Why aren’t there more lawsuits about covid-19? This is the most widespread illegal infringement upon human rights in American history, isn’t it? It isn’t the most severe– nobody is being killed, and I don’t even know if they’re being jailed (though they are, I know, when BLM tells the police to arrest someone— but that’s for another day). But as far as totalitarian reach into daily life, what else can compare? <\/p>\n
But what is the legal problem? Let’s use a hypo to think about it. Suppose the governor says that the Martians are going to invade in six months unless everyone wears a pink hat, and issues a decree under his emergency powers to fine anybody caught outside without his hat $100 and to jail them for three days. Suppose, furthermore, that he has a number of university professors agreeing with him that the Martians are going to invade but that Martians are afraid of pink hats so that will definitely stop them. <\/p>\n
How would you challenge the governor in court? <\/p>\n
You could say that this law has no “rational basis”, but that really isn’t it— the governor is sincere, and though he is crazy, so are some experts. <\/p>\n
You could say that this law is “arbitrary and capricious”, meaning that it didn’t have enough reasoning behind it. It doesn’t, really, and neither the governors nor the experts gave the matter any thought before their panicky response, but you’d lose on that too, since in an emergency the courts recognize that things have to be rushed. <\/p>\n
No, the real problem is that the Indiana statute which gives the governor emergency powers doesn’t apply. There’s no emergency. And even if the legislature wants to give the governor power to decide what is an emergency, they can’t do that. It’s improper delegation of power. It’s the same as the legislature passing a law saying that in the future, the governor order people to do anything that the legislature could have passed a law about, but without getting the legislature’s consent each time— they agree in advance that he can pass all the laws. <\/p>\n
With Covid-19, there’s no emergency now. The fear of epidemic started in January 2020 and it’s now July. Maybe it was an emergency in January, but now it’s not: it’s just a problem. We are not in a crisis. A crisis doesn’t last six months. World War II was not a crisis, for example. Something can be a big problem, threatening the lives of millions, without being an emergency or a crisis. <\/p>\n
Thus, the real legal problem is not that six-foot distancing and a lockdown is stupid–“contrary to science”, as stupid people put it– but that it is being ordered by the governor’s dictatorial decree and not by law. Legislatures pass stupid laws all the time, and governors sign them. There are limits to that stupidity, though. If a state assembly and a state senate have to discuss it— after committee hearings that discuss it, and news articles that discuss it— most stupid laws get aborted before passage. If it’s just some law an intern in the governor’s office writes and gets him to sign a week later, we lose our protection against stupidity. Instead of having an entire population’s brains and ability to ridicule bad ideas, our only barrier against stupidity is a governor’s brain– and that is a very small obstacle. <\/p>\n","protected":false},"excerpt":{"rendered":"
Why aren’t there more lawsuits about covid-19? This is the most widespread illegal infringement upon human rights in American history, isn’t it? It isn’t the most severe– nobody is being killed, and I don’t even know if they’re being jailed (though they are, I know, when BLM tells the police to arrest someone— but that’s […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1177","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/posts\/1177","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/comments?post=1177"}],"version-history":[{"count":1,"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/posts\/1177\/revisions"}],"predecessor-version":[{"id":1178,"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/posts\/1177\/revisions\/1178"}],"wp:attachment":[{"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/media?parent=1177"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/categories?post=1177"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.rasmusen.org\/blog1\/wp-json\/wp\/v2\/tags?post=1177"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}