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Historical Examples of Rule by Decree

September 14, 2020, a federal judge struck down the Governor of Pennsylvania’s covid19 decree as unconstitutional. The Supreme Court of Michigan is deliberating (as of Sept. 15) on whether the governor can keep extending 28-day emergency orders indefinitely, both as a matter of the statute and of unconstitutional delegation of powers (if the court decides the statute allows infinite extensions). The Court has the briefs posted.

The German analogy to the covid-19 decrees is the Reichstag Fire Decree. The Germany government in 1933 said there was an emergency because of Communist violence, and in an emergency the leader of the executive branch could rule by decree for the duration of the emergency, subject to being overruled by the legislature at any time.


Order of the Reich President for the Protection of People and State

On the basis of Article 48 paragraph 2 of the Constitution of the German Reich, the following is ordered in defense against Communist state-endangering acts of violence:

§ 1. Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [habeas corpus], freedom of (opinion) expression, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

Article 48 said:

If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153.

The President of the Reich must inform the Reichstag without delay of all measures taken in accordance with Paragraphs 1 or 2 of this Article. These measures are to be revoked on the demand of the Reichstag.

This was followed in a few weeks by Wikipedia: The Enabling Act of 1933,

The Enabling Act (German: Ermächtigungsgesetz) of 1933, formally titled Gesetz zur Behebung der Not von Volk und Reich (“Law to Remedy the Distress of People and Reich”),[1] was a law that gave the German Cabinet—in effect, the Chancellor—the power to enact laws without the involvement of the Reichstag, and to override fundamental aspects of the Weimar Constitution.[2] The Enabling Act gave Hitler plenary powers and followed on the heels of the Reichstag Fire Decree, which had abolished most civil liberties and transferred state powers to the Reich government. The combined effect of the two laws was to transform Hitler’s government into a legal dictatorship.

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From Vichy France:

The National Assembly gives full powers to the government of the Republic, under the authority and the signature of Marshal Pétain, to the effect of promulgating by one or several acts a new constitution of the French state. This constitution must guarantee the rights of labor, of family and of the homeland. It will be ratified by the nation and applied by the assemblies which it has created.

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Prof. Goldsmith has a September 2020 Twitter thread about US continuing emergencies.

Carter’s 1979 emergency for Iran, and Clinton’s 1996 emergency in response to Cuban shootdown, have been renewed by interim POTUSs and are still in effect. Congress gave away store on “Emergency” powers, which usually aren’t about emergencies.

He was responding to Justin Amash:

On Thursday, Donald Trump quietly renewed the national emergency declared by GWB 19 years ago today. This is insane. There is no continuing “emergency” related to the 9/11 attacks, but there is a continuing use of 9/11 as a pretext for the president and Congress to abuse power.

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