Why aren’t there more lawsuits about covid-19? This is the most widespread illegal infringement upon human rights in American history, isn’t it? It isn’t the most severe– nobody is being killed, and I don’t even know if they’re being jailed (though they are, I know, when BLM tells the police to arrest someone— but that’s for another day). But as far as totalitarian reach into daily life, what else can compare?
But what is the legal problem? Let’s use a hypo to think about it. Suppose the governor says that the Martians are going to invade in six months unless everyone wears a pink hat, and issues a decree under his emergency powers to fine anybody caught outside without his hat $100 and to jail them for three days. Suppose, furthermore, that he has a number of university professors agreeing with him that the Martians are going to invade but that Martians are afraid of pink hats so that will definitely stop them.
How would you challenge the governor in court?
You could say that this law has no “rational basis”, but that really isn’t it— the governor is sincere, and though he is crazy, so are some experts.
You could say that this law is “arbitrary and capricious”, meaning that it didn’t have enough reasoning behind it. It doesn’t, really, and neither the governors nor the experts gave the matter any thought before their panicky response, but you’d lose on that too, since in an emergency the courts recognize that things have to be rushed.
No, the real problem is that the Indiana statute which gives the governor emergency powers doesn’t apply. There’s no emergency. And even if the legislature wants to give the governor power to decide what is an emergency, they can’t do that. It’s improper delegation of power. It’s the same as the legislature passing a law saying that in the future, the governor order people to do anything that the legislature could have passed a law about, but without getting the legislature’s consent each time— they agree in advance that he can pass all the laws.
With Covid-19, there’s no emergency now. The fear of epidemic started in January 2020 and it’s now July. Maybe it was an emergency in January, but now it’s not: it’s just a problem. We are not in a crisis. A crisis doesn’t last six months. World War II was not a crisis, for example. Something can be a big problem, threatening the lives of millions, without being an emergency or a crisis.
Thus, the real legal problem is not that six-foot distancing and a lockdown is stupid–“contrary to science”, as stupid people put it– but that it is being ordered by the governor’s dictatorial decree and not by law. Legislatures pass stupid laws all the time, and governors sign them. There are limits to that stupidity, though. If a state assembly and a state senate have to discuss it— after committee hearings that discuss it, and news articles that discuss it— most stupid laws get aborted before passage. If it’s just some law an intern in the governor’s office writes and gets him to sign a week later, we lose our protection against stupidity. Instead of having an entire population’s brains and ability to ridicule bad ideas, our only barrier against stupidity is a governor’s brain– and that is a very small obstacle.
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CALVARY CHAPEL DAYTON VALLEY v. STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL. 591 U.S. ____ , 3 (2020) (Justice Alito, dissenting). The majority denied a Nevada church’s motion for preliminary injunction to stay its govenor’s emergency directive that casinos and other businesses can admit 50% capacity but churches can only admit 50 people.
“For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency—and the opening days of the COVID–19 outbreak plainly qualify—public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules. In general, that is what has happened thus far during the COVID–19 pandemic.
But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights. Governor Sisolak issued the directive in question on May 28, more than two months after declaring a state of emergency on March 12. Now four months have passed since the original declaration. The problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.”