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COVID-19: Rights vs. Authority
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
— Tenth Amendment, U.S. Constitution
If the Covid-19 response had been national rather than state by state, the jurisprudence of pandemic response would be clearer. Regardless of the rhetoric of a “living constitution” the courts have to find a workaround to the limitation of central power embedded in the constitution. They have done so far too often, but they still have to articulate an interstate impact uniquely addressable by federal, as opposed to state, power.
But the Covid-19 response has been state-centered, and thus it is that the power of the local statehouse versus the rights of its citizens are in play. This is a bit murkier because the burden is not on state government to demonstrate its authority, which is presumed, but for the citizen to demonstrate a violation of constitutionally secured rights. In other words, the federal government has the burden to demonstrate its actions are both authorized and do not violate constitutionally secured rights, while citizens have the burden in cases against their state government that the state action violated constitutionally secured rights.
What prompts me to consider this today is an email from a state group, Tennessee Stands, urging students at Tennessee schools to take off their masks on May 14. At issue are any local school board rules requiring face mask wearing for in-person attendance. A recent state court decision, in a very convoluted ruling, included a finding of law that the Williamson County Board of Education exceeded its authority in imposing a mask requirement and maintaining it in force. (The state and county has no mask mandate for its citizens generally.) But — did I say the ruling was convoluted? — that finding was embedded in a dismissal of the lawsuit based on standing, justiciability, and mootness, and was included only for purposes of appeal in the event that the appellate review preserved at least part of the case.
And so it is that Tennessee Stands is encouraging a widespread act of civil disobedience as a means of provoking a response by any or some local school boards that will revive the case they just lost. It is an example of the two-way win: If students (and their parents) respond in large numbers, as Tennessee Stands urges, it will break the mask mandates, if a smaller number do so and the local board is provoked to discipline them, then the case is revived and the embedded finding of law becomes operable.
Covid-19 has been a jurisprudential minefield with courts giving government bodies wide latitude in the early stages of the pandemic and only slowly reeling them back in over time as data is collected and typical government inconsistency in applications of emergency orders result in incoherent outcomes. Judges are people, too, with personal health concerns and concerns for their families as well. In a sense, all judges have had a conflict of interest in hearing pandemic cases. Which helps explain why the courts have been of little help in addressing the power grab of government dressed up as a public health emergency.
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So true. We shouldn’t have to rely on the courts to do the reasonable and sane thing. The state and local authorities must stop acting from their own fear and self-interest and remember who they serve; these decisions affect millions of people–families and children–and it’s about time that sanity and reason prevailed. I’d prefer that they simply break the mandate in TN. Good for Tennessee Stands!
Let’s see. Should we be rooting for the schools to contest this effort to dispense with masking so that they dig themselves into a deeper hole resulting in a complete restoration of public education to local authority?
Something that Trump doesn’t get enough credit for and people who hate Trump still bleat on that he was some sort of oppressive authoritarian.
Yes. When the true villains are the likes of Cuomo, Murphy, Newsom, Inslee and Whitmer, it is important to deflect blame (with an assist from media and Big Tech allies).
Blame for what? This is not deflection but a manifestation of true belief and that is why it is so dangerous to have it take hold.
I agree with a lot of what you say here, except for this part:
There was a public health emergency. The response may have been excessive, but there were no local school boards who secretly wanted to force kids to wear masks and finally had an excuse to do that with Covid.
To be clear, I’m not talking about the wisdom or effectiveness of the mask mandates for kids – only about the motivation for them. Once the numbers come down, you will see these mandates drop off. No one likes them. For example, despite all the rhetoric about permanent power grabs, the pretense of using the pandemic as an excuse, and so on, Ohio announced the removal of all restrictions and mandates on June 2nd (except for some of the nursing home stuff).
The beauty of this being a local school board decisions is that if people are upset with them for keeping the mandate, it is relatively easy to be heard. These are your neighbors. If, for some reason, the board is not convinced that it is safe to remove the masks, they can also be voted out at the next election, and the new board can remove the unpopular mandate.
Our system, more or less, worked as designed throughout this. Where strong gov. mandates were unpopular, you saw a lighter touch and a quicker release – FL and TX for example. Where people were more fearful and more tolerant of mandates, you saw stronger measures which lasted longer. If things continue to improve, those jurisdictions will return to normal too. The governments were generally listening to their constituents while trying to manage a major crisis. Measures were taken to mitigate the economic impacts. Not everyone was pleased, lots of things didn’t work, but the legislatures and courts remained open, in some states government overreaches were tossed by courts, lessons were learned, etc…I think American liberty will survive.
Poor Governor Karen Wuhan of New Mexico. She’s tried to join this rank but gets overshadowed by the big players. She only sexually harassed one employee and paid him while Cuomo stonewalls the eight or nine people accusing him. I blame us being a small state population-wise and just not getting much national airplay. Her lockdowns were just as odious and she flaunted her own rules as the others did but usually gets left off these lists.
Mask mandates have been very helpful for AntiFA and the KKK. For Marxists that use humiliation as a tactic, the mask mandates have been very helpful.
Public schools exist to serve the children. Nothing in that charter says they are there to serve the teachers. Those who do not want to be in the presence of others (students) without masks may make another choice. This is not complicated.
Rights can be secured at the state level through state constitutions or legislation. This is a good time for states to review their secured rights and the legal authority given their executives. There is zero reason for a state of emergency power to be more than 10 days. Emergency power is only to bridge a crises during the time it takes to craft new legislation.
We are living in a situation where a federal bureaucrat can make an unscientific recommendation and every would-be tyrant can use that as a premise to dictate whatever they like. There should never be a situation where oppression can happen without clear responsibility. Someone *must* be answerable for any adverse action taken against the people.
This is all possible because we have too many Karen’s that are able indulge their paranoia without personal consequences. Bring back consequences!
The question for us is if we would encourage our teenage children to buck the system and jeopardize their college admission. That is a big risk for kid to assume. Colleges might blackball your kid. Then what? See the story below.
Ok, so there are some lunatics out there that like everybody wearing masks. But my point is that local school boards, or even state bureaucrats, were not looking for an excuse to make everyone wear a mask. Rightly or wrongly, they believed they were a wise thing to do in response to the virus. As the rationale for them fades, so will the mandates. That is already happening.
There is very little good to say about the stage of development and operation our education options have reached and this is especially true when it is a government function. Funding for each student should go back to those rearing the children and they should choose the educational approach. Only then will the students be the priority.
I’m not sure I’ve got all this straight yet, but today I read that Gov. DeSantis of Florida has been working to overrule the idiotic covid restrictions of some local jurisdictions. Can’t say I’m a fan of the state overruling local regulations just because they are stupid.
I see what you’re saying, @thereticulator. Still, are they only stupid restrictions or do they compromise our freedoms? And to try to rule that this can be kept in place but that one can’t isn’t practical. As a Floridian, I’m glad he’s done it. If people still want to wear masks, they can. If businesses still want to require masks, they can. DeSantis enacted an executive order, but the legislature has passed a law for the same; it doesn’t go into effect, however, until July 1.
The local officials have no sovereign authority under the state constitution so the Governor is acting in the interest of individual citizens. It is very hard to imagine that any locale in Florida is experiencing such a different effect from Covid that a different governing mechanism is required. If so, the Governor will act to cover that.
That is the problem. The same power can be used to nullify local freedoms. But if the people have no power over their own local governments, that is s problem that needs a remedy.
In some cases, it feels like minority rule. I get protecting minorities from majorities ( we can’t override the rights of minorities simply because we can), but we’ve somehow flipped to minority rule, where minorities can abrogate the rights of the majority.
Of course, I have no proof of that and wish there were more formal feedback mechanisms for local politics in situations that demand special treatment that aren’t foreseen in general elections.
Someone who is quite steady in routine governance may panic under certain crisis that aren’t normal operating procedure.
That problem is directly addressed by the state and federal constitutions and the judicial system. The fact that those remedies are not working satisfactorily in other states where the abuse you address here is taking place is the crux of the major political conflict we are experiencing.
Of course often the same people who claimed he was an oppressive authoritarian also claimed he was such a windbag he couldn’t see past the hot air surrounding his nose.
Same people who complain that Trump didn’t implement a national mask mandate like Biden said he was going to do.
People were already pretty much ignoring masks when we were there in mid-April. I’d love to see pictures of school adminstrators standing in front of schoolhouse doors, barring those without masks from entering, George Wallace style . . .
This is another mark in favor of Tennessee.
It’s a great place to move to . . .
Not just in a sense. In many senses. Average age of judges in CA is 62. If they were at all leftward leaning or felt that the government should already be a source of healthcare, this would be the clear determinant for them. All of the MSM made it clear that if you were over 60 or had any health condition (that many older people do), you were definitely totally for shure, absolutely, definitely, like totally gonna die.
If you were in a position where you were going to be in a courthouse with criminals or after criminals who had been in group housing, close quarters, possibly illegal immigrants, possible IV drug users? You might be somewhat inclined to be a little more judicious in your rulings about safety.
Indeed. But a warning: CA has had a net loss of population for the first time in…probably ever (you can google it, I’m tired). I know people who have moved to NC and Tennessee. Some of them are raging liberal DC-types who are moving from DC back to their familial home state.
Hold fast, Tennessee! Don’t let the Californians ruin anything!
Yes, that is a frequent topic when I meet my new fellow Tennesseans: I assure them that I well appreciate that I am “here” because I didn’t like what was happening “there” and I have no desire whatsoever to make “here” be like “there.