What we should do is one thing. Saying the government can make us do it is something else entirely.
Shouldn't the majority be able to revoke such an order if they want?
They didn't do that here. They wanted a direct check on the agency's decision, rather than executing the power they actually had.
To quote my other response, on why this was a stupid ruling:
>Which is literally the court's excuse for the "rulemaking" ruling - that they should have gone through the 12mo+ tradition of regulation-development that legislatively-empowered agencies utilize. Which isn't how public health powers usually work - the public health powers are delineated in empowering statutes and regulations ahead of time, and allow leewey to do things like "order quarantine" within broadly-worded statutes+regs.
> Which is why this was phenomenally stupid. Besides ignoring context, this was a ruling that basically boiled down to "agencies cannot exercise the powers developed in the scope of their founding statutes and regulations unless those (edit: specific manifestations) have been very explicitly laid out ahead of time, otherwise, they need to go to rulemaking for every application of their powers." It effectively guts the ability of agencies to do things they are supposed to do, have been doing, and prevents them from acting in time-frames <12months.
All in the context of a legislative body that had a legal remedy afforded to them, but that would have been too slow. So for political purposes, they've now gutted the ability of emergency agencies to respond to emergencies, so that legislatures don't have to legislate changes to legislation.
The issue that was cobtrolling here was compliance with proper administative procedure, not the authority of state government to compel behavior. So precedent on the latter is immaterial.
> The state supreme court here grossly violated legal precedent, and will have its ass overturned in a heartbeat if anyone has the time, resources, and will to escalate.
It's a state law claim that has been adjudicated by the highest state court, there is no place for the case to be escalated to.
You do recognize the difference between "government, acting according to established procedures with proper involvement by all branches of government" and "one single person, acting on emergency authority that was never intended to last this long", right?
The whole point of having an executive is for a single person to act alone and decisively, especially in times of crisis. In the midst of an emergency is not the time for legislative subcommittees to endlessly debate.
The US president has the power to unilaterally order a nuclear strike on any point on the planet at any time they choose, regardless of how anyone in the other branches feel about it at the time. So 'limited,' maybe, but also able to end life on Earth as we know it on a whim.
That's an aside, however. I'm talking about the general concept of an executive office, not specifically the US president. And sure, there can be limits, but the whole point of an executive is to avoid endless deliberation in the appropriate situations. Perfect example: Congress had the constitutional power to manage tariffs, and they surrendered that power to the president willingly because they weren't able to be decisive enough with it.
Not likely. The U.S. armed forces would not carry out such an order.
The President has a lot of military and foreign policy power, but not a lot of domestic policy power. This thread is about domestic policy.
Within the confines of the powers granted to the executive by law. The legislative branch grants such powers to the executive to act. Where th executive goes beyond that, the judicial branch rules against the executive branch. Checks and balances.
> In the midst of an emergency is not the time for legislative subcommittees to endlessly debate.
Man I hope Trump doesn't read this and get ideas. You are essentially saying that the executive branch should be given dictatorial powers now. Do away with checks and balances? Is that what you really want? Historically emergencies and crises have been used to justify tyranny and it's scary to see how the fearful yearn for it.
Which is literally the court's excuse for the "rulemaking" ruling - that they should have gone through the 12mo+ tradition of regulation-development that legislatively-empowered agencies utilize. Which isn't how public health powers usually work - the public health powers are delineated in empowering statutes and regulations ahead of time, and allow leewey to do things like "order quarantine" within broadly-worded statutes+regs.
Which is why this was phenomenally stupid. Besides ignoring context, this was a ruling that basically boiled down to "agencies cannot exercise the powers developed in the scope of their founding statutes and regulations unless those powers have been very explicitly laid out ahead of time, otherwise, they need to go to rulemaking for every application of their powers." It effectively guts the ability of agencies to do things they are supposed to do, have been doing, and prevents them from acting in time-frames <12months.
That is still the Executive. Those are all executive branch officials. The Executive branch is headed by a singular Executive official (Governor, President), but all of its officials form the Executive branch and power.
> making their exercise of power one delineated by the legislature
That's where the difference of opinion lies.
A good government is a secretary / janitor, not A CEO.
If America is going to close the State, it also has to freeze the economy and give people ideas, goals and hope. The American government, at all levels Federal and State, and failed at doing this to a tragic degree. I wrote more about this: https://battlepenguin.com/politics/this-is-not-a-time-of-hon...
I may or may not cause harm by running a red light in the middle of the night, or speeding on a freeway -- in fact, I know a guy who habitually runs reds at night, "just because" -- yet the constitutionality of ticketing people for running reds or speeding is not, as far as I know, in dispute.
How this maps onto public health in a pandemic, I don't know.
Can you be more specific? It's the nebulousness of what "can harm" that rubs a lot of people the wrong way. Taken to one extreme, there's almost nothing you can do that doesn't potentially harm others. For example, I could leave my stove burner on and burn down the entire apartment building. So many things come with risks to others, and those things are just part of existing in society.
Now I'm not marching in the street or anything like that, but the more I'm told we must follow authoritarian orders without significant compelling evidence, while dissenting voices are being censored, the more appealing the idea is to me, just as a matter of principle. Favor force over reason, and you might get the same in return.
Yes, actually. The Tenth Amendment does.
https://en.wikipedia.org/wiki/Police_power_(United_States_co...
> In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.[1] Police power is defined in each jurisdiction by the legislative body, which determines the public purposes that need to be served by legislation.[2] Under the Tenth Amendment to the United States Constitution, the powers not delegated to the Federal Government are reserved to the states or to the people.
Vaccines.
The government has the right to require your children to have vaccines before they go to school because not doing so has extremely harmful effects on others when we drop below herd immunity.
Smoking.
The government has the right to create anti-smoking laws because the market simply wouldn't produce a non-smoking bar that wouldn't affect the health of the people actually working there.
Shall I go on?
You should, because you'll quickly realize that there are far, far more activities that potentially cause harm to others than there are laws that prohibit them. Also, vaccines and smoking have a history that are peppered with lawsuits about their legality, so as far as examples go, they are not the ones I would hold up as evidence of laws that people clearly think are constitutional.
The flu killed ~50,000 last year in the USA. Do we require all non-essential businesses to shut down and everyone quarantine? Is there some magical cutoff number between 50,000 (flu deaths) and 80,000 (COVID deaths) where we decide to shut down the entire country?
Also you're conflating "the government has the right" with "there exists a law." The government has the right to enforce the law, but there is no innate right in that law itself. If we overturned smoking laws tomorrow, it doesn't remove rights from the government, it removes laws that the government enforces.
That's what they currently claim, but it's not what they're supposed to be doing. We made a huge mistake when we allowed the government to morph from "enforce the minimum basic rules that are necessary to have a civil society" to "solve everything that anyone thinks is a problem".
That sounds facetious, but I'm being serious. Go read the United States Code, or the Code of Federal Regulations, and tell me how many of those laws and regulations you think really are within the limited powers granted to the Federal government by the Constitution and the Bill of Rights. Go read Supreme Court decisions like Wickard v. Filburn or Kelo v. New London, or for that matter even Brown v. Board of Education or Roe v. Wade, and tell me whether those decisions really are in accordance with the limited powers the Federal government is supposed to have.
Yes, you can argue that some of those laws and regulations and decisions were good from a public policy standpoint. (Although it would be hard to make a case that our public schools are really any better more than half a century after Brown v. Board of Education than they were before. And not everybody agrees with current jurisprudence on abortion.) You can also argue that some of them plainly weren't. (Is it really a good idea to restrict what a farmer can grow on his own land, for his own use, in the name of regulating "interstate commerce"? Is it really a good idea to have the government artificially manipulating the market for food in the first place, especially when it's being done at the behest of large corporations and their lobbyists? Does evicting people from their homes and handing the land over to a private development company really count as a valid use of the government's eminent domain power?)
But in either case, you're arguing from an implicit assumption that the government is supposed to fix problems, and you're arguing about whether it did a good or a bad job. Nobody ever even asks why the government is intruding in all these activities in the first place, if it's just supposed to be enforcing the basic rules needed to have a civil society.
I think it's going to come down to definitions unfortunately. For example, what do we mean when we say
> enforce the minimum basic rules that are necessary to have a civil society
One could argue that Brown v Board of Education had little to do with policy and more to do with basic rules for civil society. For your other examples, I can see compelling arguments for why the federal government took this actions (with a justifiable reason). Many of them fall under the fact that the government is ultimately a forum for resolving large scale organizational challenges that the market is not properly incentivized to tackle.
Yes, these powers can be abused, and while restricting the government from acting in certain ways may be a method of curtailing those abuses, it would be a tradeoff in terms of the government effectively being able to accomplish its purpose.
> But in either case, you're arguing from an implicit assumption that the government is supposed to fix problems, and you're arguing about whether it did a good or a bad job. Nobody ever even asks why the government is intruding in all these activities in the first place, if it's just supposed to be enforcing the basic rules needed to have a civil society.
It builds down to a tension between "fix problems" and "enforce basic rules needed to have a civil society." Even in the situations you cite, the two can be in conflict. I suspect a lot of the people that one perceives as trying to use the government to "fix problems" may very well be seeing themselves as "enforcing basic rules needed to have a civil society."
Only if the school is run by the government. The government has no right to enforce vaccination on children who go to private schools or are home schooled.
In other words, the government's right in this case stems from owning the school, not from a general right to micromanage every aspect of people's lives.
> The government has the right to create anti-smoking laws
No, it doesn't. It was allowed to pass such laws because smokers had become obnoxious enough in insisting on their "right" to smoke everywhere (which didn't used to be the case--houses and other places once had special rooms for smoking, precisely because smokers had enough manners not to obtrude their activities on non-smokers) that non-smokers picked the lesser of two evils and allowed the government to overreach its power rather than have practically all public spaces be unlivable.
This is not entirely accurate.
>> The government has the right to create anti-smoking laws because the market simply wouldn't produce a non-smoking bar that wouldn't affect the health of the people actually working there.
This was likely due to market failure, not due to health reasons.
No. When our actions have harmed others, then the government has the right to step in--because we delegated that power to them.
But the government does not have the right to step in just because some government official things our actions "can" harm others. That's not their call to make. We are adult human beings and don't need keepers or nannies. We make our own choices, and if those choices do harm others, we take the consequences. But if they don't, the government needs to leave us alone.
I am all for this! How can we make this happen? Maybe we put tracing in place and if you left your house for no essential reason and without a mask and infect someone else you get shared with manslaughter? Let's do it!
Who says what counts as "no essential reason"? How do you know whether I infected anyone else? Not everyone without a mask is an asymptomatic COVID-19 carrier.
If you're basically arguing that the government needs to have invasive surveillance and micromanagement powers to ensure that every possible way someone might harm someone else is captured, then no, I don't agree.
By looking at everyone's choices, not just the one person you want to pick on.
Suppose Person A is an asymptomatic COVID-19 carrier and doesn't know it. They go to the grocery store without a mask. Person B also goes to the grocery store without a mask, and gets infected by Person A.
You could say Person A is responsible because they should have worn a mask. But you could also say Person B is responsible because they should have worn a mask. Yes, if you know there are a lot of asymptomatic carriers, you should take into account the possibility that you might be one. But you should also take into account the possibility that someone else might be one. So the appropriate rule in this case is that anyone who doesn't wear a mask in a public place where they can't social distance takes the consequences if they get sick. Someone who gets infected because they didn't wear a mask can't pawn off the responsibility on the person who infected them that also wasn't wearing a mask.
In other words, your scenario where "a few people who don't take care not to infect others can kill millions* simply cannot happen unless those millions of other people also don't take care not to get infected. So putting all the responsibility on the person who unknowingly infected someone else, instead of sharing it equally among all the people who didn't take common sense precautions, is wrong. Justifying invasive surveillance and tracking of everyone on those grounds is basically saying you want the government to make sure you don't have to take any prudent precautions or exercise any common sense at all in your daily life in order to avoid having anything bad happen to you. That's not reasonable.
I do think that people who are at risk should be able to get unemployment so that they are not forced to work.
If we all could take proper precaution this whole thing would be over much quicker and we could return to something that's close to normal. We could get to a place where we have few enough cases that we can test and trace. Other countries are on their way to accomplish this.
I disagree. They do both.
> that doesn't give me full protection from the a-hole who almost ran me over at the UPS store the other day who wasn't wearing a mask and was keeping no distance whatsoever
Nothing will give you "full protection" in the sense of guaranteeing that nothing bad will happen to you. But you were a lot better off wearing a mask in the situation you describe than if you hadn't been.
Also, you were wearing a mask, and the other person wasn't. That puts more of the responsibility on him if something bad happens.
Indeed, in what you describe, the issue isn't just that the person wasn't wearing a mask. It is that he took no precautions whatsoever to keep distance, and showed no sign of even being aware that he ought to be taking such precautions. That puts even more of the responsibility on him, since there are other prudent precautions besides wearing a mask that a person is expected to take in a situation like this, and keeping distance is one of them.
Has anyone taken these laws to the Supreme Court?
No, but that's because we live in a legal regime where the government assumes the power to punish people with jail time even when no actual harm is caused, based on a government official's judgment of "possible harm". But the fact that we live in such a regime does not make it right.
In a sane legal regime, what would happen if you were driving drunk, but had not caused any actual harm, and a cop saw you and stopped you, would be: cop determines that you are drunk (breathalyzer, let's say); cop makes sure your car is safely parked off the road, locks it, and takes the key; cop says "sir, I really think you should let me drive you home, since you're too drunk to drive safely; you can get a family member or friend to bring you back to get your car tomorrow when you're sober". Then, either the cop drives you home and gives your car keys to whoever is there; or, if you resist, the cop puts you in the back of his car and drives you to the police station instead, and calls a family member or friend to come take you home, and gives your car keys to them.
In other words, the cop has a perfect right, when he sees you're obviously impaired, to stop you from driving. Indeed, anyone would; if you were at a friend's house and you were clearly too drunk to drive home, the friend would have a perfect right to hide your car keys and either drive you home himself, or have you crash in his spare bedroom or on the couch. But the government does not have the right to throw you in jail if all you did was drive drunk, and caused no actual harm. It only has the right to punish you if you caused actual harm.
What if I kidnap a sleeping baby, but they catch me before the baby awakens or the parents find out. No harm, no foul?
The "as long as you don't hit anyone" part is going to be hard to guarantee, particularly if this is not just a one-shot event but a repetitive pattern of behavior.
Also, the fact that, if you are lucky enough not to hit anyone, and only cause property damage, and agree to pay for it, the government can't send you to jail in a sane society, does not mean the apartment owner can't take other actions. As, for example, telling everybody they know about your reckless behavior. In a sane society, people who act recklessly like this quickly find that they can't survive because no one will associate with them due to their widespread reputation for reckless behavior.
Unfortunately, we don't live in a sane society.
> What if I kidnap a sleeping baby, but they catch me before the baby awakens or the parents find out. No harm, no foul?
No, because kidnapping the baby is a crime because the baby is not yours, not because some government official thought that doing so "might harm" the baby. I thought we weren't discussing that category of crimes, but only the category where the government's justification for calling it a crime is that it "might harm" someone, even if there is no actual harm.
[1] https://www.who.int/news-room/fact-sheets/detail/diabetes
I am all for lawful precautions but you have to give the people some credit. The lock downs and restrictions are incredibly arbitrary and in many cases nonsensical. you can have similar businesses and one is non essential or one has rules applied that don't apply to the other. this is what frustrates people the most, the vast majority know what to do. those who don't have always been there and always been a problem but it was easy to ignore them prior
But it doesn't matter since overruling those kinds of courts is almost impossible, so yes if you wish for a court to overturn such an order that is what happened here!