Principle? Who You Lookin' At?

I am a man of fixed and unbending principles, the first of which is to be flexible at all times. US Senator Everitt Dirksen

It's amazing, what a pandemic will spawn. The student of law and government in me has been stunned at how flexible so many people's principles have become in this time of dread. Aside from the surprising cascade of epidemiologists, virologists and public health experts lurking among the celebrity memes, pictures of pets and beach vistas on the internet, there are any number of legal scholars who are sure - SURE - that the state and local edicts resulting in, inter alia: handcuffed moms on playgrounds, paddleboarders arrested on maritime law violations and the "Essential AF" syndrome, are unconstitutional. Clearly, so much so that some cop sitting in his patrol car wearing tactical body armor, hat turned backward, assures his fellow cops that following the directives of their chain of command doesn't matter - what they are doing is illegal. I was having a spirited conversation on Facebook with a couple of friends - a discussion of some of these very issues requiring, on my part, a restorative to grease the wheels - when someone I do not know posted:

"Okay, folks, let's break out the law degrees." He named his school (a mostly on-line operation specializing in scholarship short of juris doctor) and proceeded to provide a seminar on his version of US law. I offered a condensed version of my CV (on telling the story to my wife she uttered "That's a hell of a place to be coming from"). He deleted his comment shortly thereafter.

So, let's talk.

When we talk about state police powers, we're not talking about someone wearing a Smokey Bear (or, Smokey the Bear... We operate an inclusive publication here) hat, aviator sunglasses and showing you how fast you were going on their radar. When the Constitution was ratified, the powers given to the Federal government were limited, the States reserving the rest. One of the reserved powers is called the "Police Power" - the ability to write laws within a state regulating the activities of the citizens of that state.

So far, so good?

It's why the FBI doesn't come to your house when some asshole breaks into your Camry and steals the bottle of rum you were hiding from your wife. But - and this is where shit gets real - The States (and their political subdivisions, usually described as "City Hall" or "That Idiot Mayor") also reserved the right to boss you around almost any time they want. This is especially true when something truly scary, like tornadoes, floods, snowstorms and pandemics occur. When the governor of some state, standing in three feet of The Gulf running down what was once Main Street, is breathlessly declaring an emergency, it isn't because he/she is summoning FEMA like Moses at the Red Sea. It's because then, he/she can tell you to take you dumb ass the hell off the streets. If you don't, the nice officer will help you. Or, the National Guard will run you over with a Humvee.

There is a court case out there where Chief Justice Melvin Fuller and the Supremes (circa 1905) talk about all of this as it relates to diseases. Lest you think that's so...1905, HA! A court as recently as April cited it as controlling and talked about the Jacobson "Framework" which, we all know, means that this is the settled rule, since there is a cute and official-sounding name for it. Plus, they also said it is a settled rule. And then, the 5th Circuit wrote:

That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.

Now, at least someone out there is saying "That's bullshit!" And, in normal times, you might be right and the tacked-up cop with his hat on backwards certainly is on your side. There is one very technical problem here.

When there is a Supreme Court case that says stuff like that... I axe ya. If some dude with his hat turned backward tells you to ignore your chain of command because you swore an oath to the Constitution, isn't it probably better to know what the Constitution actually says about it? 

We certainly can argue at the margins that States, localities or districts are exceeding the limits of reasonableness that one would apply to even the Jacobson Framework. In fact, I've done a bit of that myself. One can also discuss police discretion, how non-emergent things have to get before it's not an emergency any more, and not doing stupid shit just because someone calls you a Nazi. Also, plaintiff's attorneys are going to be paying cash for trips to The Maldives on the fees they get suing states for forgetting that the reserved police powers aren't a blank check to be a dick. 

I mean, someone ought to write a book.