Texas Supreme Court Rejects Original Jurisdiction Challenge to Coronavirus Orders, But Four Justices Concur

"As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny."

|The Volokh Conspiracy |

Today the Supreme Court of Texas denied a petition for writ of mandamus filed by businesses. They challenged various Coronavirus-related emergency orders. The per curiam order explained, "The relators' claims, raised in an original action in this Court, should first be presented to the appropriate district court."

Justice Blacklock concurred, joined by Justices Guzman, Boyd, and Devine. They offered a coherent way to think about the increasing number of challenges to the lockdown. Here is an excerpt from the brief concurrence:

"The Constitution is not suspended when the government declares a state of disaster." In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020). All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic.

In the weeks since American governments began taking emergency measures in response to the coronavirus, the sovereign people of this country have graciously and peacefully endured a suspension of their civil liberties without precedent in our nation's history. In some parts of the country, churches have been closed by government decree, although Texas is a welcome exception. Nearly everywhere, the First Amendment "right of the people to peaceably assemble" has been suspended altogether. U.S. Const. amend. I. In many places, people are forbidden to leave their homes without a government-approved reason. Tens of millions can no longer earn a living because the government has declared their employers or their businesses "'non-essential.'"

Those who object to these restrictions should remember they were imposed by duly elected officials, vested by statute with broad emergency powers, who must make difficult decisions under difficult circumstances. At the same time, all of us—the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution, especially now. If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.

Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government's anti-virus actions. When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.

The last sentence is quite significant. Measure that were constitutionally proper in March and April may be less proper in May and June.

Yesterday, Cooper & Kirk filed an action in the Wisconsin Supreme Court's original jurisdiction. The complaint alleged violations of free speech, free exercise, and the right to travel.

To date the United States Supreme Court has managed to stay out of the fray. But the state courts may yet have to intervene.

NEXT: United Airlines Received $5 Billion From Taxpayers to Protect Employees' Paychecks. Now It's Cutting Hours for 15,000 Workers.

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  1. I think the big issue with a lot of these orders is they are not narrowly tailored nor the least restrictive means. They are blanket and panic based orders. A lot of business and a lot of activities can occur with masks and social distancing, and do not need to be locked down.

    For example, gun ranges are shut down, because reasons. But people don’t gather around in small or large numbers often, and they are outdoors as well, so the risk is small and can be mitigated by masks or just staying apart (which is easy on a range).

    1. They are prophylactic. And unlike in many situations, prophylaxis is really important with epidemics. Because you want to keep people away from the situations where they MAY then gather in groups.

      1. Could you please point out the prophylaxis exemption to the Bill of Rights….

        And it’s the Bill of Rights, not the Bill of Maybes.

          1. One time at UMass Amherst a major Democrat politician met with Dr. Ed and explained that all liberals are really communists and that they will use quarantined to destroy the constitution. Unfortunately Dr. Ed misplaced the cassette tape this was recorded on so you’ll have to take his word for it, but most people he knows understand that and are preparing for an armed uprising.

        1. What precise right is being violated?

          1. The right to peacably assemble. Part of the first.

            1. Eugene argued, persuasively in my opinion

              However peaceable we might be in our intentions, our assembling is a physical threat

              1. Also, exactly where is the right to peaceably assemble being violated? People can still assemble. They just have to stay 6 feet apart. (And honestly, that isn’t even being enforced very much anyway.)

                The reality is that a whole bunch of the legal arguments here are Lochner arguments. The right of free speech has not been suppressed. Neither has assembly. There’ve been a few cases on religion, but the courts are taking care of that. Gun rights and abortion rights have, at least for the most part, been respected. So has the right to obtain contraceptives. You still have a right to travel, though nobody wants to.

                What do we have left? The right to operate a business? The right to go in a business? All of that is Lochner. Rational basis review.

                1. > Also, exactly where is the right to peaceably assemble being
                  > violated? People can still assemble. They just have to stay 6 feet
                  > apart. (And honestly, that isn’t even being enforced very much
                  > anyway.)

                  Are you sure that people didn’t get arrested for protesting?

                  1. I’m not saying nobody did, but very few people did.

                    And as I said, protests are legal if you just stay six feet away from each other. You can even have a march or a gathering. Refusing to comply with the six foot requirement is like breaking any other law in a protest- if it’s possible to do the protest without breaking generally applicable laws, and the protesters choose to break them, that’s not generally a First Amendment issue. That’s civil disobedience, and you can go to jail for it.

                    1. And just to add- I don’t think assembly is where the real complaint is. People are really upset about the fact that the economy is shut down, including the commercial stuff they normally like to do. That’s not First Amendment activity; that’s Lochner.

              2. He argued there was good reason to violate the right.

                Not that it wasn’t being violated.

                1. That’s a distinction without a practical difference.

                2. Given Eugene’s focus on “peaceably,” I disagree.

                  1. If you’re reading “Peaceably” to include actions that are peaceful on the surface, but MAY have potential for harm later…

                    That’s a very slippery slope to go down.

                    Are anti-war protestors “peaceably assembling”? Or do their actions have POTENTIAL for violence or harm down the road. Or any other type of protest or assembly? For example, those colonial assemblies shut down by the British in the 1770’s.

                    1. The link between protesting and harm is not at all like the link between transmitting coronavirus and harm.

              3. Threats are only one side of the scale. Civil liberties are on the other side.

        2. The whole point of the Bill of Rights is to be prophylaxis of an even greater problem: loss of freedom because politicians inhaled too much power, known to be historically rampant in “emergency” situations.

          Like Trump or not, this nation is il-served at this moment by the mostrous amounts of Trump contrarianism. This won’t be well understood until future historians shake their heads at this whole period.

          1. “The whole point of the Bill of Rights…”

            …had precious little to say about what States could do to their citizens, in times of emergency, or not.

            1. Until the 14th amendment, at which time it applied equally to them.

              1. NToJ:

                Wrong.

                There is nothing in the BOR that limits its application to the federal government. That the first amendment states that Congress shall pass no law does not thereby mean that that either the FA or the balance of the BOR only applies to the feds. Expressio unius est exclusio alterius does not apply – particularly in the conception of the universe of individual liberty to be protected.

                The 9th amendment, on its face, does not limit its sweep to the feds.

                Article IV’s protection of privileges and immunities is not limited to the feds.

                Article IV’s protection of a republican form of government, by its terms, applies to the states.

                1. While on a philosophical and moral level, I agree that the states really ought to have observed the rights listed in the BOR even prior to the 14th amendment, there IS in fact something about the BOR which limits its application to the federal government: The fact that these amendments were amendments to the FEDERAL constitution. And the states had their own constitutions.

                  There’s no reason, legally, to think that a provision of the federal constitution binds the states, if it doesn’t SAY it binds the states, because it doesn’t otherwise address itself to the states. The Constitution quite explicitly stays it’s binding the states where it does. See, for instance, Article 1 section 10: “No state shall…” Or Article 4, sections 1 and 2.

                2. Lol nobody said Expressio unius est exclusio alterius applied you lunatic. Brett understands rules of construction. You don’t.

            2. Unless you consider the Bill of Rights and Declaration of Rights in the various state constitutions.

    2. They may not need to be narrowly tailored. The four Justices reference “strict scrutiny or some other rigorous form of review” but the standard of review is very much going to depend on who is claiming what and why. And only four Justices thought enough of it to say “strict scrutiny or some other rigorous form of review”.

      Note Texas law does have something approximating Lochner era economic liberty, although its contours are not well developed. So Texas may be an outlier in terms of what the government must show to regulate.

    3. Make it a point to notice, the word, “panic,” in any Covid-19 related comment, has become a marker for empty right-wing blather.

  2. I don’t understand what those Texas concurring justices expect that courts will do.

    Epidemiologists are going to eventually advise politicians that it is safe to open up things. At that point, things will open up.

    If a suit comes before that point, the state will surely adduce extensive evidence from epidemiologists establishing that the restrictions are justified. Are judges supposed to reject that? On what basis? How could they possibly know? Epidemiologists are experts; judges know nothing about the subject.

    I mean, if a state imposes a restriction that has nothing to do with any epidemiological recommendation, yeah, maybe that lacks a rational basis and gets struck down. But short of that, everything ends up getting upheld, right?

    1. What the Wisconsin Supreme Court is about to do: invalidate the governor’s stay at home order, and compare it to Korematsu.

      1. Korematsu involved a protected class. Does anyone doubt that a military curfew that wasn’t racially discriminatory, e.g., that simply applied to everyone in a region where Japanese espionage or sabotage was suspected, would have been upheld during WW2?

        And to the point, would the courts have scrutinized, in THAT case, exactly how serious the military threat was if they received a declaration from someone in the military hierarchy setting it out and asserting it was serious?

        1. The protected class were shooting at us — a (then) largely isolated race unified as a belligerent state.

          Korematsu was wrong, but not an a racial basis.

          1. A race was not shooting at us, a country was.

            Jesus.

            1. Got that right. Sheesh.

          2. “It’s wrong to take people’s liberty, but the racial stereotypes that led to taking it were totally well-founded” is a hell of a galaxy brain take.

            Are you Michelle Malkin?

        2. The only protected class was that they were US Citizens. This whole protected class comes 20 or so years later. This was the time in Jim Crow being 100% legal and in CA they had been seriously anti Asian for 100 or so years.

          1. That’s not true. Korematsu applied strict scrutiny because it was a racial/ethnic classification.

        3. Does anyone doubt that a military curfew that wasn’t racially discriminatory, e.g., that simply applied to everyone in a region where Japanese espionage or sabotage was suspected, would have been upheld during WW2?

          Doesn’t the current situation suggest that such doubt would be justified? “Violating the rights of those [racial slurs] is fine, but restricting my rights as a good old red blooded white American? No, that’s a bridge too far.”

          1. I am making a comment about courts, not a few loud people.

            Having said that, I do think WW2 featured a more unified populace. People made enormous sacrifices and really didn’t complain about a lot of stuff that would drive these modern protesters crazy, such as rationing, wage and price controls, production mandates on businesses, curfews, etc.

        4. And yet….

          “‘I’ll direct your attention to another time in history, in the Korematsu decision, where the court said the need for action is great and time is short, and that justified “assembling together and placing under guard all those of Japanese ancestry” in assembly centers during World War II,’ said [conservative] Justice Rebecca Bradley, referring to the U.S. Supreme Court case in 1944 that upheld internment camps.

          Bradley said, ‘Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities?'”

    2. Dylan, You are optimistic. After WWI, WWII, 9/11 etc the powers that the government took did not, in fact, all go away. It takes challenges to those powers in court. The other thing that court action does is lay the framework for the next pandemic and what is allowable.

      1. Again, I can’t imagine the law being anything other than “if epidemiologists say that leaving stuff open will get people killed, governors can close things”.

        Because anything else would require judges overrule the scientific judgments of people who know a lot about topics that judges are completely ignorant on.

        1. Judges not being experts in anything doesn’t stop them from having opinions and making rulings on everything.

          1. It tends to in emergencies, actually. They tend to like to leave responsibility to the political branches in such situations.

            1. We will see. I feel like judicial hubris has expanded in recent years.

              1. I don’t disagree in general. But this still looks different than most of those cases.

            2. Politicians accreting power rapidly during emergencies is the primary way democracies fail historically, as the politicians never give up the emergency powers. There are a number of current stories on this web site tracking this in real time in marginal countries right now. And of course, it all went down flawlessly according to history in Venezuela 15 years ago, as if from a playbook.

              Partisans disasterbate their hated opposition leader may try something (even as they demand he do a nationwide lockdown) but that’s not how it shakes out. The central political theme of the Star Wars prequels can be summed up: “So this is how liberty dies, with thunderous applause.”

              Don’t look to the sneaky acts. Look to the overt cheers to give politicians undreamed power.

              Dear readers, history says This Means You

              1. Not everything is the Weimar Republic, Krayt.

                This concern has been largely addressed by Prof. Volokh some weeks ago.

          2. LawTalkingGuy — Let me know the next time a judge supports someone who sues the FAA on a question of aircraft routing (aviation noise activists do it; they never win), and the FAA replies that safety requires the routing to stay as it is.

        2. What if instead the plaintiffs argue there are “essential” activities that are permitted even though epidemiologists say allowing them equally will get people killed?

          1. That argument is a bigger loser than the argument about the emergency.

            I mean, Williamson v. Lee Optical is still good law, right? There’s no federal constitutional right to have your business treated the same as the different business down the street.

        3. “if epidemiologists say that leaving stuff open will get people killed, governors can close things”

          I suppose I could live with this if when the predicted result didn’t come to pass, the epidemiologist and the governor were given Seppuku knives and sent out to the garden to end themselves.

          As it is, most of this battle is because many of scientific and policy advisors quoted the usual set of progressives are just about as accurate as the average haruspex.

        4. Epidemiologists are ALWAYS going to say that leaving stuff open will get people killed. Because it always will. We have annual flu epidemics, “social distancing” would reduce those, too.

          The issue here is that, at some point, a marginal reduction in deaths can’t continue to be an excuse to shut down civil liberties. But epidemiologists can’t tell you when that point is reached, because all they can tell you about is the deaths, and opening up will always be worse from an epidemiological standpoint than staying closed.

          1. They can probably give an educated estimated of when lifting restrictions will not result in a second large spike in cases. You’re right that doesn’t answer the question about whether that’s worth restrictions on liberty or the impact on the economy, but it would be information that will hopefully guide policy makers and courts in the right direction.

            1. And political branches have the power, mandate, and competence to weigh those things. Judges don’t.

              1. One thing the political branches do not have: competence.

                1. Sure they do.

                  You have settled science that distancing stops the transmission, and you have a political decision as to how much distancing the public can bear.

                  Neither of those things are wtihin the judicial competence, but politicians are actually pretty expert on the second question.

              2. Tell me if have your position wrong:

                1. Only political branches can weigh risks vs benefits.
                2. As Brett pointed out, there is always a risk to freedom to assembly, because there are always infectious diseases.
                3. Therefore, courts can never enforce freedom of assembly, ever.

                1. Wrong. Try:

                  1. We are in an epidemic.
                  2. Epidemiologists basically universally say that gatherings of people spread the virus.
                  3. The issue of how much social distancing the public can reasonably handle is a political issue that politicians are competent to answer and judges aren’t.
                  4. Therefore, courts cannot overturn any reasonable answer given by a politician so long as the epidemic continues.

                  However, in normal times, when epidemiologists are not saying we need to socially distance, judges can fully enforce freedom of assembly.

                  1. We’re always in one epidemic or another. It’s just that some of the diseases we’re in epidemics of are less life threatening.

                  2. Who decides what is reasonable, or a reasonable answer?

                    1. Politicians, in emergencies.

                      See also my comment above. It’s worth remembering that there isn’t actually a lot of infringement of constitutional rights going on. You can still assemble. The rights that people are really pissed off about are the ones that haven’t been recognized since the Lochner era- the right to operate a business, or enter one, or compel your employees to work.

                    2. Well Dilan, I have to tell you that in the People’s Republic of NJ, our civil liberties have in fact been suspended for ‘an indeterminate amount of time’ and the Governor has explicitly stated he did not care about our civil liberties. The relevant quote (yesterday 5/5) is:

                      “I’m sorry we can’t give you more definitive guidance yet. We still have people getting sick, going to the hospitals, and sadly more than 300 we’re reporting (today) have died. So with all due respect, this is the fight of our lives. We gotta do it right. We’ve got to do it responsibly, we’ve got to do it safely, and we are committed to that … frankly, whether you like that or not.”

                      The Third Circuit needs to step in – ASAP. The Governor has over-stepped his authority, and the Legislature has abdicated their role as a check on untrammeled power. The Courts in NJ are conspicuously silent. I know that I joking call NJ the People’s Republic, but right now….

                      We have no freedom to peaceably assemble and petition the government for a redress of grievance. We cannot attend religious services. We are governed by an arbitrary, capricious and changing set of rules. That has to end.

                      I would be fine if the Governor changed his EOs to make these restrictions limited, temporary and time-bound. But he deliberately is not, and revels acting like some kind of benevolent dictator, deigning to tell us how to think, act, and behave.

                    3. We have no freedom to peaceably assemble and petition the government for a redress of grievance. We cannot attend religious service

                      I don’t buy that. Have a protest and stay six feet apart. I bet they don’t arrest you. Prepare an online petition and submit it. They won’t arrest you.

                      Religious services are going to depend on the content of New Jersey’s religious freedom statutes. But most major religions are saying that online gatherings satisfy your obligations to God. At any event, if you want to have a religious protest, and stay six feet apart, I am sure you can.

                      Again, what you guys really mean when you say “civil liberties” is the right to operate or patronize a business. That’s Lochner.

                    4. I would be fine if the Governor changed his EOs to make these restrictions limited, temporary and time-bound. But he deliberately is not, and revels acting like some kind of benevolent dictator, deigning to tell us how to think, act, and behave.

                      Murphy’s EOs are all predicated on a state of emergency which is time limited (it was extended today through June 6 because New Jersey is still a hot spot).

                  3. You’ve proved too much.

                    1. 67,000 people per year die of opiate overdoses.
                    2. Law enforcement experts and addiction researchers say that widespread random testing, and the ability to search persons and homes without probable cause, could lead to many people getting help before they overdose.
                    3. Governor, because of the Esper’s First Expert Exception, can decide on behalf of the public whether the Fourth Amendment is worth the risk.
                    4. Esper’s Second Expert Exception says courts cannot overturn the governor.

                    Seriously, I’m sure you don’t agree with this hypothetical. So where do you distinguish the two cases? It can’t be the number of deaths, which are of comparable magnitudes. I don’t think it’s because epidemiologists wear white coats.

                    Perhaps it’s that one is presumably temporary. Does your rule change if an epidemiologist starts talking about society having to change permanently?

                    1. I’m not a great fan of the special needs doctrine, but what makes you think that searches of people for the non-law enforcement purpose of checking the spread of a virus violate the Fourth Amendment? I am pretty sure that under current doctrine, they don’t.

                    2. ducksalad, one clear-cut distinguishing feature is the magnitude of the public peril. “Comparable magnitudes,” is an irrelevant basis of comparison when it’s opiates and viruses. Opiates are not contagious, let alone exponentially contagious. That alone sinks your argument.

        5. > Because anything else would require judges overrule the scientific > judgments of people who know a lot about topics that judges are
          > completely ignorant on.
          Are you saying that lockdown related orders are scientific? For example, governor Cuomo prohibited nursing homes from excluding people with COVID-19 which caused many deaths in nursing homes. Which science was it based on?

    3. The flip side of this is the inexorably increasing number of people openly defying this fascism, and they are all going to be entitled to purportedly fair trials.

      That’s assuming that this doesn’t get downright ugly, which I fear it will.

      1. Someone doesn’t know what fascism is.

    4. “Epidemiologists are going to eventually advise politicians that it is safe to open up things. At that point, things will open up.”

      You give politicians to0 much credit.

      Attendence at restaurants and the movies and flying started a rapid decline in advance of most state orders.

      The orders will last until people start disobeying in mass. This will come soon, the weather is getting warmer. The politicians will conform to the people and get their epidemiologists to come around.

      But I agree that courts will not and should not interfere in the height of a public emergency, except maybe at the margins.

    5. They’ll decide it the same way they decide issues every day — they’ll listen to the evidence the parties produce. Yes, the government will probably produce experts to support their position. The plaintiffs will no doubt produce experts to support their position. The judge will listen to their testimony and decide one of them is a quack or exaggerating or they’re both right but the balance leans in one direction. Judges are constantly deciding issues that they aren’t experts on, by listening to testimony and reviewing evidence. Why would this be any different?

      1. Why would this be any different?

        Because the issues in question involve prompt outcomes implicating life and death, for which accountability for a wrong decision may become a thing. I have seen judges—even unelected judges—duck judicial responsibilities, to keep from involving themselves in cases like that.

    6. And when an epidemiologist argues it’s reasonably safe to open things up, but the State epidemiologist argues it isn’t?

      Who do you “believe” then? What are the judges to do?

      1. Is the state epidemiologist arguing against the state’s preferred policy, or for it?

    7. ======
      If a suit comes before that point, the state will surely adduce extensive evidence from epidemiologists establishing that the restrictions are justified. Are judges supposed to reject that? On what basis? How could they possibly know? Epidemiologists are experts; judges know nothing about the subject.
      ======
      There are epidemiologists on the other side of specific restrictions. To make it simple let’s just appoint a “Supreme Medical Leader” of the country (this position could be hereditary), when the Supreme Medical Leader announces that epidemics is happening, or it’s going to happen, the Bill of Rights and the Constitution stop to work and politicians can do absolutely anything by executive orders.

  3. “Measure(s) that were constitutionally proper in March and April may be less proper in May and June.”

    Um, sorry, nope. Either a specific action is Constitutional or it is not. There are no “it depends” exclusions to our basic rights.

    1. Yeah and whether any given action is constitutional often depends on the surrounding circumstances.

      1. Yeah, IN PRINCIPLE, of course you would take into account whether we are at the beginning or nearer to the end of a plague.

        The problem though, as I said, is that the epidemiologists are still going to say you need the restrictions. And in the end, the Court can’t overrule them without grossly exceeding the judicial role.

        1. Your error is in assuming that “the epidemiologists” are still saying that we need these restrictions. Some of the restrictions were never based on epidemiological recommendations. Others were based on recommendations that all or nearly all epidemiologists would support (based on the evidence available at the time). Yet others were based on recommendations that some epidemiologists supported and others opposed. In that last scenario, yes courts are going to get in the business of competing experts. That’s something courts do all the time. In other words, it’s not an unknown problem and still not a reason to suspend the Constitution.

          1. I mean, can the right wing dredge up some phony epidemiologist from the same toxic waste sludge where they found deniers that tobacco causes cancer and global warming deniers? Sure.

            But no, all of this is based on epidemiologists’ recommendations. And every single state government will be able to file credible affidavits from epidemiologists saying there’s a consensus that there’s a pandemic and that social distancing is effective.

            Courts aren’t good at science,, but they are great at credibility determinations. There is an overwhelming scientific consensus on distancing. Literally all over the world. It’s not hard for any intelligent and honest human being to figure that out.

            1. some phony epidemiologist from the same toxic waste sludge where they found deniers that tobacco causes cancer and global warming deniers

              “Yup, there’s absolute consensus, Your Honor — well, except for all those people over there, but it’s clear they’re just a bunch of science-denying doo doo heads!”

              I take it you’re at the “pound the table” phase.

              1. It’s not pounding the table. We face a situation where people put a lot of money out there for folks to pretend to be doing science while lying. Those “scientists” who denied smoking caused cancer were not doing actual science. Their ONLY purpose was to allow folks like you to declare “the science isn’t settled”, and the tobacco industry kept that BS up for years.

                It’s pretty clear to discern the difference between actual scientific disagreement- e.g., is the Adkins diet good for you?- and phony, bought and paid for scientific disagreement.

                There literally are epidemiologists all over the world working on this, and they all agree on social distancing. There’s no dissent.

                But conservatives may very well pay someone to be a stooge. That doesn’t make it real.

                1. Of course all epidemiologists agree with social distancing. That’s not the issue. Do all epidemiologists agree that every grocery store in America needs to be shut down? Do they all agree that the line should be drawn at grocery stores on one hand and churches/gun ranges on the other? It is not the case that every epidemiologist agrees with every order in every country in the world.

                  1. Do all epidemiologists agree that every grocery store in America needs to be shut down?

                    No, but that’s a political issue. Not a constitutional one.

                    1. I completely agree. However, I think what we will find in jurisdictions like Texas, that it is a political issue that gets resolved as a matter of constitutional law. The state-wide, elected, conservative Texas Supreme Court Justices may have different views than some liberal City of Austin/Houston/etc. mayor (or even the Governor) about what is or isn’t justified, and they will make it a constitutional moment. There appears, today, to already be four votes ready to weigh in on shelter-in-place orders as a constitutional matter.

                2. I think it’s too late for conservatives to come up with scientists opposing social distancing. Too many high profile ones blew right past that to the “who cares if people die” stage of things. Maybe they’ll get someone after the fact who will say the numbers were over-counted and it wasn’t actually that bad. But there are advantages for some conservative positions by admitting it was really bad: you get to blame globalists, immigrants, and the Chinese for all the damage they did to us, for instance.

                  1. I honestly think globalism is going to take a uge beating due to this.

                  2. “it wasn’t actually that bad”

                    Take out deaths in a radius of about 75 miles around NYC and nursing homes everywhere and it has not been. NY just added 1700 previously uncounted nursing home deaths today.

                    34 states have less than 100 deaths per million population including big states like California, Texas and Florida.

                    “blame …the Chinese for all the damage they did to us”

                    Are you suggesting the Chinese government did not lie about the virus?

                    1. No. I don’t think the Chinese government has been forthright about its response or the extent of the problem there at all. I don’t trust their government. I also am highly suspicious of saber-rattling and appeals to anti-Asian animus.

                      As for the first point, things usually look better if you throw out inconvenient data.

                    2. Please, can we be anti-China without it being claimed to be “anti-Asian”? There’s a lot more to Asia than just China, and, seriously, the part of Asia that isn’t China isn’t very fond of China, either.

                    3. Bob, you are behind in your anti-China rhetoric. The Admin is pushing that it totally escaped from the Wuhan lab.

                      No, you can’t see the substantial evidence.

                3. Smoking marijuana causes cancer pretty well too.

                  How to you feel about legalizing that?

                  1. Cancer is not transmittable.

                    1. Cancer is not transmittable.

                      Big Tobacco just called and wants its secondhand smoke settlements back.

                    2. Life of Brian, if I get cancer from my parents’ second hand smoke, I cannot pass that on to anybody. Mutual exposure and transmission are not the same.

                    3. When tobacco is as regulated as marijuana, feel free to try again.

                4. There literally are epidemiologists all over the world working on this, and they all agree on social distancing. There’s no dissent.

                  Amazingly, if you make the point narrow enough you can generate as much “consensus” as you want. But the uncontroversial proposition that the farther apart people stand, the less they transmit airborne diseases to each other, isn’t nearly enough to justify widespread, indeterminate lockdowns over this particular airborne disease.

                  The factual underpinnings at play in this sort of situation span a wide variety of topics beyond the disease itself (enticing rhetoric like Cuomo’s “one life is worth it” notwithstanding). And consensus at that level simply doesn’t exist, as your retreat into invective and bombast seems to acknowledge clearly enough.

                  1. But the uncontroversial proposition that the farther apart people stand, the less they transmit airborne diseases to each other, isn’t nearly enough to justify widespread, indeterminate lockdowns over this particular airborne disease.

                    You are saying that, but that’s a call for politicians to make.

                    1. You are saying that, but that’s a call for politicians to make.

                      And you are saying that. Good thing judges have enough sense not to listen to you and instead routinely decide when politicians have gone off the Constitutional reservation.

            2. Sure. Let’s use the epidemiologists that the notable right-wing country Sweden is using…

        2. WHO APPOINTED “THE EPIDEMIOLOGISTS” AS GODS?!?

          1. They weren’t appointed and they aren’t gods. They are experts, who studied stuff you can’t understand.

            1. I wouldn’t put it quite like that because saying someone can’t understand the stuff experts study kind of makes experts seem a little like gods who work in mysterious ways.

              You can generally understand what they’re are studying and doing. But in doing so, you should ultimately learn that it is infinitely unlikely that you would ever reach better conclusions than them without doing what they do day in and day out for years. Therefore, it’s wisest to trust them, particularly when there’s a widespread consensus.

              1. I agree that persons of normal intelligence can understand the conclusion of epidemiologists.

                That, however, does not contradict my comment about Dr. Ed.

                1. Fair enough.

              2. No, Dilan’s response is accurate. He honestly doesn’t know the issue, so he takes it on faith. It’s a bit of a religion, this “belief” in Science (capital S), rather than understanding what it is, its benefits, and its flaws.

                1. It’s a bit of a religion, this “belief” in Science

                  Science is never proven.

                  It is, however, a better guess than than you’ll ever make.

                2. In a religion, people believe in improbable things despite lack of empirical confirmation.

                  In science, people believe in probable things decause of empirical confirmation.

                  1. I like you and a lot of what you have to say.

                    But that’s a pretty terrible way to characterize religion. Terrible as in unhelpful, inaccurate, unfair.

                    1. You really think it is false as a claim about the probability of the empirical claims of organized religion?

                      Or to put it another way- which is more likely? That a high glucose diet causes diabetes, or that several people were raised from the dead by Saints Peter and Paul?

                      Which is more likely? That the cosmic background radiation was produced in the earliest stages of the existence of the universe, or that God will cause men to burn in hell if they have sex with other men?

                      I could go on. My position is not that everything science says is always true and everything organized religion says is false. It’s that science is a methodology that leads you to conclusions of the world which have a high probability of being true, because it relies on empirical observation. Whereas organized religion leads believers to conclusions that have a low probability of being true, because it rejects empirics in favor of faith.

                    2. I didn’t, and don’t, disagree with what you first said about science. I know it’s a common instinct to pit the claims of science against those of religion, as though they were comparable domains or comparable procedures for generating comparable beliefs. They’re not. And what you said in your reply indicates where you begin to go wrong.

                      “It’s that science is a methodology that leads you to conclusions of the world which have a high probability of being true, because it relies on empirical observation.”

                      Science is a methodology designed to elicit beliefs about the physical world—in part, by excluding everything from consideration that isn’t the physical world (another part being, as you say, the need for empirical support—although you actually need a stronger statement here, because what science really requires is intersubjectively verifiable empirical support). Physicalism/materialism isn’t a conclusion that you draw on the basis of science. It’s the premise upon which you start doing science.

                      [There’s also an issue in what you said having to do with what “true” in this context means. Personally, I think the skeptical/pessimistic induction is well-nigh irrefutable. On the basis of history, the most probable conclusion to draw about our scientific theories is that they are, in fact, not true—with how strongly to assert/take that claim being governed, again, by exactly what “true” means here, as well as what counts for a theory to be not true (some part of it not true? all of it not true? some irreducible core not true?). None of which is to say that science isn’t the best stick we have for poking the world with. It is.]

                    3. Science is a methodology designed to elicit beliefs about the physical world—in part, by excluding everything from consideration that isn’t the physical world (another part being, as you say, the need for empirical support—although you actually need a stronger statement here, because what science really requires is intersubjectively verifiable empirical support). Physicalism/materialism isn’t a conclusion that you draw on the basis of science.

                      We’re getting far afield here, but “physicalism/materialism” isn’t a bad word. It happens to work. It happens to explain things. Indeed, a lot of stuff that people used to think were in that spiritual world were later found to be perfectly explainable by physicalism/materialism. In contrast, the set of factual claims that have moved in the other direction, once explainable by physicalism/materialism and now relegated to the spiritual, is a null set.

                      Again, I don’t make definitive claims about all religious beliefs being false. It’s possible that some of the broadest claims about cosmology may have some truth. I don’t know.

                      But I do know two things:

                      1. Organized religion has a record of getting stuff wrong and of perpetuating bad explanations of the world, as well as bad moral beliefs; and

                      2. Most organized religions have few effective processes for improving over time (you can argue that Mormon revelation is a partial counterexample, but most religious people aren’t Mormons and even their process is slow and clunky), while physicalism/materialism has the scientific method.

                      I should add as well that while there is some scientific fraud, it isn’t nearly as pervasive as the amount of fraudulent characters who are promoting spiritualism.

          2. I know I’m tilting at windmills, but okay. I will try to explain, and I’ll use simple words.
            Medical experts are, well experts. And they give advice. IT IS THE POLITICIANS who then make decisions. Ed, I understand your confusion. You probably meant to say, “Who appt’d politicians as gods?!?” And the answer is: The voters. We have things called elections, and the voters then select what we call “politicians.” Those politicians then make decisions that affect us. Some of them (mayors, governors) get to make many decisions on their own. Other politicians (city counsels, boards of supervisors) have to come up with some sort of consensus. But all of these people issue rules and regulations.

            Now, very often, we the people do not like those rules. And we complain. Sometimes we do it be writing letters to newspapers. Sometimes we storm into politicians’ workplaces with weapons, hoping to intimidate them into changing their minds. Sometimes we go to court, in an attempt to show that these particular politicians did not have the legal authority to issue these particular regulations.

            But, in none of these cases, IN NONE OF THEM, is a pandemic expert the “God” you refer to.

            Ed, what this helpful? If you are still confused, I (or other–more eloquent–posters) can try again, using even more-simple words and phrases.

            1. councils, not counsels, of course. [frickin’ lack of edit button]

            2. Nah, I read this as Ed responding to Dilan. And Dilan basically saying

              “you need to do whatever the epidemiologists say, no matter what, because they have science, and know what’s best”.

              Which…isn’t entirely accurate.

              1. They don’t know what’s best. But they know what is likely and unlikely to cause infection and death.

                Politicians still get to make the political calls. But any non-scientist who wants to overrule epidemiologists about the nature and extent of the threat is dangerous.

                1. So it was dangerous to cut all travel to China in February against the view of the epidemiologists?

                  1. It wasn’t helpful – as the scientists noted, the horse had already left the barn by that point. https://www.factcheck.org/2020/04/trumps-snowballing-china-travel-claim/

                    Plus the ban wasn’t a ban. It was barely a restriction, with very spotty screening.

                    You’re not a stenographer of what Trump says – by now you should know to check into things he says before you repeat them.

                    1. I actually think the China ban was a good idea and the talking point against it that it wasn’t really a ban was stupid. The President has no, or at best very limited, legal power to bar passport and green card holders from entering the country. Those folks have vested rights. All you can do is bar immigrants, which POTUS did.

                      But having said that, I don’t see how that’s an indictment of epidemiologists. The process worked exactly as it was supposed to. Doctors gave POTUS advice, and he acted on it by banning travel.

                    2. I’m not saying it was racist or anything. It was more like a case of when all you have is a hammer, everything looks like a nail.

                      But when the consensus is there’s no need to bother at this point, and you still do it, I don’t see how that’s anything more than theatre.

                    3. My guess is that it isn’t that simple. Just because the horse is out of the barn doesn’t mean you have to let the donkeys and chickens too.

                    4. Wow….Orange man bad syndrome….

                    5. I thought the travel restrictions were a good idea. But, perhaps we should have combined them with mandatory testing and quarantine of returning citizens and green-card holders.

        3. And in the end, the Court can’t overrule them without grossly exceeding the judicial role.

          Given that you’ve practiced law for so long, I credit you with fully understanding that courts routinely weigh the credibility of experts and accordingly credit or discredit their testimony as to factual matters underlying the legal issues in front of them.

          That process of course bears no resemblance to “overruling” an expert (in fact, I’d be fascinated to see an opinion that actually uses that language).

          1. Courts can certainly weigh the credibility of experts. I specifically note that upthread.

            However, that’s a point that cuts in the state’s favor. The epidemiologists are doing real science and are totally credible on social distancing. So yes, you’d have to overrule them (i.e., deliberately make a false credibility determination) to rule that testimony out.

            1. The problem is they aren’t all in agreement. If they were all the mandates would look the same. They may all agree on social distancing but not lockdown levels or even if they are needed. They don’t all agree on mask requirements. They certainly don’t all agree on outdoor options. There are credible epidemiologists working at prestigious schools and institutes that disagree on different levels. The CDC and the WHO listed different distances for what constitutes social distancing. So there is a lot of nuisance and levels within the science to be weighed as weather the county judge had the right to close down the Soccer4all but let Academy stay open.

              1. The mandates don’t look the same because of disagreements among politicians and among polities. But the basic conclusion of distancing- which is the one everyone hates and wants the courts to come in and strike down- is universally held by epidemiologists. Only an idiot thinks that distancing doesn’t help slow the spread of the virus.

                1. Sigh…. Yes, “distancing slows the spread of the virus.”

                  What you don’t seem to grasp is “how much distancing is needed, how much it slows the spread of the virus, what the relative infection rates are, what the relative damage is, what the incubation times mean…and a hundred different details that have real world implications. And the variables here (and the debate about them) have major implications.

                  For example. If everybody distanced from everybody else by 1 mile at all times, the spread of the virus would be almost zero. But that isn’t practical, for a number of reasons.

                  Sweden is a great example of why the variables matter. They never really closed. But they don’t have a death rate really that bad (in fact, it’s lower than many places in southern Europe).

                  1. All of which is exactly what Dilan implied in the first sentence of his comment.

                    1. No, he takes it too far, and doesn’t understand the context. It’s more of a belief, rather than a rational understanding.

        4. > The problem though, as I said, is that the epidemiologists are still > going to say you need the restrictions. And in the end, the Court
          > can’t overrule them without grossly exceeding the judicial role.’

          There are chief epidemiologists of some countries, which didn’t agree with some restrictions that other countries implemented, let alone highly respected epidemiologists in prestigious universities. You are pushing the narrative that all epidemiologists are somehow in full agreement over which restrictions are needed, which is completely false.

    2. There are constitutional limits on judicial power to declare things unconstitutional, and some of those limits depend on facts.

  4. Where is the smartass that said I just made up some fun sounding words when I said lockdown provisions would become increasingly constitutionally suspicious the longer they go on….

    1. You mean when you said this:
      I would argue that extended lockdowns would require the suspension of the writ of habeas corpus. Quarantines that surpass a week or two are increasingly constitutionally suspect. Here we are going on two months in most States. Maybe the government has a compelling interest if the mortality rate was 50% and bodies were piling up in the streets. But that is far from the case here.

      And since these lockdown order infringe upon so many liberals I don’t think it is beyond the pale to say the government, even if it has a compelling interest, needs to start opening up alternative channels that are reasonable.

      1. That is creepy. Do you keep a log of what I say?

        1. It was probably easy to find.

          1. And the TX Supreme Court basically said what I predicted.

            1. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny

              That’s…not a lot like what you said.

              No habeas, for one.

              1. “needs to start opening up alternative channels that are reasonable.”

                “less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny”

                Yeah pretty darn similar in theme.

                If the executive wanted to suspend civil liberties I think they would have to couch it as a suspension of habeas corpus (i.e martial law).

  5. One of the more interesting views here is the shifting stories that are told about the stay at home orders.

    Remember, originally the stay at home orders were to “Flatten the curve”. Not really to prevent more infections, but to “Flatten the curve” so that all the infections didn’t happen at once (and overwhelm the hospitals)

    The curve has essentially been flattened. But now the continued stay at home orders are needed to “prevent infections.” Not “flatten the curve”. Quarantine-like orders and enforcement are getting more severe in some areas. Ask yourself why…

    1. Liberals have gone full achtung drunk with power. Finally the eunuch class can lord over the cool kids that made fun of them in the schoolyard.

      1. Oh snap! I get it. achtung = German-speaking = German = German in Word War II = Nazis/Hitler. Therefore, liberals are like Hitler.

        Great point . . . I have no doubt you’re gonna persuade all the undecided folks with that narrative.

        1. I’ve had to listen to liberals call conservatives nazis for the last four years. Why not do some good old fashion turnaround.

          1. Liberals were wrong to call you guys Nazis. Seriously. even the worst stuff on the mainstream American right (like the punitive policies towards immigrants, which I find repulsive) is still not comparable to sending millions of Jews, gays, and Gypsies to their deaths in camps.

            I want to be very clear on this. I disagree vehemently with a lot of the stuff you guys believe in. But you are not Nazis, and when liberals call you that, they are being irresponsible and poisoning the discourse.

            Now, will you admit that liberals who you vehemently disagree with, who want to do things with the government that you fundamentally oppose, are also not Nazis? That we aren’t interested in rounding up people into death camps either?

            1. What about that part of the right-wing that, you know, adopts the fascist salute and resorts to violence against minorities and marches at white supremacy rallies? You think they’d not put it in practice if they happened to control the levers of power?

              1. 2 points:

                1. We should assume good faith. Unless people are actually invoking Nazi iconography or saying the Nazis are great or something, we shouldn’t assume that anonymous commenters belong to that group.

                2. And this is going to be more controversial- but a lot of people who identify as “Nazis” are essentially cosplayers. It’s a really terrible form of cosplay, and it sometimes leads to real violence. It shouldn’t be minimized.

                But it’s worth always remembering that idiots playing dress up aren’t actually what we mean when we talk about the Nazis as a political unit. When someone says “Hitler did what you are proposing” or “your proposal is Naziism”, or whatever, they aren’t saying “you are like those people who dress up and try to get attention for themselves and scare people by waiving swastikas around”. That’s not the accusation. The accusation is that someone is as dangerous as the government that ruled Germany in the 1930’s and early 1940’s, which ran extermination camps and tried to conquer Europe.

                For whatever reason, offensive, racist cosplay is a thing on the political extremes. Jerry Springer was always able to find KKK guys to feature on his show, even though there’s probably only a few thousand of them out there. It’s terrible, and when these groups become violent or terroristic, we must enforce the law. But that’s NOT the insult and not what people mean when they accuse garden variety right wingers of being Nazis.

                1. I agree about good faith, and I agree that most conservatives/Republicans/righties are not Nazis or proto-Nazis (or fascists or proto-fascists, etc.). Just to be clear.

                  I still think you’re far too sanguine, though, about how far some people will go. What keeps the people who *are* Nazi-sympathizers from doing more is just how fringe they are and how little access to power or to support from power they have.

                2. Dilan, I sort of agree in the way Angammus agrees. Problem is, your distinction between costumes and politics makes good sense, but the politics part is less than completely reassuring.

                  Some of the critique, a lot of it, which asserts right wingers are Nazis, is as irresponsible as you suggest. Problem is, there is also a critique which recognizes incipient tendencies in American politics, which resemble historical tendencies which did culminate in Nazisim.

                  That second kind of critique can be measured, sophisticated, grounded in history, and hard to contradict. It’s only real weakness, which is a big one, is that it remains a prediction about the future, based on a comparison with the past. That is usually an unreliable kind of analysis.

                  1. Stephen Lathrop:

                    Co-signed.

                    [Not to be confused with cosined.]

                  2. Problem is, there is also a critique which recognizes incipient tendencies in American politics, which resemble historical tendencies which did culminate in Nazisim.

                    This doesn’t work for a different reason. It’s actually really hard to get to Nazism. I know everyone’s rhetoric is that it’s so easy, but it actually isn’t. A ton of things have to happen. In actuality, a ton of nation-states over the years have faced conditions with some similarity to post-WW1 Germany, and they didn’t end up with Nazism.

                    The Nazis got very lucky in some pretty fundamental ways, including the split coalition that allowed them to win the election, some incredibly stupid actions by the victors of World War 1, and some own goals by the post-WW1 German government. Plus, they had a populace that was willing to cede enormous amounts of power to the government. Plus- and this is truly important- it is impossible to underestimate the amount of anti-Semitism among ordinary Germans of that era. They loved the Holocaust once it got going.

                    What has actually happened in my lifetime is 1000’s of people have been called the “next Hitler”, and none of them were. Because people aren’t really honest about these arguments.

                    We can’t, in fact, be honest about these arguments until we admit that it is fun to call our opponents Hitler.

  6. I think this is intended not only to reassure the public that there ARE indeed constitutional limitations, but also to frankly warn the responsible public officials that they too need to be reevaluating the facts on the ground continuously, and that at least some of them may be getting pretty close to those limits — or even straying beyond them. In general, with the passage of time, courts are going to give less and less deference to executive-branch exercises of emergency authority delegated to them by the state legislatures. And that’s as it should be, less “emergencies” become perpetual.

    1. *lest (not “less”)

      Where’s that edit function when I need it?

    2. Beldar, why should courts assume political powers reserved by the people for themselves—such as the power to correct executive and legislative branch policy mistakes?

      Once again, (once again, because Dilan has been through it above), courts are not there to judge policy excesses, they are there to decide cases, and to protect constitutionally enumerated rights. Right wingers argue constantly that they get that, but then come back asserting that they have some kind of made-up right not to be subjected to some particular policy. When liberals do that, right wingers have a retort, which is sometimes even an apt retort. They say, “Get an amendment.”

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