Constitution

Why Didn't COVID-19 Kill the Constitution?

We can thank judges who were prepared to enforce constitutional limits on public health powers.

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The day after the nation's first COVID-19 lockdown took effect in the San Francisco Bay Area, New York Gov. Andrew Cuomo said he would never impose similar restrictions. Telling residents they may not leave their homes except for "essential" purposes "scares people," the Democratic governor told The New York Times on March 18, 2020, and "the fear, the panic, is a bigger problem than the virus." Cuomo unequivocally ruled out a stay-at-home order in New York. "That is not going to happen," he said.

Two days later, after California Gov. Gavin Newsom, a fellow Democrat, announced a statewide lockdown, Cuomo changed his mind. "We're all in quarantine now," he declared on March 20 while issuing an order "mandating that 100% of the workforce must stay home, excluding essential services."

Cuomo's sudden turnaround was not hard to understand given the looming threat from the COVID-19 pandemic, which would ultimately kill more than 50,000 New Yorkers. Once Newsom took the step that Cuomo had ruled out, Cuomo did not want to seem reckless by failing to follow suit. "This is the most drastic action we can take," he told reporters at a press conference in Albany. "This is not life as usual. Accept it. Realize it and deal with it."

Nearly every governor did eventually accept it. In the name of "flattening the curve" and reducing virus transmission, governors from both major parties imposed sweeping restrictions on social and economic activity. They told hundreds of millions of Americans when they could leave their homes, whether they could go to work or operate their businesses, and under what circumstances (if any) they could interact with people from other households. The "drastic action" that had been unthinkable in early March was taken for granted by April.

That remarkable transformation happened without much thought about the source of the vast powers claimed by politicians such as Cuomo and Newsom. Where did they get the legal authority to unilaterally close down the economy and dictate personal behavior on a massive scale?

While the U.S. Supreme Court had repeatedly held that states have broad public health powers, it also had said those powers were subject to constitutional constraints. State courts had long policed the boundary between executive and legislative powers, a line that many pandemic-inspired decrees seemed to cross. But neither federal nor state courts had ever addressed anything like the COVID-19 lockdowns, which were unprecedented in their scope and duration.

At the beginning of the pandemic, when the nature and extent of the coronavirus threat were unclear, courts generally were not inclined to clarify the nature and extent of constitutional limits on the government's response to it. Like everyone else, judges were afraid of the virus, and they were reluctant to interfere with the measures that elected officials deemed necessary to deal with it. But more than a year later, thanks to a series of state and federal rulings, we have a better idea of what the government can and can't do during a public health emergency.

Disputes involving the Second Amendment, access to abortion, and religious freedom have made it clear that an epidemic is not a license to ignore constitutional rights. Nor does it empower government officials to disregard the separation of powers or the distinction between federal and state authority. As U.S. District Judge William Stickman put it last September, when he condemned the "shockingly arbitrary" COVID-19 regulations imposed by Tom Wolf, Pennsylvania's Democratic governor, "the Constitution sets certain lines that may not be crossed, even in an emergency."

'Save the Nation'

The national mood in the early days of the pandemic was not exactly conducive to a calm discussion of legal limits on public health measures. An essay published on the legal commentary site Verdict shortly before Newsom and Cuomo issued their lockdown orders captures the prevailing law-be-damned panic.

"We need to lock down the country—now," Cornell law professor Michael Dorf wrote. He did not explain the legal basis for a national lockdown, which does not seem to be authorized by any of the powers that the Constitution grants to the president or Congress. But to facilitate that lockdown and "save the nation" from COVID-19, Dorf recommended another constitutionally dubious step: "Congress can suspend the writ of habeas corpus, which ordinarily allows people to go to court to challenge any substantial restraint on liberty."

The Constitution says "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Although neither of those circumstances applied, Dorf suggested that the spread of the COVID-19 virus from other countries to the United States could be construed as an invasion. While "no one knows" whether the courts would accept that interpretation, since "Congress has only ever suspended habeas in wartime," he said, "there is reason to think that the courts would dismiss a habeas case following nearly any congressional suspension."

When supporters bothered to offer a legal rationale for lockdowns, they usually cited Jacobson v. Massachusetts, a 1905 case in which the Supreme Court upheld a state law that allowed towns to require vaccination during disease outbreaks. In 1902, responding to a smallpox epidemic that began in Boston, the Cambridge Board of Health ordered residents to be vaccinated if they had not been inoculated in the previous five years. Henning Jacobson, minister of the Swedish Evangelical Lutheran Church in Cambridge, refused, citing a bad smallpox vaccine reaction he had experienced as a child. He also refused to pay the resulting $5 fine, arguing that the Massachusetts law violated the 14th Amendment's guarantees of due process, equal protection, and "privileges or immunities."

Applying a deferential standard resembling what would later be known as the "rational basis" test, the Court rejected Jacobson's claims. "There are manifold restraints to which every person is necessarily subject for the common good," Justice John Marshall Harlan said in the majority opinion. "Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others."

But the Court also said a state's public health authority has limits. "An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons," Harlan wrote. "If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

The Massachusetts law passed muster, Harlan said, only because it did not "contravene the Constitution" or "infringe any right granted or secured by that instrument." That left open the question of how far disease control measures can go before they "contravene the Constitution"—the very issue that the panoply of pandemic-provoked proscriptions imposed in 2020 and 2021 eventually forced courts to confront.

'A Plain, Palpable Invasion of Rights'

Governors quickly learned that some aspects of their lockdown orders raised serious constitutional issues. When Newsom ordered "nonessential" businesses to close in March 2020, the list of exceptions did not include gun dealers, and he said each county was free to decide whether they qualified as essential. A week later, Los Angeles County Sheriff Alex Villanueva announced that his deputies would be visiting local gun stores, amid a surge in firearm purchases, and ordering them to shut down. That policy prompted a Second Amendment lawsuit by the National Rifle Association and other gun rights groups, and Villanueva quickly capitulated, citing a newly issued Department of Homeland Security advisory that classified gun dealers as "essential critical infrastructure workers."

Something similar happened in Pennsylvania, where Wolf, like Newsom, did not initially deem gun stores essential. He reversed that position after the Firearms Policy Coalition (FPC) filed a lawsuit arguing that Wolf's closure order exceeded his legal powers and violated various constitutional provisions, including the right to arms guaranteed by the Second Amendment and Article I, Section 21 of the Pennsylvania Constitution.

Although the Pennsylvania Supreme Court rejected the FPC's application for extraordinary relief, three justices strongly dissented, and their opinion seemed to sway Wolf. "In light of the regulatory framework attending the sale and transfer of firearms," they noted, "the inability of licensed firearm dealers to conduct any physical operations amounts to a complete prohibition upon the retail sale of firearms—an activity in which the citizens of this Commonwealth recently have been engaging on a large scale, and one guaranteed by both the United States Constitution and the Constitution of this Commonwealth."

Wolf's order, the dissenting justices said, "amounts to an absolute and indefinite prohibition upon the acquisition of firearms by the citizens of this Commonwealth." They added that "it is incumbent upon the Governor to make some manner of allowance for our citizens to continue to exercise this constitutional right."

The FPC also challenged an order from New Jersey's Democratic governor, Phil Murphy, who likewise decided gun stores were essential after all. In Massachusetts, an FPC-backed lawsuit resulted in a May 7, 2020, preliminary injunction in which U.S. District Judge Douglas Woodlock ordered Gov. Charlie Baker, a Republican, to allow gun sales by appointment, subject to disease control precautions.

Unlike the closure of gun stores, which mostly ended without judicial orders, pandemic-related restrictions on abortion were repeatedly rejected by federal courts. According to a tally by the Kaiser Family Foundation, 11 states initially treated abortion as a nonessential or elective medical procedure, meaning it was banned during those states' lockdowns. Federal judges overturned such policies in Alabama, Ohio, Oklahoma, and Tennessee. The Alabama, Oklahoma, and Tennessee injunctions were upheld on appeal, and Ohio lifted its ban after the district court ruled. In the other seven states (Alaska, Arkansas, Iowa, Louisiana, Mississippi, West Virginia, and Texas), the bans either expired or were lifted, in two cases as part of an out-of-court settlement.

The Alabama case illustrates the point that Jacobson does not give state officials carte blanche to impose whatever policies they deem appropriate in response to an epidemic. U.S. District Judge Myron Thompson issued a preliminary injunction against the state's abortion policy after concluding that it met Justice Harlan's test: It was "a plain, palpable invasion of rights" with "no real or substantial relation" to the state's avowed goals. On appeal, the state again invoked Jacobson, but the U.S. Court of Appeals for the 11th Circuit pointed to that decision's caveats about constitutional constraints on disease control policies.

"Just as constitutional rights have limits, so too does a state's power to issue executive orders limiting such rights in times of emergency," the three-judge panel said in April 2020. Based on the evidence and the relevant case law, the 11th Circuit said, Thompson "was permitted" to conclude that the state's regulations imposed an "undue burden" on access to abortion, which the Supreme Court has said violates the 14th Amendment.

'Previously Unimaginable Restrictions'

Whatever you think of the Supreme Court's abortion precedents, cases like these stand for a principle that anyone who values civil liberties should be keen to defend. "The pandemic has resulted in previously unimaginable restrictions on individual liberty," Supreme Court Justice Samuel Alito, no fan of Roe v. Wade, observed in a Federalist Society speech last November. Rather than automatically deferring to the presumed wisdom of elected officials, he said, courts have a duty to say when those restrictions exceed constitutional bounds.

Alito called attention to the sweeping language of the statutes that governors cited when they imposed lockdowns. Nevada's law, he noted, gives the governor the authority, in the event of "a natural, technological or man-made emergency or disaster of major proportions," to "perform and exercise such…functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population."

While "I'm not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies," Alito said, "laws giving an official so much discretion can, of course, be abused. And whatever one may think about the COVID restrictions, we surely don't want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes."

To Alito's dismay, most of his colleagues on the Court initially closed their eyes to the impact that COVID-19 regulations had on religious freedom. To curtail the spread of the virus, many states either banned or severely restricted religious services. Some appeals courts upheld these rules as valid exercises of state public health powers, while others perceived unconstitutional discrimination against religion. But the Supreme Court repeatedly declined to step in, provoking objections from Alito as well as Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh.

Challenges to state limits on religious services hinged on a distinction that the Court drew in the 1990s. In the 1990 case Employment Division v. Smith, the justices held that the First Amendment's Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. But three years later, in Church of Lukumi Babalu Aye v. City of Hialeah, the Court said even facially neutral laws are pre-sumptively unconstitutional when they discriminate against religious conduct.

According to these precedents, COVID-19 regulations that impinged on religious freedom were nevertheless consistent with the First Amendment when the distinctions they drew had a plausible public health rationale. But when states applied more stringent rules to religious activities than they did to secular activities that posed similar risks of virus transmission, the regulations were subject to "strict scrutiny," which in practice meant they would almost certainly be overturned.

This analysis, which essentially requires that states treat like cases alike in this context, leaves considerable room for disagreement about whether religious activities resemble secular activities in all relevant respects. Under a reopening plan that Newsom announced in May 2020, for example, houses of worship were allowed to admit no more than 25 percent of their capacities. When the South Bay United Pentecostal Church in Chula Vista asked the Supreme Court for an emergency injunction against that rule, Alito, Thomas, Gorsuch, and Kavanaugh were sympathetic, but the rest of the Court was not.

"The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries," Kavanaugh wrote in a May 29 opinion joined by the other three dissenters. While the church "is willing to abide by the State's rules that apply to comparable secular businesses, including the rules regarding social distancing and hygiene," he noted, it "objects to a 25% occupancy cap that is imposed on religious worship services but not imposed on those comparable secular businesses."

Chief Justice John Roberts saw things differently. "Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time," he wrote in a concurring opinion. "And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods."

Roberts emphasized that states have broad authority to protect the public against communicable diseases. "Where those broad limits are not exceeded," he said, "they should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people."

'Obvious Discrimination'

The chief justice was similarly deferential two months later, when Calvary Chapel in Dayton, Nevada, unsuccessfully sought an injunction against Democratic Gov. Steve Sisolak's 50-person cap on religious services. Nevada's rule was even more onerous than California's, amounting to a 10 percent occupancy limit for a 500-seat church. Meanwhile, many businesses—including bars, restaurants, gyms, arcades, bowling alleys, and, most conspicuously, casinos—were allowed to operate at 50 percent of capacity, which in the case of casinos meant the state was tolerating indoor gatherings involving hundreds of people.

"Under the Governor's edict," Gorsuch noted in his dissent, "a 10-screen 'multiplex' may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel."

Roberts finally confronted a COVID-19 rule he thought might violate the Free Exercise Clause last November, when the Court considered Cuomo's regulations, which explicitly applied special rules to "houses of worship." The governor's order limited attendance at religious services to 10 people in "red" zones and 25 in "orange" zones, defined based on his assessment of neighborhood COVID-19 trends. Roberts conceded that "numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive," and "it may well be that such restrictions violate the Free Exercise Clause." But he said there was no need for an injunction pending appeal, because Cuomo had suddenly decided to reclassify the relevant neighborhoods.

By this point, however, Justice Amy Coney Barrett had replaced the late Ruth Bader Ginsburg, which proved decisive. New York's restrictions "cannot be viewed as neutral because they single out houses of worship for especially harsh treatment," the new majority said. In red zones, businesses deemed "essential"—including supermarkets, convenience stores, hardware stores, pet stores, liquor stores, laundromats, acupuncturists, banks, and various offices—operated without capacity limits. "The disparate treatment is even more striking in an orange zone," the Court noted. "While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit."

Because Cuomo could reimpose his restrictions whenever he wanted, Barrett et al. thought, his mid-litigation change did not make an injunction unnecessary. And since the Brooklyn churches and synagogues that sued Cuomo "have made a strong showing that the challenged restrictions violate 'the minimum requirement of neutrality' to religion," the majority said, they deserved protection from Cuomo's whims as the case worked its way through the courts.

In February, when the Court blocked enforcement of new California restrictions that banned indoor religious services in most of the state, Roberts was finally persuaded that it was time to intervene. Although "federal courts owe significant deference to politically accountable officials with the 'background, competence, and expertise to assess public health,'" he said in a concurring opinion, "the State's present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake." Roberts also was on board later that month when the Court granted an injunction pending appeal in a case challenging Santa Clara County's ban on indoor services.

Roberts reverted to deference in April, when he opposed an emergency injunction against California's restrictions on private prayer and Bible study groups, which limited them to people from no more than three households even when they were held outside. The five justices in the majority thought an injunction was plainly appropriate. By now, they said, it should be clear that public health regulations are subject to strict scrutiny "whenever they treat any comparable secular activity more favorably than religious exercise" and that the relevant consideration is "the risks various activities pose, not the reasons why people gather." To pass strict scrutiny, a state must "show that measures less restrictive of the First Amendment activity"—such as face masks, physical distancing, and more generous group limits—"could not address its interest in reducing the spread of COVID."

If there is a consistent principle that explains Roberts' zigzagging in these religious freedom cases, it is hard to discern. Although he opposed the injunction against New York's restrictions because Cuomo had lifted them by the time the case got to the Supreme Court, Roberts agreed with the majority that the limits were constitutionally suspect. A month later, the U.S. Court of Appeals for the 9th Circuit cited that decision when it issued a preliminary injunction against Nevada's limits on religious services—the same rules that did not seem to bother Roberts when the Court declined to grant an injunction pending appeal the previous July. And while Roberts thought California went too far when it banned indoor church services, he was unfazed by the state's strict limits on private religious gatherings, a policy reminiscent of the Soviet Union.

While Roberts seemed torn between respect for religious liberty and deference to elected officials, Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor showed no such ambivalence. They always were willing to accept politicians' public health judgments, even when they were scientifically dubious, changed in the midst of litigation, or resulted in policies that privileged politically influential industries or that explicitly disfavored religious gatherings. It is not clear that Kagan et al. can imagine a disease control policy that would violate the Free Exercise Clause, provided it was presented—as such policies always are—as necessary for the protection of public health.

'No Statutory or Regulatory Limitations'

In addition to ruling that certain COVID-19 restrictions violated constitutional rights, state and federal courts have found some of them invalid because they were imposed by the wrong branch or level of government. While these cases might seem dull by comparison, they are also ultimately about individual freedom, which structural limits on government power help protect.

When the Wisconsin Supreme Court overturned that state's lockdown in May 2020, it focused largely on arcane issues of administrative law. But in finding that Secretary of Health Services Andrea Palm's regulations exceeded her legal authority, the court also emphasized the importance of maintaining a distinction between legislative and executive powers.

The order at issue in this case banned "all forms of travel" except those Palm deemed essential; required "all for-profit and non-profit businesses" she did not consider "essential" to "cease all activities" except for "minimum basic operations" and work done at home; prohibited "all public and private gatherings of any number" involving people who were "not part of a single household"; closed all places of "public amusement and activity," whether "indoors or outdoors," except for golf courses; continued the closure of bars and restaurants (except for takeout and delivery) as well as salons, spas, K–12 schools, and libraries; imposed a 10-person limit on religious gatherings, including weddings and funerals; and required all residents of the state, except for members of the same household, to maintain a distance of at least six feet from each other. Palm said violations were punishable by a $250 fine, up to 30 days in jail, or both.

Where did Palm get the authority to criminalize such a wide range of previously legal conduct? She cited a statute that gave her department the power to implement "all emergency measures necessary to control communicable diseases." While that language could be read to authorize Palm's regulations, it also could be read to authorize pretty much anything.

"Under our constitutional form of government, the Legislature cannot possibly have given the Secretary the authority she believes she has," Justice Daniel Kelly said in a concurring opinion. "Her brief candidly asserts there are no statutory or regulatory limitations on her authority to address communicable diseases." When Palm issued her order, Justice Rebecca Bradley added, she "arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether."

A week later, Lake County, Ohio, Court of Common Pleas Judge Eugene Lucci, responding to a lawsuit filed by the 1851 Center for Constitutional Law on behalf of 35 gyms, likewise said his state's lockdown, which he described as "arbitrary, unreasonable, and oppressive," exceeded Department of Health Director Amy Acton's statutory authority. The following month, Erie County, Ohio, Court of Common Pleas Judge Roger Binette, ruling in favor of a water park operator, agreed that the "unbridled and unfettered consolidation of authority in one unelected official is dangerous."

The Michigan Supreme Court expressed similar concerns when it overturned Democratic Gov. Gretchen Whitmer's COVID-19 restrictions in October. During a "public emergency," the state law cited by Whitmer said, "the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control."

As illustrated by Whitmer's orders, which dictated when 10 million people could leave their homes, where they could go, what they could do, whether they could earn a living, and even which products they could buy when they shopped at Walmart, the power purportedly granted by that law is vast. It lasts indefinitely and is constrained only by the requirement that the governor's edicts be "reasonable" and seem "necessary" to her.

As the Michigan Supreme Court saw it, those two words were tiny fig leaves that could not disguise the naked transfer of the legislature's plenary police powers to a single executive-branch official. The justices concluded that "the sheer magnitude of the authority in dispute, as well as its concentration in a single individual, simply cannot be sustained within our constitutional system of separated powers."

'Other Measures'

Lawsuits arguing that COVID-19 orders violated the separation of powers are pending in other states, including Arizona, California, and Montana. And at the federal level, the Centers for Disease Control and Prevention (CDC) raised similar issues when it imposed a nationwide eviction moratorium and repeatedly renewed it after a congressional extension expired.

The eviction moratorium, which applied to tenants who claimed to have trouble paying rent due to income losses or extraordinary medical expenses, was based on a breathtakingly broad reading of the CDC director's authority to "take such measures" he "deems reasonably necessary" to stop the interstate spread of communicable diseases. The CDC reasoned that evicted tenants might "become homeless" or "move into close quarters in shared housing," thereby increasing the risk of virus transmission. That rationale suggests the CDC's authority encompasses any policy that is plausibly related to disease control, including business closures and a national stay-at-home order as well as the federal face mask mandate that President Joe Biden concluded he did not have the power to impose.

Several federal courts rejected that audacious power grab. After landlords challenged the moratorium, four federal judges and a federal appeals court ruled that the CDC did not have the authority it claimed.

On February 25, J. Campbell Barker, a federal judge in Texas, ruled that even Congress does not have the power to authorize or impose a broad nationwide eviction moratorium like this one. Barker concluded that blocking enforcement of rent obligations exceeds the federal government's authority to regulate interstate commerce. He noted that the eviction moratorium, which the government claimed it could impose even in the absence of a public health threat like COVID-19, was historically unprecedented, did not involve interstate commerce, and was not necessary to enforce a broader scheme of economic regulation.

Two weeks later, J. Philip Calabrese, a federal judge in Ohio, ruled that the moratorium exceeded the CDC's authority under the Public Health Service Act. That law mentions these examples of disease control measures: "inspection, fumigation, disinfection, sanitation, pest extermination," and destruction of infected or contaminated "animals or articles." It then refers to "other measures" deemed "necessary." In this context, Calabrese said, the phrase "other measures" means steps similar in nature to the specific examples, which an eviction moratorium is not.

"The most natural and logical reading of the statute as a whole does not extend the CDC's power as far as Defendants maintain," Calabrese wrote. "Such a broad reading of the statute, and the term 'other measures' in particular, would authorize action with few, if any, limits—tantamount to creating a general federal police power. It would also implicate serious constitutional concerns." Mark Norris, a federal judge in Tennessee, and Dabney Friedrich, a federal judge in the District of Columbia, reached similar conclusions in March and May, respectively.

The U.S. Court of Appeals for the 6th Circuit ratified that reasoning on March 29, when it refused to issue a stay against Norris' decision. The Public Health Service Act "cannot support the broad power that the CDC seeks to exert," the 6th Circuit concluded. Contrary to the CDC's reading of "other measures," it said, "government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions."

'We Abandon the Constitution'

The month after Michael Dorf demanded a national lockdown and urged Congress to suspend the writ of habeas corpus, two other legal scholars published a Harvard Law Review Forum essay that highlighted the dangers of judicial deference during the pandemic. "Should constitutional constraints on government action be suspended in times of emergency," asked American University law professor Lindsay Wiley and University of Texas law professor Stephen Vladeck, "or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?"

Wiley and Vladeck made a powerful case for the latter position. They noted that "the suspension principle is inextricably linked with the idea that a crisis is of finite—and brief—duration," and it is therefore "ill-suited for long-term and open-ended emergencies like the one in which we currently find ourselves." They added that "the suspension model is based upon the oft-unsubstantiated assertion that 'ordinary' judicial review will be too harsh on government actions in a crisis"—a notion that seems misguided given that "the principles of proportionality and balancing driving most modern constitutional standards permit greater incursions into civil liberties in times of greater communal need."

Wiley and Vladeck emphasized "the importance of an independent judiciary in a crisis" as "perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches." They quoted George Mason law professor Ilya Somin's observation that "imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis."

Without such review, Wiley and Vladeck warned, "we risk ending up with decisions like Korematsu v. United States," the notorious 1944 ruling that upheld the detention of Japanese Americans during World War II. The danger of excessive deference, they noted, is that courts will "sustain gross violations of civil rights because they are either unwilling or unable to meaningfully look behind the government's purported claims of exigency."

COVID-19 did not kill the Constitution. But the crisis made it vividly clear that we cannot count on politicians or bureaucrats to worry about limits on their authority, especially when they believe they are doing what is necessary to protect the public from a deadly danger. The task of enforcing those limits falls to judges who are willing to stick their necks out.

"All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions," Texas Supreme Court Justice Jimmy Blacklock noted a month and a half after the first lockdowns. "Government power cannot be exercised in conflict with these constitutions, even in a pandemic….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."

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  1. “Cuomo’s sudden turnaround was not hard to understand given the looming threat from the COVID-19 pandemic, which would ultimately kill more than 50,000 New Yorkers. Once Newsom took the step that Cuomo had ruled out, Cuomo did not want to seem reckless by failing to follow suit.

    —-Jacob Sullum

    I don’t believe Cuomo’s thinking was driven by the fear of failing to live up to Newsom’s example–anywhere near as much as it was driven by a desire to do the opposite of whatever President Trump was doing. The press and various Democrats started to fault Trump for not having a national pandemic plan–to lock the whole country down on a nationwide basis–and as that crescendo became increasingly louder, doing what Trump wouldn’t do became the politically expedient thing to do for Cuomo–at least within the context of the media.

    For goodness’ sake, in the weeks before Newsom and Cuomo imposed their statewide lockdowns, the press was still calling Trump a racist for banning travel from countries where Covid-19 was spreading like crazy. In their minds, whatever Trump was doing was evil and awful because he was the one doing it, and Trump failing to impose lockdowns was awful and evil for the same reason. If Newsom imposing lockdowns gave Cuomo permission to do likewise, that was nothing compared to the practical mandate the press gave Cuomo to lock the state down–since President Trump steadfastly refused to lock the country down nationally.

    1. You might or might not remember that Joe Biden also admitted that the President does not have the authority to impose nationwide lockdowns or mask mandates, and the media suddenly went quiet on the issue.

      1. That the media waits for Biden to explain the constitution to them explains a lot.

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    2. Just because you oppose any and all ideas, policies or legislation proposed by your political opponents simply because of who it comes from doesn’t mean everyone else is that childish.

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        That you still haven’t learned this after all this time should be extremely embarrassing for you. If it isn’t, you should probably try to figure out why. Are you committed to just being a troll now?

        1. Are you just a talk radio parrot? Sure seems that way.

          My point was that you don’t know the motivations of these people. I highly doubt they sat down and said to themselves “What would Trump want? I’m going to do the exact opposite.” That’s stupid and childish.

          That is separate from you becoming a talk radio parrot that reflexively opposes everything Democrat because they, and the 50% of Americans who support them, are pure evil.

          1. My point was that you don’t know the motivations of these people.
            Ken knows, as do most people.
            You don’t.

            1. Yes yes we know.
              Democrats are cartoon villains.
              Republicans deserve grace and the benefit of the doubt.

                1. It’s the general tenor of the comments around here.

                  Democrats are evil awful crazy progressives like AOC.
                  But Republicans are decent people like your kind neighbor down the street, who occasionally do bad things, but deserve forgiveness and understanding.

                  It is a tiresome double standard.

                  1. Additionally you either support Trump or you’re an evil Democrat. That way any canned argument against Democrats is valid against someone who doesn’t like Trump, regardless of anything they actually said.

                    1. ever consider this – if an overreaction – is an overreaction to the complete and total dominance of one sides narrative in the reporting of any issue of public policy – and the treatment of alternative views in the internet oligopolists arenas [by treatment we can read: censorship]?

                    2. Youre implying Ken of all people is a trump sycophant. One day you’ll realize how broken you are, and will continue to deny it.

                      Again, you are basically the new jeff or white Mike. Lol.

                    3. It wasn’t about supporting Trump, sarcasmic.
                      It was you parroting phoney DNC talking points and lying about shit, that pissed everyone off.

                      As for Jeff, he’s a paid commenter, a fifty-center, here to shitpost and troll anyone who doesn’t swallow the Democratic party narrative.

                  2. The democrats are openly stating their desires you retarded leftist fuck.

                    They don’t even hide it.

                    They rely on people like you abd sarcamsic to gaslight for them.

                  3. Lmao, Jeff decrying double standards.

                    Theres the dem party trying to massively expand government and the rep party that at least had a former president and some members trying to downsize the government AND its burden on its citizens.

                    This is the simple test most of us apply when supporting Republicans or trump. The fact that you can’t see the difference in the parties points more to your ignorance than it does any of our bias. And this is why we know you’re not actually libertarian. If we did a libertarian POV cost benefit analysis of republican vs Democrat positions on various topics, the Republican positions would align with the libertarian position far more than the Democrat positions would.

                    It’s not really hard to understand, but your intentionally obtuse and genetically retarded so I guess it is for you.

            2. “It’s so unfair that Reason treats Republicans so horribly!”
              “Also, did you know that Democrats are traitors and hate America and should be murdered?”

              1. Democrats aren’t human beings, jeff. So they can’t be murdered. That word only applies to people.

                1. Why did you link to the church of squirrel?

                  1. Tulpa brags about running multiple socks and about socking other people. And when he says that someone like me is the one running multiple socks he’s believed. My only conclusion is that those who believe him are functionally retarded.

                    1. Sarc didn’t answer the question. Because he’s squirrel.

                    2. You’ve been caught multiple times. Why lie at this point?

                    3. Everyone knows you sockpuppet here as Sqrlsy, sarcasmic. You’re not fooling anyone anymore. You’ve been caught too many times.
                      Just come out and own it.

                2. It is hilarious watching you team up with the known leftists here.

          2. Lol. So pathetic. Just sad what you’ve become.

          3. Not all democrats are evil. Most of them are just not very bright, extremely ignorant, and like the democrats because everything is about how their narrative makes them feel. I know many people like this. None of them know shit about anything of substance, nor do they wish to.

            The evil ones are the ideological progressives, and the conniving opportunists like Biden. They are the core threat.

          4. It’s amazing how you don’t waste time even getting to your next response before inserting epic level irony.

            Anyone who asserts that you can’t make reasonable inferences as to someone’s motivations when they universally take the opposite approach of their political opponent and can’t give a logical path to that conclusion, isn’t being logical themselves.

            And anyone who refuses to reverse their course even when their political opponent is proven correct [much less acknowledge their opponent was correct] is basically offering proof of their original motivation.

            This was surprisingly admitted to on a number of occasions with the lab leak theory when Dem propaganda media stated that they didn’t give it any credence whatsoever, simply because Trump said it.

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      2. Nothing but progjection coming from you these days. That you’re defending the most authoritarian responses ignoring the hypocracy and news revision on your side says everything about you 0
        .

        1. Really? What did I defend? Please give me a quote.

          1. This is the same exact form of argument jeff and white Mike do. They only attack the right and then rush into threads bad to the left to attack the right and distract. Then when called out they claim it wasn’t an explicit defense of the left. It is humorous that they think other people don’t notice this behavior.

            The other day there were 4 different stories negative to biden here. 3 on economy, 1 on guns.

            Sarcasmic didn’t have a single negative post about the left, only the gop.

            1. He did his squirrel copypasta THIS CANT BE TRUE REASON NEVER SAYS ANYTHING BAD ABOUT DEMOCRATS IVE BEEN ASSURED! in every one too.

          2. sarcasmic
            February.9.2021 at 10:15 am

            And when I say “pleasure” I mean it. Imagine them jerking off

            https://reason.com/2021/02/09/the-not-so-peaceful-transfer-of-power/#comment-8750813

        2. Seriously. If you’re going to accuse me of projection and defending authoritarians, you damn well better have an actual quote.

          Otherwise you’re just a piece of shit liar like JesseAz.

          1. This is what “defending authoritarians” means around here:

            “Did you hear that Andrew Cuomo drinks the blood of babies?”
            “No, I don’t think that’s accurate…”
            “WHY ARE YOU DEFENDING AUTHORITARIANS LIKE CUOMO????”

            1. Good point.

              1. Lol. Sarcsmic thinks hyperbolic strawman are good points.

                1. Actually you both suck, so there’s that.

                  1. Oh noes. I’m crushed.

            2. Except you got the words wrong. Ken routinely defends authoritarians by saying that Progressives are evil totalitarians while praising Republicans as mere authoritarians. So if Ken called Cuomo an authoritarian it’d be a compliment.

              1. I pointed out that one of the differences between totalitarians and authoritarians is that where authoritarians are typically satisfied with using the coercive power of government to control our actions, totalitarians insist on controlling our thoughts (Kirkpatrick).

                I also pointed out that progressives are more totalitarian in character, rather than authoritarian, because in all sorts of ways, they’re obsessed with controlling our thoughts–whether it be regulating “misinformation” on social media through antitrust actions, using cancel culture to intimidate like it’s the Red Scare, or teaching Critical Theory in public schools (among other examples).

                While it’s true that I’ve argued that Republicans are vastly superior to Democrats on a whole host of libertarian and capitalist issues, the transference of that in your mind to an allegation that I support authoritarianism is either based on dishonesty on your part or your intellectual inability to comprehend the difference between me criticizing the Democrats for embracing totalitarian strategies, on the one hand, and me preferring Republicans to Democrats, despite Republicans not being libertarians capitalists, on the other.

                Yeah, when the choice is between Republicans who oppose lockdowns, negotiate to get us out of Afghanistan, oppose the Green New Deal, support our gun rights, and are not fundamentally obsessed with using the government to control our thoughts, I’ll support them over the socialist and totalitarian Democrats every time–even if those same Republicans are wrong on immigration and trade with China. And if you interpret that as support for immigration crackdowns, trade wars, or any other form of authoritarianism, then you’re either being dishonest or a dimwit.

                1. And if you interpret that as support for immigration crackdowns, trade wars, or any other form of authoritarianism, then you’re either being dishonest or a dimwit.

                  No, Ken, that is called ‘calling out your bullshit’.

                  You are supporting immigration crackdowns and trade wars BECAUSE you refuse to get beyond the false dichotomy of the Team Red/Team Blue duopoly. FFS Ken you are on a libertarian website and you continually preach how we all ought to support Republicans over Democrats because Republicans are, in your view, less bad. Well guess what Ken, we don’t have to support either one. We don’t have to settle for ‘lesser evil’. You are smart enough to know this and yet you continue to shill for Team Red. At some point a reasonable person must conclude that even if you say you aren’t in favor of immigration crackdowns or trade wars, you don’t really mind them or will at least look the other way while *your preferred team* runs roughshod over everyone’s liberties.

                  You DO favor authoritarianism because when presented with an alternative that is waaaay less authoritarian – i.e., libertarians – you refuse and continue with Team Red shilling.

                  1. He will respond that he is being super logical because he is just doing what Duverger’s Law says he must do.

                    Never mind that all Duverger’s says is that there tend to be two major parties in a nation like ours. Never mind that the two parties in our nation have completely changed a couple of times, and have changed in nature more often. Never mind that the Republican Party is currently badly divided at the national level.

                    Why I love to poke at Ken is that he is so arrogant about how “logical” he is. And totally unaware of how easily “logical” thinking can go off path.

                    1. A totally logical argument that is based upon false premises is a fallacy. So when Ken starts off with premises like “Everyone who doesn’t agree with me is stupid and motivated by evil,” “If you don’t vote for my party then you voted for the other party,” “You didn’t praise Trump when I wanted you to so that means you’re a Progressive” or “You didn’t criticize Biden when I wanted you to so that means you hate Trump” then it doesn’t matter how perfect his logic is. The conclusion is still a fallacy.

                    2. Yup, that is his schtick. Construct a logical argument from false premises, then when challenged, he huffily replies ‘what, are you anti-logic now?’

                    3. It is amazing watching the three leftists all woth the same world view projecting here. Lol.

                    4. You three (two?) clowns are such utter fucking liars.
                      You’re accusing Ken of pulling your own tricks, when he has done nothing of the sort.

                      Of course this is what’s to be expected from paid fifty-centing shills like chemleft/White Mike. You’re paid to be lying and trolling here.

                      And sarcasmic, you retarded drunk; didn’t you promise us you were going to fuck off to the Glibertarians? What happened? Did they kick your loser ass out for being an uneducated idiot?

                2. When you constantly fawn over a party you say yourself is authoritarian, and say that everyone who doesn’t support these authoritarians are dishonest or retarded, then you’re supporting authoritarians.

                  There’s no other way to slice it, Ken.

                  1. The things I’m saying are true or false and the logic I’m using is either valid or invalid regardless of whether I’m fawning over anything. And lashing out with the same logical mistake over and over again should become increasingly embarrassing every time you make the same mistake–especially when you’ve done it over and over again in the same thread!

                    Meanwhile, the shit you’re saying about me calling someone stupid or retarded for not supporting authoritarianism really is stupid and dishonest. You just made that up in your mind. If you feel dishonest or retarded because you associate opposing the totalitarianism of the Democrats with supporting authoritarianism, that’s between you and your therapist.

                    What you said in the comment above wasn’t about anybody’s feelings. That’s just a fact.

                    “Ken routinely defends authoritarians by saying that Progressives are evil totalitarians while praising Republicans as mere authoritarians. So if Ken called Cuomo an authoritarian it’d be a compliment.”

                    —-sarcasmic

                    I see a couple of reasonable explanations for that statement, and dishonesty and lacking the intellectual capacity to understand what you read are far and away the most likely candidates. I suppose insanity is another. Maybe you’re happy just being a troll these days, too? Assuming dishonesty or stupidity was probably giving you the benefit of the doubt.

                    1. You want logic?

                      Premise # 1: (According to Ken) Republicans are authoritarians.

                      Premise # 2: (According to Ken) libertarians must support Republicans.

                      Conclusion: (According to Ken) libertarians must support authoritarians.

                      Q.E.D.

                    2. It is entirely possible to both vote Republicans and oppose authoritarianism, especially when the alternative to the Republicans really is the Democrats–and the Democrats not only fail to be libertarian capitalists (like the Republicans) but are also openly advocating totalitarian thought control and socialism.

                      I’ve been happy to criticize the Republicans for all sorts of failures.

                      The mostly likely reasons for why you conflate my criticism of Democrats for their totalitarian socialism with support for authoritarianism is stupidity and/or dishonesty. It might also be because of insanity or because you’re happy being a troll now. And it certainly can’t be because I think Ronald Reagan is a more libertarian and capitalist alternative to Stalin, Castro, and Mao.

                    3. Lol. Sarcasmic is being owned here but has gone so far into full jeff that he doesn’t recognize it.

                    4. One alternative to voting for Democrats, one, is to vote for Republicans. Other alternatives are to vote Libertarian. Another is to abstain from voting for either Republicans and Democrats, thereby not contributing to legitimizing either major party, and signaling that neither is representing your views nor worthy of governing.

                    5. Look at White Mike pretend that he’s not a DNC shill.
                      Of course splitting the oppo to the DNC is White Mike’s most preferred outcome, but look at him pretend “both sides”.

                    6. The mostly likely reasons for why you conflate my criticism of Democrats for their totalitarian socialism with support for authoritarianism is stupidity and/or dishonesty.

                      I see. So when you describe Republicans as authoritarian, declare your unwavering support for a party you describe as authoritarian, and demand that libertarians must support authoritarians, you really don’t support authoritarianism.

                      Sure, Ken. Whatever you say.

                    7. I’m the one who calls them retards, not Ken.

                    8. So when you describe Republicans as authoritarian, declare your unwavering support for a party you describe as authoritarian, and demand that libertarians must support authoritarians, you really don’t support authoritarianism

                      Ken has never done this. Nor have any if those you call trump cultists you lying leftist shit.

                      What has been constantly shown to you is the left is much fucking worse. Youre just pathetic at this point.

                    9. “…Another is to abstain from voting for either Republicans and Democrats, thereby not contributing to legitimizing either major party, and signaling that neither is representing your views nor worthy of governing.”

                      Yes, pretend to be totally disinterested……..
                      Until they lock you in your house and empty your bank account.
                      How……….
                      predictably pathetic.

              2. Above sarcasmic cries about others saying he defends the left without citation, here he does the exact same shit to Ken. Good work sarcasmic.

            3. …. and Pedo Jeffy, also part of the problem, jumps in to defend one of his cohorts. With lots of hyperbole.

      3. See your own idiotic self down the board, denying the obvious conclusions about who the good guys are in this article

        1. He is a racist collectivist. He will say whatever to promote that garbage. Or to get a free cheeseburger.

          1. Assertions without evidence. Oh, and I’m lactose intolerant so take your cheeseburger and stick it where the sun don’t shine.

            1. I was talking about jeff. This was demonstrated a few days ago. The cheeseburger part though was an educated guess.

              1. Oh this is such bullshit. Don’t fall for R Mac’s lies.

                1. I linked to your comments where you told on yourself. Everyone saw it.

                  1. Yes, you linked to my comments where you deliberately obfuscated the difference between an adjective and a noun. Because you are a lying troll and that is what you do.

                    1. No one buys it. But keep telling yourself this if it makes you feel better.

                    2. No, Jeff, YOU are a lying troll. You are also a sea lioning sophist.

                    3. Jeff has called himself a globalist libertarian and a socialist libertarian multiple times. He thinks adding the term libertarian doesn’t make him a socialist globalist.

                    4. And look at their threadshitting here.

                2. You claimed to support collectivism and racism. Unless you were lying. In which case I did fall for it but that was also based by your many posts.

                  1. It depends on what precisely you mean by those two terms.

                    1. White culture

                    2. Such a Jeffy comment.

                    3. Is it racist to consider a topic such as “White culture”? Is it racist to consider a topic such as “Black culture”? If so, clearly state why. Hint: Collectivist is not the same as racist. Another hint: To describe ANY culture does not imply that every member of that culture is identical and obeys its tenets 100%.

                    4. We have been through this before. You are racist. And to suggest the two separate terms are necessarily linked is mendacious.

                    5. Jeff also fully supports the unrestricted movements of illegal alien peodphiles into and within the US. By his own admission.

              2. Jeff and sarcasmic are essentially the same person now. See this thread.

      4. Lol. Sarcasmic remains broken, now taken yo defending the left and denying it. Ken is right here of course. But sarcamic is so fucking broken he projects his own failures on others.

        Enjoy your time with jeff and white Mike. Youre actually worse than them.

      5. https://twitter.com/MrAndyNgo/status/1411063471265910784?s=19

        Antifa groups in Los Angeles are organizing an event to confront the women who are protesting the spa that allegedly had a person expose their penis to women and girls. [Link]

      6. No, but some people, including many politicians, are that childish.

    3. Yeah, the fascist would-be dictator Trump was so fascist and power mad he let the local politicians set their own policies.

    4. Policy driven by spite, with the people governed as mere showpieces? That’s sick if it’s true. But it also seemed to operate between Cuomo and deBlasio.

    5. For goodness’ sake, in the weeks before Newsom and Cuomo imposed their statewide lockdowns, the press was still calling Trump a racist for banning travel from countries where Covid-19 was spreading like crazy.

      While Democratic lawmakers were insisting people leave their homes, be free and gather in public places.

      1. “Come to Chinatown with us to celebrate Chinese New Year” – Nancy Pelosi, Feb. 2020.

    6. As usual, you are right.

    7. I don’t think your theory explains what happened. Cuomos flip flop was not related to a corresponding flip flop on Trumps part. It’s not like Trump was calling for a lockdown and then changed his mind and Cuomo just did the opposite. Fact is media and politicians generally were dithering and downplaying the threat in those early weeks when mass change in behavior and perhaps decisive intervention could have forestalled a greater crisis. They only changed course when disaster was upon them.

  2. Why Didn’t COVID-19 Kill the Constitution?

    Because it was already dead, Jim.

    1. Seriously wounded, anyway.

      1. Comatose, and Nancy Pelosi is desperately trying to drive a stake through its heart. For democracy.

        1. And if only those darn protesters hadn’t put their feet on her desk she would hav gotten away with it too.

    2. I was wondering how long it would take before somebody stated the obvious.

      The only time the Constitution gets mentions is when it’s being used as a bludgeon against the descendants of the people who wrote it.

  3. We can thank judges who were prepared to enforce constitutional limits on public health powers.

    Then there were other judges who were prepared to admit that what the government was doing was unconstitutional but as long as they promised they were going to only continue doing it for a few more weeks they’d allow the government to keep doing it anyway.

    1. The judicial branch ought to feed themselves into woodchippers, of their own volition, for their utter failure to restore our rights, immediately at the onset of the lockdowns and interventions.

      I’ve never been so disgusted that the people sworn to ensure rights weren’t trampled upon, joined in the trampling.

  4. “Where those broad limits are not exceeded,” he said, “they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

    Second-guessing legislative acts is your whole fucking job, you stupid, lying bastard, so why is it that you can’t second-guess the acts of unelected federal bureaucrats who are not accountable to the people? Because they’re “experts” and you’re not allowed to question experts? Woodrow Wilson would love you.

    1. Here in California unelected county health czars set policies affecting the day-to-day lives and pocketbooks of healthy citizens. I don’t see how that is remotely legal. At least when Newsom issued his edicts for thee but not for he, he has to face the music at the recall election.

  5. “Nearly every governor did eventually accept it. In the name of “flattening the curve” and reducing virus transmission, governors from both major parties imposed sweeping restrictions on social and economic activity”.

    —-Jacob Sullum

    Republican governors imposed lockdowns that were far less harsh and they did so for far less periods of time.

    California’s lockdown went from March 19 – August 28 (163 days)

    New York’s went from March 20 – June 27 (100 days)

    Texas’ lockdown went from April 2 – April 30 (29 days)

    Utah had no lockdown for the whole state, but Salt Lake City’s lockdown went from March 29 – May 1 (43 days)

    https://ballotpedia.org/States_that_issued_lockdown_and_stay-at-home_orders_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020

    The desirability of lockdowns might vary from state to state by population density, with more highly concentrated populations being more susceptible in a pandemic. To help account for that, the urbanization rate for each of those states, from the 2010 census, is as follows:

    California: 95%
    New York: 88%
    Texas: 85%
    Utah: 91%

    —-Link Below

    Urbanization rates don’t seem to be much of a factor in predicting the length and severity of government imposed lockdowns by governors.

    The difference between these states–and the length and severity of the lockdowns their governors imposed–appears to be the result of the political parties of the governors who imposed them and their differing political ideologies, as well as the predominant political philosophies of the voters that may or may not reelect them.

    Simply put, being a progressive Democrat is all about using the coercive power of government to force individuals to make sacrifices for what Democrats consider to be the common good, and imposing lockdowns during a pandemic dovetails nicely with that political ideology. The reason California imposed severe lockdowns for a longer period of time is because their governors are progressive Democrats and so are the people who may or may not reelect them.

    Republicans are by no means libertarian capitalists, but their commitment to individual rights in the face of the coersive power of government is sufficiently robust that it makes Republican governors far more reluctant to impose lockdowns and far more eager to lift them one they’re imposed. The reason Utah and Texas imposed far less severe restrictions for a much shorter duration is because their governors were Republican the voters who may or may not reelect them are predominantly Republican in ideology, too.

    1. Urbanization rates by state from the 2010 report by the U.S. Census Bureau.

      https://en.wikipedia.org/wiki/Urbanization_in_the_United_States#Historical_statistics

    2. Republicans are by no means libertarian…

      For the first time in a while you said something that I can agree with!

      Woo hoo! Go Ken!

      1. Facts are true or false and logic is valid or invalid regardless of how you, me, or anyone else feels about them.

        The things I wrote are true or false and valid or invalid regardless of how you feel about them, personally, too.

        1. You could save yourself a lot of typing, and save readers from a lot of unnecessary reading, by simply writing “REPUBLICANS GOOD! DEMOCRATS EVIL!” and leaving it at that.

          1. See below, shithead. Afyer your own effusive praise.

            Evwry single judge mentioned in the article, only one who stood up for rights was appointed by a Democrat. And he only cared about abortion. All the other State judges, Federal District judges, and SCOTUS members were appointed by Republicans

            The few judges mentioned as hostile to rights were all apointed by Democrats, except Roberts.The most hostile were the other 3 current Supremes, and Ginsberg

            1. LOL in a lot of places, judges are elected, not appointed. Your claim is probably not true.

              But prove it if you can.

              1. Its already proven, you mendacious fvck

              2. Collectivist racist Jeff, it is incumbent on you to prove which ones were elected. You made a claim so provide evidence.

                1. All the work is shown below.

                  Of the 35 individuals named in the article, pols and judges, all but one of the bad actors was a Democrat. All but one of the “heroes” of the piece were Republican. Only 2 were local elected judges elected in Ohio on partisan ballots as Republicans. They both stood in Republican primaries.

                  Sarc and Jeff are doing everything possible to avoid the comprehensive list. I imagine they arw furiously Googling to try and find a mistake. The overwhelming majority of good judges were appointed by Trump, some by Scott Walker and Abbott, most of them Federalist Society picks, which is why the Federalist Society is so important, as is electing Republicans prone to appoint them.

                  1. They are freaking out for sure. Great list.

                    1. This entire comment section is full of Collectivist Jeffy and sarc flailing impotently.

                    2. Sarc went full jeff. Long path but he arrived at his finish.

                  2. Sarcasmic spends a lot of time and energy claiming to not be left when he basically is equal to jeff and white Mike at this point.

                2. Pedo Jeffy doesn’t understand how debate works.

          2. You could save a lot of time by not paying any attention to facts and logic, too. If that’s what you’re doing, it explains a lot about your views and why they appear to be so uninformed and irrational.

            1. Please Ken, tell me what my views are. And be sure to cite some quotes while you’re at it. Failure to sufficiently criticize doesn’t equal support, and failure to sufficiently support doesn’t equal opposition.

              1. If your views are unencumbered by facts or logic, then they are ignorant and stupid–regardless of whether I think so.

                1. Ahhhh, I get it now. You and those who agree with you use pure facts and logic without any feelings like Spock, and therefore anyone who doesn’t agree with you must be a certified retard like Kirk.

                  1. The facts and logic have been laid out gor you. This IS a partisan issue. Only 1 party appoibts judges who will check government overreach into basic individual rights.

                    You are too buay being a partisan water carrier for the Big Gocernment Unlimitwd Executive Power Party to notice that

                  2. Ken is perfectly logical, yet his logic had him arrive at the conclusion that Trump was our best shining hope for libertarianism. But it wouldn’t occur to Ken to go back and check his work, maybe make sure his perfectly logical isn’t suffering from, say, a little garbage in-garbage out problem.

                    1. On the rare occasions that I flip to talk radio while driving, and listen for a minute and a half before a commercial for ED drugs comes on (you can learn a lot about the audience of a program from the commercials), it sounds just like one of Ken’s walls of text.

                    2. “Ken is perfectly logical, yet his logic had him arrive at the conclusion that Trump was our best shining hope for libertarianism…”

                      Which is absolutely true, while TDS-addled assholes like you were more than happy to turn it over to Biden.
                      BTW, I’m sure you have some cites for your bullshit G-I-G-O claim.

                    3. “…it sounds just like one of Ken’s walls of text.”

                      Now, THERE’s what sarc considers “evidence”; his opinion of some un-named radio broadcast.
                      Want to know why you’re the butt of so many jokes here? Look no further.

                    4. trump was certainly not our best shining hope for libertarianism, but we have a 2 party system so there were only 2 choices for president. i guarantee you that every presidential election in the future will have a republican or democrat winner. that is just reality and thinking otherwise is just foolishness. we can all want a libertarian to win the next presidential election but it won’t happen. period.

                    5. The entire future will always be Democrats and Republicans? We don’t have Whigs and Tories, anymore, and the Republican Party is in the middle of an existential crisis.

                      Voting Libertarian or not voting at all, especially if you live in a red or blue state, is a way of signaling that you don’t approve of either major party and you want something different from what either offers.

        2. And what you wrote is a complete non sequitur because the article was about the judicial branch limiting power, not your petty partisan bullshit.

          1. Judges are appointed by partisan politicians. And the only judges limiting government power were apppinted by Republicans. It shows how awful Democrats really are.

            1. And the only judges limiting government power were apppinted by Republicans.

              This is a lie, as I demonstrate below.

          2. I quoted the part of Sullum’s piece to which I was responding:

            “Nearly every governor did eventually accept it. In the name of “flattening the curve” and reducing virus transmission, governors from both major parties imposed sweeping restrictions on social and economic activity”.

            —-Jacob Sullum

            Almost every governor may have accepted it, but the ways different governors responded, the intensity of their response, and the length of their response all seem to have been a function of their party, their party’s ideology, and the ideology of the voters who were likely to reelect them in that state.

            Someone else has more than adequately pointed out that whatever judicial restraints were placed on the governors seem to have been a function of Republicans putting those judges on the bench, as well, and they were put on those benches because their ideology meshed with the Republicans who appointed them.

            There’s something important to learn from that, and it goes beyond the pandemic response. To whatever extent we get Constitution validating rulings from the Court in the future because of Coney Barrett, Gorsuch, and Kavanaugh, we should remember that we probably wouldn’t be enjoying those protections if Hillary Clinton or Joe Biden had made those appointments.

            And that’s because progressives are openly hostile to letting constitutional rights get in the way of using the coercive power of government to force us to make sacrifices, in various ways, for what they see as the common good. Progressives are not only opposed to confirming judges who support our constitutional rights but also are in favor of appointing judges who hostile to interpreting the Constitution in ways that get in the way of progressive “progress”.

            1. And that’s because progressives are openly hostile to letting constitutional rights get in the way of using the coercive power of government to force us to make sacrifices, in various ways, for what they see as the common good.

              Sort of how like how those ‘progressives’ want to force every business to accept unvaccinated customers in the name of the ‘common good’, right?

            2. You ever read or listen to stuff by black people who make literally everything about race? Doesn’t matter what it is, they always find some way to say whites are evil and blacks are oppressed. Could even be a conversation about the weather, and somehow they can insert race into it.

              Know what I mean, Ken?

              Well you’re that guy, except that instead of race it’s partisan politics. Doesn’t matter what the subject is, there’s always a DEMOCRATS BAD REPUBLICANS GOOD angle to put in there.

              I bet you can’t even talk about the weather without bitching about the Green New Deal.

              It’s tiresome.

              I want the old Ken back.

              1. From the facts I cited and the logic I used, the determining factor driving the duration and severity of lockdowns appears to have been party affiliation–both in the governor and the predominant voters.

                Feel free to challenge the facts and the logic, but just in case you haven’t figured it out despite it being pointed out to you dozens of times (and in this thread already), the facts and the logic would be the same regardless of anything having to do with me personally.

                If I were a progressive Democrat, those facts would be the same. If I were an authoritarian socialist, those facts would be the same. Why aren’t you ashamed of falling into the same ad hominem fallacy over and over and over and over again? Why isn’t that embarrassing for you?

                Is the reason you lash out at people with ad hominem fallacies because you literally can’t find a single fact to dispute or a flaw in logic anywhere? Because even that isn’t an excuse for making the same Freshman logic mistake over and over and over again.

                1. So you know, that whooshing noise was the sound of my point going over your head.

                  Here’s my point: NOT EVERYTHING IS ABOUT PARTISAN POLITICS.

                  1. Here’s my point: NOT EVERYTHING IS ABOUT PARTISAN POLITICS.

                    Here’s my point: WHEN YOU ARE DISCUSSING THE DIFFERENCE BETWEEN Rs AND Ds, IT *IS* ABOUT PARTISAN POLITICS.

                  2. Yet for almost 2 years everyone who disagreed with you is a trump cultist and you still can’t blame the left for anything you dishonest shit

                    1. I would love to meet these idiots at a Reason convention. Much in the way people rubberneck when driving by a gory car wreck.

                2. By the way, Ken, when did I disagree with you other than when you ascribed motivations to your political opponents?

                  All I’ve ever said is that your making everything into petty partisan bullshit is tiresome.

                  1. Lol. Your projections are blinding. Go grab your team jeff shirt shitbag.

              2. Fuck You, shithead. Read below

                1. No fuck you, you slanderous asshole.

                  1. No, fuck you, you fat sack of monkey shit.

                  2. Jeffy, apologize to him immediately. You’re a rude little weasel. Everyone here is far more civil with you than you have ever deserved.

                    It’s not our fault you’re a pathetic, lying, sophist, sea lioning, leftist supporter of pedophilia.

              3. You literally do nothing but blame the right you dishonest piece of broken shit.

              4. Oh bullshit. We all call out bad republicans and bad republicans decisions. Regularly. Republicans fuck up all the time, but they aren’t Marxist totalitarian like the democrats. Not even close.

                You’re the one with the problem Sarc, not us. So just stop.

      2. “For the first time in a while you said something that I can agree with!”

        Given that your full of shit, it’s rare that anyone outside of our lefty assholes would ever say something with which you agree.

      3. Go squirrel go!

      4. Now if you could actually criticize a Democrat for once.

        Or if you were truly honest and state in the last 2 years they have been much closer to liberty than leftists. But no, you can’t.

    3. Republicans are by no means libertarian capitalists

      yet you want to carry water for them anyway. Gee wonder why.

      1. He will tell you he has to because it’s the law — Duverger’s Law.

        1. https://twitter.com/disclosetv/status/1411279815118934018?s=19

          NEW – Facebook bans top medic @DrAseemMalhotra over posting a reputable study saying children should not be forced to wear masks (Daily Express) [link]

          1. I really doubt that’s the full story.

            As with most ‘news’ on social media, it’s likely an exaggeration and/or a half-truth in service of a narrative, not to inform.

            Why are you even taking this crap at face value?

            1. Like social media stories about fire extinguishers?

            2. But you believed trump was a Russian spy for 4 years. Too bad you weren’t this honest a few years ago

            3. Jeff doesn’t believe facts. Typical.

      2. Hey, as long as they make you sad, it’s a positive good.

  6. Good article.

    As fucked up as our government is, and as far as it has strayed from its founding principles, judges are still invalidating government overreach.

    Could be a heck of a lot worse.

    1. EVERY.SINGLE.JUDGE. namechecked in the article, EVERY SINGLE ONE, except Myron Thompson, who only cared about the “Constitutional” right of abortion – every other judhe other than Thompson, appointed in 1980 by Carter, who stpod up for rights – all have just ONE thing in common.

      They were ALL , except Thompson, appointed by Republicans. SCOTUS justicess, District Court judges, state judges, all. of. them.

      All of the judges mentioned as being hostile to indifferent to rights, except Roberts, were appointed by Democrats.

      Maybe you and Strazele should think about that

      1. That’s an excellent point.

      2. Prove it.

        1. Fuck You, shithead. Read below

          1. Funny how every last thing has to be proven to Pedo Jeffy. It’s part of his sophistry.

        2. Are you that mendacious that you pretend to ignore the post below? Did Tony login to your account?

          1. Please note the time stamps of the comments in question, and then please feel free to apologize.

            1. So Tony did take over your account?

              1. That demand for proof was posted BEFORE the “criticaljeff racial theorist” troll decided to post his list. So I can’t ignore something that hasn’t even been posted yet. So you can now kindly apologize for your false assertion against my character.

                1. Why? Your lack of character has been a known quantity here for years.

              2. Actually it was Tulpa who made fake accounts with spaces in them (” sarcasmic” for example) and then used them when we were usually absent.

                And even after him bragging about it, a dozen or so idiots still believe that we’re the ones running socks.

                1. And even after him bragging about it, a dozen or so idiots still believe that we’re the ones running socks.

                  They never genuinely believed it. It was just shitposting on their part.

                2. Actually, it was Dee that did that to me. To prove how morally superior she is.

                3. Lol. So did white Mike. Your new best buddy. And you lie about spaces all the time. You’ve been caught multiple times claiming spaces where none existed.

              3. Yeah I didn’t think you would apologize for your completely unfair accusation against me, that was provably false.

                1. You did cherry pick below. Well done Tony.

                  1. You wrote:

                    Are you that mendacious that you pretend to ignore the post below?

                    You accused me of pretending to ignore a post that, at the time of my posting, HADN’T EVEN BEEN WRITTEN YET. You should kindly apologize for your incorrect accusation.

                    1. I think Tony did take over your account. Cheers Tony.

      3. “Maybe you and Strazele should think about that”

        That “thinking” part is probably gonna give sarc a problem.

  7. Great points Ken.

    So why did Sullum spend every day last year trashing Trump, while refusing to criticize Fauci for his lies or left wing Democrat governors for their lockdowns?

    1. I don’t know what drove him to the left, but he must have lost his objectivity along the way for some reason.

      Trump’s flaws were easy enough to see, but so were his upsides–and when the Democrats were openly advocating authoritarian lockdown policies and championing socialism by name in an election year, supporting Trump on things like not imposing lockdowns should have been an easy call for a libertarian to make.

      The staff, here, were almost uniformly against lockdowns, but somehow that didn’t translate into support for Trump refusing to impose them nationally. If Hillary Clinton or Biden were in office at the time, we’d have had national lockdowns, like California’s and New York’s, I’m sure.

      Trump deserves blame for some of the bad things he did, but he deserves credit for the good things he did, too. Staying out of the way of the companies that formulated the vaccines is one of the good things, refusing to impose lockdowns is one of the good things, and throwing shade on bureaucrats like Dr. Fauci seems to been a good thing, too–from an objective perspective. Trump deserves credit for all of that.

      We can remain steadfast libertarian capitalists and admit that Republicans were vastly superior to Democrats on these issues.

      1. support for Trump refusing to impose them nationally.

        He never had the power to declare national lockdowns. So we should give Trump credit for something he had no power to do? Maybe we should give Trump credit for not creating an artificial black hole on the planet, too.

        1. Trump’s cdc didn’t have the power to prevent evictions, but they did it anyway.

          So his choice not to lockdown the country was not because he couldn’t. It was a choice to keep liberty.

          1. Whether they had the power or not was debatable. They had the Public Health Service Act as their ostensible authorization.

            1. The Supreme Court just ruled on it dumbfuck. It was 5 justices saying it was illegal but Kavanaugh the bitch saying it was only for another month so no big deal.

      2. I’m pretty sure that when federal lockdowns were discussed, Reason gave credit to Trump for recognizing that the federal government did not have that power, and that that was left to the states.

        1. Yet you called everyone pointing how trumps federalist take a cultist. Weird.

        2. https://reason.com/2020/04/03/no-trump-does-not-have-the-power-to-declare-a-national-stay-at-home-order/

          “‘States are different,’ Trump said during a coronavirus briefing. ‘I understand that Florida issued one today. That’s good. That’s great. There are some states that don’t have much of a problem. … You have to give a little bit of flexibility.’

          “He’s correct—states are different.”

          1. https://twitter.com/MrAndyNgo/status/1411391998649532418?s=19

            Antifa mob attacked a woman protesting peacefully outside Wi Spa in Los Angeles. The spa was at the center of a recent viral video where a woman complained to staff that a person with a penis exposed their genitals to women & girls. [Video]

      3. We can remain steadfast libertarian capitalists and admit that Republicans were vastly superior to Democrats on these issues.

        And here is how you, yet again, remain wedded to the false binary choice represented by the Team Red/Team Blue duopoly.

        Were Republicans more broadly opposed to lockdowns and mandates than Democrats? Yes. So on that very narrow subject, Republicans deserve more praise than Democrats do.

        But on the larger, and more interesting, question on the response to COVID-19 more generally, neither party covered themselves in glory. Democrats proposed over-the-top lockdowns which ruined many people’s lives. What did Republicans do? Ignore it, mock it, downplay it, compare it to a “bad flu”, and otherwise minimize the very real dangers of this new virus. THEY TOO ruined people’s lives by giving people a false impression of how dangerous the virus was. How many people suffered severe health consequences, or died, because they listened to Trump, a person they doubtless trusted, and didn’t take even basic safety precautions against the virus?

        So no, Ken, I’m not going to pretend that Republicans who compare mask mandates to the Holocaust, are superior to Democrats who stupidly insist on wearing masks everywhere.

        1. “…And here is how you, yet again, remain wedded to the false binary choice represented by the Team Red/Team Blue duopoly…”

          And here you are, bloviating about some fantasy where we actually have other choices.
          You.
          Are.
          Full.
          Of.
          Shit.

        2. Not to mention that many red states had lockdowns, coming directly from the governor, just like blue states did. Those facts don’t fit Ken’s narrative.

          1. Mike Laursen:
            “Not to mention that many red states had lockdowns, coming directly from the governor, just like blue states did. Those facts don’t fit Ken’s narrative.”

            Gee, Mike, TDS-addled assholes never let facts get in the way of their narratives, do they?
            One of Ken’s posts, above:
            “Republican governors imposed lockdowns that were far less harsh and they did so for far less periods of time.

            California’s lockdown went from March 19 – August 28 (163 days)

            New York’s went from March 20 – June 27 (100 days)

            Texas’ lockdown went from April 2 – April 30 (29 days)

            Utah had no lockdown for the whole state, but Salt Lake City’s lockdown went from March 29 – May 1 (43 days)

            https://ballotpedia.org/States_that_issued_lockdown_and_stay-at-home_orders_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020

            The desirability of lockdowns might vary from state to state by population density, with more highly concentrated populations being more susceptible in a pandemic. To help account for that, the urbanization rate for each of those states, from the 2010 census, is as follows:

            California: 95%
            New York: 88%
            Texas: 85%”

        3. I am also not wed fo the false binary choice of Canadiens vs Lightning in the NHL Finals. I’m a Predators fan, and remain hopeful they somehow win the championship. So dont ask me the obvious question of who has the better team, Tampa or Montreal, it is irrelevant to us blinded by our own cognitive deficiencies

        4. You don’t need to pretend republicans are superior. The reality is that republicans ARE superior. It isn’t a very high bar.

          You won’t admit it, because you are a Marxist traitor to your very core. You also support pedophiles over our sovereign borders.

          1. ^^^^^^^^^^^^^
            ^^^^^^^

      4. “throwing shade on bureaucrats like Dr. Fauci seems to been a good thing,”

        Nope. Undermining and publicly speaking against someone in your own administration is terrible, terrible leadership. If he didn’t have faith in Fauci, he should have replaced him.

        Trump went though so many people, very often publicly dissing them. And, surprise, toward the end of his administration he couldn’t get any quality people to work for him. Gosh, wonder why.

        1. Have you ever worked in a successful group? Disagreement is not only typical but necessary for its function. I partially agree in regard to public dissent. Fauci should have stepped down if he could not agree with Trump’s direction. Donald was the boss, not Anthony.

      5. I know what drove him to the “left”: an exaggerated imperative by Reason to distinguish from the “right”.

        Over the past several decades, any otherwise objective libertarian observer (like me or Don Ernsberger) had to conclude that in the USA, the policy differences, both in leadership and grass roots, between libertarians and “conservatives” had relatively narrowed, while between libertarians and “liberals” had increased. This was practically a reversal of the process of the 1960s, where the libertarian movement, seen by both outsiders and insiders as a wing of the “right” since World War 2, broke out from it and became quite distinct. In the process there had been established organizations like the Reason Foundation, the Cato Institute, and the Libertarian Party. For fundraising purposes, it became essential for them to maintain their brand distinction. (Not so much for more grass roots funded — because they didn’t need more money than that — organizations like SIL and FEE.) Therefore they’ve been at pains to distance themselves from the “right”, no matter how close they actually were on policy.

        Trump brought out that tendency even more, because he and his followers were, averaging out their issues, significantly more libertarian than the Republican Party or “conservatives” generally. Ironically, that’s because many “conservatives” could rightly take off the quotation marks because they became truly conservative, defenders of the status quo or of linear projections of policy trends. To the extent Trumpets were not libertarian, they were at least anti-conservative, wanting to shake up the status quo.

      6. More circular reasoning. The federal government gave state rights primary power to legislate as they saw fit. This is how it should be and still is.

        “ If Hillary Clinton or Biden were in office at the time, we’d have had national lockdowns, like California’s and New York’s, I’m sure.”

        Assertion without attribution.

        1. Other than getting the Constitution and related flow of power completely backward. Congrats on your stupidity.

        2. “If Hillary Clinton or Biden were in office at the time, we’d have had national lockdowns, like California’s and New York’s, I’m sure.”

          —-Ken Shultz

          This is what you’re saying I didn’t support, Echospinner?

          “Former Vice President Joe Biden is calling for an immediate nationwide stay-at-home order to contain the spread of the coronavirus, saying the main mistake that leaders can make in a pandemic is “going too slow.”

          The Democratic presidential candidate told CNN on Friday that he agreed with Microsoft co-founder Bill Gates that the uneven patchwork of state and local lockdowns in effect in the United States will inevitably cost lives and prolong the economic catastrophe.

          —-Los Angeles Times, March 28, 2020

          “Joe Biden calls for a national lockdown to contain the coronavirus”

          https://www.latimes.com/politics/story/2020-03-27/biden-coronavirus-national-lockdown

          Can you link to Hillary Clinton or Joe Biden publicly opposing the lockdowns in California, Michigan, or New York?

          Can you link to either of them opposing a national lockdown or supporting Trump for not imposing one?

          Is it your contention that a national lockdown order somehow would clash with progressive ideology–rather than dovetail with it? Because I’m here to tell you that the whole point of progressivism is to use the coercive power of government to force the unwilling to make sacrifices for what they consider to be the greater good, and a national lockdown flows from that naturally like a river to the sea.

          1. P.S.

            On Thursday, she [Hillary Clinton] called for a two-month lockdown, continuing a Democratic party battlecry against Trump’s handling of the coronavirus pandemic.

            —-Yahoo News, March 27, 2020

            https://www.yahoo.com/entertainment/hillary-clinton-tweet-pandemic-actions-023546554.html

          2. There is no such thing as a “national lockdown order”. There is no mechanism to create one, it would be unconstitutional the moment it was tried. Joe Biden and Hillary Clinton might as well have been asking for the Easter Bunny or Santa Claus to visit.

            “Oh, but why would they demand such a thing if they know it doesn’t exist?”

            They are grandstanding and promising the undeliverable in order to get votes. Just like every politician ever does. Just like when Trump promised to eliminate the national *debt* in four years. (At least THAT one was theoretically possible, unlike a national lockdown order, which is not even theoretically possible.)

            So yes I am quite confident that even if Hillary Clinton had been elected, even if Joe Biden had been elected in 2016, we would not have had a national lockdown order. Not because they wouldn’t have wanted one, but because they would not have had the power to enact one.

            1. wow, you are either naïve or stupid. democrats don’t give one shit about the legality of anything they do. their attitude is to just do it and force their opposition to challenge it it court. you are right that there is no enumerated constitutional power that allows the president to institute a national lockdown, but so what? that would not stop any politician from doing it. want proof? just look at the size and power of the fed gov. nearly all of what the fed gov does is unconstitutional and no one cares. these people are power hungry tyrants and i have zero doubts that a president biden or clinton would absolutely have instituted a national lockdown.

              1. You can’t disagree with someone without insulting them and calling them “stupid”?

  8. Of course the Republicans are also trying to outlaw private businenses requring vaccination from their customers but that particuar violation of libertatrian principles doesn’t bother the right-wing “libertarians” here. Any more than they’re bothered by laws prohibiting private businesses from banning firearms in their parkig lots.

    1. “…but that particuar violation of libertatrian principles doesn’t bother the right-wing “libertarians” here…”

      Dog ate your cite?

    2. I’m not aware of any libertarian principles that advocate businesses require customers (or employees) to take specific drugs (that haven’t been approved by the FDA, and that pose safety risks) in order to engage in commerce, be employed, or even enter the property).

      That sounds far more like Jim Crow 2.0 segregation than Georgia’s new election law.

      1. It’s called ‘property rights’ and ‘freedom of association’.

        If you want to come on to my property, you have to obey my rules, short of violations of the NAP.

        1. So, you are against the Civil Rights Act in particular, and Public Accomodation in General…

        2. The only reason sheeple employers and businesses mandated masks and/or vaccines for was because Big Government (Democrat Governors, Fauci, CDC, teacher union controlled school boards or other government agencies) either ordered or intimidated them into doing so (with pressure by left wing media outlets).

          That’s called fascism, not libertarianism.

          1. In this state, the governor withdrew the business license of any establishment that decided to provide services to the public sans mask requirement. And used threat of force to enforce.

            1. Any place with a liquor license in WA state was similarly bullied by the state Liquor Control entity per Jay Inslee’s rolling 30 day temporary emergency proclamations. Just more a suave democrat bullshit.

          2. That is a total dodge. You are denying the agency of the property owners in question to decide the rules for their property. Because the “anti-vaccine-passport” type of laws were enacted AFTER mask mandates were being lifted everywhere. But some businesses were still uncomfortable with having unvaccinated maskless people in their stores and decided that, *for their own property*, that vaccines would be required. But here comes Team Red to force everyone to accept unvaccinated people everywhere, trampling on everyone’s property rights. And you support it because you’re a Team Red tribalist.

            1. I’m fine if a business wants to bar me if I don’t wear a mask. They don’t get my money. Does your view of property rights extends to the money I earn not being taken from me via income taxes? I pay a lot more in taxes than the market value of the government goods and services I use.
              If a business can bar someone for not being vaccinated can they not hire someone with AIDS?

            2. Speaking of dodges… why were democrat governors threatening busines licenses jeff? Cali, jersey, and NY even revoked them.

              It is amazing watching you be so willingly dishonest.

            3. the experimental vaccine is unnecessary and we should not be forced to take it so we can engage in commerce.

              1. The mRNA vaccines are a modern miracle and we should be thankful to the researchers who created them, and have freed us from yet another deadly disease.

                1. go ahead and vax up, it’s a free country. the vaccine was not necessary and it’s a hard pass for me. don’t want it or need it. we did not need the vaccine to free us from a deadly disease. you sound confused.

                  1. Youre lying. The virus is not a disease and Sars cannot be spread

        3. Except for borders huh.

          1. Yes, according to Jeffy, there are no borders, nor do we have any right to them. We aren’t even a,Lowe’s to screen out visitors to our country if they are k own child rapists.

    3. I can tell you that it does bother me on principle, but just because something isn’t perfectly libertarian doesn’t mean it isn’t vastly superior to the available alternative.

      The Perfect Solution . . . is a false dichotomy that occurs when an argument assumes . . . that a course of action should be rejected because it is not perfect, even though it is the best option available.”

      https://yandoo.wordpress.com/2013/12/10/perfect-solution-fallacy/

      And I’m afraid libertarians running the government isn’t yet one of the options–although I hope it will be someday. In the real world, we sometimes have to make less than ideal choices, not that the choice between the Democrats and the Republicans was a tough one on the basis of libertarian capitalism–at any time over the last two years. One was vastly superior to the other.

      Meanwhile, even though we make the best of the choices that are available to us, that doesn’t mean we need to pretend the best option isn’t flawed. There’s no good reason to stop criticizing the stupidity or wrongness of the people you vote for whenever they’re stupid and wrong and to the extent that they’re stupid and wrong.

      1. Let’s use a single issue as an example.

        On Biden’s campaign website, he promised to reinstitute the assault weapons ban, register all the assault weapons that are currently in circulation, ban the sale of both weapons and ammo online, and he promised to institute a national relinquishment confiscation plan in conjunction with local law enforcement.

        Read it all yourself here:

        https://joebiden.com/gunsafety/

        Do you imagine that Trump was just as bad as Biden on gun rights because Trump supported a bump-stock ban?

        I wish Jorgensen had been one of the options to actually take control of the White House, but she really wasn’t. Rational people understood that if Trump didn’t win in 2020, Biden would take control of the White House, not Jorgensen.

        Usually, it doesn’t really matter whether the White House is controlled by Democrats or Republicans. That was the case during the Bush and Obama administrations. They were both in favor of expanding government control of healthcare, Bush with the Medicare expansion and Obama with ObamaCare. They were both neocons and into foreign wars of liberation. They were both in favor of using our future taxpayer dollars to bail out Wall Street investors and deadbeat homeowners. Hell, Obama even raided state legal medical marijuana clinics in California hundreds of times during his first term. On most issues, from 2000 to 2016, it didn’t really matter whether a Democrat or Republican controlled the White House.

        2020 was not one of those times. The differences between the parties have grown wide and deep, and as the Democrats have become increasingly totalitarian and socialist, it is entirely appropriate for libertarian capitalists to become increasingly Republican.

        1. What about people who value free trade, who take exception to protectionism, corporate subsidies, and trade wars?

          What about people who want police reform and end the war on drug users?

          What about people who oppose prohibiting abortion, who support gay rights, and the rights of immigrants?

          What are they supposed to do? Vote for a party that disagrees with them on every single one of those issues?

          Or are they just dishonest and retarded?

          1. What about the subject at hand instead of all that other stuff?

            1. To what extent are the Democrats superior on police reform? From Chicago to Minneapolis and from Seattle to New York City, these cities have been under the control of Democratic party machines for decades and decades, and those Democratic party machines are even more beholden to the law enforcement unions than they are to the teachers’ unions.

              What libertarian capitalist thinks that teachers unions aren’t a fundamental part of what’s wrong with our public schools, and what knowledgeable person doesn’t know that the teachers’ unions are deeply embedded in the Democratic party–from the local level all the way through the state and into the national Democratic party?

              Are there any libertarians anywhere who think Betsy DeVos did a bad job or that getting kids out from under the thumb of the teachers’ unions is one of the primary benefits of homeschooling, vouchers, and school choice? Yes, getting the government out from under the thumb of the Democratic party is part of getting kids out from under the thumb of the teachers’ unions.

              In what way are the Democrats superior to the Republicans on immigration or trade? I’m here to tell you that Trump was wrong on his objectives and that legal immigration is a good thing, but in practice, how is Biden any better on immigration? Trump was probably wrong about what a tariff driven trade war would accomplish, but progressive Democrats are fundamentally hostile to international trade for the same reasons that they’re fundamentally hostile to capitalism. Is Biden any better on trade with China?

              I’m sure if we really want to bend over backwards to find an issue that the Democrats are better on, we can find it–with a microscope. But why should we try so hard? The progressives are terrible on some really basic stuff–from free speech to spending and from entitlements to taxes.

              At the end of the day, the Republicans are not libertarian capitalists–except in New Hampshire, where a former Free Stater is now the Republican majority leader in their House. When libertarians take over the New Hampshire state government, they won’t be called Libertarians. They’ll be Republicans. I suspect we’ll see the same thing happen nationally if and when our ideology becomes predominant–and for the same reasons. With single member districts, the path of least resistance was always through one of the two major parties, and the party that wasn’t fundamentally hostile to capitalism was always the one we were most likely to invade successfully.

              I hope someday soon the Democrats abandon their totalitarianism and socialism or lose control of the House, Senate, and/or White House–so that voting for Republicans is no longer warranted. Then I can go back to voting LP or principled non-voting. Until then, as the Democrats become increasingly totalitarian and socialist, libertarian capitalists really should become increasingly Republican.

              And Donald Trump losing the 2020 election was the biggest disaster for libertarians since I don’t know when.

              1. To what extent are the Democrats superior on police reform?

                Take a look at this list:

                https://en.wikipedia.org/wiki/List_of_police_reforms_related_to_the_George_Floyd_protests#States_and_municipalities

                I only see 1 or 2 Republicans or Republican-controlled jurisdictions on that list. The vast majority of police reform proposals and policies are being enacted by Democrats in Democratic-controlled jurisdictions. For some of them, their merits are debatable, but they are proceeding with some semblance of reform. All Republicans seem interested in doing is scaring people that Democrats want to abolish police departments entirely.

          2. So you oppose “Buy American” requirements that were present in ARRA and other government funding initiatives?

            You oppose solar and wind turbine subsidies?

            Kenosha, WI is a blue city. Thankfully, they had imposed police reforms years ago to prevent any controversial police action where a person died.

            When did Carter, Clinton, Obama and Biden end the war on drugs and when did team red restart it?

            Are gay rights forcing bakers to bake same sex wedding cakes?

            Immigrants have rights that are recognized. How is team blue doing with illegal aliens apprehended along the border? They showed us a few months ago what they think the punishment from trespassing is – a bullet in the head.

            The annual average number of abortions in the US exceeds the number of COVID deaths. Do you support abortion lockdowns?

            1. So you oppose “Buy American” requirements that were present in ARRA and other government funding initiatives?

              Correct.

              You oppose solar and wind turbine subsidies?

              Correct.

              Kenosha, WI is a blue city. Thankfully, they had imposed police reforms years ago to prevent any controversial police action where a person died.

              When did Carter, Clinton, Obama and Biden end the war on drugs and when did team red restart it?

              Irrelevant. We’re talking about why libertarians must support Republicans.

              Are gay rights forcing bakers to bake same sex wedding cakes?

              Nope.

              Immigrants have rights that are recognized. How is team blue doing with illegal aliens apprehended along the border? They showed us a few months ago what they think the punishment from trespassing is – a bullet in the head.

              Again, the subject was libertarians supporting Republicans.

              The annual average number of abortions in the US exceeds the number of COVID deaths. Do you support abortion lockdowns?

              According to the article Republican governors used COVID as an excuse to ban abortions as non-essential. Who do you support abortion lockdowns?

              1. Ken was making the point why team red is a better choice than team blue for libertarian (capitalists). It is in his post. It wasn’t team red versus libertopia.

                Are 600,000 mothers’ lives per year at risk if they don’t have an abortion?

                1. Their party life is…

              2. “They showed us a few months ago what they think the punishment from trespassing is – a bullet in the head.”

                If you are referring to Ashli Babbitt, she was doing more than merely trespassing. She was at the head of a mob threatening harm to the Vice President, Congress members and staff, and their guests.

                1. She was armed with an invisible fire extinguisher. So fictitious assault with an invisible non-deadly weapon. And the trespassing.

                  Illegal aliens commit crimes including murder (only one murder occurred at the Capitol), child rape and kidnapping. Any of these happen at the Capitol (other than Ashli Babbitt’s murder)?

                  1. Illegal aliens commit crimes including murder (only one murder occurred at the Capitol), child rape and kidnapping.

                    Gee, that sounds like a rather unfair generalization, much like claiming “Trump supporters are insurrectionists”.

                    1. Exactly. I’m using the leftist argument that deadly force was ok against Babbitt and applying it to illegal aliens. It would also be murder to shoot an illegal alien in the head because they were not here legally. Glad we can agree on this.

          3. Literally every point you listed democrats are worse on.

            1. Of course they are. He doesn’t care. He’s with the democrats, despite his protestations to the contrary.

        2. Do you imagine that Trump was just as bad as Biden on gun rights because Trump supported a bump-stock ban?

          Nope, Trump is better than Biden on gun rights.

          But here’s the point: SO WHAT? We don’t have to settle for either team! We don’t have to settle for “less bad”. We actually had a candidate who was BETTER than either Trump or Biden.

          By continually demanding that we have to vote for the “less bad” Team Red candidate, while completely ignoring the MUCH BETTER candidate, you are declaring your affirmative support for Team Red, despite your professed objections to parts of their platform that you disagree with.

          1. Nope, Trump is better than Biden on gun rights.

            YOU NEVER SAID THAT! YOU HATE TRUMP! YOU VOTED FOR BIDEN! AAAUUUGGHH!!!

            1. I like the squirrel posts better. Occasionally there is some humor.

            2. Lol. You both require to be backed into a corner to admit that. Everyone here you called a trump culstist openly stated where trump was wrong without being backed into a corner.

              Again, you avoided 4 anti biden articles a few days ago with your only post being about how bad Republicans were. Stop pretending you are neutral you dishonest shit.

            3. https://twitter.com/MrAndyNgo/status/1411405322846015490?s=19

              An Asian man wearing a “Rooftop Korean” shirt near the Wi Spa protest where antifa have been beating people was assaulted on camera. He uses a bottle to defend himself from the assailant, who then runs away. [Video]

              You can see in the video that the assailant kicked the Asian man in the crotch first before he hit the attacker away.

              Antifa accounts depend on lies and deception to legitimize their violence. #StopAsianHate

              1. The Antifart should’ve been DDT’d into the concrete.

                1. They’re a domestic terror organization. And given the tacit support of the democrats, now they are too.

              2. Would be good to see a minute before the activities commenced. From the video it looks like the Asian man was doing nothing that warranted assault and battery. Good for him for using force to defend himself.

          2. name one libertarian president? you can’t. engage reality. as much as everyone reading reason would like a libertarian president, it’s not going to happen. we have a 2 party system and that it reality. always has been and always will be.

            1. Thomas Jefferson

              1. would you take a $100,000 wager on the libertarian candidate loosing in 2024? i’ll make that wager any day of the week. i have the cash.

      2. I have a really hard time using the words, vastly superior, to describe “less inferior”.

        1. “I have a really hard time using words.” Ftfy.

          1. Indeed.

    4. Coercing ignorant people to take a sometimes-deadly, experimental drug with no liability is unconscionable.

      1. Get into the shower! Jetzt!!

      2. “a sometimes-deadly, experimental drug”

        Is that your description of the new vaccines based on mRNA? I would describe them as a marvelous achievement of humanity and science, the best thing to come out of this shitty pandemic, and the one thing that is setting us free from it.

        1. Has the new vaccine resulted in deaths? How long was the vaccine trialed as compared with other recently approved vaccines? You are ok with big pharma not having liability?

          I was still free during the pandemic craze. Lockdowns were a result of government, not covid.

        2. it is absolutely experimental. an drug not approved my the fda is experimental. it is also unnecessary. if the pandemic were handled properly we would not need any vaccine.

          1. if it were ignored no vaccine would be needed.

            Your statement is just a politically motivated lie, Trump hater troll

            1. you’re wrong again. i’m neither a trump hater nor a troll. in fact i voted for and supported trump. i simply stated a fact. you assumed that i was disparaging trump, but in fact i was talking about the tyrannical governors. my point if very simple: if we had zero lockdowns and we allowed the virus to do what it does we would have reached herd immunity without a vaccine. this is just true.

  9. Here is every single individual named in the article:

    Politicians who trampled rights (and professors who egged them on);

    Andrew Cuomo NY – Democrat
    Gavin Newsom CA – Democrat
    Michael Dorf Cornell Law Professor CNN and The Daily Show contributor.
    Tom Wolf PA – Democrat
    Alex Villanueva Los Angeles – Democrat
    Phil Murphy NJ – Democrat
    Charlie Baker MA – Republican
    Steve Sisolak NV – Democrat
    Sec of Health Andrea Palm WI – Democrat
    DOH Amy Acton OH – Democrat (appointed by Dewine to be first woman DOH dir)
    Gretchen Whitmer MI – Democrat

    Judges who stood up against government intrusion:

    USDJ William Stickman – Trump appointee
    USDJ Douglas Woodlock – Reagan appointee
    USDJ Myron Thompson – Carter appointee (abortion only)
    Samuel Alito – Bush 43 appointee
    Clarence Thomas – Bush 41 appointee
    Neil Gorsuch – Trump appointee
    Brett Kavanaugh – Trump appointee
    John Roberts (eventually) – Bush 43 appointee
    Amy Comey Barrett – Trump appointee
    WI Supreme Daniel Kelley – Scott Walker appointee
    WI Supreme Rebecca Bradley – Scott Walker appointee
    Lake Co OH judge Eugene Lucci – elected as Republican
    Erie Co OH judge Roger Binette – elected as Republican
    MI Supreme Court opinions authored by Stephen J Markman – Engler (R) appointee
    USDJ J Campbell Barker – Trump appointee
    USDJ J Phillip Calabrese – Trump appointee
    USDJ Mark Norris – Trump appointee
    USDJ Dabney Friedrich – Trump appointee
    TX Supreme Jimmy Blacklock – Greg Abbott appointèe

    Judges listed as hostile to indifferent to individual rjghts
    Sotomaypr – Obama appointee
    Kagan – Obama appointee
    Breyer – Clinton appointee
    Jon Roberts (sometimes, all over the map) – Budh appointee
    Ginsberg – Clinton appointee

    So, in Reasonspeak, we can clearly see this is a “bipartisan” problem, and, To Be Sure, Both Sides are equally bad, one for not being 100% pure, and the other for being 99% wrong.

    1. mic drop

      1. Still waiting on sarc and Jeff to get down here. They keep prattling on above about how I cant prove anything and there is no partisan team difference (despite their going to bat exclusively for one team always in every situation – the Awful team).

        I guess their screens are cracked at the bottom.

        1. Ken’s pointed out that jeff is dishonest, but that’s merely a symptom of being too stupid to understand that facts matter. As a result, he simply keeps repeating the lies as if claiming something will make it real.
          Sarc, OTOH, is ‘clever’; he changes the subject or moves the goal posts and hopes no one notices.
          Pretty sure both have muted me, so assuming they address the issue, we’ll see how they do.

        2. The partisan difference is not as stark as you make it out to be. Some Republican judges voted in favor of some pandemic restrictions and some Democrat judges voted against some pandemic restrictions. As usual, reality is more complex than these reductionist tribal narratives.

          1. Lol. It is more stark shit for brains.

            1. If one Jew denies the Shoa then neonazis and Jews can agree, in bipartisan fashion, that it did not occur.

          2. “The partisan difference is not as stark as you make it out to be.”

            You.
            Have.
            Been.
            PROVEN.
            To.
            Be.
            Full.
            Of.
            Shit, lying piece of lefty shit.

          3. So by this logic the Nazis weren’t so bad because Schindler existed. Good on you getting back to your roots there.

          4. Which ones? How many? List them you mendacious fuck.

        3. See below: jeff managed to find a couple of other circumstances where an R judge voted the other way, therefore, uh, not all R judges voted the same way.
          So THERE!

          1. Bipartisan!

    2. Well, now let’s take a look at some inconvenient facts. Inconvenient for your case, anyway.

      From the article:

      Although the Pennsylvania Supreme Court rejected the FPC’s application for extraordinary relief, three justices strongly dissented, and their opinion seemed to sway Wolf.

      These three justices are Justices Wecht, Donohue, and Dougherty. (Ref. 1) All three are elected Democrats. (Ref. 2)

      From the article:

      When the Wisconsin Supreme Court overturned that state’s lockdown in May 2020,

      This decision was a 4-3 decision. The four in the majority were Roggensack, Ziegler, Rebecca Bradley, and Kelly. The three in the minority were Ann Bradley, Dallet, and Hagedorn. (Ref. 3) Wisconsin Supreme Court judges are elected in a “nonpartisan” election but according to Ballotpedia, Ziegler, Roggensack, Kelly, and Rebecca Bradley are conservative-leaning. However, Hagedorn, who voted in favor of the lockdowns, was appointed by Scott Walker, Republican.

      From the article:

      The Michigan Supreme Court expressed similar concerns when it overturned Democratic Gov. Gretchen Whitmer’s COVID-19 restrictions in October. During a “public emergency,” the state law cited by Whitmer said, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.”

      This decision was actually complex, there were two parts and the judges did not agree on the resolution to either part. For each part, the vote was 4-3. For the first part, the majority was Markman, McCormack, Viviano, and Bernstein. For the second part, the majority was Markman, Zahra, Clement, and Viviano. (Ref. 4)

      Markman, Viviano, Clement, and Zahra were appointed by a Republican.
      McCormack and Bernestein were elected as Democrats.

      So yes you are right that if you only look at the namechecked people in the article, they are 99% Republicans. But if you actually dig into the cases, you will see that the narrative is not as simple as “R = Pro-Liberty, D = Anti-Liberty”. Some Republicans voted in favor of the lockdown orders, some Democrats voted against.

      1. Reference 2
        https://en.wikipedia.org/wiki/Christine_Donohue

        Donohue ran as a Democrat for the Pennsylvania Supreme Court in 2015, and was part of a Democratic sweep of all three court vacancies, along with Kevin Dougherty, and David Wecht.

      2. Like they’re going to let facts get in the way of the narrative.

        1. So you found some other cases where not all judges opposed are Rs? Amazing!
          Kick up enough dust, jeff; maybe you can make it hard to see.

          1. Bipartisan!

        2. What facts? I listed the facts that aren’t in dispute

          1. Mind you, I didn’t write this article. It would be one thing if I had written the article and only included examples to bolster my narrative.

            No, this article was written by Lord of Sullum, King of Both Sides, Emperor of Republicans are always Pouncing and Just as Much at Fault. He compiled a comprehensive list and listed every example he could of politicians overstepping their legal power, and brave judges who fought them back. And unknowingly, he painted a picture where the 99% of the Good Guys wear Red hats, and 99% of the Bad Guys wear Blue hats. THE TRUMP-deranged, Orange Man Bad, Biden voter managed to name check 10 Trump appointed judges for keeping us free.

            1. Yup that is your simplistic narrative. Good vs. Evil, Team Good (Red) vs. Team Evil (Blue). It’s no more complicated than that! Ignore the Democrat judges who voted to keep gun stores open during the pandemic, and ignore the Republican judges who voted to keep lockdowns going.

              1. Poisoning the well and the reverse (sanitizing the well) are logical fallacies.

                1. You mean, like calling Republicans the “good guys” and calling Democrats the “bad guys”? Is that a logical fallacy?

                  1. Correct. Pelosi and Harris aren’t guys. But they are still bad.

                  2. The democrats are definitely the bad guys.

      3. Somehow Reference 1 didn’t make it. Here it is again.

        Reference 1
        https://www.firearmspolicy.org/pa_gun_shops_open_covid19

        On March 19, 2020 Governor Wolf released an Order, requiring the closure of all “non life-sustaining businesses.” Included in the list of businesses to be closed were firearms retailers, as apparently Governor Wolf doesn’t consider the Constitutionally guaranteed right to keep and bear arms ‘life-sustaining’. Firearms Policy Coalition’s Director of Legal Strategy Adam Kraut, along with well-known firearms attorney Joshua Prince, immediately challenged Gov. Wolf’s order directly at the Pennsylvania Supreme Court, invoking the Court’s King’s Bench jurisdiction.

        While the State’s Supreme Court denied the King’s Bench petition on Sunday, Justice Wecht, joined by Justices Donohue and Dougherty, filed a strongly worded opinion in favor of protecting the right to keep and bear arms. The forced closure of gun shops throughout the entire Commonwealth, they said, was an “impermissible intrusion upon a fundamental constitutional right,” and that local gun shops could make accommodations in the name of social distancing just as other necessary, life-sustaining businesses have done.

      4. Gee what a surprise. Our resident troll decides to go silent when his whole narrative is undermined.

        1. It wasn’t undermined you dumbshit. Unlike you, the side you call team red doesn’t dwell in the nirvana fallacy. There are shit judges on both sides. Most of them are on your side.

      5. That’s it? Markman authored the decisions, but was joined by other Republicans and a Democrat? Gotcha?

        This was you Woketarian shitheads One chance to try to keep the mask on. After insisting that Cancel Culture is bipartisan, and the coming $6T New Green Infrastructure Deal is bipartisan, and insisting that Critical Race Theory is simultaneously Not Real, Only Taught in Universities, and Has to be taught by a experts to our kids, your stubborn refusal to acknowledge the obvious when it is inconvenient for your ultra-partisan ultra-authoritarian, ultra-progressive, ultra-evil side should leave no one, not even yourselves, with any doubt who you really are.

        1. You are the one being the partisan dickhead here by offering nothing more than a comforting tribal narrative, when reality is more complicated than that. You are gaslighting and narrative-pushing. Where are your references? All you have is sputtering rage. That is why you are a troll.

          1. I opposed Trump’s stimulus checks, increases to unemployment payouts and any red state that had mandated mask laws.

          2. “You are the one being the partisan dickhead…”

            Steaming pile of lefty shit is too stupid to see the projection.

  10. Well that’s an optimistic take on things — a few judges stopped a few states’ worst policies because they didn’t follow the letter of the law. The COVID lockdowns still allowed power-mad governors to interfere in every aspect of economic life over a virus that was mostly dangerous to people who were too old or too sick to work. And instead of facing federal civil rights charges, the rogue governors were lauded by the press. At least Newsom is getting recalled, which may or may not work, but it did get him to lift the restrictions eventually.

    1. Not all.
      Newsom (and SF mayor Breed) retains his “emergency powers” and there remain specific mask requirements.
      Pacific Legal Fund’s been working on the issue; they got the bucks this year. IJ seemed to dismiss the power grabs; they got a nickel.

      1. the wa gov, inslee, retains his emergency powers too. he has the iq of cat but was elected 3 times. he’ll never give up his power and sadly the idiots in seattle love him and his quest for more power.

    2. It is a headscratcher to me. If anything, the past year has been a long and constant example of the fact that the constitution is dead, rule of law is completely selective, and the bulk of the population is beyond stupid. Judges only had some limited impact on a few of the most egregious unconstitutional power grabs. Reason itself was fairly lame in calling out the power grabs and in many instances has been supportive of the liberty crushing actions (including vaccine passports.) I really do struggle to see much difference between Reason writers and progressives on far too many issues. At best the difference is progressives outrightly claim socialism while Reason makes arguments from within a Marxist framework.

      1. And why then do you spend your valuable time at the Reason website?

        1. I come here for your accurate and informative posts.

          1. And you are constantly disappointed.

      2. I strongly sympathize with the sentiments described here.

      3. i agree with much of what you say. the other thing this last year did was to show us that most of the population, especially in blue areas, are idiots. just look around at the morons wearing masks, two masks, masks after being vaccinated, wearing a mask driving their cars alone, believing they can die and any minute, etc. it showed us who the sheeple are and that is useful.

  11. Wait. I’m supposed to believe the Constitution isn’t dead?

    1. Yes. Now wear your mask.

  12. The defeat of our society’s vestigial clingers — disaffected, intolerant, irrelevant, backwater, right-wing fringe-dwellers — has reached the ‘lamentations of their women’ phase.

    Carry on, clingers . . . but only so far and so long as your betters permit. You get to whine about it all you like, of course . . . but you will continue to comply with the preferences of better Americans.

  13. Hot take: you people did fuck all to protect the constitution over the past year and a half.

    Endless whining over the great threat to the US constitution that is basic pandemic hygiene. The occasional both-sides snark directed at the actual attempt to set the US constitution aflame and replace it with the brain farts of a fat pumpkin.

    You’re not mad that the state had to take measures to protect public health. You’re mad that the ridiculous things you believe were tested to death by a natural disaster. You’re lurching for the low-hanging bullshit like masks. Yes, freedom was restricted during the pandemic. Not nearly restricted enough, if you’d ask any of the millions of dead.

    1. I didn’t wear a mask, didn’t get vaccinated, continued to work, didn’t get anyone sick and didn’t die. Thankfully I wasn’t living in one of Cuomo’s retirement homes How is Plato’s cave working out for you?

      1. How do you know you didn’t get anyone sick?

        Did you also reject the polio vaccine, or had you already managed to squeeze that one into your cultural bubble by the time you started forming complex thoughts?

        1. Because I wasn’t sick.

          Correct. I also have not been vaccinated for polio.

          1. Are you aware of just how deadly pathogens are to the human species, historically speaking?

            1. Yes I do.

              1. I’ll be terribly disappointed if this is the version of libertarianism where you expect everyone else to shoulder all the costs for your benefit. At some point it just becomes being a dick.

                1. Exactly. I’m in a low risk group and put nobody at risk due to my actions during the government pandemic craze. Glad we can agree on this. Folks that needed to make changes in their life due to covid should have done so. For people in high risk groups that would have included social distancing and getting vaccinated. And perhaps not going to the salon.

                  1. If you took steps to put nobody at risk, then you conformed to the “pandemic craze.”

                    I do think a little art is necessary in public policy to convince people that they’re making decisions for themselves, especially in this culture.

                    1. I did conform to how I lived in 2019. Even had sufficient toilet paper.

                      I did make some money changes due to the inflation and in preparation for the dollar cost of goods. So you can count that.

                    2. Even in the face of a virus previously unknown to science, you have it all figured out.

                    3. I choose not to participate in hysteria. There will be more pandemics.

                    4. Even in the face of a virus previously unknown to science, you have it all figured out.

                      It wasn’t totally unknown; the Chinese leaked it out of their lab and then tried to cover it up.

                    5. Nobody called for hysterics, just basic hygiene. Which caused hysterics in some people.

                    6. “Nobody called for hysterics, just basic hygiene. Which caused hysterics in some people.”

                      Lefty shitstain hopes his lied might be believed by someone here, and I can think of two or three equally brain-dead lefty shits who will go for them.

                    7. I continued to engage in my normal hygiene regimen. I get sick about once every three years so it works well. I also had plenty of toilet paper during the hysteria.
                      Basic hygiene = nuking the economy? Please post where a few team red members supported those draconian measures so you, racist jeff and Dee can grostulate over “bipartisanship.”

                2. “At some point it just becomes being a dick.”

                  At some point, shitstain here should apologize to the world for being a waste of oxygen.

    2. Progressive states fared far worse than conservative states by death rate, and try desperately to blame their failure of weather and city density, despite the fact that all of those variables were known when they predicted the exact opposite outcome.

      Why can’t progressives learn from their own failures? Ignorance, ego, and stubbornness? Dishonesty about motives and outcomes?

      1. They just need more money so they can get it right next time.

    3. I did “occupy” the people’s house during a peaceful protest, but I was shot in the face – A Babbitt

      1. Good thing your penis wasn’t cut off – A Bobbitt

        1. Your erotic fantasies are of no interest to anyone here, cowardly piece of whit.

    4. “Hot take: you people did fuck all to protect the constitution over the past year and a half…”

      Hot take: Shitstain is:
      Full.
      Of.
      Shit.

    5. “More restrictions of freedom would have saved my life!”

      -ghost of NY nursing home COVID patient

    6. you’re one of the idiots who are still wearing your masks. what a moron. i never changed my life during all of this. i traveled, ate out at restaurants, when to the theater, went to bars, hotels, did not wear a mask except when forced to by tyrannical businesses, and have not received the vaccine. i’m still alive and never got sick. just amazing.

      1. And you know for sure you have not been a carrier, spreading COVID-19 to others?

          1. and even if i was it’s irrelevant. the best course of action for our country would have been to stay full open, allow people to protect themselves if they need to, let the young & healthy get the virus so we can get to herd immunity. the number of cases is irrelevant. you’ve been drinking the liberal rona koolaid.

  14. “Cuomo’s sudden turnaround was not hard to understand given the looming threat from the COVID-19 pandemic, which would ultimately kill more than 50,000 New Yorkers.”

    Excuse me, but you mean killed by Donald Trump.

    1. He can take credit for the other 550,000 if he wants.

      1. More have now dies this year than last. Biden your hero still?

        1. Biden claimed on the campaign trail he would end covid his first day in office. Mission uncomplished!

        2. Mostly red state anti-vaccine people.

          1. Nope.

        3. I could have warned you that the whole Republican thing was going to end in suicide by stupidity.

          1. More delusional bullshit from our resident idiot Marxist.

  15. It doesn’t seem particularly difficult to hold two core principles simultaneously. First was mentioned in the article –
    the Constitution sets certain lines that may not be crossed, even in an emergency.
    Second is the aphorism –
    Sometimes it’s better to ask forgiveness than to seek permission

    Seems to me that common law works better in an emergency than statutory/civil. Seems to me that what was really missing in the US was any common understanding of what an emergency is.

    1. Stuff your PANIC flag up your ass and sit on it, you cowardly piece of lefty shit.

  16. All the work is shown below.

    Of the 35 individuals named in the article, pols and judges, all but one of the bad actors was a Democrat. All but one of the “heroes” of the piece were Republican. Only 2 were local elected judges elected in Ohio on partisan ballots as Republicans. They both stood in Republican primaries.

    Sarc and Jeff are doing everything possible to avoid the comprehensive list. I imagine they arw furiously Googling to try and find a mistake. The overwhelming majority of good judges were appointed by Trump, some by Scott Walker and Abbott, most of them Federalist Society picks, which is why the Federalist Society is so important, as is electing Republicans prone to appoint them.

    1. And if you only focus on 35 names mentioned in 1 article on the subject, you get a misleading picture of what really happened during the pandemic.

      What about the 3 Democrat judges in Pennsylvania who voted to keep gun stores open during the pandemic? Are they “heroes”?

      What about the 2 Democrat judges in Michigan who voted to overturn Whitmer’s lockdown order? Are they “heroes”?

      It is stupid to look at this issue in simplistic reductionist terms like “heroes” vs. “villains”. That is for comic books and for simple-minded fools who cannot handle the complexity of the real world, and need comforting binary thinking to help them make sense of it. It is also for demagogues and propagandists who deliberately don’t want you to look at the world as it really is, but who want you to believe their comforting lies and fairy tales about “good vs. evil” in pursuit of power.

      1. No Tony, the public school teachers are the real heroes.

      2. So shit-for-brains here really doesn’t want us to focus on the 35, he’s rather we focus on the 5 outliers HE found.
        Again, yes jeff is dishonest, but that’s a symptom of his abysmal stupidity.

  17. O/T: Well, GETTR isn’t quite going as well as planned.

    https://slate.com/technology/2021/07/gettr-donald-trump-jason-miller-signup-account.html

    1. An account purporting to belong to far-right celebrity Nick Fuentes has also called on his “groyper army” of followers to take over GETTR, and the platform has reportedly begun to suspend some of these users as well. His first post on GETTR read, “Shalom Groypers, time to violate TOS [terms of service].”

      So the first thing that a guy like Fuentes tries to do is to break the platform.

      1. If I wanted to take a platform down, I would try get as many trump supporters on the platform as possible until Jeff Bezos canceled their cloud server contract, Apple and google banned their apps, and their certificate provider revoked them, and all payment processors refused to do business with them.

        It’s a crazy notion and we’ve never seen anything like it, but it might just work.

        1. Sure, because the only reason Parler got in trouble was because Trump supporters hung out there. That was the only reason. Yup that’s all.

          1. Need help with that strawman, asshole? Mike and sarc are all over the place; maybe they’ll quit making shit up long enough to help you.

          2. It’s not like Boko Haram never had a twitter account.

            “Oh but they banned the twitter account”

            Well, that’s good, because I sure would have hated to see Twitter entirely shut down over the awful stuff that exists on their platform.

            You really can’t see down the rabbit hole of your own logic.

  18. Biden is in power, the Democrats are trying to Federalize the elections while having the Presidency, House and Senate plus fight every single election integrity law in Red states while Blue states have much more restrictive rules to keep conservatives from voting. They are also trying to pack the courts with liberal Constitution hating Judges that have actually proposed the US Constitution be re-written. Also make liberal cities into states. It is to early to see if Covid killed the Constitution or not just yet. 2022 and 2024 will finally give us the answer.

    1. “Also make liberal cities into states.”

      ???

      1. Probably a reference to DC statehood.

        1. Oh.

  19. I can’t believe that so many Americans were so willing to give up their freedom and their rights to assemble, worship, and travel. I refused to do so. The only change I made was working from home most of the time (I only went into the office two days a week for a half a day), but that was fine with me since I was retiring in late 2020 anyway. If the company was willing to pay me for working from home, I was happy to do that. Luckily, I live in a conservative state and our Governor didn’t impose draconian measures across the board. My county let us make our on decisions as to risks we wanted to take. Freedom is a good thing. Let’s do it again!

  20. I refused to do so….. My county let us make our on decisions as to risks we wanted to take.

    Refusal means you were given orders and intentionally ignored them. If you weren’t given orders then there was nothing to refuse.

    1. Are we to suppose that’s somehow germane, or just keyboard diarrhea?

    2. He refused to cede his liberties. Guessing you get a lady boner just thinking about government suspending civil liberties and giving orders to people.

      1. I’m sure Sarc’s clitoris was at least half mast.

  21. Excellent article. Thank you. One complaint. 50,000 dead from covid in New York. I have a problem with all the covid death numbers. For obvious reasons. But again, Excellent article.

    1. At this point, just looking at the excess death numbers is reasonably productive over a longer timeframe. Shorter-term, still gotta do the best you can at trying to figure out which deaths might be deemed potentially contagious. That’s about acquiring knowledge not deciding policy. We are still at an overall death rate that is 1-4% higher than expected which may well persist near-forever (until the ‘expected’ number gets adjusted up over time) since we are also at/near max uptake of vaccine. The virus will keep mutating.

      New York in particular looks like an extreme outlier re ‘covid deaths’. Their deaths attributed to covid was significantly higher (roughly 15,000) than their total excess deaths over the last year. Which indicates one of two things to me:
      1) they attributed deaths to covid of people who would have died very soon anyway (the nursing home stuff)
      2) they attributed deaths to covid in situations where the cause of death is likely something else (not a surprise where the disease hits hard early on before the testing even ramps up)

      That significant disparity is unique to New York. Not even New Jersey or MA or CT – where covid deaths are roughly equal to excess deaths – had the same thing happen.

      1. Stuff your PANIC flag up your ass and sit on it, you cowardly piece of lefty shit.

      2. It’s OK if people die if they’re old anyway.

        Freedom! Free market!

        1. You really are stupid. I’m amazed you remain unmurdered.

        2. Fact is that a death is different if the attributed cause is just one in a list of causes that are competing to be first in line to be ‘THE’ cause.

          If you can’t deal with that knowledge because it makes you uncomfortable, then you’re as willfully ignorant as the ‘just the flu’ assholes who infest these comments.

          Because that knowledge of how a death is attributed is not the same thing as knowledge of whether or how much a death actually happened that cut short someone’s life. I’ve already said elsewhere that total excess death rate in NY in 2020 was comparable to excess death rate in Florida. Much lower than the excess deaths in CA, TX, NJ, AZ.

          You’re not – I assume – asserting that life is eternal with the appropriate political choices are you? And ain’t nothing in 2020 in NY that was ‘free market’.

          1. But it is not fraud or deliberate misrepresentation. As you recognize there is a level of uncertainty involved. So the death rate is an estimate, not a hard number.

            1. I agree it isn’t misrepresentation. But the uncertainty of an aggregate death rate is far lower than an individual death.

              A doctor has to treat the patient in front of them. Their outcome is binary – live or die – not probabilistic.

              Policy though really has to made at an aggregate level – where of 330 million people, 55,000 will die every week of something. Yes it is probabilistic. That does not mean it is a fake reality. Merely that at that aggregate level, the law of large numbers is the ONLY reality. Deciding policy on individual outcomes means policy will flip from heroic ‘save everyone’ to ‘we will vanquish the virus’ or ‘you all should die if it costs even the time for me to think about your problems’.

              We use probabilistic knowledge in making individual decisions. But what became obvious over the last year (but really was obvious all along) is that the majority of people will completely ignore those probabilistic outcomes that they don’t want to hear. They will make shit up if needed. Or kill the messenger.

              It does create an issue re – how would Hayek rewrite his knowledge article knowing that we aren’t as rational or interested in making good self-interested decisions even for ourselves as we might think.

            2. As an aside, you can slice info a different way even if the motivation is just data-mining. eg covid-attributed deaths as a % of total excess deaths. provides hints of whether covid may have been exaggerated or covered-up – or whether other causes of excess death beyond direct covid may have been an ignored factor in policy. Or whether a lockdown was too early or too late to prevent hospitals from seizing up.

              The majority of states ran numbers from 65% to 90%. At one extreme there is NY – with 155% of excess deaths attributed to covid. At the other extreme, AL – with 35% of excess deaths attributed to covid. But this doesn’t fit a partisan narrative because their neighbors – MS and NJ – are roughly in that near-middle – MS at 75%, NJ at 105%

              All sorts of info that could have been collected/analyzed in real time – that wasn’t. And I suspect that was either because people wanted to lie with numbers in order to support a political narrative or were fearful of getting killed by talking about stuff that didn’t fit narratives.

      3. NY had a lot of deaths early on, because there’s a lot of illegals living like roaches in dense housing, shitty public hospitals that were overwhelmed under the best days prior to Covid, criminally awful nursing homes that were staffed by off-the-boat third world migrants, and a large morbidly obese population of fat disgusting and lazy fat people.

        Crowding.
        Bad healthcare.
        Unhealthy people.

        Add to that an incompetent Democrat leadership, NY was doomed.

        Only the prestigious private hospitals and nursing homes had the space and staff to handle the sick… and then they killed patients by aggressively putting them on ventilators and refusing to use hydroxychloroquine. They had the resources and squandered it, because they made a fortune off every Covid death.

        Really bad combination of things in the public arena, but also bad in the greedy private arena.

        1. You are completely missing the point too. With a ton of stupidity attached to your nonsense.

          NY was not unusual at all – over the course of the whole year – re the number of excess deaths in 2020. The average state had 20% excess deaths in 2020 – NY had 21%. What was unusual was the attribution of those deaths. That’s IT.

          Using this as an excuse for your political horseshit is – stupid. Using it as an excuse to practice medical fraud for the purpose of killing others is – evil.
          I doubt you remotely understand the difference.

          1. Yeah, you cowardly piece of lefty shit, all those folks jammed back in the nursing homes had no effect on the death rate at all.
            Are you that stupid, or are you hoping someone reading your bullshit is stupid enough to believe it?

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  24. The Constitution survived COVID-19 because THE CONSTITUTION DON’T PLAY!

  25. The real drama is not about binary politics.

    It is more about human nature. We had a very serious new disease which quickly spread around the world. Humanity had no idea how to cope with it. It was hardly understood. Responses varied from one place to another.

    The libertarian question is about the role of government in public health. Most would say that government should not restrict personal liberty in that situation. People should make their own choices.

    The fear was that a sort of tragedy of the commons would occur as common resources, mostly medical, would be overwhelmed. That did happen in some cases. Most recently in India.

    Many mistakes were made. Getting back to human nature, fear and panic is a normal response and it leads to poor judgement and misleading information.

    I don’t see it as a partisan issue.

    1. Youre a liar.

      The corona virus is not a disease. It spreads. Covid is SARS 2 the bodies whacked out immune response, that cannot spread.

      1. All a virus does is replicate. Here is how this one does.

        https://www.sciencedirect.com/science/article/pii/S2405844020315863

        To replicate it needs a host.

        You and I are the hosts.

        Got your vaccine yet?

        I would encourage it.

  26. They will never be able to pull this off again. Fool us once…

    1. We have powerful weapons now. They should never need to. Also as you point out people had hit the limit of what they would put up with.

      1. No a few have reached a limit. The majority in big Leftist cities will fling themselves off precipii if their Masters use the media to demand it.

        I say ” go for it!”

  27. Lots of lies on this site…very subtile:

    “enforce constitutional limits on public health powers.”

    Public health functions are NOT CONSTITUTIONAL so the C is irrelevant.

    The lying writers here are bent on framing non govt entities as Constitutional…

  28. The commie fvcks on nbc just tried to link the 4th of july with covid, racism and CRT.

    Pathetic liars

  29. What judges limited the executive’s power? The executives really didn’t have the power anyways since the constitution doesn’t have a suspension clause.

    But judges were for the most part A-OK with unlimited executive authority which in the end was a disaster.

  30. If its not dead in PA its on life support. You had a Gov who declared a state of emergency and keep doing it for over a year, even after any “science” deserted him. He forced nursing home to take sick people and killed thousands of seniors. The only way we got power away from him was to vote for him to stop and he said he didn’t care about the vote. He just continues to declare the state of emergency over and over.

  31. . . .and Sullum supported the election of a guy who thinks that the government should have MORE power . . .

    But at least he doesn’t post mean tweets!

  32. Well, I’ve got this one.

    Because it was already dead. Only thing left to do now is pile some more dirt on. Maybe exhume the body and see if there’s anyway to kill it some more.

  33. This pandemic or whatever you want to call it, gave no right or power to governors and mayors to do what they obviously thought they had the power to do:
    Violate the Constitution. And now even the Bill of Rights is under fire.
    The Democrats have now determined that what ever speech they don’t like is misinformation.
    Don’t argue with us. We are your masters and you are the peons. So shut your mouths an do what you’re told. Accept whatever we say is the truth.
    Sure sounds like tyranny to me.
    At this point the Democrats have finally revealed themselves: as totalitarian.
    Damn the Constitution, full speed ahead!
    So now we see the fruits of their labors: Newsom is being subjected to statewide recall. Cuomo is under investigation for all the deaths he caused in nursing homes, not to mention the sexual assaults on his female employees.
    Michigan Gov. Whitmer is also the subject of recall.
    Worse, is the economic damage done to the cities and states with the longest lockdowns. The damage that has caused people to drink heavily, drug usage increased and even suicides by young people went up.
    Economic damage, the damage to people’s emotional health, public schools closed….that may be a blessing in disguise though, and the lasting damage to society in general.
    Did it stop any of the rioting in the cities?
    Have homicides decreased in the past year and half?
    Have the lock downs made cities any safer?
    The one thing achieved is the destruction of small businesses. Approx 60% of all mom and pop restaurants are permanently shuttered. How many other small businesses are closed forever?
    How many people needlessly unemployed? How many lives ruined?
    How many excess suicides?
    The government, those in Washington believing they can buy their way out of it with massive borrowing and spending with the PPP, most of which was stolen, with other bail outs , rent and eviction moratoriums and other massive spending plans that even now the Biden administration wishes to continue, have left the nation with a debt it will never be able to pay off.
    Millions now unemployed, families wrecked and the nation’s cities falling into anarchy and violence are just some of the results of Washington’s and governors mishandling of affairs.
    The results of which will be long lasting and in many cases permanent.
    Even worse, the Democrats have declared war on your civil rights.
    That’s right, the party that claims to care so much for people’s rights are in fact now planning to violate them in ways that have never been done before.
    I guess you would have to declare yourself to be one of the 57 different pronouns and pretend to be one of the opposite sex in order to have any rights.

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