Here’s the question that interviewers should be putting to governors:
“If, in normal times, you were to announce as a matter of executive fiat that people must close their businesses, could not assemble in groups over a certain size, and must stay home except for travel you deem essential, it would seem an absurdity. People would say that you were grossly, and obviously, exceeding your authority.
That you are doing this now, therefore, suggests that you believe there must be some explicit grant of power, somewhere in your state’s legal framework, that gives you the authority to do these things in response to this emergency. Can you tell us where we can read this statute, so that we may clearly understand its limits?”
Perhaps, for all I know, there are such grants of power in various state codes and constitutions. But it would be good to force these people to provide some clarity.
17 Comments
Normal Americans will tell you that it’s necessary, therefore the law is irrelevant. They’ve been raised to believe that. It’s their baseline. When people are forced to choose between two desirable things, you find out which they consider dispensable. You consider the law indispensable. They don’t. You won’t talk them out of it, because “comfort and safety first” is not a conclusion they reached by starting at their moral first principles; it *is* their moral first principle. It’s an axiom. The closest you can get is to persuade them that sacrificing a little comfort and safety now will result in more comfort and safety in the long term, much like you might believe that martial law in some well-defined circumstances will result on the maximum of individual rights and impartial application of the law in the long term. But if you talk about law when they want something else, they think you’re fixating on insane trivialities.
The governors would say the same thing, and they’ll probably have some legal justification anyway. Try it with a judge. See what the judge says. “Fifth penumbra, second emanation. Right there in black and white if you close your eyes and click your heels: ‘When the nurses dance on TokTok, the governor can do whatever makes her feel good. Love wins. Adjourned!’”
Who taught the judge his first moral principles?
I’m not saying it’s good. But it is what it is. If you want to communicate with Americans, don’t speak to to them in Proto-Indo-European. If you insist on it, we can see that communicating with them is not your priority.
One bit of wisdom that our Founding Fathers did not copy from the ancient Romans is that different external conditions require different modes of governance. During normal times, Senators sat and deliberated laws and budgets. Facing a war or similar crisis, they appointed a “dictator” for a year or two of absolute rule.
Travel and communication being much slower in those days, fighting plagues was left to local authorities, who often applied extreme measures like bricking up entire families inside their homes.
Most (probably all, but I’m not certain) US states have emergency management statutes that expressly empower the state government to take a wide range of actions to deal with various types of emergencies, ranging from storms to plagues to invasions. Very often, these statutes take the form of allowing near-dictatorial powers to the governor for a limited period of time.
For example, here’s Delaware’s statute: https://delcode.delaware.gov/title20/c031/sc03/index.shtml
Here is Michigan’s: http://www.legislature.mi.gov/(S(35zij0ugp4x1xe5ks3yfszvv))/mileg.aspx?page=getObject&objectName=mcl-10-31
And Massachusetts’s complex of laws: https://www.mass.gov/lists/emergency-preparedness-laws-and-regulations..
I wish I could say that means you shouldn’t worry, rule of law is sound and intact, but really all it means is that emergencies happen often enough that lawyers and legislators have asked this question before and decided to make sure there’s an answer on the books.
LC,
Thank you for this.
Looking at the Delaware statute (I haven’t gone over the others yet), it’s hard to see any technical backstop, besides perhaps the US Constitution, against absolute sovereignty — given that it’s up to the Governor himself to decide when such measures are justified, and when they should be rescinded.
… on second thought, I suppose the legislature could rescind the statute – though of course they’d have a veto to deal with.
It has been easy to forget, in recent years, that the 50 States are sovereign – or are supposed to be. The governor should be a person of such caliber that he can and will independently manage crisis events according to the needs of his state and his citizens, without regard to what other states or the Feds are doing.
I notice that here, again, as so many times in the past 4 years, President Trump is operating to restore proper functioning to the government – including coaching the state governments to assume their proper responsibilities and roles. He declared the emergency and closed the National borders and went to work with what he could, but the decisions to “shut down” or not were made by the governors themselves, as is proper.
Whether those governors make the right decisions in their citizens’ eyes, and the various approaches they take, will be for their citizens to evaluate – hopefully as you point out with the help of the media asking the governors the right questions about their actions rather than trying to push it back to the feds.
I read today that the Mayor of Gallup New Mexico requested & got from the Governor permission to close all roads in and out of the city. Why, I don’t know, but the Mayor believes there is a danger so extreme that travel needs to stop temporarily.
In Texas, our legislature only meets every other year, so our governor has to be empowered to act in their absence. We deal almost yearly with major disasters, so our governors understand the need to act fast, take care of things, get it done, and then get things normalized again. Governor Abbott has done an outstanding job with this. Although he issued some restrictions, most of his work has been in slashing regulations, rules, fees, and laws to get red tape out of the way. And, he left the major restrictions to the local governments. So our County Judge has had to bear the decisions about Stay Home orders and gathering limits etc.
Finally, I still think there are things we still don’t know, that the President knew in January when he first declared a national health emergency, shut down most air travel from China, and created the Task Force that met daily from then on. I do not trust Congress, but I do trust President Trump.
Tina,
Agreed, more or less. (I’ve about completely given up on Congress, as have most people. That part of the American experiment is pretty much over.)
I’m also hoping we can count on William Barr and John Durham. It would be heartening to see a little justice meted out at last, if only for old times’ sake.
The only clarity comes from putting a bullet through their heads…
“It is terrible to contemplate how few politicians are hanged.”
– Chesterton
state(s) are not the same as State(s). The first is a city state / corporate entity that has no authority outside of the U.S. (Manhattan Island and Washington D.C.
The second – State – is one of the several States as originally founded, but has been usurped and ignored for longer than any of us have been alive.
Start reading the definitions in the “laws” and Codes/Statutes.
A state is not a State. And the U.S./United States is not The United States of America.
Time to end the nonsense.
https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm
I think it really is time to shoot the bastards.
“Executive order also known as a proclamation is a directive handed down directly from a president or governor (the executive branch of government) without input from the legislative or judicial branches. Executive orders can only be given to federal or state agencies, not to citizens, although citizens are indirectly affected by them.” PEOPLE IGNORE THESE TYRANNICAL, COMMUNISTIC, NARCISSISTIC, LYING, THIEVING GOVERNORS AND OTHERS TRYING TO FORCE FREE MEN AND WOMEN TO BEND TO THEIR COMMUNIST CONTROLLED EVIL WAYS. GOVERNMENTS AT THE LOCAL, STATE AND FEDERAL LEVEL HAVE LOST ALL CREDIBILITY AND WE MUST ABOLISH THEM. WAKE UP FOLKS AND PASS THE TRUTH ON.
I have a new neighbor. Russian guy. I was talking to him recently and he said that all politicians should be limited to one term … and then … straight to prison. Couldn’t have come up with a better solution myself.
Politicians have NO LEGAL right to shut down anything. They are criminals and broke Constitutional law and Federal Laws.
UNITED STATES CODE
TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 13 – CIVIL RIGHTS
§ 241. Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured –
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.
§ 242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if bodily injury results shall be fined under this title or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.
Well! I certainly seem to have hit a nerve here.
If these comments are at all representative of widespread sentiment, we are in for some interesting times just ahead.
Tina,
The state just north of me (Missouri) closed off access to at least three separate towns – perhaps more just that maybe those were far enough away the closings didn’t make “my local media.”
An official why was never given but my suspicion is “they” just wanted to see if they could. Access was “only” shut down for eight hours in each instance.
Whether what Missouri did resembled what that NM mayor did I couldn’t say but it’s damned curious.