Liberty Blog

Beginning one year ago, State Governors and the President began using executive orders, generally without legislative approval, to impose lockdowns and other personal and business restrictions intended to combat a “pandemic.”

After one year, this posting explains why now is the time to act and to ask: “Is COVID-19 still an “emergency (or was it ever)” “What is the true meaning of acting in the “public interest”? And “how long should such an ‘emergency’ be allowed to justify unilateral executive orders?”

An “emergency,” really, still?

The reams of executive and health agency orders justified their lawfulness on previously enacted “public health” or “emergency” laws, often from many decades in the past, and in response to very different and truly life-threatening disasters. In many cases, these previous laws did not adequately define or limit what constitutes an “emergency” or how long such “emergency” justified executive orders instead of duly enacted laws. Even if the laws were textually clear, the executives often stretched or ignored the scant authority for their actions and proceeded with massive public efforts to justify the necessity of the actions “for the public interest.”

In Pennsylvania, for instance, the Governor simply could extend the state of emergency on his own initiative, along with the web of business and individual restrictions — without requiring the legislature to approve such extension.

At the federal level, one year after, agencies like the CDC and, more recently, the TSA continue to justify restrictive orders on mask wearing using statutes by relying on some general catch-all wording, but which were enacted in the 1940’s (in the case of the CDC) to address contaminated articles and animals, or, in the case of the TSA, to increase air-travel “security” (not “health safety”) to combat terrorism.

Their Finest Hour . . .

Unfortunately, earlier during the “pandemic,” when businesses and injured citizens challenged whether federal and state orders were constitutional, valid exercises of power, they were often unsuccessful because judges were highly deferential to the executive branch’s “emergency” justification. As a result, many business were first cowed into compliance so as to remain viable, and have chosen to become enforcers of state orders because of irrational fears of health agency raids or fines, rather than fight to actions in court. Potential loss of income from a shutdown disruption was simply too great a risk. In other words, we have a variation on Albert Einstein’s observation: “Fear of an empty stomach makes a poor politician.”

Federal and Pennsylvania mask orders continue, as do Pennsylvania’s restrictions to 15% capacity for indoor and outdoor gatherings. It appears that many are waiting for an annulment of the orders by the same executives that pronounced them, trusting in benevolence and wisdom, while continuing to “sacrifice” economically and personally in the meantime. Some state orders have been terminated to great political fanfare, but a careful reading of such “annulments,” as well as a “boots on the ground” assessment in supposedly lockdown-free states, belies their politically motivated pronouncements. It shows that mask orders and other restrictions, regulations, and burdens persist, often at local levels.

After One Year . . . A New Road

It appears that, “The more things change, the more they stay the same.” So…

After one year, it is time for Congress and state legislatures to resume their rightful places as voices of their citizens and more thoughtfully consider what measures are in the public interest, including debate and consideration of all the “science.”

After one year, it is time to bring on legal challenges to these restrictions which call on the courts to revisit their previous deference to “emergency powers.” These emergency powers were designed to deal with natural disasters and imminent threats to the public, and it defies reason that such measures were ever intended to last a year. Or that during such time the legislature’s role in making laws to address the issue should be pre-empted by the executive branch. Or worse, that the state and federal executives should be free to engage in one-man rule — with prolonged “mitigation measures” that curtail citizens’ rights to assemble, worship, move about, earn a living, and breathe mask-free.

[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.

— Justice Samuel Alito (emphasis added, dissenting), Calvary Chapel Dayton Valley v. Sisolak, (U.S. Supreme Court, 2020)
Federal Court Finally Clips CDC Wings

After one year, there are rays of hope. Some courts have responded to the call and have invalidated CDC orders (links). Particularly promising is the March 10, 2021 decision from the federal district court of Northern Ohio, Skyworks, LLC v. Centers for Disease Control (5:20-cv-2407, N.D. Ohio, Order).

Although the case involved invalidating the CDC eviction moratorium order, the decision puts other CDC orders and their rule-like “guidance” on shakier ground: the Court decision cut back the CDC’s regulatory authority by sharply limiting the scope of the same public health statute that the CDC has been using to justify many of its other orders and guidances. The Court rejected the CDC’s argument and instead held that an expansive reading of CDC powers was “tantamount to creating a general federal police power.”

The statutory construction of the Court from this case could thus apply not only to the recently enacted national transportation mask order, but to the reams of CDC guidances issued to nearly every industry and imposing ineffective, unsound, expensive, and even draconian measures on business and violating civil liberties of citizens.

Still more important, to the extent CDC guidance exceeded CDC authority, the myriad State orders based on such invalid CDC guidance are likewise of questionable validity for at least this reason. So these cases may be a playbook to use in Pennsylvania and other states to challenge federal or state orders.

The Road Ahead

Reigning in State and Federal “emergency” executive orders after a long, one year, will require more bold federal and state legislative action, such as the Pennsylvania Referendum on May 18 to Amend the PA Constitution to Limit Governor Emergencies to a non-renewable 21 days. Even with passing laws returning law-making to the people’s representatives in the legislature, the judicial branch will need to be enlisted to uphold civil liberties and federal and state constitutions, by bringing more court cases to make it clear that the CDC or state health agencies are acting far afield from their delegated authority, and cannot justify their unilateral rule making under an “emergency” any longer.

With a more receptive judiciary, there is brightness on the horizon that the percentage of successful challenges will increase, minimizing the threat of excess federal police power, improving the checks and balances of our democracy, and encouraging successful businesses and a freer citizenry.