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Supreme Court Justice Neil Gorsuch on Thursday lamented what he calls an intrusion into civil liberties by pandemic emergency decrees since the start of COVID-19 as the high court dismissed a suit on Title 42 as moot.
“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” Gorsuch, one of six conservative-leaning Supreme Court justices, said in an opinion accompanying the court’s decision (pdf) published on Thursday.
Gorsuch wrote that emergency decrees ordering vaccine mandates and lockdowns issued by federal and state executive agencies resulted in an accumulation of power in those agencies and accompanied this loss of liberties during the pandemic.
“The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government,” the justice wrote. “However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.”
This view, some experts say, shines a light on the high court’s vision of restoring a balance of power in the federal government to that more aligned with America’s founders.
“My first reaction to reading Justice Gorsuch’s comments was that the Constitution is waking up,” attorney Jeff Childers told The Epoch Times in an interview on Friday. Childers fought—and won—against local governments in a mask mandate and another vaccine mandate case in Florida.
Gorsuch’s warning came as the Supreme Court dismissed a case brought by Republican attorney generals to keep in place Title 42, the emergency measure that the Trump administration implemented in March 2020 as a reaction to the COVID-19 pandemic. Both Trump and Biden administrations used Title 42 to expel illegal immigrants.
While the state’s case hinges on the more technical question of whether they can intervene in a case in another state to keep Title 42 in place, Gorsuch’s opinion indicated that the high court believed this question is no longer relevant as the public health emergency—to which Title 42 was designed as a reaction—ended in April.
Technicalities aside, Gorsuch took the opportunity to reflect on the bigger picture: namely, what he sees as a threat to civil liberties during the COVID pandemic when “executive officials across the country issued emergency decrees on a breathtaking scale.”
Loss of Civil Liberties
The Title 42 case brought by the states illustrates this threat to civil liberties, Gorsuch, a Trump appointee, wrote in his Thursday opinion.
He acknowledged that the surging illegal immigration across the border is a “crisis,” and so was COVID. But he warned that “the current border crisis is not a COVID crisis,” and the fact that the executive branch used the pandemic as the pretext to deal with another crisis at the border is emblematic of the broader, fear-driven response from U.S. institutions that may have led to “the loss of many cherished civil liberties” during COVID.
“Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on,” the justice said, adding that violators were threatened with criminal sanctions and federal officials pressured social media companies into suppressing views they disagree with.
“They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees and warned that service members who refused to vaccinate might face dishonorable discharge and confinement,” he wrote.
Gorsuch also noted the apparent inaction of the legislative branch—state legislatures and Congress—in response to these executive decrees and how the judicial branch, which was “bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them.”
“In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation,” Gorsuch added, referring to the effort by Republican states to keep Title 42. Collateral purposes refer to purposes other than those originally intended by the decree or law.
The conservative justice warned that an important lesson from the pandemic is that “fear and the desire for safety are powerful forces,” and, citing Aristotle, noted that “even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”
“Make no mistake—decisive executive action is sometimes necessary and appropriate,” he added. “But if emergency decrees promise to solve some problems, they threaten to generate others.
“And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
A Need for Reflection
H. Jefferson Powell, a prominent constitutional scholar who teaches law at Duke Law School, echoed Gorsuch’s view that the country should reflect on what the government did in response to Covid via emergency powers.
He quoted an opinion of Supreme Court Justice Robert Jackson in the landmark Steel Seizure Case, that the founders “suspected that emergency powers would tend to kindle emergencies.”
“My only disagreement with the assertion is that I see no reason to qualify it with ‘may’ – I do not think there is any question that the intrusions imposed because of the Covid virus on the civil liberties that Americans ordinarily exercise were the greatest in our peacetime history,” Powell, who served as the Deputy Assistant Attorney General in the Clinton administration, wrote to The Epoch Times in an emailed statement.
“This is, simply put, a historical fact, which Justice Gorsuch chose (understandably) to present in non-dogmatic terms,” Powell wrote.
John Malcolm, vice president of the Institute for Constitutional Government at the Heritage Foundation, a conservative think tank, said that Gorsuch’s Thursday opinion reflected a “course correction” on the Supreme Court’s view of executive overreach that has been taking place since Justice Amy Coney Barrett, a Trump appointee, started her tenure in 2020.
A prime example of that correction, Malcolm said, was when the court ruled (pdf) in a 5-4 vote in favor of a group of religious adherents in New York who sued the state to remove COVID restrictions imposed on worship activities via emergency decrees.
The New York case, with Barrett on the bench, was similar in facts to two earlier cases in Nevada and California, but its ruling ran counter to the two earlier rulings that were made when the late Ruth Bader Ginsburg was part of the Supreme Court.
“The Supreme Court said enough—this goes too far, and [the state executive branch] is impinging on the free exercise rights of these religious adherents,” Malcolm said.
Looking at the more distant past, Malcolm noted that out of about 80 national emergencies declared from the beginning of the 20th century to today, 41 are still in effect—not including the COVID public health emergency, which ended in April.
Each one of these emergency declarations, he said, “gives the president and executive branch agencies extraordinary powers,” or power that goes beyond what the law normally prescribes.
“Now there’s something wrong with that.”
He observed that Gorsuch was making an “incredibly powerful statement” calling Americans to “not to step back and defer, but to step up and debate” during these emergencies: “Is this an emergency? Or are we going to let it curtail our civil liberties? If so, how? And in what ways? And for how long?”
Agreeing with Gorsuch’s view that these extraordinary authorities need to be seriously examined, Malcolm suggested: “What [Congress] probably needs to do is have a sunset provision that says, you can declare an emergency, but unless we reauthorize it, that emergency officially ends after six months, a year, two years, some reasonable time period.”
A Consequential Ruling to Come
According to Zack Smith, Manager of the Supreme Court and Appellate Advocacy Program in Heritage’s Meese Center, a future case in the Supreme Court may curb the power of executive agencies by subjecting their actions to a higher degree of scrutiny from the courts.
That case involves a dispute between fishing companies and the Biden administration, in which attorneys for the fishing companies asked the Supreme Court to overturn the Chevron doctrine, a Supreme Court precedent set in 1984.
The Chevron doctrine has led to the “exponential growth of the Code of Federal Regulations and overregulation by unaccountable agencies,” the attorneys for the fishing companies wrote to the Supreme Court in a filing (pdf).
Under this doctrine, Smith explained, courts must give way to executive agencies (such as the Environmental Protection Agency) in interpreting certain ambiguous laws—provided their interpretation is reasonable.
The consequence, Smith indicated, is that courts are sometimes barred from ruling against these agencies, even when these agencies interpret the law differently than the court would have.
“And that’s not really the way our system of government is supposed to work,” Smith said. “It’s not the duty of the courts to defer generally to executive branch officials. It’s their duty to interpret the law and say what the law is.”
Reflecting on Gorsuch’s comments on Thursday, Smith criticized the current “bureaucratic morass” in the executive branch: “You essentially have an executive branch agency making their own rules, prosecuting violations of those rules, and then adjudicating prosecutions—that’s a concentration of power.”
“So, if Chevron is overturned, that would be a very big decision—and we go a long way, I think, to restoring the proper balance of power between our different branches of government,” Smith said.
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