Governmental authority and the Covid-19 pandemic.

 

Governmental authority and the Covid-19 pandemic.

A question being asked, which deserves serious discussion, is how much actual authority the state or federal government has to mandate wearing masks or requiring healthy people to quarantine.  My short treatise here is not exhaustive  but it does approach the question from a different perspective than that usually offering on mainstream media these days;  that of an “original intent” textualist (ala A. Scalia).   The presumption underlying this point of view is that the Intent of the founders is knowable from the text, the founders themselves through their writings, and the writings of their contemporaries. Once we extract the basic principles, then consistent application of those principles will yield uniform, predictable, decisions- now and in the future.   From my studies, I believe that most conservative constitutional scholars would agree with the following ten points:

 

(1)    The Declaration affirms that the vertical flow of authority is from God, to man, to the state. Then from the states collectively to the federal government.  With each delegation of authority, the scope of authority is diminished because the grantor cannot grant more than he has.  (i.e. the federal government can never wield MORE authority than the states that created it, nor the states any more authority than the people who created them.) It is not important what you or I believe today about that, but that the founders believed it and they created a form of government based upon those beliefs.

(2)    The Declaration of Independence operates like a corporate charter: it defines the purpose of the organization. It is like the “birth certificate” of the corporation.

(3)    The specific grant of authority to the federal government is specified in Art 1, Sec. 8 of the U.S. Constitution.  That authority is delegated by the states to accomplish the purpose of the federal government, which is to (a) protect the God-given [inalienable] rights of the people, and (b) to achieve the ends of justice.

(4)    Although certain rights are acknowledged in the Constitution as belonging to the people, the rights of the people are not limited by the constitution.   (9^th Amendment).  Since the presumption is that all rights are God-given, those rights held by the people are consistent with the character and nature of God.  Again, what is key to understanding the document is to understand the assumptions made by the founders.

(5)    Specifically, ANY authority NOT specifically delegated to the federal government, is explicitly and unequivocally retained by the states and the people thereof (10^th Amendment).

(6)    Although many people today are apparently clueless as to how to recognize the character and Nature of God, and thus the nature of the rights of the people, and the duty of government to protect those rights,  it was more clear (or universally understood) by the founders.  These principles are of paramount importance in extracting principles of government from the collective writings of the founders and their contemporaries. Constitutional interpretation must presume the beliefs of the framers and not try overlay 21^st century values and norms in the interpretation of the document.

(7)    The founders understood that all individual rights can only be understood and applied in the broader context of their duties to social order. Individual rights and public duty are two sides of the same coin.  (See Jefferson’s letter to the Danbury Baptists, 1803, where this principle is explicitly and unambiguously stated)

(8)    The Constitution presumes lawfulness. It is a responsibility, then, to obey the law. For those who do not, there are protections, but the presumption of lawfulness is apparent. As a corollary thought, self-government can ONLY work when the governed are, to a high degree, self-disciplined.

(9)    A multitude of court cases since Jefferson’s Danbury letter (1803) have affirmed the principle that in an emergency, public order creates a public duty which protects the public order, without which no individual liberties could be sustained. Sometimes, the Court has supported the extension of individual rights, while at other times, it has ruled in favor of limiting individual rights in order to promote public safety.

(10) Article II, which vests the Executive Power in the President, also specifically makes him Commander in Chief of the army and navy, as well as of the militia when called into actual federal service(§ 2), and charges him, among other things, with taking care that the laws be faithfully executed (§ 3).In addition to these allocations of responsibility to particular branches of the federal government, the Constitution contains one other empowering provision relating to similar circumstances, namely Article IV § 4, the so-called "guaranty clause", which calls on the federal government not only to guarantee to every state a republican form of government, but also to protect it against invasion and (when asked) domestic violence.                                       ( https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1417&context=facpubs  )

 

While public health powers were originally both state and federal, a dispute arose between these powers when the federal government took a more active role in regulating quarantine. The federal government lost the conflict and "[t]oday, states are primarily responsible for the exercise of public health powers." (Joseph Barbera et al., Large-Scale Quarantine Following Biological Terrorism in the United States: Scientific Examination, Logistic and Legal Limits, and Possible Consequences, 286 JAMA 2711, 2712 (2005). )

From my reading, the federal authority for emergency action/intervention is limited to matters of (or related to ) military action, including specifically terrorism. The level of government authorized to respond to matters of medicine or public health are the domain of the state governments.

Quarantine, and the other extreme measures associated with the Covid-19 virus, would considered some of the “tools” at the disposal of State governments in an actual emergency. Quarantine is a severe measure that is not to be used for every new manifestation of virus, but rather for extreme outbreaks of especially contagious diseases.   This being such an extreme measure and a severe burden on individual liberty, such an order would require a reasonable, evidence-based conclusion of the “especially contagious” nature of the disease in question. Invoking quarantine for less than something “especially contagious” and life-threatening for large percentages of the population, would be a of serious overreach of authority.   The “authority” of government in such a case is conditioned upon the severity of the emergency. A claim of emergency, when no actual emergency exists, would legitimize (invalidate) the use of power to enforce the illegitimate orders/actions of government.

CONCLUSION:

The law seems clear to me.  There is no federal emergency power to declare what members of public must do in a pandemic. Of course they are free to announce suggestions, and provide research and support for a quick resolution and a medical solution. State executives may announce quarantines and other actions the public must obey to respond to an actual emergency situation. Absent clear evidence, and particularly when the “emergency” is so clearly politicized, the state does NOT have authority to mandate quarantine, order that masks be worn, shut down businesses, or otherwise interfere with commerce and free trade.  I do not find authority to act “preemptively” just in case an emergency MIGHT materialize.
My two cents. I hope it promotes intellectual discussion.
John Sterling, MA, JD

Kavanaugh is a good pick for SCOTUS

Even before Brett Kavanaugh was officially nominated for President Trump's second Supreme Court vacancy the Left was in a tizzy.  The Right seemed largely content with the top three names being floated: Brett Kavanaugh, Raymond Kethledge, and Amy Coney Barrett. The general consensus was that all three were highly qualified, and desirable as "conservative" court picks.

I recently listened to Judge Andrew Napolitano's assessment of Brett Kavanaugh as President Trump’s SCOTUS nominee.    I LIKE Napolitano.  I trust him. I agree with him on almost everything. 

ON this particular issue, I disagree with him and his concern over Kavanaugh.    Judge Nap says this: "The Kavanaugh nomination is not a question of his qualifications; it is a question of his values. It is dangerous for judges to embrace values that diminish personal freedom rather than expand it.".

So Judge Napolitano says that he questions Kavanaugh's "values" but actually, at least according to his web page, it is only this ONE value that Napolitano questions: the "proper" rendering of the Fourth Amendment. 

The whole argument, or position, involves the word "reasonable".

It is quite apparent that of all words in the English language that COULD have dozens of meanings or applications, this word must certainly rank in the top ten.  Notions of "reasonableness" are likely to be much more subjective than objective.  About the only way (certainly the BEST way) to determine the "legally reasonable" thing to do is to develop a standard based upon a set of behaviors, and try to remain consistent with the application of that standard. 

Kavanaugh has a history of decisions that reflect his judicial position with respect to precedent, and the application of constitutional principles.  Kavanaugh expressed that view in the course of a 2015 statement concurring in the denial of rehearing en banc in Klayman v. Obama, which was then before the U.S. Court of Appeals for the District of Columbia Circuit. The case centered on the constitutionality of the National Security Agency's controversial information-gathering program, which involved the NSA collecting the telephony metadata of all Americans. "In my view," Kavanaugh wrote, "the Government's metadata collection program is entirely consistent with the Fourth Amendment."

Kavanugh offered two principal explanations for why he considered the program to be constitutional. First, he invoked what's known as the "third-party doctrine," which says that if you voluntarily share private information with a third party, you no longer have a reasonable expectation of privacy in that information. "The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment," Kavanaugh wrote.

But "even if the bulk collection of telephony metadata constitutes a search," Kavanaugh continued, turning to his second justification, the program may still be approved because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he wrote, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He added: "In my view, that critical national security need outweighs the impact on privacy occasioned by this program."    (Source: https://reason.com/blog/2018/07/10/scotus-nominee-brett-kavanaugh-on-the-fo )

I think Kavanaugh is solid on the first point. On the second he is correct as long as the "reasonablness" is able to be quantified and objectively measured. HOW MUCH reason is required to reach the "justification" threshold will always be a bit subjective because people cannot usually define a "bright line". When it comes to a terror threat, is 50% reasonable? 60%? 72%? 88.653%? If it YOUR spouse and family who is the potential target of a terror event, does that change your numbers?

As to the second point, we must never lose the ability to "check" government actions. There must always remain a balance of power, both within government, and between the government and the people. As long as that is preserved, the reasonableness argument is completely within both the letter, and the spirit of the law. Kavanaugh has this right.

Fourth Amendment law has developed some in the last few years as the court has had to continue to balance the liberties which government is charged to protect, and the public safety which government is also charged to protect.  No real discussion can take place on the reasonableness of the Fourth Amendment unless and until BOTH of these sometimes competing duties are fully understood.  That Kavanaugh leans a little more towards public safety, and Napolitano leans more towards individual liberties, is not cause for panic.  It is cause for dialog, transparency and a continuing re-assessment of the very real threats that our nation confronts.   Considering Kavanaugh’s record, it seems likely that he will continue to be a strong force for preserving our constitutional principles. If you truly value the constitutional values upon which our form of government, and our laws fin their foundation, then show your support of Brett Kavanaugh and President Trump.

John Sterling