Resolved: No More Playing Along With The “Lockdowns”
The “pandemic” is a lie. The official responses are ruinous and illegal– even Michigan’s Supreme Court says so in no uncertain terms. It’s time and past time to stop being an enabler and start being a rock on which the tide of despotism breaks.
A new year, and a point within it traditionally dedicated to reflection and resolution, followed by renewal of the good and rejection of the bad. It is at this point each year that we are supposed to evaluate the past and apply corrections ranging from tweaks to complete turnarounds.
Seldom have such practices been more important than right now.
I’M NOT GOING TO RECITE the long, dark list of social and political pathologies to which Americans have sheepishly allowed themselves to be subjected during the last 10 months, any and all of which qualify for attention. Either you know them by now or you are incapable of recognizing or acknowledging them however much they are eating out your substance.
Instead, I am going to focus on just one thing in regard to which reflection, resolution and spiritual renewal are desperately needed– albeit, one thing with very considerable heft. I refer to the imposition of closures and restrictions aimed at business-owners by nominal executive officers of various states (the “nominal” part of which will be explained in due course).
My specific focus will be on the impositions in Michigan. Michigan lends itself particularly to this discussion, due to being both in the forefront of draconian impositions by executive decree, and in that the Supreme Court of the state has responded to those impositions in an especially notable way, which will be quoted and discussed in depth.
However, all that is explained or explored in what follows is equally applicable to every other state. So read on, even if you live outside the Great Lakes state.
AS HAS BEEN WIDELY NOTED (with gratitude by deluded Kool-Aid drinkers and satisfaction by Democrat political operatives, and with scorn and derision by everyone else), Michigan’s governor Gretchen Whitmer leapt into the forefront of “lockdown” despots as soon as the ice was broken on that project in mid-March of last year by Gavin Newsom in California. Whitmer’s alacrity may have been in hope of securing a federal appointment, or even selection as a vice-presidential candidate, but whatever the reason, she dove hard for the “leadership” spotlight.
Whitmer began with the standard “just for two weeks to flatten the curve” pretense echoed by other (mostly Democrat) governors in a number of states. But she then followed up with a remarkable and brazen series of scattershot, often contradictory, and always indefensible edicts which left most of her competitors for fawning attention by the C19-is-the-plague propaganda mills known as the mainstream media in the dust.
Whitmer’s only real competitors for wreckage-wreaker of the year at that point were the handful of other Democrat governors distinguishable by having joined her in a policy of seeding nursing homes with disease-carrying residents certain to rev-up fatalities which could then be ascribed to C19 under the absurd data-distorting reporting procedures urged on death-certificate producers by the CDC and NCHS (as reported here last spring and confirmed in its evil mendacity here by recent research and analysis):
In early March– March 4, to be exact– the CDC, perhaps in recognition of the fact that the failure of Americans to be dropping from the horrific Covid-19 left and right was messing with the narrative, sent this to all our American doctors (highlighting added):
“Covid-19 should be reported on the death certificate where the disease IS ASSUMED to have caused– or even just assumed to have contributed to– death.” (See the whole notice here, also with my highlighting.)
On March 24, the CDC doubled-down with this nonsense, issuing a follow-up guidance being even more straightforward with the fudge encouragement:
The nursing home policy, together with the gimmicked reporting practices, ensured that Michigan’s apparent fatality rate from C19 would be high enough to frighten a large portion of its population into accepting Whitmer’s edicts and bleating for more. Whitmer obliged, with enthusiasm.
An endless series of so-called “executive orders” continued, asserting authority over all private decision-making in the matter of business practices (whether to be open or closed; how many of patrons are allowed and how they must behave in a place of business; what could and could not be bought or sold…). The edicts even extended to social interactions and recreation options for everyone– including, in an even greater excess of cruelty, the huge number of workers and business owners idled by the ordered closures.
Whitmer strove to shield herself from resistance with a claimed mantle of legality (and endless references to “the science”). To begin with, she asserted authority for her unilateral edicts under a 1976 enactment in which wide latitude for executive action was granted but which included an explicit 28-day cut-off unless extended by the legislature.
When the legislature refused to authorize her continuing diktats after the second 28 day expiration, Whitmer switched her reliance to a 1945 enactment even more promiscuous with its purported delegation of law-making power, and which lacked any specific cut-off.
BUT PAY CLOSE ATTENTION NOW, everyone. There’s a fly in that executive-power ointment.
As ruled by the Michigan Supreme Court on October 2nd (and as is obvious from the relevant Constitutional text to anyone who went to the trouble to look) the 1945 enactment has always stood in violation of Michigan’s Constitutional prohibition against any executive official being granted, or exercising, any power belonging to the legislature. This includes the power to make laws– whether called “executive orders” “public health policies” or anything else, no matter the pretext.
In short, every single “pandemic-related” order Whitmer has directed at anyone outside her own departments since at least early May have been void and without any legal force or effect.
Sustained by arrogance, after casting about for excuses to ignore the ruling Whitmer resorted to having her Public Health Director reissue the same invalid orders she had been making herself. But these health department pronouncements, which are argued to be valid because supposedly authorized by a different enactment of the legislature than the one relied upon by Whitmer herself, fall to the same judicial sword as Whitmer’s own unlawful commands.
It is not merely a particular law that is declared invalid under the Supreme Court’s jurisprudence; it is, rather, the overall proposition that such law (or order)-making authority can be delegated to anyone in the executive branch, for any reason, period.
Let’s look at the ruling’s treatment of these issues in some detail:
THE RULING BEGINS WITH preliminary discussions of background and history, standards of review, and the questions presented. Disposal of the questions concerning the 1976 Emergency Management Act follows.
The court then turns to the Emergency Powers of the Governor Act of 1945 and Gretchen Whitmer’s claim of delegated authority under that act– and by extension, on any other basis, as well– to issue edicts to everyone in the state (or to whomever she wishes)– and by extension, for anyone else in the executive branch to do so. Analysis begins with the observation (Op. pp. 21 – 27) that while it is possible that a certain limited degree of rule-making discretion can be delegated by a legislature to an executive department while remaining Constitutional, the discretion must be narrow and be ever more finely specified as the scope and/or duration of the delegation increases:
[I]t is one thing if a statute confers a great degree of discretion, i.e., power, over a narrow subject; it is quite another if that power can be brought to bear on something as “immense” as an entire economy. See Schechter Poultry Corp v United States, 295 US 495, 539; 55 S Ct 837; 79 L Ed 1570 (1935) (striking down a delegation to the President to approve trade standards when the “authority relates to a host of different trades and industries, thus extending the President’s discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country”). Furthermore, “[t]he area of permissible indefiniteness narrows . . . when the regulation invokes criminal sanctions and potentially affects fundamental rights . . . .” United States v Robel, 389 US 258, 275; 88 S Ct 419; 19 L Ed 2d 508 (1967) (Brennan, J., concurring in the result).
Finally, the durational scope of the delegated power also has some relevant bearing, in our judgment, on whether the statute violates the nondelegation doctrine. Of course, an unconstitutional delegation is no less unconstitutional because it lasts for only two days. But it is also true, as common sense would suggest, that the conferral of indefinite authority accords a greater accumulation of power than does the grant of temporary authority.
Hence, open-ended claims of delegated authority “until the science says we’re clear”, or “until the state is out of danger” or “until I say one or more of the safety measures are no longer needed” or “until I (or my chosen “experts”) decide some declaredly relevant point has been reached (or some point has been reached which I or my chosen “experts” have declared to be relevant” are inherently unconstitutional. Even delegations with guidance as to the expiration of the delegation fail if the scope of delegated authority is too broad (as in, a purported authority to issue edicts affecting everyone in the state).
THE COURT GOES ON TO OBSERVE that the powers illegally claimed by Whitmer and her subordinates are “police powers” and that such powers are inherently legislative in nature (Op. pp. 27 – 28):
See Bolden v Grand Rapids Operating Corp, 239 Mich 318, 321; 214 NW 241 (1927) (“The power we allude to is rather the police power, the power vested in the Legislature by the Constitution, to make, ordain and establish all manner of wholesome and reasonable laws . . . .”) (quotation marks and citation omitted).
These observations are followed (Op. pp. 28 – 29) by a usefully-illustrative sampling of the orders issued first by Whitmer (and then by her Public Health department) which the court finds to be examples of unconstitutional overreach because of any one or more of either their nature, their scope, or the claimed duration of the authority to issue them (all emphases in the original):
[D]uring the COVID-19 pandemic the Governor has, by way of executive orders specifically issued under the EPGA, effected the following public policies: requiring all residents to stay home with limited exceptions; requiring all residents to wear face coverings in indoor public spaces and when outdoors if unable to consistently maintain a distance of six feet or more from individuals who are not members of their household, including requiring children to wear face coverings while playing sports; requiring all residents to remain at least six feet away from people outside one’s household to the extent feasible under the circumstances; requiring businesses to comply with numerous workplace safeguards, including daily health screenings of employees; closing restaurants, food courts, cafes, coffeehouses, bars, taverns, brew pubs, breweries, microbreweries, distilleries, wineries, tasting rooms, clubs, hookah bars, cigar bars, vaping lounges, barbershops, hair salons, nail salons, tanning salons, tattoo parlors, schools, churches, 29 theaters, cinemas, libraries, museums, gymnasiums, fitness centers, public swimming pools, recreation centers, indoor sports facilities, indoor exercise facilities, exercise studios, spas, casinos, and racetracks; closing places of public amusement, including arcades, bingo halls, bowling alleys, indoor climbing facilities, skating rinks, and trampoline parks; prohibiting nonessential travel, in-person work that is not necessary to sustain or protect life, and nonessential in-person business operations; prohibiting the sale of carpet, flooring, furniture, plants, and paint; prohibiting advertisements for nonessential goods, nonessential medical and dental procedures, and nonessential veterinary services; prohibiting visitors at healthcare facilities, residential care facilities, congregate care facilities, and juvenile justice facilities; and prohibiting boating, golfing, and public and private gatherings of persons not part of a single household.
Each of these policies was putatively ordered “to protect life and property” and/or to “bring the emergency situation within the affected area under control.” What is more, these policies exhibit a sweeping scope, both with regard to the subjects covered and the power exercised over those subjects. Indeed, they rest on an assertion of power to reorder social life and to limit, if not altogether displace, the livelihoods of residents across the state and throughout wide-ranging industries.
The Supreme Court then goes on to discuss at length the fact that incorporation of “reasonable” and “necessary” into the language of a statute purporting to delegate discretionary authority to an executive does not cure a constitution-violating lack of specificity (Op. pp. 31 – 36). (And obviously so, since such “specifications” leave to the executive official the determination of what is “reasonable” or “necessary”, or, at best, delegate those determinations to the courts– in either case, transferring the legislative power to say what the laws are to branches prohibited from their exercise.)
The court wraps up with a broad, comprehensive conclusion invalidating not only what Gretchen Whitmer had done prior to the ruling, but all executive department pretenses of authority to accomplish the same ends (Op. P. 48):
[T]he EPGA [the law under which Whitmer purported to act] is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government– including its plenary police powers– and to allow the exercise of such powers indefinitely.
All told, then, Whitmer’s orders since early May have all been invalid and illegal, being incapable of authorization by the 1945 enactment to which she had resorted. Further, any enactment by claimed authority of which Whitmer’s invalid orders are issued is equally unconstitutional, and the orders so issued are equally invalid. Just as Whitmer herself cannot make and issue the “pandemic” commands by which anyone in Michigan has been threatened, nor can her health department or any other element of the executive branch.
By the same token, no business or business owner can be subjected to any penalty– such as loss of any license, for instance– as a consequence of ignoring a “pandemic”-related order of Whitmer or any of her departments. The orders are unlawful; defiance of them cannot be penalized.
The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
No repeal of an enactment is necessary, since an unconstitutional law is void. The general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.
16 Am Jur 2d, Sec 256 (emphasis added)
However much huffing and puffing to the contrary might be done to browbeat a business owner into compliance or intimidate others who might expect themselves to be next in the crosshairs– up to and including the issuance of citations, and initiation of legal process– to pull a license for defiance of an illegal order is itself illegal. In the end, the abused business owner will also own Gretchen Whitmer’s summer house.
I SEE THE QUESTION in everyone’s eyes: “Okay, Pete, you’ve shown us that all the “pandemic” orders are null and void (and even criminal acts by those issuing and seeking to enforce them)– and that the media beating the drums on their behalf are coopted into the same rule-of-law destroying criminal endeavor. So, what now?”
Here are some thoughts…
Every business owner in Michigan should be defying these illegal orders (or should begin to do so now). Complying with them is to participate in the destruction of the rule of law.
Further, of course, in most cases, complying with these illegal orders is to watch, like a dumb animal, one’s efforts of a lifetime evaporate into nothingness. On the other hand, to defy these illegal orders is to pop oneself to the top of the heap of businesses that will weather the storm.
Indeed, the Michigan companies that already defy the illegal shut-down commands (or limiting commands) and have resumed business as usual (read: “old normal”)– including no mask or “distancing” requirements (while also welcoming any germaphobes, whether in masks or hazmat suits or whatever, and letting workers make such calls for themselves, as well) are swamped with customers. This is only not widely known because a coopted media refuses to honestly report such things.
Michigan is sick to death of the C19 “mitigation measures” bs (and has, in fact, been dying from it). To all business owners I say, stop being part of the problem, and start being part of the solution.
I MENTIONED AT THE BEGINNING that while my discussion focuses on the unlawful government assaults in Michigan, what I discuss is just as important for non-Michigan residents. This is so because the basis and authorities of the Michigan Supreme Court ruling about Gretchen Whitmer’s offenses apply equally to similar offenses by executive-branch officials in any other state of the American union, and under the laws of each such state. See this for specific analyses of several other states as examples.
Frankly and speaking very seriously, this decision by the Michigan Supreme Court is a VERY important decision for the USA as a whole– and this helps explain why it has practically disappeared down the memory hole over the brief three months since it was issued. Unconstitutional delegation of powers of the sort– and the terms– knocked flat by the Michigan court’s ruling are a plague throughout the country– at both the state and federal level– brought on over the last eighty years with the ascendancy of progressivism and technocracy.
The Michigan court’s ruling shows the invalidity of all of them, and the powers that be whose work they are, for the purpose of subverting our republican roots and replacing them with government by decree. See more about all of that here, and pass all of the foregoing along to everyone you can reach. Oh, and see this to learn the overall truth about the “pandemic”…
I ALSO MENTIONED AT THE BEGINNING that I would explain my use of the term “nominal” in conjunction with my reference to state officials within the context of the “lockdown” and other orders being discussed in this article. The reason for the qualifier is simple but important: Those calling themselves state officials (and being called state officials by others) are NOT acting in any actual official capacity when making, issuing or enforcing orders outside their lawful scope of authority.
A person purporting to be the governor who does something the governor is not authorized to do is just a usurper falsely wearing the mantle of high office, but with no more actual stature than any mugger lurking in an alley. Remember this and respond to such pretenses of officiousness accordingly. We’ll all be healthier for it.
“In matters of style, swim with the current; in matters of principle, stand like a rock.”
P.S. TO ALL THOSE with Amazon Prime (or access thereto): CITIZENFOUR is now available for streaming (“free” with ads). If you haven’t already seen this very important Academy-award-winning documentary several times, you should.