‘Rioters Have Been Grabbed Off the Street Without Probable Cause’ - Round One Goes to the Government
Congressman Ted Lieu of California and other Democrats have alleged that federal agents have seized protesters, placed them in unmarked vehicles, and detained them for several hours before releasing them. Lieu called these ‘police state’ tactics.
The Fourth Amendment to the U.S. Constitution protects people against unreasonable search and seizure. The state of Oregon recently went to court to get a temporary restraining order to prevent the federal government from seizing protesters off the street without probable cause in the future. Oregon lost.
The federal judge assigned to the case began his opinion by pointing out that protesters whose rights are violated can sue for money damages and injunctive relief themselves. But this case was different because the plaintiff was the state of Oregon, not a protester. Moreover, the state was suing to stop unlawful practices from happening in the future, not to redress harm done to protesters in the past.
Several pages later, the judge concluded that Oregon lacked standing to bring such a case, because it had no interest in the matter specific to the state itself. The opinion referred to numerous reports cited by the state that federal agents were grabbing protesters and shoving them into unmarked vehicles. The allegations, if true, amounted to ‘”seizures” under the Fourth Amendment, the judge acknowledged. However, the Oregon Attorney General overstated the evidence. The judge reviewed the evidence the state presented, and found there was only one instance of an arrest without probable cause and one case of an unreasonable seizure. The judge found it notable that the state did not pursue the notion - or request any relief - regarding the supposed use of unmarked vehicles. The state let that assertion go. Overall, the judge said the state’s comparison of current events to the 30,000 people who were disappeared in Argentina 40 years ago was completely off base. He ruled that Oregon did not have standing to seek a restraining order to prevent widespread 4th Amendment abuses in the future based on a record of just two incidents.
He also found not credible the state’s claim that it was injured because reports of random seizures by the feds might encourage counter-protesters to dress up like police officers and kidnap protesters. The state admitted it didn’t have a shred of evidence from anywhere, at any time, to support this theory, making it just wild speculation.
The state could have, but did not, show that all of the government’s seizures lacked probable cause - there have been dozens. Also, the state failed to produce any evidence that federal agencies had given their personnel standing orders to grab people at random off the street. The state had no evidence of any of this, and thus failed to establish these are widespread practices. Without widespread practices, the state had no standing to obtain the sweeping injunctive relief it sought for the future, the judge ruled.
So, Oregon gets an ‘A’ for creativity, but its wild legal theories didn’t pass the ‘laugh test’, as they say in the legal business. This was not a close question. Oregon had to know they didn’t have a legal leg to stand on. So the question becomes, why did they pursue it?
Tonight, I talk about some constitutional implications of the lawless ‘autonomous zones’ we’ve seen this summer in Seattle, Portland, and elsewhere.
The people who think these zones are cute are missing the fundamental point - the zones set themselves beyond the law in a country that has, up to this point, prided itself on maintaining the Rule of Law. If not the U.S. Constitution or the laws of the states in which these zones are situated, then what law governs? The subjective whims of warlords toting assault rifles? That’s hardly ‘sustainable’ or ‘fair’, to borrow words from the Left. This certainly violates the spirit of the Supremacy Clause of Article VI making the U.S. Constitution and the laws of the United States the supreme law of the land.
A welcome sign at the Seattle autonomous zone said “You are now leaving the USA”. Didn’t we fight a Civil War when the southern states seceded from the Union? So some punks secede from the Union and the Mayor of Seattle eggs them on with impunity - how does that work?
Next, Article IV, Section 4 of the U.S. Constitution says the United States shall guarantee to every state a Republican form of government. When you start digging into the meaning of the word ‘republic’, it gets a little fuzzy, but there are two main components. First, representative government where officials are elected to represent the people. And second, a tradition of individual rights protecting individuals and political minorities from what our Founders called the tyranny of the majority. A pure democracy could vote to strip you of all your rights tomorrow and there wouldn’t be anything you could do about. This is why our Founders gave us a republic so we would have recourse against the will of the majority if it tried to trample our rights. I don’t recall in any of the coverage of the autonomous zones anything resembling elections or a Bill of Rights guaranteeing protesters free speech, freedom of religion and conscience, or any of the rest of the Bill of Rights.
Others have pointed additional constitutional problems with the whole exercise:
Local businesses have sued the city of Seattle for condoning the autonomous zone there and depriving the owners of their property rights and other constitutional rights.
The autonomous zone protesters in Seattle demanded retrials of all people of color serving sentences for crimes of violence. Because it leaves out whites, this would blatantly violate the Equal Protection Clause of the 14th Amendment.
Another demand is for juries to be composed of the same race as the defendant. The Supreme Court ruled a long time ago there is no right to a jury composed of your own race.
Protesters also want the courts abolished entirely. This would require tossing out the judicial powers in the U.S. and state constitutions, plus all the rights courts administer like the right against unreasonable search and seizure, the rights to confront your accusers and compel witnesses to appear on your behalf, and other trial rights.
I offer these thoughts not as a rigorous legal analysis of possible causes of action, but as commentary from someone who has studied political philosophy and constitutional law for decades and is concerned that not enough people recognize that these autonomous zones offend the philosophical underpinnings of our Constitution - concepts like the Rule of Law instead of Might Makes Right, limited government, separation of powers, and preventing the concentration of power in the hands of a tiny elite, especially when the self-appointed leaders of that elite have not been elected by anybody to do anything. I’ve studied the entire menu of political theories from the ancient Greeks on down and America’s Founders got it right - classical liberalism is the most coherent, humane, and stable governing theory ever devised. The U.S. Constitution and Declaration of Independence are classical liberal documents and are to be celebrated, not trashed.
The rioters show a profound ignorance of the Constitution and the classical liberal values supporting it. Part of the blame for this rests with public schools which have deliberately been trying to strip away America’s foundation for more than a generation. No wonder young protesters no longer understand their own country or what they are throwing away. But part of the blame also rests with everyone over the age of 18 who has not taken steps on their own to learn America’s founding principles or the system in which they are voting. Finally, a large part of the blame rests with the political Right - us - for sitting out for 50 years, letting it all happen, and not doing nearly enough to communicate the magnificence of the Founders’ ideals or why those ideals remain important today. Maybe if the couple in St. Louis had declared their yard an autonomous zone instead of just showing their guns, they would have gotten a lot more sympathy.
I’ve said many times on these webinars that the rise of the authoritarian Left is the central challenge of our time. We saw it when they rammed Obamacare down our throats and again most recently in the riots and autonomous zones this summer. We’ve also seen it in recent years in the Left’s efforts to shut down speaking engagements by Ben Shapiro, Heather Mac Donald, and numerous other figures on the political Right.
I’ve written a manual to help individuals and groups on the political Right fight back when cancel culture comes knocking at their door. The manual is dedicated to the memory of Phil Haney who gave me an interview on the subject shortly before he died.
The manual starts with a cancelled event from April 2019 when ACT for America founder Brigitte Gabriel was scheduled to speak at Cross Creek Community Church in Wilkes-Barre, Pennsylvania. The executive director of the local Chamber of Commerce posted the event on the Chamber’s public online calendar. When he received an email indicating the event might be controversial, the executive director (who was also the local ACT chapter leader), took the event off the calendar. The pastor of the church previously did not know what ACT for America was all about and began looking into it for the very first time. He withdrew his approval to hold the event at his church. Subsequently, the Chamber executive director resigned from ACT.
This story is a good example of what NOT to do. It shows a failure to plan and to vet the venue. Everyone involved lacked situational awareness. This was stupid; they were asking to get clobbered. The venue and the sponsor folded like a cheap tent at the first sign of controversy. This didn’t have to happen.
The theme of the manual is ‘plan ahead’. Choose your venues wisely and vet your sponsors for their ability to resist pressure campaigns. Require registration or, if necessary, structure the event to increase the chances of success, perhaps as a private event with the location disclosed only at the last minute, or as a debate with all sides represented and agreeing there will be no disruptions. Have your security plan in place. Be ready with Plan B - an alternate location or a secret room for livestreaming. If it’s a campus, review the school’s policies on free speech and controversial events and, more importantly, the school’s actual track record on enforcing those policies. Some schools are better than others when it comes to enforcement.
Be ready to respond to pressure campaigns from advocacy groups like CAIR or Black Lives Matter, from local politicians, and from unfriendly media. Be ready to mount your own pressure campaign by lining up supporters, friendly media, and politicians ahead of time.
Be ready to respond to the down-the-rabbit-hole arguments of the Left like ‘your speech is violence, you have no right to speak’ or this beauty that came up at a cancelled event at Williams College:
This kind of craziness shows you the authoritarian Left not only doesn’t care about free speech; it’s overtly hostile to First Amendment values. The Left wants to shut you up and believes it is within inches of finishing off the political Right once and for all. So the stakes are very high. Unless the Right gets better at neutralizing cancel culture, you can say goodbye to your free speech and to any kind of America you would want to call home. The manual is my modest contribution to preventing this from happening. It’s free for the asking to my friends on the political Right.
Two weeks ago, the Supreme Court ruled, as a matter of federal statute, employers cannot fire employees simply for being homosexual or transgender. [Bostock v. Clayton County, Georgia] Justice Neil Gorsuch wrote the opinion for the Court. The opinion purports to interpret the terms of Title VII of the Civil Rights Act of 1964 in accordance with their ordinary public meaning at the time of enactment. Title VII forbids discrimination on the basis of, among other things, race, religion, and sex. The parties agreed that the term “sex” in 1964 referred to the biological distinction between male and female. So how does Gorsuch puff up the term ‘sex’ to include sexual orientation and gender identity? The opinion is an amazing display of how the Court can turn night into day when it wants to reach a particular result.
Here’s the core of Gorsuch’s reasoning: Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII which outlaws discrimination on the basis of sex. Gorsuch is essentially saying that ‘sex’ is necessarily involved in discussing whether people are gay or transgender, so Title VII applies. But people also breathe, so it’s like saying breathing is the key fact that decides the case. The logic could be used to add discrimination against blonde people to the statute. You can’t talk about blonde people without referring to the fact they are human beings who possess male or female sex attributes. To take such a worthless truism - that all people are of the male or female sex - and use it to make law is preposterous.
Gorsuch goes on to drag in extraneous issues and declare that specific court precedents are binding when they don’t really apply to the matter at hand. The whole thing is a house of cards built on judicial doctrines, nothing Congress did or said. Gorsuch dismisses Congress entirely. The employers argued Congress could have included sexual orientation and gender identity when passing Title VII, or add them at any time, but did not. Gorsuch turns this on its head, saying Congress didn’t specifically exclude those categories so the Court is free to add them. So much for the pretense that he is simply applying the original public meaning of these terms from 1964.
The whole thing is ludicrous. There’s lots of fancy dancing. Gorsuch strains every step of the way, and that tells me something’s not right. This is results-oriented jurisprudence at its worst. It undermines federalism, by putting Washington in control of contentious social issues best left to the laboratories of the 50 states. It weakens Congress as an institution and empowers the Supreme Court in ways the Founders never intended. Cowardly Congress critters may be breathing a sigh of relief that this nettlesome political issue has been taken off their hands, but they are complicit in damaging the power of their own institution. The Court’s opinion was all about statutory interpretation, not constitutionality. Congress could reverse this decision, but don’t hold your breath. As for the Court, Senator Josh Hawley and others are saying that it’s time to stop placing so much hope in nominating conservative Justices and to start figuring out how to rein in the runaway Court as an institution. One solution that’s been put forward is a proposed constitutional amendment to give a super-majority of state legislatures the power to reverse the Court on constitutional questions, a solution I’ve mentioned before on these webinars.
There are lots of implications and questions arising from this decision. First, I worry we have another Anthony Kennedy in the making, a Supreme Court Justice who doesn’t understand or doesn’t care it’s not the Court’s job to dabble in social engineering. The fundamental dishonesty of Gorsuch’s opinion reminds me of the fundamental dishonesty of Anthony Kennedy’s opinions. Also, it’s disturbing that Gorsuch has adopted the language of the Left in minimizing biological sex, portraying it only as something that is ‘assigned at birth’ and, therefore changeable when the truth of the matter is that it’s not changeable, not even with mutilating surgery and a lifetime of powerful drugs to suppress Mother Nature.
Second, the Trump administration recently reversed an Obama-era rule restricting transgender services in government healthcare programs, saying there was no statutory authority for the rule. Arguably, the recent case is limited to its facts - the employment context - and does not apply the healthcare context. But the Trump administration could easily decide to bow to the inevitable and abandon its transgender healthcare rule.
Finally, and of critical importance, the battleground now shifts to the question of whether religious employers, churches, schools, and charities are exempt from civil rights statutes like Title VII, or will have to comply with them. There’s a showdown coming between religious liberty and gay and transgender rights. Will religious institutions be forced to hire gays and transgenders in violation of the institution’s religious doctrines? What about their conscience rights, and the fact that this entire country was founded by people who came here seeking religious liberty? Is all that to mean nothing and we must now all comply with a new orthodoxy pushed on everybody by a tiny percentage of the overall population? The day is not very far off when we will begin finding out what kind of country we really are.
In 2014, a SWAT team executing a no-knock warrant in Georgia, threw a flash-bang grenade that landed in a child’s playpen causing blast injuries to the child’s face and chest. The child’s nose was separated from the underlying bone. The child was placed in a medically-induced coma and underwent several complex surgeries. The county ended up paying $3.6 million to settle the case. The raid yielded no drugs, no drug dealer, and no weapons.
Fast forward to today and the name Breonna Taylor is being chanted by protesters across the country seeking police reforms in the wake of George Floyd’s unjustifiable death in police custody. Breonna was killed during the execution of a no-knock warrant in Kentucky after police smashed down the front door and her boyfriend opened fire, not knowing who the intruders were. Again, no drugs were found and a lawsuit was filed.
The Fourth Amendment of the U.S. Constitution, which applies to the states under the Supreme Court’s incorporation doctrine, is silent on the question of whether law enforcement officers must announce their identity and purpose when executing search warrants based on probable cause.
In 1958 [Miller v. U.S.], the Supreme Court ruled the police must give notice before making a forced entry, but created an exception in 1995 to prevent the destruction of evidence [Wilson v. Arkansas]. Federal law enforcement must generally knock-and-announce under the terms of a federal statute, although there are some exceptions in that law [18 U.S.C § 3109].
The use of no-knock warrants has substantially increased, from 1,500 a year in the 1980s to 45,000 in 2010 by one estimate. Thirty-one civilians and eight officers died during the execution of no-knock warrants from 2010 to 2016. There have been at least seven settlements of a million dollars or more. It’s been estimated that 42 percent of SWAT warrants are executed on blacks and another 12 percent on Hispanics. They may have higher crime rates, but you can see how this is causing resentment and racial animus.
Oregon state law bans no-knock warrants and the Florida Supreme Court invalidated them in that state. Thirteen states specifically allow no-knock warrants and 20 more routinely grant them.
The Louisville, Kentucky city council just passed ‘Breonna’s Law’ banning no-knock warrants. Senator Rand Paul of Kentucky introduced a bill to prohibit federal law enforcement and local police that receive federal funding from using them. House Democrats propose to ban no-knock warrants in drug cases.
Law and order is one thing. Being stupid about it is another. The question is whether, in light of all the ruinous consequences, the use of no-knock warrants is an indispensable tool in fighting crime. One former police chief-turned-consultant is of the opinion that, if a quantity of drugs is so small it can be flushed down the toilet if police announce themselves, then it’s not worth getting a warrant in the first place. However, fentanyl might change the analysis. Minute quantities are now routinely cut into other drugs which can be sold for millions of dollars. I’m not an illicit drug expert - I don’t even play one on TV - but a thoroughly reasoned position on no-knock warrants might be harder to develop than critics and protesters want to believe.
President Trump threatened to invoke the Insurrection Act to put down the riots occurring after the death of George Floyd in police custody. The President said, "If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them." He hasn’t done it yet and the question is: would it be constitutional?
The U.S. Constitution is mostly silent on the question of presidential emergency powers and martial law. Article I, Section 9 allows habeas corpus to be suspended “in Cases of Rebellion or Invasion” when the public safety requires it. We’re not being invaded and the current circumstances fall short of a full-fledged rebellion. Abraham Lincoln suspended the writ of habeas corpus, but there was an actual civil war going on at the time.
That’s it for the text of the Constitution. Now let’s look at federal statutes. The Posse Comitatus Act was passed in 1878 to prevent the use of the U.S. military to enforce domestic policy inside the United States. However, the Act is subject to the provisions of the Insurrection Act of 1807 and its later revisions.
The Insurrection Act, as amended, authorizes the President to use military and National Guard troops within the United States:
The Insurrection Act has been invoked at least 20 times - first in conflicts with Native Americans, then labor conflicts, slave rebellions, to suppress the Ku Klux Klan, to desegregate public schools in Little Rock in 1957, to put down riots in D.C., Chicago, and elsewhere in the late ‘60s, as well as the Los Angeles riots of 1992. George W. Bush wanted to use the Act to intervene after Hurricane Katrina when the governor of Louisiana refused to ask for help, but did not. The Act was changed in 2007 to allow the use of the military without state consent in emergencies, but that was quickly repealed after all 50 governors objected.
Alan Dershowitz wrote about using the Act in the circumstances we are in today:
I’m not so sure the same pattern would hold today. Consider the following scenario: Trump issues a proclamation he will use the Insurrection Act and send troops if rioters don’t disperse. Former President Obama immediately gets on a plane to visit his friend, the federal judge in Hawaii, who issues a nationwide injunction against the use of the Insurrection Act in a case he cooks up with the ACLU. The generals at the Pentagon immediately voice their approval of the Hawaii judge’s action. Where would we be then? Uncharted waters in uncharted territory in an uncharted universe.
Maybe it’s better to let the governors take the lead in this, after all. I must confess, though, that I do like the idea of not allowing federal money to be spent to repair the damage the riots cause in states where the governors decline to ask for the National Guard to be sent in. If they want to stand down, defund the police, abolish their police departments, and try to make friends with bears, the consequences should be on their dime, not mine.
The future of the FISA court is in doubt. Nancy Pelosi and other supporters of the court had hoped for a quick reauthorization of three parts of the FISA surveillance program, but a tweet from President Trump caused Republican support to erode. Also, Democrats defected over privacy concerns. Nancy Pelosi pulled the bill and the House voted to send the matter to a conference committee with the Senate.
Before this vote, President Trump had tweeted:
This broadens the scope of the inquiry beyond the three sections originally at issue, and may put the entire FISA process up for grabs in conference committee.
How much sympathy you have for the FISA court depends on what scenario is running through your head. Is terrorist activity afoot and lives will be lost unless the court acts quickly? Or is the court all too willing to grant warrant applications from the FBI based on unverified information produced by political operatives intent on sabotaging an opposition presidential candidate and incoming administration? Both scenarios are true.
There are two major constitutional issues with the FISA process. The first is the Fourth Amendment and civil liberties concerns arising from the surveillance process. The government seeks and the FISA court routinely grants generalized search warrants without reference to the facts of any specific case. General warrants are usually a big constitutional no-no. Critics say the court has gone off the rails by puffing up the ‘special needs’ exception to the Fourth Amendment. The Supreme Court created the exception, but has thus far confined it to narrow circumstances where a minimal intrusion on privacy is justified by the government's need to combat an overriding public danger. Drunk driving checkpoints provide one example. But now we have a secret court authorizing the collection and sifting of mountains of data whenever the government claims there are threats from espionage, cyberattack, or nuclear proliferation. These critics say the FISA court has created a secret body of law incompatible with Supreme Court jurisprudence in the process.
The second major constitutional issue revolves around Article III. Article III places the judicial power in the Supreme Court and such lesser courts as Congress may establish. However, some critics say the FISA court isn’t a court at all. No other court meets in secret, or holds proceedings without there being a case or controversy at bar. The FISA court approves warrants, but there is only one party - the government. There is no case being tried. Also, there is no right to counsel. The people who are to be surveilled don’t even know the court is meeting. An advocate sometimes speaks on their behalf, but the advocate isn’t even allowed to see the information the government is presenting to the court in support of its warrant application. Unsurprisingly, given the way things are set up, it’s exceedingly rare for the court to deny a warrant application from the government, leading critics to say the court is nothing more than a rubber stamp.
Thus, the FISA court is a Frankenstein creation, neither beast nor fowl. In this, it has something in common with the Consumer Financial Protection Bureau, a Franken-agency - the first independent agency ever headed by a single person whom the President could not fire except for cause. [Constitution Minute, 12/3/17] When I spoke to you about the CFPB in 2017, I mentioned the country runs into problems whenever we stray from the Founders’ designs. Another example is the War Power, which I spoke to you about the same year [Constitution Minute, 11/13/17], where we strayed from the Founders’ design that only Congress would have the power to declare war. The War Powers Resolution of the 1970s authorized Presidents to start military conflicts on their own and the result has been controversy about the constitutionality of presidential military actions ever since.
Some say the FISA court as we know it is dead and only two choices lay ahead - either meaningful reform of the current system, or throwing it all out and starting over from scratch. Let us hope, whatever happens, the end result is more faithful to the Fourth Amendment and the separation of powers than the system we currently have.
Tea Partiers are accustomed to tracing the ideas undergirding the Constitution back to Montesquieu and Locke, but a new book - America on Trial: A Defense of the Founding, by Robert Reilly [reviewed here] - shows that the Founders’ animating ideas go all the way back to antiquity. The book does a deep dive into the fundamental dispute between reason and will, and shows how reason was embodied, and will rejected, in America’s founding. The book goes on to explain why this unending philosophical tussle is still important today. But before we get to the importance of it all, let’s take a quick trip through the history of ideas.
Reilly frames the central question in this philosophical tug-of-war thusly:
The thinking about reason comes down through Aristotle, Cicero, and others until we get to John Locke who is associated with such ideas in America’s founding as universal truth, natural law and rights, popular sovereignty, consent of the governed, the rule of law, political equality, and individual liberty.
The thinking about will was developed by Machiavelli, Hobbes, and others, and forms the basis for political absolutism. It believes human beings do not act out of principle but out of the will to power, the egotistic need to control everybody and everything. One culmination in this line of thinking was Hitler, who was all about the triumph of the will.
Reilly refers to the Lincoln-Douglas debates as illustrating the difference between the two competing philosophies. Lincoln argued slavery is intrinsically evil on principle and could not rightfully be voted in by a majority of the states, as Douglas maintained. Democracy without moral limits is simply the tyranny of the majority, Lincoln argued.
Why is all this important today? First, because the Progressives have been making steady progress and rewriting our constitutional ideas for a hundred years. This is bad because Progressivism, at root, is concerned with the supposedly preordained unfolding of history in accordance with the Progressive vision, not moral principles, and anything goes to get Progressives to their goal. The Progressive’s will to power conjures up rights willy-nilly to abortion, same-sex marriage, and other artifices to gather votes and gain power, to the detriment of religious liberty, freedom of association, freedom of speech, and other benefits of America’s founding. The Progressives have become authoritarian and illiberal. They can only get to where they want to go, now, by trampling on the rights of others. How long will churches that believe in traditional marriage be able to hang on to their tax exemptions? Or, to give another example, transgender speech codes are all about cracking your head until you think right, your moral principles and conclusion based in reason there are only two biological sexes be damned.
Second, there is a split within conservatism with some conservatives now blaming the Constitution and its elevation of individualism for all of modern society’s ills. They believe the old individualistic exploitative order has to be torn down and replaced with “better truths”, whatever that means - no one quite seems to know. Justice Anthony Kennedy is the poster boy for this school of thought, writing in one of his opinions that the “heart of liberty” for every American “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Justice Scalia mocked this as Kennedy’s “sweet-mystery-of-life passage” - post-modern gibberish. Reading Reilly’s book will better equip you to resist the illiberal conservative communitarians who have grown up in our midst.
Finally, Reilly posits that only reason, not will, can make individuals capable of the morally demanding requirements of living in freedom. If we are to govern ourselves and flourish, we need a solid grounding in virtue to succeed - something more than ‘if it feels good, do it.’ As the Founders observed, only a moral people is capable of living in freedom. The Constitution they wrote is for a moral people only and, as they told us, is quite inadequate for any other. To put it another way, there is only virtue or there is destruction. Destruction is what you will get if you choose will and ‘if it feels good, do it’ over reason and principle. If we don’t deserve a republic, we won’t have one for very long.
Two weeks ago [Constitution Minute, 4/19/20], I summarized several court challenges to state pandemic emergency orders around the country. There’s been a whole raft of litigation since then. It’s impossible to keep track of all of it but, tonight, we’ll take a closer look at the legal standards at issue in some of the recent challenges.
Yes, the states have broad emergency powers, but the Constitution is not suspended. Emergency powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process. Those are the legal standards; now let’s apply them to some of the cases that have arisen in the last two weeks.
The government can’t act arbitrarily. California Governor Gavin Newsom ordered the beaches closed in Orange County based on some news photos, but he didn’t close any other beaches in the state. The Huntington Beach city council voted to sue arguing, among other things, the Governor acted arbitrarily in singling out one stretch of shoreline in the entire state for closure, but not other beaches. The mayor of Newport Beach additionally argues L.A. County closed its beaches a month ago and “every single Los Angeles County beach community has a higher per capita COVID infection rate than Orange County’s open beach communities.” The Governor’s order singling out Orange County sounds pretty arbitrary to me.
Second, the governmental interest in exercising emergency powers must outweigh the liberty interests at stake. This is basic due process analysis. A judge in Virginia opened one gun range in the state following this analysis. The judge ruled that citizens’ Second Amendment rights outweigh the state’s interest in protecting health on the facts presented. In Michigan, the Governor settled a case with a legal foundation by trimming back her emergency orders. The foundation vindicated the rights of Michigan residents to travel to their summer homes, reopen their landscaping businesses, and use their boats for fishing, among other things. The foundation had argued the Governor’s orders had trampled on several fundamental rights for no good reason.
Third, the health measures must be reasonably calculated to achieve a health objective. It’s hard to see the health objective in ordering people not to attend drive-in church services where they don’t get out of their cars. A town in Mississippi lifted its ban on drive-in church services after it got sued. The U.S. Justice Department intervened in the case, saying the town could not single out churches when allowing other drive-in establishments, like drive-in restaurants, to stay open. In Kansas, a federal court blocked the state from limiting attendance at church services to 10 people. Congregations must still observe social distancing rules under the court’s decision, but those rules cannot be applied more strictly inside churches than elsewhere, the court said.
In New Mexico, however, a federal court ruled the opposite way, upholding the state’s ban on gatherings of more than five people in places of worship. The court rejected challenges based on the First Amendment rights of assembly and free exercise of religion. The judge said the social distancing ordered by the state was not good enough because death rates were still going up despite social distancing. That bears repeating: the state’s social distancing order was not good enough for this judge. Talk about legislating from the bench, wow! Besides, churches have alternatives - drive-in services and broadcasting over TV and the Internet, the judge ruled.
To sum up, states have emergency powers, but the Constitution is still in effect, and the question in all these cases is, in one way or another, whether government has overreached. Law is the adjustment of competing values and interests and all of that strikes different judges in different ways, as the COVID cases show. But, at some point, even the most hard-core authoritarians among us will have to admit that the burdens and harms of continued lockdowns outweigh the health benefits to be gained. Like the scales of justice show, it’s a matter of balance.
Recently, President Trump threatened to adjourn Congress in order to make recess appointments to fill vacant posts in his administration, citing constitutional chapter and verse as authority to do so. While there have been plenty of recess appointments in our history, no President has ever actually adjourned Congress before to make them. Not surprisingly, legal scholars disagree about the constitutionality of the President’s threatened course of action. Two constitutional provisions and a Supreme Court case are at issue.
First, Article II, Section 3 gives the President the power to adjourn Congress for as long as the President wants if the two Houses of Congress disagree “with respect to the Time of Adjournment”. So if the Senate adjourns and the House votes to disagree, or fails to vote at all, the President can adjourn Congress. That may sound open and shut, but it’s not.
We have to look at Article I, Section 5 which effectively says either chamber can adjourn for up to three days without consent of the other during a session of Congress. Any longer than three days, during a session of Congress, and the other chamber must consent.
So what’s to prevent Senate Majority Leader Mitch McConnell from adjourning the Senate for eight days, Speaker of the House Nancy Pelosi refusing to consent, and President Trump adjourning both houses of Congress for eight days under Article II, Section 3 in order to fill the roughly 250 vacancies in his administration for which the Senate has not given its advice and consent?
The answer is: The Supreme Court, that’s what. In a 2014 case [NLRB v. Noel Canning], the Supreme Court started by saying, “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” What is “sufficient length”? Therein lies the rub. A three-day recess was at issue in the case, and the Court could find no “single example of a recess appointment made during an intra-session recess that was shorter than 10 days.” Absent “unusual circumstances” like a national catastrophe, a three-day intra-session recess is too short for a President to invoke the Recess Appointments Clause, the Court ruled. Justice Scalia wrote a separate opinion, unsuccessfully arguing the President’s need to fill a particular slot can be just as urgent as a national catastrophe.
So, once again, we see a Supreme Court that has gone beyond the text of the Constitution, filled in some blank spaces with whatever formula struck its fancy that day, and achieved a result that is not required by the plain language of our founding documents. The formula that day was historical practice - no recess appointment has ever been made in our history during an intra-session recess shorter than 10 days. But the Court doesn’t always like history. A lack of history didn’t prevent the Court from making up fundamental rights to abortion and gay marriage, did it? It’s called results-oriented jurisprudence - pick the result you want, then pick the formula that will get you there. History one day, public opinion polls the next.
Hate to break it to you, folks, but there’s entropy in the law, and the result is that duly elected officials have their hands tied by the courts more than they should, and your vote doesn’t mean as much as it should, because unelected people in black robes like to make stuff up and overstep their role.
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