Holding Your Breath to Prevent Disease

At City Journal Larry Salzman analyzes the prospects for suing our way out of state lockdowns. The prospects are, at best, mixed but here’s the bottom line:

To date, most rulings in cases challenging the lockdowns have favored the government. But the longer the lockdowns go on and the less necessary that they seem, the more scrutiny we can expect courts to apply. As the Supreme Court put it in its Jacobson ruling, more than a century ago, a law that “purport[s] to have been enacted to protect the public health” but “has no real or substantial relation to those objects” must be found unconstitutional.

I would also think that the longer the lockdowns last, the more burden the state should have to bear to show that such a broad application of emergency powers is warranted.

Holding your breath can only be maintained for so long.

I also think that the failure of governors to seek the support of the states’ legislatures is a major omission. Legislatures have many purposes. Among them are to share the political pain and to signify the consent of the people.

15 comments… add one
  • jan Link

    Have you noticed, though, that the governors implementing the most draconian measures are mainly democrats, and are doing so in a singlehanded fashion – CA, OR, NY, MI are prime examples.

  • GreyShambler Link

    mainly democrats:
    That’s their role in this melodrama, they really care about peoples lives. Repubs only see the bottom line. Everyone has a role to play, the party will not be kind to those who step out of role.

  • TarsTarkas Link

    ‘Holding your breath can only be maintained for so long.’

    Then you die and your corpse will receive a COVID-19 death certificate since the only reason why you had to hold your breath was because of Kung Flu. And your death will be used as further justification to make the remaining people keep holding their breath.

    It’s all about avoiding accountability. Refusing to weigh risks. People are dying because of the lockdown, but their deaths don’t count, only the ones resulting from COVID-19 do. Opening up and possibly, JUST POSSIBLY cause more COVID-19 deaths as a result might kill further political prospects, and that cannot must not happen. So screw everybody else who’s sick or depressed, THOU SHALT HAVE NO COVID-19 DEATHS.

    I don’t know why the Democratic governors are running so scared., when the MSM will carry their water for them. Look at Cuomo. He’s blaming Trump for the nursing home deaths he caused by his stupid return-to-sender order, and they’re not only ignoring that BS but nodding their heads and saying ‘yes, Trump killed all those grannies in NYC that Andrew tried desperately to save’.

    I’ll stop my cynical ranting now.

  • Greyshambler Link

    Ya see, now that’s my problem. I’d like to see herd immunity yesterday, but I’d rather not have my own family in the statistics. I have high hopes of pulling that off but saying so too loud is bad juju.
    I worry for family and friends who are more faithful than I, as now that churches are resuming their services they see the infection risk as a test of faith and will go despite their fear.
    No, it’s not a self righteous display, it’s God, offering you a chance to live your faith.
    This here really is the Bible Belt.

  • it’s God, offering you a chance to live your faith.

    It is written again, thou shalt not tempt the Lord thy God (Matthew 4:7).

  • PD Shaw Link

    I think the issue is more with Dave’s point in the last paragraph. When governors use emergency powers, they do not create law; if anything, they usually temporarily overrule the law (relax regulations, for example). I don’t think a country can operate without the use of emergency powers whenever it would take to long for the legislature to act, but that simply means to me that the limits in the legislation enabling the emergency powers must be scrupulously observed.

  • My views are even stronger than that. If an “emergency” can extend for months, why not years? Or forever? How is that to be distinguished from authoritarianism?

    To my eye it is apparent that for emergency powers legislation to meet legal muster, it must be narrowly tailored rather than a license for governors to do anything they care to for as long as they care to.

    Basically, for there to be an emergency there must also be a norm.

  • PD Shaw Link

    There was an interesting legal development in Illinois on Wednesday; the Governor pulled his emergency administrative rule that created misdemeanor offense for businesses that violate his emergency rules. This occurred while the legislative committee was privately debating a motion to block the rule. It is a bipartisan committee of six Rs and six D, but it takes eight votes to block the rule, so necessarily there were bi-partisan concerns with it.

    One explanation offered is that legislation will be enacted, avoiding the need for the rule. We’ll see. The Governor seems to have broad support, but is losing at all of the edges.

    This, by the way, is the process the Wisconsin courts required the Wisconsin governor to observe if he wanted to utilize emergency rulemaking. Presumably with a hostile legislature he knew it would fail, so he called his “emergency rule” an “emergency order” and the Democrats on the court agreed.

  • PD Shaw Link

    @Dave, I’m generally optimistic that legislatures will enact limitations on emergency powers in proportion to their extent.

    The Illinois Governor should be stopped by the courts from forcing police to enforce his emergency orders under threat of pulling federal money for COVID response. His emergency powers are based upon a law that expressly states that nothing in it affects the “responsibilities of police forces.” I think its clear that the enabling legislation was directed towards emergency relief, not creating a police state.

  • I have maintained that Illinois’s economy could be reopened overnight if police officers, firefighters, and other “essential” public employees became aware that their cities would be unable to pay them if the lockdown continued.

  • steve Link

    “I also think that the failure of governors to seek the support of the states’ legislatures is a major omission.”

    Agree with this, but have to wonder if it is possible. What we see over and over is that legislatures dont want to lead. They want the exec branch to make decisions, then they can snipe at the executive if they arent happy with what they do.

    If the emergency has a 30 day limit, what stops a governor from chaining some together? Sounds like what is needed is for legislatures to do their job and pass clear laws to keep that from happening. Instead things are left kind of vague. The legislatures avoid blame. I dont know every state but I know PA and the US Congress. It looks like a life time job for a lot of them, as opposed to a governor who is a relative transient. Much better to keep your permanent position and dump anything that could risk your job on the temp.


  • Sounds like what is needed is for legislatures to do their job and pass clear laws to keep that from happening. Instead things are left kind of vague.

    which leaves it to the courts to stop.

  • PD Shaw Link

    @steve, here is the law in Illinois:

    “Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers”

    “Not to exceed 30 days” is as clear as can be. The Illinois Attorney General’s Office has on more than one occasion written an opinion that continuing the emergency past thirty days would render the time limit meaningless. In 2001, the AG advised the Illinois Emergency Management Act that the Governor would need legislative approval to extend a foot-and-mouth quarantine past 30 days. In 2020, the AG advised the Illinois State’s Attorneys (concerned about getting sued for enforcing the emergency orders) that the emergency orders would probably not withstand judicial review past thirty days.

    Now the AG is defending the Governor, as is the job requirement, and arguing that the only limitation on the Governor’s emergency order is that he report to the public every thirty-days and face the voters every four years. Mostly, they appear to be in delay mode, like trying to transfer all of the cases into the federal court system.

  • Andy Link

    At the risk of too much bragging on my state, our legislature goes back into session next week and the joint budget committee has spent the last few weeks figuring out how to fill the gaping hole left by Coronavirus which is expected to be 25% of current spending. Whether the committee plans will pass in the general legislature is another matter.

  • steve Link

    Not to be pedantic, but what stops the governor from having a “day off” between chained 30 day declarations? Does the law require that the governor come back to the legislature before he can declare another emergency, even if not continuous? I am betting that is not in the law. Legislatures duck responsibility.


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