its transmissibility, treatment, or prevention. Instead we have conflicting reports about what works. Unlike with smallpox or polio we have no vaccine yet and, if one is to ever be developed it will take a long time to fashion and test it before we could compel people to vaccinate.

Further, we have no idea if reinfection is possible or likely after recovery. Nor have we any notion how many of us are or were infected, or are immune. Infection, hospitalization and morbidity rates are subject to manipulation and seem to have been jiggered but credible accounts indicate that the elderly and those with comorbidities have poor survival chances should they catch it, while the rest of us are almost certain (percentage wise) to survive it. We do know the cost to the nation and the world, not to speak of private sector workers and businesses is substantial and mounting.

Which Tests Should Courts Use in Cases Challenging Governor’s  Emergency Orders?

There have been few cases testing the power of the Governors to interfere with normal civil liberties. The best legal arguments on balancing the rights of citizens in emergency litigation can be found here by Lindsey Wiley and Steve Vladeck: COVID-19 Reinforces the Argument for “Regular” Judicial Review—Not Suspension of Civil Liberties—In Times of Crisis.

The authors review two of the first cases where the power to restrict civil liberties in the Covid-19 emergency was tested  and a minimal level of scrutiny was applied. That is if there was some factual basis and the restrictions were made in good faith, the courts let them stand.

In one of the first challenges to a coronavirus emergency order, New Hampshire defended Governor Christopher Sununu’s emergency order banning gatherings by arguing that “[a] court should only interfere” with “[a]n executive’s decision to exercise emergency powers in the face of a rapidly evolving public health crisis. . . . when the executive’s actions were not taken in good faith or if there is no factual basis for the executive to believe that a restriction he imposed was necessary.” Relying on Smith v. Avino (a widely cited Eleventh Circuit decision arising out of Hurricane Andrew), the state’s argument, in essence, is that the heightened judicial scrutiny that such invasions of civil liberties would usually provoke should be “suspended” for the duration of the emergency. The trial court agreed—upholding the group gathering ban because it met the very low bar of “good faith/some factual basis.”

Somewhat more controversially, the Fifth Circuit took a similar approach just this Tuesday in upholding Texas’s application of a coronavirus emergency order postponing “non-essential” medical procedures to abortions. Describing the Supreme Court’s 1905 ruling in Jacobson v. Massachusettsas imposing “the controlling standards, established by the Supreme Court over a century ago, for adjudging the validity of emergency measures,” the majority set aside Planned Parenthood of Southeastern Pennsylvania v. Casey’s familiar (and far more recent) undue burden test in favor of a rule that “the scope of judicial authority to review rights-claims” during “a public health crisis” is limited to cases where “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Moreover, the court suggested that in a crisis, this minimal level of scrutiny applies equally to “one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”

Their conclusion?

As a country, we thus find ourselves in uncharted waters. But the debate over the proper judicial role in such novel and extraordinary circumstances is not a new one; rather, it dates to the earliest years of the Republic. As D.C. Circuit Chief Judge (and John Adams’ nephew) William Cranch wrote in 1807, “The constitution was made for times of commotion. . . . Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude.” 213 years later, we aim to demonstrate how the coronavirus pandemic — and the governmental reactions thereto — undermine the suspension model, and, in the process, prove Cranch right.

While in my opinion the authors take too optimistically the time involved in developing and testing an appropriate vaccine, I agree with their view that what is called the “suspension power” -- that is, it takes minimal evidence to uphold the restrictions while the emergency exists -- is unsuitable.  This emergency is different, as it has no reasonably foreseeable outcome and  generally agreed upon termination. Therefore, the ordinary emergency order review is insufficient for Covid-19  orders. Think about it. A dictatorial government could in the same often mind-bogglingly arbitrary manner in which many have delineated between essential and non-essential businesses, decide the emergency will continue until everyone is tested or a vaccine is found, or there’s no longer anyone hospitalized with the virus, or we have definitive proof that recovered patients cannot reinfect.

Wiley and Vladek also argue, persuasively in my opinion, that the restrictions imposed should be subject to review of government restrictions of civil liberties in non-emergency situations. Are rules less restrictive of liberties options available? If there are, then the restrictions should fail.

So many of the restrictions, it seems to me, require defending in transparently open court proceedings. Does the requirement we wear masks really prevent the spread of the disease? Expert opinion is divided. Is it wise, in fact, to restrict movement of citizens or should we allow greater mingling to build herd immunity? Again expert opinion is divided. Is it better to prevent people from using parks and beaches, or is the sunlight, exercise and fresh air a better antidote to the spread of the virus or at least its virility? Our courts deal with such issues every day. Let’s have the governors defend their actions instead of blindly following along or listening to one set of “experts” and ignoring conflicting views.

So many of the restrictions seem ill considered and incomprehensible, if not totally indefensible. Let the state persuade a court that its perfectly reasonable to shut down my dentist’s and doctor’s enterprises even though both can and do sanitize all surfaces and can arrange it so patients will be notified by mobile phone of readiness to see them so that patients will not enter their offices and have to sit with others in the waiting room. Let the states defend arresting a surfer, far from anyone else, while permitting shopping in big box stores.  Let Michigan defend refusing to permit Detroit residents from going to their vacation homes in rural areas less densely populated, or permitting kayaking but not motorboating. Waiting to see any defense of actions like arresting a father for playing in a deserted park with his two children or worshippers praying in a church parking lot while sitting in their cars with the windows up.

Go ahead, make my day.