Among the most egregious overreaches we’ve seen during this pandemic is the case of a supermarket security guard who shot a customer in the back for refusing to wear a mask. He is now charged with murder. He was also a convicted felon who had illegall possession of the handgun used to kill the shopper.
Oregon man arrested after refusing to wear face mask
"Kulbeth said he tried to explain his health reasons for not wearing a mask to the judge.
“I said, ‘I have enough respiratory issues as it is but I'm more than willing to come back another day,’ and he didn't like that idea,” said Kulbeth. "So finally I said, ‘Fine, I'll just leave.'”
Minutes later, the Sweet Home police chief arrested Kulbeth in the parking lot and booked him into the city’s jail."
TEEN WITH ANXIETY DISORDER ARRESTED FOR REFUSING TO WEAR A MASK.
The attorney for a 16-year-old boy who was arrested last month after refusing to wear a mask at a central Florida high school called the incident “government abuse” of a teen suffering from panic attacks.
“Should they be arresting a 16-year-old child knowing he already has a medical condition?” he said.
In a statement, attorney Jose Rivas' law firm called the arrest “government abuse” and added, “We will be seeking just and fair compensation for the illegal arrest ... and the harm that this action caused him.”
The boy’s mother told the newspaper her son has an anxiety disorder. She said he was arrested after going to the school office to ask for water because he was feeling panicky and was having trouble breathing in the mask.
SEPTEMBER 15, 2020
A federal judge rescinded Democratic Pennsylvania Gov. Tom Wolf’s shutdown orders restricting gatherings, forcing “nonessential” business closures and directing citizens to stay at home to combat COVID-19. U.S. District Judge William Stickman determined that the sweeping measures violated “the right of assembly enshrined in the First Amendment.” He noted Wolf’s hypocrisy in severely limiting indoor and outdoor fairs, festivals, concerts and other gatherings and condemning a small anti-lockdown protest of small-business owners (whom he called “selfish,” “cowardly” and “unsafe”) — while marching with thousands of non-socially distancing Black Lives Matter radicals in Harrisburg in June.
Moreover, Stickman ruled, Pennsylvania’s stay-at-home order — a sweeping population unlike any “in the history of our Commonwealth and our Country” — violated the 14th Amendment’s due process rights to travel, association and privacy.
Similarly, Wolf’s extreme and open-ended power grab designating and closing “nonessential” businesses undermined due process protections “against arbitrary government action.”
In Florida, state House Rep. Anthony Sabatini cheered the defeat of Wolf’s draconian COVID-19 orders. “Some in the Judiciary are finally waking up to the fact that the government is not always right — and that the constitution is not suspended during an emergency,” he told me. Sabatini has filed 15 ongoing challenges to the Sunshine State’s lockdown measures. “We’re looking forward to winning,” he said.
In Colorado, a similar lawsuit with state House Rep. Pat Neville to challenge Gov. Jared Polis’ whopping 166 COVID-19 executive orders, as well as multiple public health orders issued by state and county health departments. The Colorado case was filed in Denver District Court two weeks ago. Polis and other government officials are on notice: No more kings.
Like Americans all across the country, Coloradans have been threatened with civil and criminal penalties for failure to wear a mask in public, and businesses are coerced by the governor into enforcing his mask order with zero input from voters or their elected representatives. Last week, Polis unilaterally extended the mask mandate by another 30 days.
The Colorado Constitution expressly prohibits the delegation by the legislature of lawmaking authority to the governor.
Parents in Tennessee are suing to free their children from unlawful and unhealthy mask mandates unsupported by science.
Minnesotans have filed multiple lawsuits against Gov. Tim Walz. “It’s not the place of government to impose those requirements on us when there is no lawful authority to do so,” Doug Seaton, Upper Midwest Law Center President and attorney, argues. “That’s something that is against our self-governing principles that we’ve had in the state of Minnesota since we were a part of the northwest territory. We can’t have our governor override the separation of powers and the limited government we have and trample on rights, whatever good the intentions might be.”
In Boise, Idaho, this weekend, citizens held an anti-mask rally at the local Veterans Memorial park. Organizer Jeff Buck said, “We feel like we are being held hostage and we need to stand up for our rights or the government will take them away.”
SAN FRANCISCO
The Justice Department on Friday warned of possible legal action if San Francisco Mayor London Breed fails to lift COVID-19 restrictions on houses of worship, saying the city is “impeding” religious freedom guarantees.
Assistant Attorney General Eric S. Dreiband and U.S.attorney David Anderson of the Northern District of California, in a three-page letter, said that the city’s police of only allowing one congregant at a time in houses of worship is “draconian.”
“These principles are legally binding, and the Constitution’s unyielding protections for religious worshipers distinguish the United States of America from places dominated by tyranny and despotism,” they added.
Meanwhile, the city’s policy allows deferential treatment to businesses and other gathering places like grocery and big-box stores, salons, and gyms.
The coronavirus gathering restrictions are even less for child care centers, which can have up to 12 indoors at once, “even though children in a childcare center are together in an enclosed space for much longer than those attending a typical religious service,” the letter stated.
THE SUPREME COURT HAS NOT YET RULED ON THE CONSTITUTIONALITY OF FORCING HEAlTHY PEOPLE TO WEAR MASKS DURING A DISEASE OUTBREAK.
ALL WE KNOW IS WHAT "LEGAL EXPERTS" HAVE SAID.
THERE IS LIKELY NO LEGAL LEG TO STAND ON WHEN IT COMES TO FORCING EITHER QUARANTINE OR MASKS ON HEALTHY CITIZENS IN THE USA.
IT'S ABSOLUTELY A VIOLATION OF AMERICANS' FREEDOM OF RELIGION TO CLOSE CHURCHES.
Lindsay Wiley, director of the Health Law and Policy Program at American University Washington College of Law, says that while [jurisdictional in Washington, D.C.] signage is mandatory, it’s essentially up to the businesses to determine how it will enforce such rules
While governors and mayors are telling individuals to wear masks, few are attempting to 'mandate' that in the order itself — such an order would be susceptible to constitutional rights challenges, according to Wiley.
We've seen other "law experts" trotted out who don't agree that these EXECUTIVE orders are unconstitutional.
DO THEY DENY THAT THE LEGISLATIVE BRANCH MAKES LAWS, THAT THE EXECUTIVE BRANCH MAY NOT, THE JUDICIAL BRANCH MAY NOT, ACCORDING TO THE CONSTITUTION?
The whole damned thing has become POLITICIZED.
Meanwhile, many leftist governors and mayors allowed tens of thousands of protesters to gather throughout the summer in violation of social distancing and mask-wearing rules, citing their right to do so under a different provision of the First Amendment.
If you want to know whether something is unconstitutional, one group you might ask is judges. And in early rounds of litigation, a reasonably clear—and, to many of us, unsurprising—answer is emerging.
Some ways in which shutdowns are applied may indeed be unconstitutional, as when a mayor allows a civic group but not a church to convene in numbers, or when a gun shop gets treated less favorably than comparable small businesses because someone in the governor’s office isn’t fond of Second Amendment rights. Those cases, important as they are, change only a few lockdown outcomes. And the remedy that follows — making restrictions neutral and even‐handed — is different from lifting those restrictions.
As for the argument that lockdowns as such are broadly unconstitutional, that one has begun to reach judges.
From a former judge of the Superior Court of New Jersey, May 28, 2020.
"The governors of all 50 states and the mayors of many large cities have assumed unto themselves the powers to restrict private personal choices and lawful public behavior in an effort to curb the spread of COVID-19.
They have done so not by enforcing previously existing legislation but by crafting their own executive orders, styling those orders as if they were laws, using state and local police to enforce those so-called laws and – presumably when life returns to normal and the courts reopen – prosecuting the alleged offenders in court.
It is hard to believe that any judge in America would permit a criminal trial of any person for violating a standard of behavior that has not been enacted into law by a legislature.
We know this because under our system of representative government, separated powers and guaranteed liberties, only the legislative branch can craft laws and assign punishments for noncompliance. This is Constitutional Law 101.
Supreme Court Justice Neil Gorsuch has written that the executive branch cannot enforce a law that it has written. If it does, we will have approached tyranny.
Have we approached tyranny already?
During the past eight weeks, governors and mayors have closed most businesses, public venues and houses of worship, prohibited public assembly and restricted travel – all of which they have unilaterally decreed to be nonessential.
In his terrifying novel “1984” – which posits a future of total control of all persons by the government and total control of the government by one political party – George Orwell argued that he who controls the meaning of words controls the laws as well.
That Orwellian truism has been manifested like never before here in America, where executive branch officeholders have used state and local police to restrain people from engaging in private and public behavior that they concede was lawful two months ago because today it is not deemed “essential.”
Frankly, I am surprised at the ferocity of police enforcement and the lameness of police compliance. The police have taken the same oaths to uphold the same Bill of Rights – it’s not the Bill of Safety; it’s the Bill of Rights – as have all other officeholders. The police also know that it is unlawful for them to obey an unlawful order, particularly when they use force.
The lockdown orders are all unlawful because none of them – none – has been enacted by a legislature, and all of them – all – interfere with fundamental liberties, each of which is guaranteed – guaranteed – by the Constitution.
The governors [and mayors and federal/state/local politicians and their control-freak supporters] complain about resistance. They need to know that Americans will resist efforts to interfere in behavior that remains as moral, natural, lawful and constitutional as it was 60 days ago.
[He's saying that, 60 days ago, it wasn't criminal to go freely anywhere we chose to go, without masks, without facing charges and jail for traveling mask-free. 60 days ago no one was jailed for holding a church service, for attending church. 60 days ago no one was jailed for crossing state lines while on vacation, traveling to visit family, joy-riding/sighseeing. 60 days ago it wasn't a criminal act to go to work, go out to eat, visit a doctor's office, go to school, etc.
It damned sure was not criminal to do any of that in past pandemics. America has NEVER been shut-down and an entire population forced to wear masks, stay home, not go to worship before during any disease outbreak...NONE.]
The Department of Justice [has begun] filing challenges to governors in federal courts and to argue that constitutional freedoms are being impaired by the states.
I applaud this, but it is too little, too late. Where was the Justice Department when Catholic priests were threatened with arrest for saying [Easter] Mass or distributing palms, and when rabbis were put in COVID-19-infested jails for holding funerals? At all these religious events, folks freely chose to exercise their freedom to worship; and to take their chances.
These Justice Department interventions provoked the question: Who should decide what goods, services or venues are essential – the states or the federal government? The question is Orwellian, as the answer is: neither of them.
The government in America – state or federal – has no power and no right to determine what goods, services and venues are essential.
Those determinations have been for individuals to make since 1776, and those individual choices have been constitutionally protected from the feds since the Bill of Rights was ratified in 1791 and from the states since the 14th Amendment was ratified in 1868.
What is essential to the laborer or student or housewife may not be essential to the former Goldman Sachs partner who was elected governor of New Jersey, and who decreed last week, “It shall be the duty of every person or entity in this State ... to cooperate fully” with his orders; or essential to the ideologue who is mayor of the Big Apple and who, for all his professed liberality, threatened to close permanently – permanently – businesses and houses of worship that flaunt his guidelines.
A duty is undertaken voluntarily or by nature, not by executive command, Gov. Murphy. And the government cannot take property away from its owners except for a legitimate public use and only for just compensation, Mayor de Blasio.
Governors and mayors can make all the dictatorial pronouncements and threats that they wish. But they cannot use public assets to enforce them. And when they seek to use force, those from whom they seek it should decline the offer.
In America, we decide for ourselves what produces happiness. We have never delegated to the government – ever – the power to make personal choices for us.
And some of us are willing to take chances and even do “nonessential” things. The essence of the freedoms for which we have fought since 1776 is the liberty to be ourselves."
UNDER THE AMERICANS WITH DISABILITIES ACT, THOSE WITH CONDITIONS LIKE COPD, EMPHYSEMA, CONGESTIVE HEART FAILURE, CONDITIONS REQUIRING OXYGEN THERAPY, ETC, ARE NOT REQUIRED TO WEAR A MASK AND PLACES THAT REQUIRE MASKS MUST FIND A WAY TO ACCOMODATE THESE PATIENTS OR BE IN VIOLATION OF THAT ACT.
COVID-19 Face Mask Exemptions Under the Americans With Disabilities Act (ADA)According to ADA.gov:
"To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.
Under any claimed or covered exemption to COVID-19 face mask orders under the ADA, an individual must have a legally recognized disability as defined by its provisions."
"Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. They also must comply with specific requirements related to architectural standards for new and altered buildings; reasonable modifications to policies, practices, and procedures; [FOR EXAMPLE: Like offering an alternative entrance/exit to a building or creating a time frame in which the disabled may enter/leave (shop, whatever) a facility without a mask); provide effective communication with people with hearing, vision, or speech disabilities; and other access requirements. Additionally, public accommodations must remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation’s resources."
JUST DON'T SHOOT THEM, OR ARREST THEM!
The Centers for Disease Control and Prevention (CDC) explained in August this year who should NOT wear masks and that in some situations -- such as people with intellectual and developmental disabilities, mental health conditions or other sensory sensitivities such as autism spectrum disorder -- wearing a mask could create distress.
According to the U.S. Centers for Disease Control and Prevention (CDC), children that are under the age of two years should not be wearing a face mask.
"I could fathom rare cases of PTSD where past trauma involved a face covering; in such cases, wearing a mask may trigger potential flashbacks, but this is more an exception," Dr. Divya Jose, a psychiatrist in New York City told ABC News.
MOST of these mask mandates are in direct violation of the Constitution and shouldn’t be enforced to begin with, let alone kill a person over.
“This is a question I ask on every program. Sheriff [Scott] Nichols in Franklin County, Maine, told his governor, ‘We will not make our county a police state. We will not conduct ourselves like Nazi soldiers. We will follow the Constitution.’
[My Note: Sheriff Nichols was refusing ''social engineering orders". He was standing up to his governor and knew he was standing on solid ground. he had and we all have, the Supreme Court's rulingto back us up, but few are aware of that landmark, all-important ruling. I'll show you what I mean below.]
"The question is, do you want the sheriff in Florida who arrested pastor Howard Brown [for holding church services in violation of a stay-at-home orde, another UNCONSTITUTIONAL order], or do you want the sheriff in Maine who said, ‘We won't conduct ourselves like that? We will still respect the rights of the people to make their own choices, even if it's uncomfortable for other people.’ Isn't that what liberty is? …
You would think we already made a law that freedom of religion would be the one principle that we would all agree on, yet we're arresting people in this country, literally, JUST FOR GOING TO CHURCH… This is so absurd.
So, which sheriff do you want in your county? The one who will protect your liberty, still educate you as to how you should be careful, but then respect your right to choose for yourself?
I also submit that he [your sheriff] actually protects you from other governments trying to arrest you. He protects you from that security guard. They're not actually very well trained. Sometimes cops aren't either, and we need to understand de-escalation, and that we don't shoot somebody over a mask issue, WHICH ISN'T EVEN A LAW.
The insanity just seems to get worse and worse every day, and I'm saying, let's go back to American ideals. Let's go back to the Constitution. And we literally train sheriffs and peace officers across this country to follow the Constitution, and to do that you have to know and understand the Constitution, especially the Bill of Rights.”
Most of us would probably want a sheriff who will protect our civil liberties and personal freedoms.
One area where our local sheriff might end up playing a crucial role IN THE NEAR FUTURE is if they roll out forced vaccines.
IF UNCONSTITUTIONAL "RULES" or "LAWS" were enacted that we must get the new vaccine or be barred from various locations, your sheriff would be the one to either comply with such orders or refuse to enforce them.
AS I SAID, EVERY SHERIFF HAS A SUPREME COURT DECISION TO STAND ON, ONE THAT GUARANTEES THAT SHOULD NEVER, EVER HAPPEN.
We can take back our American liberty TODAY. We don't have to wait for another piece of legislation. We don't have to wait for another election. We can do it now, today, just as former sheriff Richard Mack has demonstrated.
As noted by Mack, when you get sheriffs and police officers to understand that upholding the Constitution is their actual role, that this is their No. 1 job, the paradigm shifts from kicking in doors and arresting people for not wearing a mask to being a defender of liberty and a guardian of the Constitution. It results in a mental paradigm shift.
“That paradigm will make a huge shift and the beneficiary of that will be the American people,” Mack says. “The best tool for any situation in de-escalation is the Constitution of the United States of America.
If [law enforcement officers] know and understand the Constitution and their role in defending it, then I believe the problems with police brutality are going to disappear in this country, or at least diminish extremely …
Once we understand the principles of freedom that we as peace officers swore an oath to uphold and defend, our job is going to change immensely. If I can enforce the law without beating people into compliance, which I did for 20 years, then every peace officer can do the same.
SUPREME COURT OF THE UNITED STATES
Nos. 95-1478 and 95-1503
JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER 95-1478 v. UNITED STATES
RICHARD MACK, PETITIONER 95-1503 v. UNITED STATES
on writs of certiorari to the united states court of appeals for the ninth circuit
[June 27, 1997]
Mack is perhaps best known for suing the U.S. government over the Brady Bill, also known as the Brady Handgun Violence Prevention Act, signed into law by President Clinton in November 1993, which for the first time in U.S. history conscripted county sheriffs to enforce federal law.
“Cornell University did the best review of the case that I ever saw. If you want to look up the case, see Printz, Mac V. U.S. It's the most amazing 10th Amendment decision in the history of our country. It is so powerful,” Mack says.
“Justice [Antonin] Scalia wrote the decision, and it went 10 times further than I ever dreamed. In fact, I never dreamed of even going to the Supreme Court. I thought it would all be squashed and forgotten at the district level. But we went through the district court. Six other sheriffs joined me in this lawsuit. All of them won at the district court except the one in Texas.
I don't know how you lose a 10th Amendment, Second Amendment case in Texas. People need to understand we sued on the 10th Amendment to protect the Second Amendment, yes, but also to protect state sovereignty. This is the one thing that really got to me the most.
I understand we're always going to have people believing in gun control. I do not, because it's against the Constitution. However, and I'm not a big gun guy — I never even owned a gun until I was elected sheriff … But I am a freedom guy. That's all this was about.
And I said that the federal government cannot tell any sheriff what to do. Not me, not the sheriff in Bangor, Maine, or any sheriff across this country. They have no authority. They have no jurisdiction to tell us what to do. And that is where we won.
It pushed the federal government back, but nobody knows about this decision. It's very hidden. Nobody enforces it, and I'm trying to wake the country up to enforce (1) the Constitution, and (2) this decision that just reinforced the Constitution and the principle of Federalism.”
Question
Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs [chief law enforcement officers] to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks?
Conclusion
NO.
The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction.
The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does NOT empower it to compel state CLEOs to fulfill its federal tasks for it - EVEN TEMPORARILY.
The Court added that the Brady Bill could NOT require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them.
"The Constitution Protects Us From Our Best Intentions." -- Justice Antonin Scalia
Justice
"Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli County, Montana, and Graham County, Arizona, respectively, filed separate actions challenging the constitutionality of the Brady Act's interim provisions.
In each case, the District Court held that the provision requiring CLEOs to perform background checks was unconstitutional, but concluded that that provision was severable from the remainder of the Act, effectively leaving a voluntary background check system in place. 856 F. Supp. 1372 (Ariz. 1994); 854 F. Supp. 1503 (Mont. 1994).
A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding none of the Brady Act's interim provisions to be unconstitutional. 66 F. 3d 1025 (1995).
We granted certiorari. 518 U. S. ___ (1996).
"The petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional. Because there is no constitutional text speaking to this precise question, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court.
We treat those three sources, in that order, in this and the next two sections of this opinion.
Petitioners contend that compelled enlistment of state executive officers for the administration of federal programs is, until very recent years at least, unprecedented.
The Government contends, to the contrary, that-the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws," Brief for United States 28. The Government's contention demands our careful consideration, since early congressional enactments "provid[e] `contemporaneous and weighty evidence' of the Constitution's meaning," Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790 (1983)).
Indeed, such "contemporaneous legislative exposition of the Constitution . . . , acquiesced in for a long term of years, fixes the construction to be given its provisions." Myers v. United States, 272 U.S. 52, 175 (1926) (citing numerous cases).
Conversely if, as petitioners contend, earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.
For these reasons, we do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service. Indeed, it can be argued that the numerousness of these statutes, contrasted with the utter lack of statutes imposing obligations on the States' executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power.
The only early federal law the Government has brought to our attention that imposed duties on state executive officers is the Extradition Act of 1793, which required the "executive authority" of a State to cause the arrest and delivery of a fugitive from justice upon the request of the executive authority of the State from which the fugitive had fled. See Act of Feb. 12, 1793, ch. 7, §1, 1 Stat. 302. That was in direct implementation, however, of the Extradition Clause of the Constitution itself, see Art. IV, §2. [n.3]
Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption. On September 23, 1789--the day before its proposal of the Bill of Rights, see 1 Annals of Congress 912-913--the First Congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the new Government's laws: the holding of federal prisoners in state jails at federal expense.
Significantly, the law issued not a command to the States' executive, but a recommendation to their legislatures. Congress "recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of their gaols, to receive and safe keep therein all prisoners committed under the authority of the United States," and offered to pay 50 cents per month for each prisoner. Act of Sept. 23, 1789, 1 Stat. 96.
Moreover, when Georgia refused to comply with the request, see L. White, The Federalists 402 (1948), Congress's only reaction was a law authorizing the marshal in any State that failed to comply with the Recommendation of September 23, 1789, to rent a temporary jail until provision for a permanent one could be made, see Resolution of Mar. 3, 1791, 1 Stat. 225.
It is incontestible that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text, Lane County v. Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, §3; the Judicial Power Clause, Art. III, §2, and the Privileges and Immunities Clause, Art. IV, §2, which speak of the "Citizens" of the States; the amendment provision, Article V, which requires the votes of three fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, §4, which "presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights," Helvering v. Gerhardt, 304 U.S. 405, 414-415 (1938).
Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, §8, which implication was rendered express by the Tenth Amendment's assertion that "[t]he 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."
The Framers' experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal state conflict. See The Federalist No. 15.
Preservation of the States as independent political entities being the price of union, and "[t]he practicality of making laws, with coercive sanctions, for the States as political bodies" having been, in Madison's words, "exploded on all hands," 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911), the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people--who were, in Hamilton's words, "the only proper objects of government," The Federalist No. 15, at 109.
We have set forth the historical record in more detail elsewhere, see New York v. United States, 505 U. S., at 161-166, and need not repeat it here. It suffices to repeat the conclusion: "The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Id., at 166.
The great innovation of this design was that-our citizens would have two political capacities, one state and one federal, each protected from incursion by the other"--"a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it." U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. See New York, supra, at 168-169; United States v. Lopez, 514 U.S. 549, 576-577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U.S. 624, 644 (1982) ("the State has no legitimate interest in protecting nonresident[s]"). As Madison expressed it: "[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245.
This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory, supra, at 458. To quote Madison once again:
"In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, at 323.
We have thus far discussed the effect that federal control of state officers would have upon the first element of the "double security" alluded to by Madison: the division of power between State and Federal Governments. It would also have an effect upon the second element: the separation and equilibration of powers between the three branches of the Federal Government itself.
The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed," Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who are themselves presidential appointees), Art. II, §2.
The Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove).
The insistence of the Framers upon unity in the Federal Executive--to insure both vigor and accountability--is well known. See The Federalist No. 70 (A. Hamilton); 2 Documentary History of the Ratification of the Constitution 495 (M. Jensen ed. 1976) (statement of James Wilson); see also Calabresi & Prakash, The President's Power to Execute the Laws, 104 Yale L. J. 541 (1994).
That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.
What destroys the dissent's Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself.
When a "La[w] . . . for carrying into Execution" the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a "La[w] . . . proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely [an] ac[t] of usurpation" which "deserve[s] to be treated as such." The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." 505 U. S., at 166.
Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court.
Federal commandeering of state governments is such a novel phenomenon that this Court's first experience with it did not occur until the 1970's, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues, see Maryland v. EPA, 530 F. 2d 215, 226 (CA4 1975); Brown v. EPA, 521 F. 2d 827, 838-842 (CA9 1975); and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds, see District of Columbia v. Train, 521 F. 2d 971, 994 (CADC 1975).
After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).
When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise. At issue in New York v. United States, 505 U.S. 144 (1992), were the so called "take title" provisions of the Low Level Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of the waste--effectively requiring the States either to legislate pursuant to Congress's directions, or to implement an administrative solution. Id., at 175-176.
We concluded that Congress could constitutionally require the States to do neither. Id., at 176. "The Federal Government," we held, "may not compel the States to enact or administer a federal regulatory program." Id., at 188.
We expressly rejected such an approach in New York, and what we said bears repeating:
"Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear `formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." Id., at 187.
We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: "The Federal Government may not compel the States to enact or administer a federal regulatory program." Id., at 188. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.
Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered." [End Scalia quote]
SCALIA'S NOTES ON THIS RULING ARE SCATHING, TO SAY THE LEAST.
THE COURT STOPPED AN UNCONSTITUTIONAL MANDATE THEN AND THE SCOTUS WOULD DO SO AGAIN TODAY IF FACED WITH THE CONSTITUTIONALITY OF ENFORCING UNCONSTITUTIONAL 'RULES' THAT FORCE THE WILL OF POLITICIANS ON THE SOVEREIGN CITIZENS OF AMERICA.
THE LEFT SCREAMS ON BEHALF OF PRO-ABORTIONISTS THAT IT IS THEIR BODIES AND THEIR RIGHT TO TERMINATE A PREGNANCY, TO GET THAT LIFE OUT OF THEIR BODIES.
NO ONE ON THE LEFT WANTS TO ADDRESS THE RIGHTS OF A VIABLE FETUS, THE RIGHT TO LIFE.
NO ONE ON THE LEFT SEEMS TO REMOTELY BE WILLING TO ENFORCE THE RIGHTS OF EVERY AMERICAN TO ATTEND THE CHURCH OF THEIR CHOICE, TO GATHER ANYWHERE THEY DEEM FIT TO WORSHIP, IN WHATEVER WAY THEY HAVE CHOSEN, TO MOVE FREELY AND UNCONFINED WITHIN THE BORDERS OF THEIR OWN STATES, TO REFUSE TO BE QUARANTINED AS HEALTHY INDIVIDUALS, TO REFUSE TO DON MASKS THAT THE CDC AND W.H.O. HAVE BOTH SAID ARE INEFFECTIVE AT STOPPING THE SPREAD OF ANY VIRUS.
HAD A DEMOCRAT BEEN PRESIDENT, AS WHEN OBAMA WAS 'KING' IN 2008-20010, WE WOULD HAVE SEEN NO MASK MANDATES, NO CHURCHES CLOSED, AND WE DIN'T SEE EITHER OF THOSE DONE WHEN OBANA WAS KING.
FAUCI NEVER EVEN CALLED FOR MANDATORY SCHOOL CLOSINGS, AS THE VIDEO PROOF AND PRESIDENTIAL ARCHIVES SHOW...WHEN OBAMA WAS KING.
THE ECONOMY WASN'T DESTROYED, WALL STREET WASN'T CRASHED, AND IT WAS BASICALLY LIFE AS USUAL IN THE LAST PANDEMIC, IN THE MERS PANDEMIC, THE SARS PANDEMIC...
OBAMA WAS A LAWYER, HE KNEW BETTER THAN TO TRY TO USURP THE CONSTITUTION, KNEW HE'D BE SMACKED DOWN.
TODAY, IN A LAST-DITCH EFFORT TO BRING DOWN 'HUMPTY TRUMPTY', THE CRAZED LEFT WILL DO ANYTHING FOR EVEN A TINY WIN.
THEY HAVE BEEN WILLING TO TREAD ON OUR LIBERTY, OUR RIGHTS, OUR CONSTITUTION, OUR FREEDOM OF CHOICE, EVERYTHING, JUST TO DEFEAT OLD "ORANGE MAN BAD", JUST TO REGAIN POWER TO KEEP DOING THIS TO ALL OF US FOR AS LONG AS THEY CAN RETAIN POWER.
BEING IGNORANT OF SUCH VIOLATIONS OF THE CONSTITUTION HAS A CURE.
READING AND 'DIGGING' MORE TO LEARN MORE AND, FINDING SUCH BREACHES OF OUR RIGHTS, DEMANDING THEY CEASE WILL BEGIN THE CURE.
AMERICAN LEGION ET AL. v. AMERICAN HUMANIST ASSN. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 17–1717. Argued February 27, 2019—Decided June 20, 2019.
The Supreme Court ruled in American Legion v. American Humanist Association that a 100‐year‐old cross which is part of a WWI memorial in Bladensburg, Maryland, does NOT “establish” religion.
The cross can remain where it is.
As Justices Thomas and Gorsuch explained in their concurrences, the Court in future should return to the original public meaning of the Establishment Clause, which ensures liberty of conscience and protects people from truly “established” state religions that coerce belief and support.
A non‐coercive, harmless monument — a cross memorial, or a Star of David, or any other religious symbol — is not an establishment of religion. As seven justices correctly found here, tearing down an old war memorial instead establishes an anti‐religious orthodoxy, with a mandate that religious symbols be eradicated from public life.
The Framers did not intend for that to happen.
James Madison, arguably the most influential framer of the Constitution, strongly opposed state religion because colonial Virginia was teeming with religious persecution. Preachers were jailed for simply publishing their religious views, and the official state religion was integrated with many parts of the government. This had a profound effect on Madison. When he wrote his draft of the First Amendment, Madison envisioned the Establishment Clause as the culmination of his philosophy on religion and government, with liberty of conscience as the centerpiece. His purpose was to ensure that people could exercise their faith free from compulsion.
The Establishment Clause, thus, was a shield to defend “individual liberty of conscience.
AMERICANS, SLOWLY AND SUBTLEY DUMBED-DOWN FOR ALMOST 200 YEARS NOW, HAVE CEASED BEING EDUCATED ON OUR CONSTITUTION, OUR RIGHTS, THE FREEDOM WE HAVE, THE POWER WE HAVE OVER GOVERNMENT AND MOST WILL SIMPLY NOT EXPEND THE TIME OR ENERGY TO MAKE THEMSELVES AWARE OF OUR CONSTITUTION, WHICH IS SO SIMPLE THAT IT NEEDS NO "INTERPRETATION, IS SO SIMPLE THAT 8th-GRADE STUDENTS IN THE 1800s TO MID-1900s MIGHT HAVE BEEN CONSIDERED EXPERTS ON CONSTITUTIONAL LAW.
MY ONLY SIBLING, A YOUNGER BROTHER, WAS CONSIDERED SUCH AN EXPERT BY THE TIME HE WAS 16 YEARS OLDAND WAS CALLED TO COURTS AS JUST SUCH AN EXPERT WITNESS ON CONSTITUTIONAL LAW.
WHAT HAPPENED?
HOW DID WE BECOME THIS UNINFORMED, THIS IGNORANT OF THE FOUNDATION OUR NATION IS BUILT ON?
HOW DID WE BECOME SO APATHETIC AND COMPLACENT WHEN WE'RE BEING ROBBED OF OUR RIGHTS?
I HAVE A FAVORITE CARTOON THAT SHOWS HOW SIMPLE IT IS TO STOP TYRANNY, STOP THOSE WHO WOULD ENSLAVE US TO THEIR OWN WILLS, THEIR OWN AGENDA...
JUST SAY NO, AMERICA, AND SAY IT WITH A ROAR, NOT A WHINE.
BACK IT UP BY REFUSING TO BOW, BY "CIVIL DISOBEDIENCE", ONE OF OUR GREATEST MEANS TO SEND ALL WOLF SHEPHERDS RUNNING.
IF WE REFUSE TO LIE DOWN AND BE FLEECED, THEY'LL HAVE TO STOP FLEECING US!
THE SUPREME COURT KNOWS THAT WE, THE PEOPLE, HAVE RIGHTS.
WHY WON'T POLITICIANS AGREE?
THEY DON'T AGREE BECAUSE OUR CONSTITUTIONAL RIGHTS TERRIFY THEM.
LET THEM ALWAYS BE TERRIFIED THEN.
//WW
No comments:
Post a Comment