Diary

Rights Delayed Are Rights Denied

AP Photo/Lynne Sladky

After reviewing the record in this case, including numerous exhibits and witness testimony, the Court believes that Defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus. However, good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional action. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good — especially in a time of emergency. In an emergency, even a vigilant public may let down its guard of its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions — while expedient in the face of an emergency situation — may persist long after immediate danger has passed. — Honorable William S Stickman IV, County of Butler, et al, v Thomas W Wolf, et al.

We have previously noted that the slow drag through the courts to enjoin the unconstitutional orders of various state governors constitutes a blessing of those orders. Well finally, finally! a federal judge in Pennsylvania has declared some of Governor Tom Wolf’s executive orders unconstitutional. From The Philadelphia Inquirer:

Wolf’s COVID-19 business closures, limit on gatherings unconstitutional, federal court rules

by Angela Couloumbis of Spotlight PA, Jeremy Roebuck of The Philadelphia Inquirer, Sarah Anne Hughes of Spotlight PA and Justine McDaniel of The Philadelphia Inquirer | Updated: September 14, 2020 | 7:01 PM EDT

HARRISBURG — Delivering a blow to Gov. Tom Wolf’s strategy for responding to the coronavirus pandemic, a federal judge on Monday ruled that key components of the governor’s mitigation strategy are unconstitutional, including decisions to temporarily shut down businesses and limit how many Pennsylvanians can gather in one place.

“The court believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus,” U.S. District Judge William S. Stickman IV wrote in the 66-page ruling. “But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble.”

Stickman found that the Wolf administration’s policy limiting indoor and outdoor gatherings and events to 25 and 250 people, respectively, violates “the right of assembly enshrined in the First Amendment.”

The Pittsburgh-based judge also found Wolf and Health Secretary Rachel (sic) Levine’s stay-at-home and business closure orders to be unconstitutional. The ruling came two weeks after a federal judge in Philadelphia took the opposite stance in a case focused solely on business closure orders, setting the stage for the battle to continue at the U.S. Court of Appeals for the Third Circuit.

In August, U.S. District Judge R. Barclay Surrick, an appointee of President Bill Clinton, dismissed a court challenge to the business closure orders, saying that since the restrictions were temporary, they did not infringe in any permanent way on business owners’ constitutional rights. I was not under the impression that our constitutional rights were subject to temporary restrictions. And I would guess that some of those businesses Governor Wolf forced to close might have been forced to close temporarily by the executive orders, but wound up closed permanently due to the imposed businesses losses. For them, the orders amounted to a permanent restriction on the business owners constitutional rights.

The Wolf administration will file an appeal and seek a stay to temporarily block the decision, the Democratic governor’s spokesperson, Lyndsay Kensinger, said. The ruling “is limited to the business closure order and the stay-at-home orders issued in March … as well as the indoor and outdoor gathering limitations.” The decision does not apply to other mitigation orders currently in place, including the mandate to wear masks in public, Kensinger added.

Well, of course the Governor will do that; he cares about his dictatorial powers, and not about Pennsylvanian’s constitutional rights. Mayor Jim Kenney’s (D-Philadelphia) spokesman, Mike Dunn, stated that the judge’s ruling applied only to Governor Wolf’s orders, and not the restrictions imposed by the city; the people in the City of Brotherly Love will still have their constitutional rights abridged.

On July 17th, the Kentucky Supreme Court halted all lower state court efforts to enjoin Governor Andy Beshear’s (D-KY) executive orders to fight COVID-19. Then, three weeks later, the Court set September 17th to hear oral arguments on those cases, which meant that Mr Beshear’s executive orders would continue in force, without any recourse to the state courts to challenge them, for two months before the state Supreme Court would even allow arguments against them.

Of course, hearing arguments is not the same as passing judgement; there is no way of knowing how long it will take the justices to take their decision, and it could be months. Since the challenges are based on state law and the Kentucky Constitution, I have little hope that the state Supreme Court will find against the Governor. Even if the state Court finds those orders unconstitutional, the justices will have allowed them to remain in force, for at least two months, and quite probably far longer.

Rights delayed are rights denied.
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