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:
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.
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.
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.”
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.
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.
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.
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.
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.
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
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.
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.SeeState 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
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.
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.
Why do we have a hysterical governor trying to shut down our economy again, which he’s not allowed to do in the first place? Look at the current death rate statistics by state of COVID-19: West Virginia is way down at the bottom, along with Wyoming, Montana and Alaska. Of course diagnoses will rise with the exponential increase in testing going on. But show me the death rate. Look at the restrictions in New York, New Jersey, or Michigan, who have required masks and every other restriction you can think of, and their death rates are sky-high. I thought we had a vulnerable population? That’s what the Governor said before he issued his unconstitutional “Stay at Home Order.” So if we’ve gotten so many cases, and we’re so vulnerable, why are we at the bottom of the list (along with the other low population rural states) for death rate per 100,000 people?
Our Dear Leader appointed a doctor from WVU as our COVID Czar during this so-called State of Emergency. You’ve seen the same types on the cable news. We didn’t elect doctors from WVU, or anywhere else, to authorize them to control our lives, or take our property without due process. Who do you think stands to gain from all this, in research grants, employment opportunities, profit, and so on? What’s in it for them? Can they just cause the governor to go all hysterical and tyrannical with no questions being asked? With no representation on our behalf? Where are all of our legislators? We are now living in a perpetual “State of Emergency.” Just how many months does a State of Emergency last before the legislature does its job?
Our legislators should be asking questions. The medical industry is going to make a fortune off of COVID-19. This is the same bunch, coupled with their benefactors in government, who charge us astronomical prices for common drugs. They require diabetics, who need insulin to live, to keep having to pay to see a doctor avery few months in order keep renewing their prescriptions. Why? Why in the hell should a diabetic need to renew their prescription for insulin just so some doctor can get their cut every few months? You think the lawyers are bad? The medical system is way worse than the legal system, as far as corruption and conflicts of interest go. Remember our very own Sen. Manchin’s daughter increasing the price of the epipen so high that most people could no longer afford it?
The governor is relying on WVU doctors to tell us what rights we get to have? This is the same WVU that prescribed my wife physical therapy for her shoulder, instead of a necessary surgery which could have saved her shoulder function. When we decided to leave the State medical system and go to UVA, they were flabbergasted at the incompetence of the purported best shoulder surgeon at WVU. The shoulder specialist at UVA took an MRI and was astounded. Immediately, being a teaching hospital, he gathered all the students to look at the MRI film. They’d never seen such a bad tear of anyone’s shoulder. Even the specialist had to bring in a sub-specialist to do the surgery. The shoulder was torn in three places. Her bicep was practically hanging by a thread. That was a Thursday, and she was in surgery on Monday. Yet at WVU, the snotty orthopedic surgeon basically told her to toughen up and quit complaining. He spent maybe 5 minutes with her in total, as opposed to the UVA surgeons, who spent probably hours with her.
We didn’t elect them. Maybe they’re right; maybe they’re not. But we didn’t elect them. And even if we did, the executive branch doesn’t enact laws. Our representatives do. Who need to either do their job, or resign. How many more months are we going to allow one governor to rule our state under a State of Emergency? Our State Constitution specifically provides that it will never been suspended – even in a time of war. So why is it suspended?
I know, I know, I’m not allowed to have an opinion because I’m not an epidemiologist, virologist, or other profession which is about to increase in funding levels…. If medical professionals are never wrong, then why are medical mistakes, made by medical professionals, the third leading cause of death in the U.S., causing at least a quarter million deaths per year?
“People don’t just die from heart attacks and bacteria, they die from system-wide failings and poorly coordinated care,” says the study’s lead author, Dr. Martin Makary, a professor of surgery and health policy at Johns Hopkins University School of Medicine. “It’s medical care gone awry.”
The magnitude of the death toll – roughly 10 percent of U.S. deaths annually – is striking coming, as it does, in an era dominated by efforts to reform the health system to ensure safe, high quality, high-value medical care. Patient safety efforts have failed to gain much traction, Makary says, because there’s no systematic effort to study medical errors or to put effective safeguards in place.
“Throughout the world, medical error leading to patient death is an under-recognized epidemic,” Makary and his co-author, Dr. Michael Daniel, also of Johns Hopkins, write in Tuesday’s British Medical Journal. They define medical errors as lapses in judgment, skill or coordination of care; mistaken diagnoses; system failures that lead to patient deaths or the failure to rescue dying patients; and preventable complications of care.
See Medical Errors Are Third Leading Cause of Death in the U.S., US News Magazine, May 3, 2016. Are doctors infallible? Do doctors even know what the hell they’re talking about yet, based on actual empirical evidence about the COVID-19? No. For all we know, they could be guessing, or playing politics.
I’m not trying to knock doctors. I don’t do medical malpractice. My own father is an orthopedic surgeon, who has spent his life wearing masks, and also bathing in people’s blood (figuratively speaking, lol). But those were always new masks every time. He wasn’t walking around with one constantly, or driving around with one on. Nor organizing his life around it. Tell him about the new cases daily, and he’ll say: show me the death rate. The more you test, the more cases you’ll have.
If it’s really an epidemic, we’ll all get it at some point. Who among us has never had the flu? The most important part of the entire ordeal is, but yeah, did we die? Some will. But I also heard a story while in court this morning, about a guy who got his penis disintegrated in an electrical accident. Shit happens. We move on with our life. None of this is a reason (nor could there ever be a sufficient reason) to end the great experiment in freedom that is America. People have never been safer from death, nor more prosperous, in the entire history of the Earth.
In an obese, unhealthy state, as West Virginia is, why isn’t the Governor concerned with the almost 5,000 deaths per year in our state alone due to heart disease? I’m sure he could think of all sorts of executive orders which actually could help that problem, assuming it were legal for him to do so. He could be like Michael Bloomberg: No 32 ounce sodas (or “pop” as West Virginians generally call it); No more Mountain Dew (the pop, not the sweet nectar of mountain life) because it rots your teeth worse than the meth. Pepperoni rolls could have a mandatory minimum jail sentence. Would these restrictions save lives? Yes. We could have all Michelle Obama school lunches and Michael Bloomberg dinners, and it would no doubt save lives, in the context of heart disease prevention and treatment.
At some point, we’re going to have to say that enough is enough. I’m told that people are about to start getting fired, as well as getting arrested, based on the choice to not wear a mask. All based on the decision of the Governor. We’ll see what happens . . . .
As the attorney for the pending lawsuit against the West Virginia Governor which challenges his executive actions in response to COVID-19, people have asked for my reaction to today’s new mandatory requirement that the peasants of West Virginia are now required to wear masks in public and private buildings.
So it requires masks to be worn in any building outside one’s home, whether publicly or privately owned, unless you’re under the age of 9, have some medical reason which excepts you, or if you’re eating food, or drinking a beverage, or if you are able to “socially distance.” It even seems to allow a Halloween mask to qualify as appropriate under the order. I’m sure he’ll cancel Halloween, so that might be one diamond in a sea of rough (that we can at least use the masks – not that he’ll rob us of Halloween, even though we never needed his permission any of the past Halloweens). It seems to be a situation where the exception is swallowing most of the rule. How do you even enforce such a mandate without definitions of the terms?
I’d love to sue over this, but I highly doubt anyone gets arrested. As such, our currently pending lawsuit probably sufficiently covers this. Even though it’s not an exciting argument, it’s a very clear and simple violation of our State Constitution. We have a tri-cameral form of Republican government. The legislature enacts laws. The governor signs, or vetoes, the laws they enact, and the judicial branch reviews both of their actions to keep them within the confines of the Constitution.
Here, the Governor has unilaterally enacted a new law. You can’t go in a store or any structure other than your own home, unless you’re wearing a mask – even if the mask is useless and pointless. In the end, what’s going to happen here? What’s the point? The Governor gets to do his mask thing, like some of the other governors, and also create some news, appease the numerous Karens on Facebook, who are absolutely terrified to death over everything. And who is going to bear the brunt of attempting to enforce it? I can almost guarantee the police are not going to do a darned thing here. At least I wouldn’t. It will be small businesses across the State who will be forced to decide what to do with this.
Do I close my store? Do I make someone leave if they’re not wearing a mask? What if they say they have a medical reason not to wear one? Is the liability and hassle even worth it? As a shopper, do I just give up on shopping locally and just go back to ordering online? Hell, you can order entire meals now, delivered in a box. As with the other illegal laws he enacted without the legislature, it’s the small businesses that will suffer. And the cherry on the cupcake is the fact that they’ve had no representation. They can’t complain to their elected representatives, because they’ve been powerless – themselves excluded from the entire process.
But, you ask, why is this such a big deal? Do you complain about wearing a seatbelt in your car? Do you know obey the posted speed limits? Do you not use a child safety restraint in your car? Here’s my answer to that. For instance, W. Va. Code Section 17C-15-46, entitled “Child Passenger Safety Devices Required; Child Safety Seats and Booster Seats, is a part of the huge set of written laws by which we’re all bound here in West Virginia, called the “West Virginia Code.” This is the mountain of rules created by our legislature, and signed by past governors. This is what makes it illegal to not drive a little kid around without a children’s car seat. There are many others, requiring the use of seatbelts, helmets on motorcycles, and so on.
Here is the law itself:
W. Va. Code §17C-15-46 provides that:
Every driver who transports a child under the age of eight years in a passenger automobile, van or pickup truck other than one operated for hire shall, while the motor vehicle is in motion and operated on a street or highway of this state, provide for the protection of the child by properly placing, maintaining and securing the child in a child passenger safety device system meeting applicable federal motor vehicle safety standards: Provided, That if a child is under the age of eight years and at least four feet nine inches tall, a safety belt shall be sufficient to meet the requirements of this section.
Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $10 nor more than $20….
So, who decided that child safety seats were necessary, and that children under the age of 8 required one? After all, maybe it should be age 10 and under… or maybe age 7….. The answer is, your elected representatives in the legislature. That’s who. Our legislators are supposed to debate things, right? And then vote on it. Contrast the child safety seat law with today’s new mask law: ages 10 and over have to wear one. Because, safety.
I’m not seeing the difference. The State Constitution provides that the Governor can call the legislature into session if he thinks some new immediate legislation needs to be considered. Our State legislature has not met one time, nor considered one fact or piece of legislation, since the whole COVID crisis began. The Governor has had months and months to do so. But he hasn’t. Why? Because what King in history has ever given up power unnecessarily?
Whatever happened to “The Comeback.” We were “West Virginia Strong” (which he stole from the 2016 flood relief response) and also at some point heading down some confusing and nonsensical phase of “The Comeback,” but now we have to wear masks? The last executive order was opening the State to fairs and festivals…. What the heck? As Zoolander would say, “West Virginia Strong? More like West Virginia weak!” Or, “Montani Semper Liberi? More like Montani Semper Servus.”
Is it a coincidence that, of all the days the Governor does this that Time Magazine reports that Governor Justice’s businesses have received millions of dollars of COVID relief packages?
Billionaire West Virginia Gov. Jim Justice’s family companies received at least $6.3 million from a federal rescue package meant to keep small businesses afloat during the coronavirus pandemic, according to data released by the Treasury Department on Monday.
Justice acknowledged last week that his private companies received money from the program but said he did not know specific dollar amounts. A representative for the governor’s family companies did not immediately return an email seeking comment.
This rings a bell for me. I represented at least one casino-business creditor, who had long been owed money for services already performed by the governor’s casino. We sent a letter threatening to sue. The money just happened to finally come in right about the time the PPP loan cash arrived. I’m not saying it’s aliens, but . . . .
So he’s both making the laws all by himself, and also cashing in on the laws he’s making. No wonder he’s not interested in calling the legislature in. Our case challenging his prior executive orders, which were incorporated into this one in the prefatory clauses, remains pending before the West Virginia Supreme Court. We could still win that case, as they haven’t ruled yet.
If you want to review our case, as well as the Governor’s response, here’s the link, though it’s just a few posts down: