Cline on the Constitution – One Person Rule
And so, this is how it happens. How we forget what it’s like to live in a democracy. We simply get used to it. We accept being told what to do, what rules we must follow. Not laws mind you, not legal codes introduced in a legislature, debated and voted upon. But rules from one man occupying the governor’s office. It must, after all, be for our own good. The people in charge just have to be smarter than us. No matter how ridiculous, how farfetched their strictures, we must comply with what they tell us to do. No matter what. If we don’t someone might get sick; someone, somewhere, might even die of a disease. How shocking!
It gets worse. We are now okay with elitists making detailed rules for how we live, how we worship, with whom we interact and when, restrictions on when we can visit our elderly, have a bite to eat with a friend, see a game together, rules on when our kids can go to school, how they are taught, how they learn or don’t, if they can play sports, whether we can travel and where. And, oh yes, whether we can make a living, feed our families, meet payroll for employees, and, incredibly, whether we can travel the streets of our communities after ten o’clock at night.
Surely, we think, it must be best for all of us to let a group of risk adverse bureaucrats govern every aspect of our lives. After all there was an emergency in March. That was scary. Well, yes, that was months ago, and sure, there seems to be no temporal limit to the suspension of the Bill of Rights, the shelving of democracy, the forfeit of legal protections for just our right to be left to our own choices, make our own judgements, our own calls, but those people are so smart.
And, well, we are used to it now.
As Supreme Court Justice Samuel Alito recently stated: “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” He went to say, “And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.”
Our reactions? Ho hum.
He urged us to consider what we have lost. “Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that the COVID crisis has served as a sort of constitutional stress test.”
Our reactions? Yawn.
And he pointed out an obvious danger. “All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.”
Our reactions? We titter when our long-haired governor is caught with his pants down, oops, I mean with his mask off. And our glasses fog as we put our own back on.
So, where have our Court’s been during all this?
They too have, mostly, been hiding behind their plexiglass and deferring to the technocrats. But slowly, in widely scattered locations around the country efforts are being made to wake the courts up to what is happening, shake them out of their complacency and urge them to resume their proper role in restraining the tyrannical impulses of one-man/woman rule.
Next month a hearing will be held in Fresno Superior Court where attorneys from the Pacific Legal Foundation representing a local business owner will challenge California’s One-Man Rule of a Governor obviously drunk with power. A man who has forgotten the limits of his role in a democracy. Who every day seems less a leader and more a petty tyrant, enthralled to bureaucrats dizzy with their new found power to fashion an arbitrary and ever more restrictive set of rules to govern every aspect of our lives.
While the legal challenges are based upon an array of abuses of State law, one of the foundations for the challenges is the Non-Delegation Doctrine. That is a doctrine originates in Supreme Court considerations regarding the constitutionality of legislatures abdicating to the Executive branch the roles and duties they are assigned by the Constitution. At its heart it is about how our framers sought to protect us from the actions of petty tyrants through the Separation of Powers.
It is unconstitutional for a legislative body, be it the state legislature under the California constitution or the Congress under the United States Constitution, to place control over an essential function of one branch of government in another branch. They may not, for example, transfer judicial power to the governor or President. Likewise, their own responsibility to legislate may not be delegated to another branch such as the Executive. Which is essentially what has happened in California, Michigan, New York and other states.
In California, the government code gives the Governor temporary powers to take limited actions in a true emergency. However, it was never meant to transfer powers to the Executive with no limits on time or scope of responsibilities. On issues that really matter to Californians the state legislature has proven to be meek to a fault. They have failed to assert their prerogative over law making.
The non-delegation doctrine requires them to do just that. We will watch closely the belated moves to urge the courts to put rule making back in its proper place.
For more writings by Phil Cline, visit philcline.com