Justice Gorsuch on Governmental Handling of Covid “Emergency”

Neil Gorsuch is extremely weak on LGBTQ issues because he is an Episcopalian who leans libertarian. However, he said some things in a recent opinion that few other judges and justices have matched. He is fairly critical of the manner in which the federal, state and local governmental authorities abused their emergency powers during the pandemic. The state of North Carolina has not adequately remedied all that took place here.

The text of his opinion is provided via Reason:

Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too.

They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.

Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide. They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.

While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.

Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force.

We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear [citing Aristotle’s Politics].

But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.

Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate. Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hopefully, we have relearned these lessons too.

In the 1970s, Congress studied the use of emergency decrees. It observed that they can allow executive authorities to tap into extraordinary powers. Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.

At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order. In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.

Despite that law, the number of declared emergencies has only grown in the ensuing years. And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level.

At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.

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2 thoughts on “Justice Gorsuch on Governmental Handling of Covid “Emergency”

  1. A great legal mind.. We have got him for life.

    A ditto from John Hinderaker at Power Line:

    ” ANTI-COVID POLICIES WERE A DISASTER

    A global consensus has emerged that governmental responses to covid-19, which mainly involved shutdowns, limitations on mobility and other aspects of freedom, mask mandates, and vaccination requirements, did an enormous amount of harm. The issue is sometimes posed in terms of whether governments’ responses did more damage than the epidemic did. But that isn’t actually the right question. The epidemic happened. The question is whether the epidemic + government restrictions on freedom was better or worse than the epidemic alone would have been. And the answer is, worse. The net effect of government responses was catastrophically bad.

    This paper, published just a few days ago by Kevin Bardosh of the University of Washington and the University of Edinburgh Medical School, surveys the current learning on the impacts of governments’ covid responses:

    Early in the Covid pandemic concerns were raised that lockdown and other non-pharmaceutical interventions would cause significant multidimensional harm to society. This paper comprehensively evaluates the global state of knowledge on these adverse social impacts, with an emphasis on their type and magnitude during 2020 and 2021.

    A harm framework was developed spanning 10 categories: health, economy, income, food security, education, lifestyle, intimate relationships, community, environment and governance.

    The analysis synthesizes 600 publications with a focus on meta-analyses, systematic reviews, global reports and multi-country studies. This cumulative academic research shows that the collateral damage of the pandemic response was substantial, wide-ranging and will leave behind a legacy of harm for hundreds of millions of people in the years ahead. Many original predictions are broadly supported by the research data including: a rise in non-Covid excess mortality, mental health deterioration, child abuse and domestic violence, widening global inequality, food insecurity, lost educational opportunities, unhealthy lifestyle behaviours, social polarization, soaring debt, democratic backsliding and declining human rights. Young people, individuals and countries with lower socioeconomic status, women and those with pre-existing vulnerabilities were hit hardest.

    “[A] legacy of harm for hundreds of millions of people.” That naturally raises the question, will a price be paid by those who wantonly damaged hundreds of millions? Certainly politicians who emphasized freedom and minimized lockdown damage, like Ron DeSantis and Kristi Noem, have come out very well. But those who presided over the most devastating policies, including Gavin Newsom, Donald Trump and Joe Biden, don’t seem to have suffered. Chris Cuomo, arguably the worst of the worst, is out of office, but that is due to his boorish conduct toward women, not to the thousands who died needlessly on his watch or the millions whose lives were degraded. And Anthony Fauci is, as far as one can tell, enjoying his retirement.

    Some have called for Fauci and others to be criminally prosecuted, but I am not aware of any basis for such action. I do think, however, that we need a political accounting. Those who used covid as an excuse to exercise essentially fascistic powers, like Newsom, Michigan’s Gretchen Whitmer, and Minnesota’s Tim Walz, should be humiliated and driven from office. But so far, that isn’t happening. “

    1. Fred, it is obvious there was great harm caused by the Covid policies mentioned in your comments. If you recall, we had talked about that at my blog during March and April of 2020. Few listened at that time, and a series of catastrophic mistakes were made by nearly all governmental entities and institutions, with relatively few exceptions.

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