Emergency Powers Can’t Violate Constitution

The actions by New Mexico Governor Michelle Lujan Grisham to invoke emergency powers to take away gun rights has aroused some consternation. See the video below:

This is a big deal because emergency powers were used during the pandemic to take away constitutional rights here in North Carolina and around the nation. We rode this horse previously. In fact, numerous constitutional rights were taken away here in North Carolina.

But this is really a simple matter of law and the basic constitutional order.

The US Constitution– and each state Constitution– are higher laws than any emergency powers law that a state legislature might pass. She is claiming power based on a faulty premise that a law passed by the state legislature entitles her to suspend the Constitution.

She has no right to take away anybody’s constitutional rights– just as Roy Cooper and Mandy Cohen did not have that right in North Carolina. When the plain language of the Constitution conflicts with a law passed by the legislature or an edict issued by a governor, the Constitution is supposed to prevail because it a higher law.

These public officials took an oath to uphold the Constitution. They are violating their respective oaths of office.

Legislators muddy the waters when they pass these laws granting emergency powers. Republicans are just as guilty as Democrats in this regard.

Why do these governors get away with this behavior? Because there is nobody to hold them accountable. Here in North Carolina, the state Attorney General– Josh Stein– was on the governor’s team and helped him draft the emergency orders. He would have been the obvious person to prosecute the governor, but he was part of the plan.

The Republicans in the General Assembly sat on their hands. District Attorneys and County Sheriffs sat on their hands. Pastors and denominational bodies throughout the state sat on their hands with the exception of a precious few.

Now the evil socialists are talking about invoking emergency powers over the “climate crisis”.

Citizens need to wake up. Christians and pastors needs to wake up.

And Republicans need to wake up.


10 thoughts on “Emergency Powers Can’t Violate Constitution

  1. Her order is effective statewide but targeted towards cities with high violent crime rates, specifically, Albuquerque. Grisham will review the ban after 30 days to determine whether or not it continues. From KOB Channel 4:

    There are several exceptions. The public health order does not impact private property, licensed firearm dealers, firing ranges, or shooting competitions. However, anyone traveling between those locations must store their guns in a locked container or safety box.


    The order does not apply to law enforcement officers or licensed security officers …

    The Regulation and Licensing Division will conduct monthly inspections of licensed firearm dealers to ensure compliance with all sales and storage laws.

    The Department of Health, along with the Environment Department, will begin wastewater testing for illegal substances such as fentanyl at schools.

    The Department of Health will compile and issue a comprehensive report on gunshot victims presenting at hospitals in New Mexico, which shall include (if available): demographic data of gunshot victims, including age, gender, race, and ethnicity; data on gunshot victim’s healthcare outcomes; the brand and caliber of the firearm used; the general circumstances leading to the injury; the impact of gunshot victims on New Mexico’s healthcare system; and any other pertinent information.

    No firearms are allowed on state property, including state buildings and schools. This also includes other places of education where children gather, such as parks.

    New Mexico State Police will add officers in Albuquerque with funding for overtime provided.

    The Children, Youth and Families Department will immediately suspend the Juvenile Detention Alternative Initiative and evaluate juvenile probation protocols.

    Grisham also said that her oath to the Constitution “is not absolute” and gave these examples to justify her ban:

    Lujan Grisham referenced several recent shootings in Albuquerque in issuing the order. Among them was a suspected road rage shooting Wednesday outside a minor league baseball stadium that killed 11-year-old Froyland Villegas and critically wounded a woman as their vehicle was peppered with bullets while people left the game.

    Last month, 5-year-old Galilea Samaniego was fatally shot while asleep in a motor home. Four teens entered the mobile home community in two stolen vehicles early on Aug. 13 and opened fire on the trailer, according to police. The girl was struck in the head and later died at a hospital.

    The governor also cited an August shooting death in Taos County of 13-year-old Amber Archuleta. A 14-year-old boy shot and killed the girl with his father’s gun while they were at his home, authorities said.

    There is zero evidence that a LTC holder was behind the death of the 11 year-old. The five year-old was killed by a group of teenagers in illegal possession of a firearm who committed a drive-by. The 13 year-old was killed by another teen, who was charged with homicide; and the father charged preexisting negligence law. At no point do open or concealed carry factor in to any of these crimes nor is there any, at all, evidence showing that concealed carry permit holders are the people driving the crime rate. Grisham is simply punishing the innocent for the illegal actions of criminals. If prohibited persons are willfully violating the law to illegally carry then banning all carry isn’t going to have any effect, either — except on innocent people’s ability to defend themselves.

    Albuquerque’s crime rate has steadily risen for the past several years with the cause attributed to the former Soros-backed DA, now AG of New Mexico, Raúl Torrez.

    Albuquerque Police Chief Gorden Eden said the recent spike was in part due to the case management order that went into effect in 2015. The state Supreme Court order that only affected the Albuquerque area aimed to reduce the population in jail by moving cases through the courts more quickly.

    “With the case management order we started to see cases being dismissed by the District Attorney’s office and started to see the jail population decrease,” Eden said. “Quite frankly, what I think happened is there were just too many decisions being made in the criminal justice system and that has created a real perfect storm for our state and for the 2nd judicial district.”

    The DA was busy dismissing cases right and left and the clueless governor doesn’t understand why crime is on the rise? The new DA isn’t any better: a Grisham hand-picked establishment Democrat who was accused of directing staffers to publish stolen emails that included receipts about underwear purchases from former Susana Martinez.

    Blue cities like Albuquerque have a murder problem — and a judicial rot problem. Grisham citing a “public health emergency” is exactly why Second Amendment supporters reject this specious claim by anti-Second Amendment advocates to classify felonious actions and prohibited carry as a “health issue.”

    No way this edict survives the guaranteed court battle, especially post Bruen.

    The only issue here are Democrats who enable repeat offenders to further brutalize innocent citizens.

  2. Here is an excellent Jonathan Turley column on the subject:


    New Mexico Governor Michelle Lujan Grisham on Friday suspended laws that allow open and concealed carry of firearms in Albuquerque for 30 days after declaring a public health emergency. The order, in my view, is flagrantly unconstitutional under existing Second Amendment precedent. It could also be a calculated effort to evade a ruling by making the period of suspension so short that it becomes moot before any final decision is reached by a court.

    The order cites recent cases of gun-related violence in and around the city, including the killing of an 11-year-old boy dead and the wounding of a woman in their vehicle in an apparent road rage incident after a baseball game.

    Grisham declared that “as I said yesterday, the time for standard measures has passed. And when New Mexicans are afraid to be in crowds, to take their kids to school, to leave a baseball game—when their very right to exist is threatened by the prospect of violence at every turn—something is very wrong.”

    Democratic leaders have increasingly turned to a claim used successfully during the pandemic in declaring a health emergency to maximize unilateral authority of governors. There have also been calls to declare racism a public health emergency, supported by groups like the American Public Health Association. Transgender programs have also been declared a public health emergency by some groups. The motivation behind many of these calls is not to negate constitutional rights, but the question is whether such declarations allow governors discretion to suspend or curtail individual rights.

    As the list of claimed health emergencies grow, even state Democratic judges may begin to balk at the obvious end run around constitutional rights.

    The order allows for an expansion to other cities that meet the threshold for violent crime if 1,000 or more violent crimes per 100,000 residents have occurred per year since 2021. It also sets a threshold of 90 firearms-related emergency room visits per 100,000 residents have occurred between July 2022 and June of this year.

    The taking away of individual rights as an emergency measure is hardly new. For centuries, governments have claimed that the suspension of individual rights is necessary for the good of citizens.

    What is striking about this effort is the short specified period. By setting a 30-day period, the Governor makes it difficult to secure a final decision. She could face a preliminary injunction in that time. However, if she gets a sympathetic trial judge, the time could run out before a final ruling can be secured on appeal. In any case, it makes it less likely that the case can be taken to the Supreme Court or even through the federal court system.

    Yet, challengers could argue that the matter is not moot when the order can be and is likely to be repeated in the future. That is always a challenging claim to make, but it is clearly true in this case. What is clear is that this is unambiguously and undeniably unconstitutional under existing precedent.

    Even if an injunction is secured on the basis of a presumptively unconstitutional act, many will of course celebrate the boldness of Grisham in taking away an individual right under a clever measure. It is, however, too clever by half. If a court decides that this is not moot at the end of the period, New Mexico could supply a vehicle to curtail future such claims.

    We have seen how Democratic strongholds have proven the greatest assets for gun-rights advocates.
    Major Democratic cities are delivering lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.

    In 2008, the District of Columbia brought us District of Columbia v. Heller, the watershed decision declaring that the Second Amendment protects the individual right of gun possession.

    In 2010, Chicago brought us McDonald v. City of Chicago, in which the Court declared that that right is incorporated against state and local government.

    However, no state has done more for the Second Amendment than New York. The state has been a fountain of unconstitutional laws — and the basis for a series of wins for Second Amendment advocates.

    New Mexico could now prove the next big opportunity for gun rights advocates in tackling the public health rationale for gun control.

  3. When an “emergency declaration” grants a politician the extralegal/extrajudicial powers to essentially write law from his desk and bypass the legislature (the people) then everything suddenly becomes an emergency and every governor or mayor is a King.

    Didn’t we fight a revolution to escape this form of monarchy rule?

    1. Yes, Jaycee, as you know a revolution was fought specifically for that purpose.

      Legislators really need to repeal or strictly modify these powers so no constitutional violations can take place. It’s crazy we even need to ask for that.

  4. As I recall, Gov. Cooper’s emergency declaration over Covid was legally required to be affirmed by his Council of State (or some such group) but he issued the declaration unilaterally without this approval.
    Like a King issuing a royal edict from his throne in the Palace.

    1. That was a talking point among Republicans, Jaycee, that he had to have it affirmed by the Council of State, but the law really did not say that, and a lawsuit on this point failed. So they passed a new law that does include it. But even the entire Council of State does not have the right to take away constitutional rights during an emergency. The law still has shortcomings.

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