Today’s “Freedom is Scary” Livecast discussion with West Virginia patriot legislators, Marshal Wilson and Jim Butler. On our lawsuit against the WV Governor, freedom, history, the gubernatorial race, and more.
Yesterday our Governor, Jim Justice, in one of his live-stream briefings, threatened to order a travel ban of sorts, where any West Virginia resident who leaves the state will be forcibly tested for COVID-19 and quarantined. Before I even get to the potential Fourth Amendment violations which he’s proposing, the restrictions on interstate travel – that is traveling between states – is about as clear-cut of a violation as you can get.
These are his words:
Mandatory testing and quarantining when residents return to the state from out of state travel “is on the table,” Justice said.Gov. Justice says mandatory testing and quarantining are ‘on the table’ for out of state travel after increase in COVID-19 cases and hospitalizations
The Governor in Kentucky tried this and was shot-down in federal court. Kentucky attorney, Chris Weist, sued the Kentucky Governor in federal court in response to his “travel ban,” and the Court found it to be clearly unconstitutional. The Kentucky ban “limited the reasons that Kentucky residents could leave the state and required that any person who left the state without a valid reason be self-quarantined for 14-days after their return.”
As outlined in Beshear’s two executive orders, order 2020-206 and 2020-258, individuals were only permitted to leave the state for employment, to receive or provide health care, to obtain groceries or other needed supplies, and when they were required to do so by a court order. The orders also allowed a resident to travel outside the state to assist in caring for the elderly, a minor, dependants, or vulnerable or disabled persons.Kentucky’s Covid-19 Travel Ban Ruled Unconstitutional
The U.S. District Court for the Eastern District of Kentucky struck it down:
After careful review, the Court concludes that the Travel Ban does not pass constitutional muster. The restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties.
The “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). Indeed, the right is “virtually unconditional.”Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See also United States v. Guest, 383 U.S. 745, 757 (1966) (“Theconstitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established andrepeatedly recognized.”).Roberts v. Neace, et al., Civil Action No. 2:20-cv-054, E.D. KY., May 4, 2020.
The federal court in Kentucky went on to say that it is possible that it might be constitutional if it were less restrictive. For instance, if it was a “request,” or “guidance,” rather than something that was going to be forcibly enforced. Or at least attempted to be enforced.
The key is that restriction on travel must be narrowly tailored so as to choose the least drastic means of achieving the objective. The federal court in Kentucky gave the following examples of individuals who would be unconstitutionally affected by the Kentucky ban:
- A person who lives or works in Covington would violate the order by taking a walk on the Suspension Bridge to the Ohio side and turning around and walking back, since the state border is several yards from the Ohio riverbank.
- A person who lives in Covington could visit a friend in Florence, Kentucky (roughly eight miles away) without violating the executive orders. But if she visited another friend in Milford, Ohio, about the same distance from Covington, she would violate the Executive Orders and have to be quarantined on return to Kentucky. Both these trips could be on an expressway and would involve the same negligible risk of contracting the virus.
- Family members, some of whom live in Northern Kentucky and some in Cincinnati less than a mile away, would be prohibited from visiting each other, even if social distancing and other regulations were observed.
- Check points would have to be set up at the entrances to the many bridges connecting Kentucky to other states. The I- 75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined.
- People from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations.
- Who is going to provide the facilities to do all the quarantining?
Most, if not all, of the same examples would occur here in West Virginia, if the Governor had his way. There can be little doubt that a federal challenge would be successful. The question is, does he care?
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UPDATE: the Livecast:
Also, here’s the link to the 1969 law review article I discussed:
Constitutional Protection for Freedom of Movement: A Time for Decision by Sheldon Elliot Steinbach, Kentucky Law Journal, 1969
And here’s the quote and cite for the 1849 case I mentioned:
For all the great purposes for which the Federal Government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members ofthe community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.Smith v. Turner, 48 U.S. 7 283, 292 (1849).
LIVE AT NOON TODAY. Watch here, on Youtube Live, or an Facebook Live.
I haven’t yet begun to fight, is the theme of the week. Many fights are ongoing, and many are waiting on deck. In this video, I give an end-of-the-week update to many of the civil rights cases we’re currently fighting, as well as some of the current real civil rights issues, in my opinion, of course. Some of the thecivilrightslawyer.com blog posts from this week, in case you missed them:
Delegating our Freedom to a Czar: https://thecivilrightslawyer.com/2020…
COVID Tyranny and the Truth: https://thecivilrightslawyer.com/2020…
Follow on Facebook: https://www.facebook.com/JohnBryanLaw
Note: Maryland’s highest court affirms that police can’t use the smell of marijuana to search and arrest a person
ETA: during the live cast I mentioned my hemp-law-guru who told me about the MD marijuana case. I should have mentioned, that’s Jennifer Mason, Esq. She’s the go-to person for up-to-date hemp law around the country.
The Federal Housing Administration (FHA) was able to stop evictions of renters during the coronavirus pandemic. The Coronavirus Aid, Relief, and Economic Security Act (CARES) also made it unlawful for landlords to evict tenants in federally subsidized or federally backed housing. However, those protections expired on July 24.
Since governors across the country shut down the economy, many streams of income stopped. As a result, renters got behind, or stopped paying rent. Tomorrow, July 31, 25 million Americans will no longer receive their weekly $600.00 federal unemployment checks. The next round, if it happens, will likely be reduced.
West Virginia appears to be ground zero:
The analysis is based on Household Pulse Data from mid-July and it found that some states will be hit harder than others. For example, West Virginia is estimated to have the highest share of renter households facing eviction at close to 60%. Tennessee, Minnesota, Mississippi, Florida and Louisiana are all among the states set to be worst impacted with shares at 50% or higher. Elsewhere, Vermont is the state where renters will be at the lowest risk of eviction, though 22% of them will potentially lose their homes over the course of the crisis. – Forbes
“It’s like nothing we’ve ever seen,” said John Pollock, coordinator of the National Coalition for a Civil Right to Counsel. In 2016, there were 2.3 million evictions, Pollock said. “There could be that many evictions in August,” he said. – Zero hedge
The WV Supreme Court had suspended evictions in the state (though I don’t see how that’s constitutional) but that was up on May 15. As of now, evictions may proceed. Legal Aid of West Virginia has a good self-help page set up to answer a lot of the questions.
The WV Attorney General also has published a brochure so that you know what your rights are. Just FYI.
Like the Governor said, “a little overreaction never hurt anybody . . . so long as it saves one life.”
I watched a little bit of the West Virginia Governor’s daily live press conference. After he finished mumbling, he introduced our “Czar,” Dr. Clay Marsh, who is apparently the person running our State (as a Czar does) this summer, and doing so in the nature of a Far East authoritarian regime. See Singapore. This is being done without any involvement of the “free people” of West Virginia, as our Constitution calls us. Nor our elected representatives.
This is a “Czar” by the way – the first one, actually. His name was Ivan the Terrible. He ruthlessly crushed the Russian aristocracy (you know, like the billionaire coal barons) and established autocratic (dictatorship) rule in Russian, which would continue all the way through modern times.
Who is our unelected Czar? He’s the chief health officer at WVU, overseeing their hospitals and medical school. This may provide some context as to why a Red State governor is acting like a Blue State governor, in terms of unconstitutional restrictions on individual liberties. Like most other public universities in 2020, WVU is a bastion of left-wing politics which is far out of line with the conservative West Virginia populace.
Case in point: Just a few days ago at WVU, the Chief of their campus police department was participating in a Zoom meeting – apparently an “online diversity event – and onlookers observed a #thinblueline flag inside his home. Obviously this is a pro-law enforcement flag. My town has one on the official town welcome/goodbye sign, along with the civic groups and church signs. I think people misunderstand what it actually means. But in any event, it has become a symbol of support for police officers. My criticism has always been that it implies that good cops protect the bad ones. But clearly, it means just pro-police to most people. And now the volunteer fire guys and EMS guys have their own versions. There’s probably twenty types now. It’s certainly nothing you would be surprised to find in the home of a police officer, or a bumper sticker, or whatever.
This guy wasn’t even publicly flying his flag – it was in his house. His house!
Within hours of this TBL flag being spotted in his home, WVU professors were demanding that he be fired, and he was forced (presumably) to issue an apology, which is still now prominently displayed on WVU’s website.
“I am committed to rebuilding that trust beginning today. I am taking the flag down from my office wall,” he concluded.
Even after apologizing, WVU professors were still demanding his resignation. WVU’s English Department professor retweeted the apology and commented that “[t]he Blue Lives Matter flag is associated with white supremacy.”
Professor of Biochemical Genetics, Vagner Benedito, was still calling for his resignation.
Professor Benedito continued his comments, as reported by Campus Reform:
“Campus police chief is a position we all should trust. POC will not be trusting his leadership. Moving forward, he must resign to make sure there is inclusions and equality regarding the police actions on campus!” Benedito wrote.
Benedito told Campus Reform that it while it would be “ludicrous” to expect Chedester to remove the flag from his office, he does “expect the police on campus to defend everyone, including minorities,” and believes that Chedesters’ possession of the flag demonstrates his unwillingness to do so.
“As you already know, that flag was crafted to oppose the Black Lives Matter movement, even though historically police lives have always mattered while black lives have been taken away by systematic police brutality over and over again,” Benedito said.
Benedito added that he did not find Chedester’s apology letter “convincing.”
“If he was indeed ignorant about its meaning, he should not be in a position of so much power for being so much misinformed about the current situation of the country, especially in matters involving the police,” Benedito told Campus Reform.
“To be clear, the diverse community at WVU and allies are demanding the replacement of WVU Chief Police moving forward,” Benedito said.https://www.campusreform.org/?ID=15266
If it were me, I would have let them fire me, and then I would have sued them for retaliation against my First Amendment rights to freedom of speech. That would be a very clear case, and it would probably do well (Hint, hint). But there’s much more.
This is the same WVU that is promoting the anti-American “1619 Project,” in an attempt to destroy our history, culture, way of life, and Constitution. This is an effort led by left-wing academics and social justice warriors to “reframe” American history. Instead of America’s founding being 1776, they teach now that the date is 1619, when the first African slaves were brought to Virginia.
Never mind the inconvenient truth that the Colony of Virginia attempted to make slavery illegal in 1763, but the bill was vetoed by King George III and Parliament (hence the phrase “no taxation without representation”). In fact, the Declaration of Independence included 27 Grievances, the first of which included complaints that England had stopped American colonies from banning or restricting slavery in their colonies, including Virginia.
In case you didn’t know, the slave trade was a major component of the British economy throughout the 18th century, as well as in the early 19th century. England didn’t even abolish slavery until the 1840s, which I’m sure was wholly unrelated to the reality that the market no longer existed for the most part, due to the loss of many of their colonies in the New World.
Even well known historians are pissed about this.
Over the last few months, a number of respected historians in America have had very critical comments about the New York Times endeavor. Jarrett Stepman, author of The War on History: The Conspiracy to Rewrite America’s Past, has collected the opinions of these historians.
Allen Guelzo is a renowned historian and professor at Gettysburg College. He called the 1619 Project an example of bad history wrapped in destructive ideology. He added that it amounted to a “conspiracy theory” that is attempting to “tarnish capitalism.”
Gordon Wood is a well-known historian of the American Revolution. I have a number of his books on my shelf. He has criticized the 1619 Project in a number of interviews. He said he was surprised that the New York Times could be “so wrong in so many ways.” He is also concerned that the material is “going out into the schools with the authority of the New York Times behind it.” He fears it will “color the views of all these youngsters who will receive the message of the 1619 Project.”
James McPherson is another respected historian. He observed that the project “left most of the history out” and was appalled that it was put together by “people who did not have a good knowledge of the subject.”The 1619 Project, by Kerby Anderson, Point of View, https://pointofview.net/viewpoints/1619-project/
But this is what WVU is pushing/teaching. Oh, there’s more. Straight off of WVU’s website:
If it isn’t clear to you that WVU is knee deep in left-wing politics and social engineering, there’s a lot more out there on the topic if you care to look. Heck, take a look at the political donations made by WVU employees since the early 90s. Almost all to Democrats.
Let’s look specifically at the WVU Health Sciences, the WVU Medical School and the WVU Health Sciences Center, who’s guiding our feeble leader at the moment:
Again, this is from 1990 to the present. Look at how politically engaged they are. And look who they support. Look who they don’t support. Do you still think there’s no politics involved here? Do you think our Governor even knows he’s being controlled by left-wing academia? And by extension we are being controlled. I suppose the term, “Czar,” isn’t necessarily subtle irony.
You probably saw the news that the tech giants are censoring the doctors from the capitol hill press conference yesterday. But, you may have missed the fact that a few days ago a leading researcher – HARVEY A. RISCH, MD, PHD , Professor of Epidemiology at Yale School of Public Health – published an op-ed in Newsweek about a politically-suppressed paper he recently published in the American Journal of Epidemiology. Dr. Risch gave us the astonishing news that we basically already have what amounts to successful and inexpensive cure to COVID-19! But because of politics and corporate greed, the cure (and his research) is being suppressed. I mean, why stop thing now that the governors are just getting their groove on? Am I right?
As professor of epidemiology at Yale School of Public Health, I have authored over 300 peer-reviewed publications and currently hold senior positions on the editorial boards of several leading journals. I am usually accustomed to advocating for positions within the mainstream of medicine, so have been flummoxed to find that, in the midst of a crisis, I am fighting for a treatment that the data fully support but which, for reasons having nothing to do with a correct understanding of the science, has been pushed to the sidelines. As a result, tens of thousands of patients with COVID-19 are dying unnecessarily. Fortunately, the situation can be reversed easily and quickly.The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
Dr. Risch was flabbergasted that the success of the highly inexpensive Hydroxychloroquine treatment was being downplayed in favor of some potential future vaccine, which no doubt is going to be extremely expensive and difficult to obtain.
On May 27, I published an article in the American Journal of Epidemiology (AJE) entitled, “Early Outpatient Treatment of Symptomatic, High-Risk COVID-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis.” That article, published in the world’s leading epidemiology journal, analyzed five studies, demonstrating clear-cut and significant benefits to treated patients, plus other very large studies that showed the medication safety.The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
Any time I express doubt about the premise that we have to live forever in a “new normal” with restricted liberty and rights, I get mocked for not being an epidemiologist. Well here’s an epidemiologist for you:
Physicians who have been using these medications in the face of widespread skepticism have been truly heroic. They have done what the science shows is best for their patients, often at great personal risk. I myself know of two doctors who have saved the lives of hundreds of patients with these medications, but are now fighting state medical boards to save their licenses and reputations. The cases against them are completely without scientific merit.The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
He explained that he believes (and this is a shocker) that politics have been injected into what should be a basic medical discussion:
Why has hydroxychloroquine been disregarded?
First, as all know, the medication has become highly politicized. For many, it is viewed as a marker of political identity, on both sides of the political spectrum. Nobody needs me to remind them that this is not how medicine should proceed. We must judge this medication strictly on the science.The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
And the results are continuing to look good for this inexpensive treatment:
Since publication of my May 27 article, seven more studies have demonstrated similar benefit. In a lengthy follow-up letter, also published by AJE, I discuss these seven studies and renew my call for the immediate early use of hydroxychloroquine in high-risk patients. These seven studies include: an additional 400 high-risk patients treated by Dr. Vladimir Zelenko, with zero deaths; four studies totaling almost 500 high-risk patients treated in nursing homes and clinics across the U.S., with no deaths; a controlled trial of more than 700 high-risk patients in Brazil, with significantly reduced risk of hospitalization and two deaths among 334 patients treated with hydroxychloroquine; and another study of 398 matched patients in France, also with significantly reduced hospitalization risk. Since my letter was published, even more doctors have reported to me their completely successful use.The Key to Defeating COVID-19 Already Exists. We Need to Start Using It | Opinion, by HARVEY A. RISCH, MD, PHD , PROFESSOR OF EPIDEMIOLOGY, YALE SCHOOL OF PUBLIC HEALTH, https://www.newsweek.com/key-defeating-covid-19-already-exists-we-need-start-using-it-opinion-1519535
Want to read the paper for yourself? Here it is. This is the “abstract” summarizing the paper’s research and findings. The research itself, albeit with watermark, follows:
More than 1.6 million Americans have been infected with SARS-CoV-2 and >10 times that number carry antibodies to it. High-risk patients presenting with progressing symptomatic disease have only hospitalization treatment with its high mortality. An outpatient treatment that prevents hospitalization is desperately needed. Two candidate medications have been widely discussed: remdesivir, and hydroxychloroquine+azithromycin. Remdesivir has shown mild effectiveness in hospitalized inpatients, but no trials have been registered in outpatients. Hydroxychloroquine+azithromycin has been widely misrepresented in both clinical reports and public media, and outpatient trials results are not expected until September. Early outpatient illness is very different than later hospitalized florid disease and the treatments differ. Evidence about use of hydroxychloroquine alone, or of hydroxychloroquine+azithromycin in inpatients, is irrelevant concerning efficacy of the pair in early high-risk outpatient disease. Five studies, including two controlled clinical trials, have demonstrated significant major outpatient treatment efficacy. Hydroxychloroquine+azithromycin has been used as standard-of-care in more than 300,000 older adults with multicomorbidities, with estimated proportion diagnosed with cardiac arrhythmias attributable to the medications 47/100,000 users, of which estimated mortality is <20%, 9/100,000 users, compared to the 10,000 Americans now dying each week. These medications need to be widely available and promoted immediately for physicians to prescribe.Abstract, Early Outpatient Treatment of Symptomatic, High-Risk Covid-19 Patients that Should be Ramped-Up Immediately as Key to the Pandemic Crisis American Journal of Epidemiology, kwaa093, https://doi.org/10.1093/aje/kwaa093
Published: 27 May 2020
Read it for yourself:
So with the West Virginia legislature out of session, and apparently willing to sit this “once-in-our-lifetimes” emergency out, who’s responsibility is it to sort through the facts? Do West Virginians have access to Hydroxychloroquine? Are our medical “Czars” who are making the decisions about whether our businesses get closed or not, reviewing all of the data? Or are they just playing politics?
Do you see why our wise forefathers gave us a system of representative Democracy? We have decision-makers, who have little microphones at their seats so they can argue with each other over disputed facts and policy, with hand little rule-books so that the process is organized. They’re called our delegates, and our senators. We elect them to act on our behalf. And in return they will be accountable to us. Right now nobody is accountable.
“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.” – Thomas Paine.
Since I mentioned it numerous times during the Tom Roton Show this morning (https://www.iheart.com/podcast/512-tom-roten-morning-show-28270078/episode/civil-right-attorney-says-wv-ag-69145900), here is a copy of our 40 page brief explaining why the Governor’s executive orders are unconstitutional under our State Constitution, before you even get to the lack of due process and so forth. I’ll post a link to the interview when it’s up on the inter-webs.
Yesterday the Attorney General went on the show to explain why he’s not challenging the Governor’s executive orders, and why he believes our lawsuit was required to fail. So I responded. He stated, “The Governor does possess broader powers here to take action than in other places…. but Executive Action must be checked…. so you look to see what is the compelling interest of the Government (strict scrutiny)?”
No, actually the Governor of W. Va. does not have broader powers here as compared to other states. There may be a problematic lack of time constraints, as there should have been in the statutory language, but the actual statutory text itself is pretty narrow, and more restrictive than many other states, as the W. Va. Supreme Court has noted in a previous case interpreting those powers.See State ex rel. Dodrill v. Scott, 352 S.E.2d 741, 177 W.Va. 452 (W. Va. 1986) (“We note that the New Jersey Disaster Control Act defined “disaster” to include “any unusual incident.” Although we express no opinion on the merits of the Worthington cases, we are of the opinion that the term “any unusual incident” is substantially more expansive than either “natural or manmade disaster of major proportions” or “disasters of unprecedented size and destructiveness.”).
Here’s our emergency statute:
§15-5-6. Emergency powers of Governor.
inds that an attack upon the United States has occurred or is anticipated in the immediate future, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section.
The primary authorization under this statute upon which the Governor has relied in the issuance of his executive orders is:
W. Va. Code 15-5-6(c)(6).
To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein.
This is what the Governor has cited in each of his executive orders as the statutory authorization for his orders. I don’t know about you, but I don’t see anything in there about a statewide stay at home order with no due process. I don’t see anything about mask mandates. I don’t see anything about restrictions on private businesses in counties where there has been no death in 4.5 months of a so-called “State of Emergency.”
For instance, my county – Monroe County – last I checked a few days ago had 5 active cases and 0 deaths since the beginning. Next door, Summers County had 2 total cases and 0 deaths. Gilmer County had 0 cases and 0 deaths. Clay County had 4 cases and 0 deaths. Lewis County had 4 cases and 0 deaths. Roane County had 2 cases and 0 deaths. Wirt County had 1 case and 0 deaths. Ritchie County had 0 cases and 0 deaths, and so on…..
How can any Governor claim that any of these counties were ever a disaster area requiring citizens to stay at home and mandating the closure of their private businesses? He can’t. Not according to the Constitution and the emergency powers statute, anyways.
The Attorney General implied during his interview that, regarding the so-called “mask mandate,” he might feel differently if the Governor imposed sanctions on the violation of his orders. Where has he been? I’ve been contacted already by two separate restaurants in different parts of the state who have been threatened with immediate shutdown for expressing their First Amendment speech pertaining to the mask order. But don’t take my word for it. Here’s the Governor’s own words:
And then there was the elderly barber in the eastern panhandle who was actually arrested for trying to earn a living. He must have missed that. And what about the hundreds of small businesses around our fragile state economy who were forced to close, many of which will probably never reopen? Was that not a sanction imposed without due process? Did anyone have the right to a hearing? To be heard? Did any of those supposedly “free” people even have the right to make the argument that COVID-19 hadn’t created a disaster area in their area?
The AG puts the responsibility of reigning our Governor in on the shoulders of the legislature, because under our Constitution, with a 3/5 vote, they can call themselves into session. No.
Let’s look at basic constitutional law.
The action, or inaction of a legislature cannot amend, suspend, or rescind any text of the Constitution. The Governor’s powers cannot increase by virtue of the legislature not protecting against the Governor attempting to take their constitutional powers. The Governor’s powers cannot increase by virtue of a legislature voluntarily granting the Governor it’s powers. They are not allowed to do so – they have tried.The legislature’s cowardice, bravery, or indifference in interacting with a Governor is a red herring. It’s beside the point.
Why is the Doctrine of Separation of Powers important? Why was it so important that the founding fathers of our state wrote it into our Constitution?
The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. – James Madison, Federalist No. 51, 1788
So, we just received this order from the West Virginia Supreme Court in my email inbox.They denied our Petition for Writ of Mandamus. No explanation was given. That’s unfortunate. I spent 40 pages explaining why the Governor’s orders violated the State Constitution. So far nobody has explained why I’m wrong.
This is the end of the line for the petition for a writ of mandamus. It will be up to my clients, but we could seek injunctive relief from a state circuit court. Of course that will end up back at the Supreme Court either way it goes.
I’ll keep my glass half full and assume that they only denied it because they want us to take it to a trial court first, so they can rule on an appeal of a circuit court judge, rather than in the context of an original jurisdiction writ of mandamus. I’m looking at federal options as well on behalf of some private businesses who were victimized by this tyranny.
Also from 7/23/20, my appearance on the Tom Roton Show on WVHU in Huntington, West Virginia, discussing the COVID suit:
West Virginia’s Governor (who was elected as a Democrat but who switched parties during an awkward speech at a Trump rally) “shut down” our State’s economy, citing his statutory powers to declare a “State of Emergency.” In each one of his ensuing executive orders mandating that private businesses close and cease operations, he cited the only “emergency powers” his lawyers could find available to him in the West Virginia Code. This is to control ingress and egress (coming and going) from a disaster area, as well as the power to control or restrict the travel and occupancy of people within that disaster area.
Anyone with common sense knows that this ingress/egress language refers to physical disasters, such as floods, mudslides, fires, earthquakes, etc., where you may have trees in the road, flooded roads, forest fires, and so on. No sensible person would dispute that the executive agencies of the state would be best suited to direct such things. But what he’s done in response to COVID-19 is to greatly expand his interpretation of that language to allow him to fill the roll of a temporary dictator. Who could have known that it would be so easy? All he had to do was to declare the entire State a “disaster area” and just control every aspect of it, citing the ability to control “ingress and egress,” etc., within a disaster area.
Take a look at Summers County – right next door to me. Two (2) total cases since it was declared a disaster area four (4) months ago:
Or my county – Monroe County – as of today. Fourteen (14) total cases since the “State of Emergency” began four (4) months ago. Zero (0) deaths. Twelve (12) have recovered. Three (3) current active cases. So three people have it currently, that they know of; nobody’s died; yet the other fourteen thousands or so people have to get used to the “new normal” of post-apocalyptic life. We’ve already been warned by the health experts, our new czars, that we could be wearing masks for years.
There are many more counties like these. How can such a county possibly be considered a disaster area, to which the government needs to control who is coming, going, or occupying the area? To get around this flawed logic, the Governor’s lawyers have alleged that disaster in these areas is imminent or anticipated. As Bulldog from the TV show Frasier would say, “that’s BS, total BS….”
If you actually look at the real statistics provided by the State, it shows that West Virginia’s COVID-19 “disaster” is nominal compared even to nearby states. Our case fatality rate is way lower; our percentage of population which tested positive is way, way, way lower; our percentage of positive tests number is also way, way, way lower. And look at the percentage of the population tested: West Virginia has tested more of its population than the others.
Why the hysterics and the theater from the Governor? Is he scared for his own safety because his health is so bad, that he would punish the rest of us in his own fear? Given that his personal resort, The Greenbrier, which caters to wealthy out-of-staters (from “hotspots”) is currently as busy as ever with guests walking around inside without masks, and given the fact that they are having a world tennis championship there this weekend, I doubt it. It’s more likely, in my opinion, that it’s nothing more than a power grab, similar to other state governors around the country.
The people never give up their liberties but under some delusion.
– Edmund Burke
Getting back to the point, let’s say that a disaster is imminent. A hurricane is coming, for instance; or an out-of-control fire is quickly closing in. Nobody would argue that the executive branch of State government should prepare for what is to come – obviously. But fast-forward four months later and no hurricane, flood, fire, or earthquake has every materialized? In such a situation does the Governor just get to continue to claim that every county in the State is a disaster zone? Does he get to close barber shops in both the northern panhandle, where there was a viral “hotspot,” and also a barber shop in a small county at the other end of the state where there has never been a problem? What if there’s no due process involved? No way to challenge it? All in the absence of authorization or participation by the State’s elected two-house legislature, which is supposed to be the voice and representation of the people?
It’s a poignant time to remember that the entire reason our country exists is because American colonists sought economic freedom from the tyranny and oppression of the British government. The colonies grew rich during the French and Indian War. Land prices were high, and both money and credit were abundant. Following the war, however, the money supply was restricted, as England sought to recoup its debts incurred during the war. Interest rates rose and real estate mortgages skyrocketed. Instead of helping, the British government made things worse, suing the colonies to alleviate its own economic problems, instead of assisting the American colonists.
You’ve heard the term, “no taxation without representation.” Well it was created long before the first Prius had a Washington D.C. license plate installed. It was the entire reason, in a nut shell, that the American Revolution was fought. Being a colony, despite being occupied by English citizens, the colonists had no representation in England’s Parliament. Parliament, along with King George, III, enacted legislation throughout the 18th century, which took a slice of the colonies’ profits. Being government, they took more and more until they encountered resistance.
In 1733, the Importation Act was passed, which required all colonial exports to be sent to England first, and in British ships. This deprived American businesses of the large majority of the world market for their lucrative products, and enriched the British establishment for reasons which provided no benefit to the colonies. The Act also created heavy duties on sugar, molasses, and rum. In 1750, Parliament declared that the Americans were not allowed to manufacture steel, so as to compete with British steel factories. They also tried to forbid Americans from harvesting pine trees, from what was a seemingly endless supply of wood (which was not so endless in Europe).
In 1761, Parliament passed a law authorizing customs officers to forcibly enter businesses and search for smuggled goods. A legal challenge ensued in the courts. During the trial, James Otis, a Boston patriot, stated, “Taxation without representation is tyranny.” Remember: these are British citizens/subjects. This was not a foreign country. Yet they’re receiving unfair restrictions, while at the same time being prevented from having representation in Parliament.
In 1764, King George III’s ministry declared that Parliament had the right to (1) tax the colonies directly; (2) to tax the colonies indirectly; (3) to restrict the products which the colonies could manufacture; (4) to regulate the commerce of the colonies; (5) to break into houses in search of smuggled goods; and (6) to quarter troops among the colonists without their consent.
In 1765, Parliament passed The Stamp Act, which imposed a direct tax on the American colonies, requiring that many printed materials utilize paper produced in London, which carried an embossed stamp. This included newspapers and all legal documents, among many other things. Americans responded with a boycott. The Act was repealed in 1766. But then Parliament respondent with the Declaratory Act, a new series of taxes and regulations. Its main purpose was to illustrate to the colonists, that Parliament could, and would, do as it wanted, and that the colonists would not have direct representation in their decisions.
In 1767-68, Parliament passed the Townshend Acts, which were a series of laws designed to raise revenue in the colonies, enforcing compliance with trade restrictions, punishing New York for failing to quarter troops, and otherwise asserting the absolute right to directly tax the colonies without representation. Many patriots resisted, both physically and through boycotts. In 1770, this led to the Boston Massacre.
In 1770, most of the taxes from the Townshend Acts were repealed, except for the import duty on tea, which was kept in place for the purpose of demonstrating the subservient nature of the colonies vs. the British government itself. As you’ve probably heard, this didn’t end well, leading to the Boston Tea Party in 1773, and thereafter, the “Intolerable Acts” – more laws enacted without representation, which were passed for the sole purpose of punishing Boston for the Boston Tea Party.
In the Declaration of Independence, the Americans asserted 27 grievances against England, including the creation of taxes and economic restrictions without representation in Parliament. Also included in the grievances was the fact that many of the colonies attempted to enact legislation outlawing or restricting slavery. Virginia attempted to outlaw slavery in 1763. However, every time they tried, they were vetoed by the Board of Trade, the Secretary of State, and King George, III. Also contained in the grievances were complaints about the failure to provide fair trials, a fair judicial system, the failure to allow for legitimate colonial legislatures to exist, and the quartering of British troops in American homes. You see many, if not most of these grievances find their way into the U.S. Constitution, which would be ratified 15 or so years later, after many lives were lost to gain the freedom to ratify it.
Why is it important to resist living under the rule of a one-man State government? Even if you think he’s done a good job, which many people do, the bigger picture is the absolute necessity of preserving our rights and liberty under our constitutions. Once you allow one governor a pass to play dictator, you must by circumstance allow the next. And you might not like that, nor his choices. But it would be too late.
A Constitution of Government once changed from freedom, can never be restored. Liberty once lost is lost forever.
– John Adams
Like Thomas Jefferson basically said, freedom is scary. We can’t allow our freedom to end where the fears of Karen/Ken begin.
Timid men . . . prefer the calm of despotism to the boisterous sea of liberty.
– Thomas Jefferson (April 24, 1796)
We must follow the rules. Our two respective constitutions – the U.S. and the State – are the rules. And of the two, the State Constitution is much more simple and clear on this topic. The two house of the legislature enacts laws, and the governor enforces them. There is a distinct separation of powers. If the Governor tries to enact a law by himself, that violates the separation of powers. Not even the legislature can authorize him to do so. At least not without amending the State Constitution.