By Jim Bowman
The governors of all 50 states, and the mayors of many large cities, have assumed . . . powers to restrict private personal choices and lawful public behavior in an effort to curb the spread of COVID-19.
They have done so not by enforcing previously existing legislation but by crafting their own executive orders, styling those orders as if they were laws, using state and local police to enforce those so-called laws and — presumably when life returns to normal and the courts reopen — prosecuting the alleged offenders in court.
As for these exec orders styled "as if they were laws," he continued,
It is hard to believe that any judge in America would permit a criminal trial of any person for violating a standard of behavior that has not been enacted into law by a legislature. We know this because under our system . . . only the legislative branch can craft laws and assign punishments for noncompliance. . . . Supreme Court Justice Neil Gorsuch has written that the executive branch cannot enforce a law that it has written. . . . [Emphasis added throughout]
They've gone ahead and done it anyhow.
During the past eight weeks, governors and mayors have closed most businesses, public venues and houses of worship, prohibited public assembly and restricted travel — all of which they have unilaterally decreed to be nonessential.
. . . executive branch officeholders have used state and local police to restrain people from engaging in private and public behavior which they concede was lawful two months ago because today it is not deemed "essential." . . . .
The lockdown orders are all unlawful because none of them — none — has been enacted by a legislature, and all of them — all — interfere with fundamental liberties, each of which is guaranteed — guaranteed — by the Constitution.
He has no quarrel with"personal efforts to control contagion" but with "social-distancing, wear-your-mask, shut-your-business, stay-at-home edicts," which he says "constitute mere recommendations that should induce rational voluntary compliance, because the government in America is without lawful power to compel compliance."
Ends with commentary, including a memo to governors who "complain about resistance" but "need to know that Americans will resist efforts to interfere in behavior that remains as moral, natural, lawful and constitutional as it was 60 days ago."
And a peroration:
In America, we decide for ourselves what produces happiness. We have never delegated to the government . . . the power to make personal choices for us.
And some of us are willing to take chances and even do "nonessential" things. The essence of the freedoms for which we have fought since 1776 is the liberty to be ourselves.
The judge, until recently a Fox News analyst, has had a long career including seven years as the youngest then-sitting New Jersey supieror court judge. He is robustly conservative in his judicial philosophy and vigorously assertive in his judgments.
Answer Book 2019
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