Politico: Governor Newsom Given High Marks for His Coronavirus Response (gated, beaches)

[TimTheEnchanter]

Originally Posted by 2sleepy

No one is violating the constitution, get a grip.

Of course the Constitution is being violated. What's at dispute is to what extent can the government suspend civil rights and for how long under emergency powers.

Originally Posted by 2sleepy

A federal court just ruled in favor of California in a lawsuit where some yahoo cosplay soldiers wanted to demonstrate in front of the Capitol. The judge said that the state is within it's rights to ban protests during an emergency

The judge also acknowledged that the SCOTUS might overturn his ruling.

Originally Posted by 2sleepy

One thing that irritates me is when people start whining about their constitutional rights but they don't give a hoot about the rights of the people they are putting at risk when they refuse to follow guidance that's in place to protect all of us.

The completely hilarious thing from the Left is how positions shift. In 2014 the ACLU sued to get people out of quarantine who had been directly exposed to Ebola and sued to prevent people who had been to the affected areas and were returning to the U.S. from being quarantined.

These two articles are instructive.
https://www.aclu.org/press-releases/...constitutional
https://www.cnn.com/2014/10/31/healt...ola/index.html

Originally Posted by Astral_Weeks

LMAO again. Re: Internment: A very good friend of my senior citizen parents is a Japanese American woman who was interned.......

Everybody whose family was in LA pre-WWII knows people who were interred. One of my best friends had his family interred and his uncle ended up a highly decorated veteran, serving in the 442nd. It doesn't give a person any special pass to comment on it.

Originally Posted by Tulemutt

Neither Astral nor I “missed the analogy” ... there is no equivalency between WWII racial internment and this present day virus shut down. None whatsoever, as explained several times to you.

As explained to you several times there is direct equivalency, which is about the abuse of power, too much power in one person's hand, making decisions based on fear, not facts and the normalization of "emergency" situations.

I also get the comparisons to the Warsaw ghetto where fear was used to consolidate power, isolate certain groups and accomplish goals not otherwise attainable, but for claiming a crisis.

[Tulemutt]

Originally Posted by TimTheEnchanter

Of course the Constitution is being violated. What's at dispute is to what extent can the government suspend civil rights and for how long under emergency powers.


...


As explained to you several times there is direct equivalency, which is about the abuse of power, too much power in one person's hand, making decisions based on fear, not facts and the normalization of "emergency" situations.

I also get the comparisons to the Warsaw ghetto where fear was used to consolidate power, isolate certain groups and accomplish goals not otherwise attainable, but for claiming a crisis.

The constitution isn’t being violated. It expressly provides for emergency powers. You can argue until you are blue in the face that this isn’t an emergency, of course. Kinda silly to say it isn’t, but knock yourself out.

And no, there is no equivalency between racial discrimination without active threat ... and threat of uncontrollable biological disease present and highly active in the society.

It’s also important to note that in the case of Warsaw, there was gross special interest being applied to strip away wealth, increase power, and extinguish a race. There is no benefit being gained by any parties today in restricting the community - other than disease control. No party comes out wealthier or in a more advantageous position over other parties. The damages from shut-down are pretty near universally felt.

[TimTheEnchanter]

Originally Posted by Tulemutt

The constitution isn’t being violated. It expressly provides for emergency powers.

Feel free to quote that Emergency Powers Clause.

[Mike930]

Originally Posted by TimTheEnchanter

Feel free to quote that Emergency Powers Clause.

There is a Supreme Court case:

In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

https://www.heritage.org/the-constit...ergency-powers

[TimTheEnchanter]

Originally Posted by Mike930

There is a Supreme Court case:

Don't try to bail him out. He said, "The constitution isn’t being violated. It expressly provides for emergency powers."

And of course it does not. Perhaps deliberately.

[Tulemutt]

Originally Posted by TimTheEnchanter

Feel free to quote that Emergency Powers Clause.

Federal? Or state? The definitions and scope of emergency powers differs between feds and state. In general, the states have more power than the feds. But the state powers are derived from the federal constitution.

While there is no expressly stated federal constitution Emergency Powers clause, your word, the National Emergencies Act (1976) was passed has been used and is being used (in multiple case beyond the present CV19 issue) based on court and scholarly interpretation that the constitution implies the executive branch has emergency powers available because it is structured to act much more quickly than the legislative branch.

The Act empowers the President to activate special powers during a crisis but imposes certain procedural formalities when invoking such powers. The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency. Congress can terminate an emergency declaration with a joint resolution signed into law.[1] Powers available under this Act are limited to the 136 emergency powers Congress has defined by law.[2]

The legislation was signed by President Gerald Ford on September 14, 1976.[3] As of March 2020, 60 national emergencies have been declared, more than 30 of which remain in effect.[1][4]

Thus, the constitution, by its structuring of the government branches, has expressly provided the means for dealing with emergencies.

That foundation explained:

Governors play a fundamental role in emergency preparedness and can help facilitate rapid responses to emergencies. However, laws that operate successfully under normal circumstances can inadvertently create barriers during emergencies, delaying a timely response. State laws could thus limit, or even prohibit, necessary response efforts. To combat this risk, legislatures have passed emergency powers laws in each state granting governors the authority to declare a state of emergency and to exercise certain emergency powers to meet the needs of the emergency. Researchers conducted a 50- state legal assessment, which identified and examined state laws that give governors the discretion to modify existing laws or create new laws to respond effectively to any type of declared emergency

https://www.nga.org/wp-content/uploa...y-Response.pdf

[Tulemutt]

Originally Posted by TimTheEnchanter

Don't try to bail him out. He said, "The constitution isn’t being violated. It expressly provides for emergency powers."

And of course it does not. Perhaps deliberately.

And yet the greater consensus of constitutional scholars is that the constitution did “deliberately” provide, by its very structuring of the branches as they are, that the executive branch is able to act unilaterally in times of emergency.

[Mike930]

Originally Posted by TimTheEnchanter

Don't try to bail him out. He said, "The constitution isn’t being violated. It expressly provides for emergency powers."

And of course it does not. Perhaps deliberately.

I’m not trying to bail anyone out. Courts often have to decide legislative intent. That’s why you end up with case law.

You said the constitution was being violated and a Supreme Court justice from 1905 disagreed with you. Your comment was incorrect.

[TimTheEnchanter]

Originally Posted by Tulemutt

Federal? Or state?

The U.S. Constitution is federal.

Originally Posted by Tulemutt

And yet the greater consensus of constitutional scholars is that the constitution did “deliberately” provide, by its very structuring of the branches as they are, that the executive branch is able to act unilaterally in times of emergency.

I see the issue. When you said, ""The constitution isn’t being violated. It expressly provides for emergency powers.", you didn't understand the word "expressly".

Originally Posted by Mike930

You said the constitution was being violated and a Supreme Court justice from 1905 disagreed with you. Your comment was incorrect.

It has been a very long time since Jacobson v Massachusetts (1905), which was about the right of Massachusetts to compel vaccinations for the good of society. The court held 7-1 that for public good, vaccinations could be mandated, overruling personal liberty, even though personal liberty isn't really mentioned in the body of the Constitution. Jacobson attempted to use the Preamble as a basis for personal liberty. The court rejected that argument.

But the court specifically discusses the power of the legislature to enact such laws, it never mentions executive ukase as a means of imposing such measures.

Two months after Jacobson the court found for personal liberty in the Lochner case against the NY Legislature trying to impose maximum work days, saying it was “an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual".

Six of the nine members of the Jacobson court were also the ones who decided Plessy v Ferguson, possibly the worst, most incorrect SCOTUS ruling ever.

There hasn't been a serious look at Jacobson because the power of the legislature of a state to pass laws balancing public health vs individual liberty hasn't been controversial. That is not the situation we are in right now. As far as I know all these policies on closing some businesses, not others; banning church services in person; quarantining otherwise healthy people etc, have all been executive orders, not legislation. Yes governors have emergency powers, but those too have limitations. I'd be surprised if any state government tried to defend its actions under Jacobson v Massachusetts or Gibbons v Ogden.

[Mike930]

Originally Posted by TimTheEnchanter

The U.S. Constitution is federal.


I see the issue. When you said, ""The constitution isn’t being violated. It expressly provides for emergency powers.", you didn't understand the word "expressly".


It has been a very long time since Jacobson v Massachusetts (1905), which was about the right of Massachusetts to compel vaccinations for the good of society. The court held 7-1 that for public good, vaccinations could be mandated, overruling personal liberty, even though personal liberty isn't really mentioned in the body of the Constitution. Jacobson attempted to use the Preamble as a basis for personal liberty. The court rejected that argument.

But the court specifically discusses the power of the legislature to enact such laws, it never mentions executive ukase as a means of imposing such measures.

Two months after Jacobson the court found for personal liberty in the Lochner case against the NY Legislature trying to impose maximum work days, saying it was “an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual".

Six of the nine members of the Jacobson court were also the ones who decided Plessy v Ferguson, possibly the worst, most incorrect SCOTUS ruling ever.

There hasn't been a serious look at Jacobson because the power of the legislature of a state to pass laws balancing public health vs individual liberty hasn't been controversial. That is not the situation we are in right now. As far as I know all these policies on closing some businesses, not others; banning church services in person; quarantining otherwise healthy people etc, have all been executive orders, not legislation. Yes governors have emergency powers, but those too have limitations. I'd be surprised if any state government tried to defend its actions under Jacobson v Massachusetts or Gibbons v Ogden.

If there are no new cases that overturn Jacobson it still stands. That’s how case law works. If someone thinks they can challenge it, they will. It would seem that if someone thought they had a strong case, they would bring it up. So far the few lawsuits I’ve read about have failed. Whether anyone thinks it’s a bad decision is irrelevant.

What’s more interesting to me is that two counties up north have decided to go against the governor and open. The only consequences they suffered so far was a stern finger wagging from Newsom.