Ryan McMaken – September 25, 2020
A federal judge on Monday [Sep 14] ruled that Pennsylvania governor Tom Wolf’s covid-19 stay-at-home orders and forced business closures were unconstitutional.
US district judge William Stickman IV of the US District Court for the Western District of Pennsylvania ruled that Wolf’s orders violated the Constitution in three ways. They violated the First Amendment right to freedom of assembly, and they violated both the due process and equal protections clauses of the Fourteenth Amendment.
As a staunch decentralist, I don’t support the notion that federal courts have the authority to strike down state laws. Federal courts should rule only on federal laws, and federal laws ought to be few and far between. State laws are the business of the state’s supreme court. And if that court fails to rule against the despotic decrees of government agents, it is up to the citizens of that state to refuse compliance and make life very difficult and uncomfortable for the state’s politicians until they change their minds.
Moreover, I have no confidence that the US Supreme Court will side with Stickman if this case makes it to the Supreme Court. After all, Justice Roberts has already signaled that he is quite comfortable with states violating basic human rights so long as it is done for the sake of “public safety.”
But whatever is the ultimate fate of this ruling, there’s no denying that Stickman’s ruling offers a quite compelling and thorough takedown of the ruinous, cynical, and morally repugnant set of “laws” that are the state’s covid-19 restrictions.
Stickman starts off introducing his ruling with some basic and solid conclusions about rights in general. He writes:
In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions—while expedient in the face of an emergency situation—may persist long after immediate danger has passed.
It’s hard to dispute this, based not just on the current situation, but on countless other “crises” that have come and gone while the regime’s powers and prerogatives have proliferated.
Stickman then summarizes how the Pennsylvania decrees and orders came about. The “process” employed by Governor Wolf and his buddies is surprisingly corrupt and contemptuous of the public, even to an old cynic like me.
As Stickman notes, the “committee” which Wolf slapped together to write all his new executive orders was essentially secret. The members were not made public, the meetings were secret and closed to the public, and no minutes were kept. Stickman also points out that no members of the group “possess a medical background or are experts in infection control.”
Stickman also has a problem with the permanence of the decrees and orders. The governor and his ruling junta insist that their decrees are permanent, and even as stay-at-home orders are scaled back, these restrictions are only “suspended.” The default position is total lockdown. That is, in the minds of the Wolf cadre, we are to assume that stay-at-home orders are the rule and that anything less than a full shutdown is an exception. Moreover, Stickman points out that the regime doesn’t even have a plan for fully abandoning its emergency powers. Ever. The lowest “setting” on lockdown orders is nonetheless still a partial lockdown. The regime can’t even envision—and has provided no legal pathway whatsoever—to returning to a “normal” situation. Understandably, Stickman views this as a big red flag.
So, what we have in Pennsylvania is basically a small secret ruling committee which fancies itself the new permanent ruling authority of Pennsylvania indefinitely. There is no end date, no public rule-making process, and no transparency at all.
Clearly, nothing like this has been seen in any state government in the United States since the seventeenth century. The notion that this could be considered constitutional by any historical or established legal standard ought to strike one as absurd.
Moreover, the restrictions imposed by Wolf’s junta are unprecedented in their extreme nature. Stickman writes:
The stay-at-home components of Defendant’s orders were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of lockdown may render this a high bar, indeed.
Stickman emphasizes the unprecedented nature of the decrees as well. Although many supporters of stay-at-home orders have attempted to claim that they are all very similar to quarantine orders during the 1918 epidemic, the fact is that nothing like a stay-at-home order was ever imposed in the United States at that time—or at any other time:
Never before has the government exercised such vast and immediate power over every business, business owner, and employee. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion.
Stickman notes that the Pennsylvania orders have nothing to do with a “quarantine” as legally and historically understood. Quarantine orders are only imposed “equal to the longest usual incubation period of the disease” and only applied against people known to have been exposed or to have symptoms.
Months-long, open-ended stay-at-home orders, Stickman notes, have nothing at all to do with the quarantines used in the past, and are “unprecedented.”
The Right to Assemble
Stickman ruled that the Pennsylvania restrictions violated the First Amendment’s free assembly provisions, in part because the restrictions are unnecessarily broad and open ended, with no expiration date. The restrictions were to remain in force “until further notice.”
Moreover, the restrictions on public gatherings were selectively applied, apparently in line with the political whims of the governor, who even attended protests which violated his own orders. There were no exceptions for protests, yet the governor allowed them when politically convenient.
The restrictions are also haphazard, allowing large gatherings if done in big-box stores, but gatherings in other settings—even outside—are prohibited. The rules appear to be ad hoc, selectively enforced, and placing excessive and unnecessary obstacles against the well-established right to assemble.
No Equal Protection
Among the unprecedented acts taken by Governor Wolf is his creation of two classes of businesses. There were the “life-sustaining businesses” and the “non-life-sustaining” businesses. Stickman shows that the Pennsylvania junta could provide no objective standard for determining which businesses are in one category and which are in another. Moreover, many of the businesses deemed “non-life-sustaining” by Wolf’s committees sold the same products as “life-sustaining” businesses. Thus, the restrictions did nothing to end sales of “non-life-sustaining goods,” but only steered consumers away from the small businesses targeted by the regime and toward large, “big box” stores.
The effect was little more than to favor huge corporations while imperiling small businesses. Moreover, the categories were modified over time, apparently based on nothing more than the whims of Wolf and his allies. Stickman notes there is no legal precedence for such actions.
Stickman recounts how the governor’s lawyers admitted that the phrase “life-sustaining” is “not defined in any Pennsylvania statute or regulation.” It’s just something the shutdown advocates invented at the last minute. With no public input.
The regime’s actions in this regard are especially objectionable, because they violate the basic human right to seek employment and make a living. Stickman concludes that the governor’s orders did not provide the necessary justification for an order which trampled on the right of a resident to pursue employment in his chosen field. Stickman quotes Justice William O. Douglas, who wrote:
The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property.
No Due Process
The fact that the governor and his coconspirators met in secret and allowed no public scrutiny of their meetings should be seen as an indicator that “due process” is sorely lacking in how the governor has handled his emergency powers.
Similarly, Stickman notes that the state offered no reliable or public method for appealing its decision to shut down any particular business. Stickman concludes that the order to close all “non-life-sustaining businesses “was so arbitrary in its creation, scope and administration as to fail constitutional scrutiny.”
As with many states, the “emergency power” seized by the governor amounts to abolishing the basic concepts of due process established by centuries of political resistance to state abuse. The legislative process, public scrutiny, legal appeals processes: these were all established to provide a check on the powers of regimes. Wolf and his committeemen effectively abolished all of that.
The Immorality of Shutdowns
As a judge, Stickman naturally makes legal arguments here, relying on established precedents that themselves rely on the text of the Constitution itself.
But it’s important to remember that constitutional texts are only of any value if they are in the service of protecting human rights and providing a legal and institutional framework for doing so.
The strength in Stickman’s ruling lies in the fact it provides a detailed account of the many ways the Pennsylvania stay-at-home orders—like similar orders in many other states—violate basic human rights.
Human beings have a right to not have their property effectively seized by the state without due process. Human beings have a right to not be targeted by a small cadre of politicians who have decided they can do whatever they want whenever there’s an emergency. Human beings have a right to assemble in groups, whether for religious practice, for commerce, or to oppose the abuses of the state. Human beings have a right to look for work and be hired [by] any agreeable employer.
While even staunch classical liberals might concede the utility of strictly limited emergency powers in certain extreme circumstances, we are now six months into what politicians claimed was “two weeks to slow the spread” with no end in sight. These enemies of human rights—with the support of at least a sizable minority of the population, have attempted to abolish all human rights “until further notice” in a way absolutely unprecedented in American history.
Stickman is right that the Pennsylvania lockdown cannot be defended by anyone who takes human rights seriously.
Originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
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