Show Us the Due Process

In Michigan, the governor banned the use of motorboats on Lake Michigan but allowed canoes. In Oregon, the governor forced bars to close at 10:00 although restaurants could stay open later. In Washington and Oregon, the numbers of people attending church services were limited and required masks but demonstrations and riots were permitted to occur without interruption. And all across the nation governors forced golf courses to equip the cups on each green so that you could not reach into the hole to retrieve your ball – we all know that is where the coronavirus hides.

Virtually every state can run through a list of seemingly arbitrary and/or contradictory rules adopted in the wake of the COVID-19 pandemic by state governors using their “emergency” powers. And here is the rub. The emergency is over and yet the rules persist and new rules are added routinely. Now before you get your britches in a wad I am not saying that the pandemic is over but we are no longer confronting a crisis of the unknown so much as we are confronting an allocation of resources against an enemy that refuses to be corralled.

When I say that the emergency is over what I mean to indicate is that sufficient time has passed that “regular order” should have been restored by now. Legislatures should have met and considered both the authority granted to governors and the actions taken by the governors. There should be hearings with testimony and facts introduced to justify both the use of the power and how the power was used. The same holds true for the adoption of rules. There should have been notice, hearings, introduction of testimony and facts and an opportunity to challenge the rules in the ordinary course of business.

This is what the United States Constitution requires and virtually every state constitution mirrors those requirements. It is adherence to these principles that allow us to proclaim that we are a democracy and short of those principles we are simply another autocratic mess ruled by arbitrary authoritative decrees.

The United States Constitution not only grants powers to the executive, legislative and judicial branches of the federal government but it also denies those same branches universal authority. The Tenth Amendment simply states that authority not specifically granted to the federal government is reserved to the states or to the people individually. Now you may want to blame President Donald Trump for all of these overly restrictive rules and regulations but the fact of the matter is that he lacks authority to impose such rules. These rules and regulations are the responsibility of the state governors and they are the ones to be held accountable. I recognize that the federal government can impose restrictions on the use of federal funds that coerce state governments but that is not the case in the responses to this pandemic. And I realize that Mr. Trump tends to run his mouth with empty threats about what he can and cannot do – he is the President and not a dictator – and he has an army of men and women (including Attorney General William Barr) around him who adroitly remind him of that every day.

When a governor acts to impose these restrictions it is considered an exercise of the state’s police power. In the first instance, state legislatures must authorize that authority and they generally do with vague but constitutionally acceptable standards (health, safety and general welfare) and in most states the legislatures have granted that authority to state governors, particularly during emergencies. Most legislators – like most politicians – are generally lazy and cannot be bothered with the particulars of granting authority and so they use such broad standards that they have become known as “target” grants. The targets are overly broad, like “reduce emissions”, “safe roads”, and “improved healthcare.” They are all laudable targets but they allow the legislature to escape responsibility for the multitudes of mistake, misdirection and mismanagement that regularly occur. While it is constitutional, it is also poor government.

Having said that, the actions of the governors in exercising those police powers have limitations – particularly limitations when they impose restrictions on individual constitutional rights – freedom of speech, freedom of religion, freedom of the press, freedom of peaceful assembly and the right to petition the government. (Just as an aside, each of these freedoms includes the negative – freedom to not speak, freedom from religion etc.)

In exercising those powers, the governors are constrained to demonstrate that the action taken reasonably relates to the purpose for the grant. For instance, if the action taken is to limit personal contact to prevent the spread of the coronavirus, then “social distancing” must apply to all situations – it cannot be applied to church services and ignored for street demonstrations or political rallies. The same would true for “occupancy loads” to limit contact. In other words if you ban use of powerboats in the name of “occupancy loads” you cannot permit canoes. (Clearly the governor of Michigan was using the grant of emergency powers for the pandemic as a “cover” to bolster her “green” agenda rather than actually dealing with the health issues attended to the pandemic.) So there must be a reasonable relationship between the action and the purpose of the authority.

One of the purposes of requiring “due process” for administrative rules is to require production of evidence that the action taken is reasonably related to the action. Let’s take first the golf cup and then face masks.

Since there was no notice or hearing on the rules imposed on golf cups we have no idea what the governors considered. So let me help out. What should have been presented are as follows:

 Evidence of how the coronavirus is transmitted to the golf cup. And it is not as simple as a supposition that “if an infected person touches the ball and the ball touches the cup then the cup is infected.”
 You would have to demonstrate how the transmission occurs (including the probability), how long the virus can live on the ball (the material being a relatively smooth plastic surface) after having been struck three to thirteen times (some of us aren’t that good of golfers) and rolling through grass, weeds and trees.
 After surviving the trip from tee to green the likelihood of transfer from the ball to the cup.
 The length of time the virus can survive in the cup given the material in the cup (smooth metal, smoother plastic, and dirt).
 And the likelihood that the virus will transfer to the next ball to enter the cup or the next hand used to retrieve the ball.

I have speculated with my golfing friends that, in reality, government bureaucrats were given instructions to come up with a dozen restrictions for golf courses and they could only get to eleven until some wag who hates golfers said let’s restrict access to the cup – the heart of a golf match. Sometimes an exercise in absurdities is the best demonstration of the error in government actions. Yes, given the perfect setting in a laboratory, the transfer could happen but the probability of it ever happening in reality is less than being struck by lightening, or being attacked by a great white shark. If you have evidence that anyone in America – oh heck, the world – has been infected by the coronavirus by recovering a ball from a golf cup, let me – and Ripley’s Believe It or Not – know at your earliest convenience.

Moving onto to the masks. And here I have to deliver my routine caveat – if you want to wear a mask go ahead, if you own a business and you want me to wear a mask, I will, or I won’t patronize your business – a valid choice for either of us. If the government tells me I have to wear a mask, it should follow the rules regarding notice and opportunity to be heard, and must present evidence that the rule reasonably promotes health, safety and general welfare without unnecessarily imposing upon my rights to assemble peacefully, and to petition my government. So what should it take to adopt a rule requiring people to wear a mask when in a public setting. Here’s my list:

 Is the coronavirus transmitted with every breath? If so, how far is it transmitted – not the breath itself but the coronavirus particles? The same information regarding a heavy sigh and a sneeze.
 What is the likelihood that it transmits through the exhale of an infected person and the inhale of the person to be infected? What is the statistical likelihood of that occurring?
 Can the coronavirus be transmitted simply by passing but not touching an infected person? What is the statistical likelihood of that happening? The same information regarding a heavy sigh and a sneeze.
 What is the statistical likelihood of any of the above happening if the infected person is wearing a cloth mask? A paper surgical mask? An N-95 mask?
 What is the statistical likelihood of any of the above happening if the person to be infected is wearing a cloth mask? A paper surgical mask? An N-95 mask?
 What is the statistical likelihood of any of the above happening if both the infected person AND the person to be infected are wearing a cloth mask? A paper surgical mask? An N-95 mask?
 How long is the effectiveness of cloth mask, a surgical paper mask, or an N-95 mask assuming continuous use?
 How effective are any of these masks if the person wears it below his/her nose? Below his/her chin?

And finally, the opinion of some “jamoke” wearing a lab coat or a stethoscope is insufficient – even if he/she carries a title of “doctor” or “professor” unless there is data based on testing to back up his/her opinion. Remember, Dr. Anthony Fauci, deemed to be the foremost expert on infectious diseases, has said that the use of masks is both unnecessary and necessary – and in neither instance was his declaration based on any scientific data. That is insufficient to pass constitutional muster.

Look, all of this may seem to be pretty picky and you may conclude that we should just “wear the mask” until the pandemic is over. However, the pandemic has given rise to “rule by fiat” by the governors, mayors and others. You are losing your democracy as this continues. In fact, it is hard to say whether we should be more disgusted with the politicians who exceed their authority or the people who continue to re-elect them. Portland and Seattle take note.