Thread by @twilabrase

A great court ruling against Penn. Gov. Tom Wolf's unending #Covid19 restrictions -- by William S. Stickman IV, U.S. District Judge: drive.google.com/file/d/1FL3Y1k… I will tweet many delightful statements. You may follow the thread I'm about to start . . .

"Indeed, the greatest threats to our system of constitutional liberties my arise when the end 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 over 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."

"Defendants contend that Jacobson [v. Massachusetts, 1905] sets forth a standard that grants almost extraordinary deference to their actions in responding to a health crisis and that, based on that deference, Plaintiffs' claims are doomed to fail." (p. 12)

"Although the Jacobson Court unquestionably afforded a substantial level of deference to the discretion of state and local officials in matter of public health, it did not hold that deference is limitless. Rather—it closed its opinion with a caveat to the contrary: (p. 13)

"Before closing this opinion we deem it appropriate, in order to prevent misapprehension [of] our views, to observe. . .that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted . . .

" . . . in such circumstances , or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression." (p. 13)

Strickland continues: "There is no question, therefore, that even under the plain language of Jacobson, a public health measure may violate the Constitution." (p. 13)

Stickman then discussed the ruling of the lawsuit, Bayley's Campground, Inc. v. Mills (2020) regarding the governor of Maine's executive order requiring visitors from out of state to self quarantine:

"The district court . . . stated, '[T]he permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review.'"

Stickman quoted Supreme Court Justice Alito in Bayley's Campgrounds: "We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility." and also from Alito:

"But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists." (p. 15)

Stickman continued with Alito's comments: "it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic." (p. 15)

Stickman: "What were initially billed as temporary measures necessary to 'flatten the curve' and protect hospital capacity have become open-ended and ongoing restrictions aimed at a very different end—stopping the spread of an infectious disease and preventing new cases..."

"[T]estimony and evidence presented by Defendants does not establish any specified exit gate or end date to the emergency interventions. Rather, the record shows that Defendants view the presence of disease mitigation restrictions upon the citizens of Pennsylvania as a . . .

" . . . 'new normal' and they have no actual plan to return to a state where all restrictions are lifted. It bears repeating; after six months, there is no plan to return to a situation where there are no restrictions imposed upon the people of the Commonwealth."

"Even when the existing restrictions are replaced, it appears to be the intent of Defendants to impose and/or keep in place some ongoing restrictions." (p. 18)

"It is no longer March. It is now September and the record makes clear that Defendants have no anticipated end-date to their emergency interventions. . . .[T]he duration of the crisis—in which days have turned into weeks and weeks into months—already exceeds natural disasters..."

"Faced with ongoing interventions of indeterminate length, "suspension" of normal constitutional levels of scrutiny may ultimately lead to the suspension of constitutional liberties themselves." (p. 19)

"There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat. Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment." (p. 20)

"There is no question that a global pandemic poses serious challenges for governments and for all Americans. But the response to a pandemic (or any emergency) cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances. . ."(p. 21)

There's "no exception for protests""however the record unequivocally shows that Defendants have permitted protests, and that the Governor participated in a protest which exceeded the limitation set forth in his order and did not comply w/ . . . social distancing & mask wearing."

"Having reviewed the record, the Court does not believe that the orders do, in fact, make allowance for protests" despite the governor making "some public comments about protests and religious services" saying they've made those limited exceptions for protected speech.

Stickman didn't doubt comments were made "but even under their broad emergency powers, Defendants cannot govern by comment. Rather, they are bound by the language of their orders. Those orders make no allowance for protests." (p. 28)

"Mr. Robinson testified tha tht congregate limits were designed to prevent 'mega-spreading events.' However, when asked whether, for example, the large protests—often featuring numbers far in excess of the outdoor limit and without social distancing or masks—led to any . . .

" . . .known mega-spreading event, he was unable to point to a single merge-spreading instance." (p. 31)

"The congregate limits in Defendants' orders are unconstitutional." (p. 32)

Plaintiffs say Wolf's orders violated their liberties guaranteed by the Due Process Clause of the 14th Amendment. "[D]ue process is . . . a recognition that the government may not infringe upon certain freedoms enjoyed by the people as a component of a system of ordered liberty."

About stay-at-home orders, Plaintiffs argue (p. 34):

"The Court is compelled, therefore, to address whether such lockdowns comply with the United States Constitution." (p. 39)

"Although this nation has faced many epidemics and pandemics and state and local government have employed a variety of interventions in response, there have never previously been lockdowns of entire population—much less for lengthy and indefinite periods of time." (p. 40)

The Defendants testified that "lockdown orders" are not "isolation orders and are not quarantine orders" but instead classified the order as "public health mitigation." (p. 42)

"[A]n examination of the history of mitigation efforts in response to the Spanish Flu—by far the deadliest pandemic in American history—reveals that nothing remotely approximating lockdowns were imposed." (p. 42)

"Not only are lockdowns like the one imposed by Defendants' stay-at-home orders unknown in response to any previous pandemic or epidemic, they are not as much as mentioned in recent guidance offered by the...CDC."

The CDC guideline states: "CDC recommends voluntary home isolation of ill persons" and "CDC might recommend voluntary home quarantine of exposed household members in areas where novel influenza circulates. This is a far, far cry from a statewide lockdown ..." (p. 44)

"[L]ockdowns imposed across the United States in early 2020 . . .have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year." (p. 44)

"It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures"

"The stay-at-home orders impacted liberties not merely limited to the act of traveling, but the very liberty interests arising from the fruits of travel, such as the right of association & even the right to privacy—the right simply to be left alone while...acting in lawful manner

Quoting Waters v. Barry (1989): "[t]he right to walk the streets, or to meet publicly with one's friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society." (p. 47)

"The intrusions into the fundamental liberties of the people of this Commonwealth effectuated by these orders are of an order of magnitude greater than any of the ordinances examined [in other cases].This is, quite simply, unprecedented in the American constitutional experience."

"[T]he default position is lockdown unless suspended at their will. . . Moreover, this situation applied for an indefinite period of time. This broad restructuring of the default concept of liberty of movement in a free society eschews any claim to narrow tailoring." (p. 48)

"The Court declares, therefore, that the stay-at-home components of Defendants' orders were and are unconstitutional. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional..."(p.48)

"As with the lockdown, Defendents' shutdown of all 'non-life-sustaining' businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. . . Never before has the government exercised such vast and immediate power over every business,...owner, and employee"

"[T]he Court holds that the business closure orders violated the Fourteenth Amendment." (p. 50)

Defendants (Gov. Wolf and Co) "counter that the Fourteenth Amendment does not guarantee 'any fundamental right to earn a living.' "

"Contrary to Defendants' argument, the right of citizens to support themselves by engaging in a chosen occupation is deeply rooted in our nation's legal and cultural history and has long been recognized as a component of the liberties protected by the Fourteenth Amendment."(p.51)

"The March 19, 2020 Order has no end date. Rather, it is open-ended, remaining 'in effect until further notice. . .The total shutdown of a business with no end-date and with the specter of additional, future shutdowns can cause critical damage to a business's ability to survive."

"The Supreme Court has recognized that the 'core of the concept' of substantive due process is the protection against arbitrary government action...Indeed, 'the touchstone of due process is protection of the individual against arbitrary actions of government." (p. 55)

"The Court...holds that the March 19, 2020 Order closing all "non-life-sustaining' businesses was so arbitrary in its creation, scope and administration as to fail constitutional scrutiny." (p. 56)

NOTE: Judge Stickman wrote, "Defendants never had a set definition in writing for what constituted a 'life-sustaining' business," that their view "remained in flux" and that the definition "continued to change." (p. 49)

"[M]any 'non-life-sustaining" businesses sell the same products or perform the same services that were available insures that were deemed 'life-sustaining.'" The judge noted smaller stores were forced to close while larger retailers remained open.

In making that choice (which stores were and were not life-sustaining), the Defendants "were not merely coming up with a draft of some theoretical white paper, but rather, determining who could work and who could not, who would earn a paycheck and who would be unemployed . . .

"...and for some—which businesses would live, and which would die. This was truly unprecedented."

"An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people each pursuing their dreams. The ability to support oneself is essential to free people in a free economy."

"In a free state, the ability to earn a living by prusuing one's calling and to support oneself and one's family is not an economic good, it is a human good." (p. 61)

"To the extent that Defendants were going to exercise an unprecedented degree of immediate power over businesses and livelihoods; to the extent that they were going to singlehandedly pick which businesses could stay open and which must close; and . . .

". . .to the extent that they were picking winners and losers, they had an obligation to do so based on objective definitions and measurable criteria. The Equal Protection Clause cannot countenance the exercise of such raw authority to make critical determinations where...

"...the government could not, at least, 'enshrine a definition somewhere.'" "The distinctions were arbitrary in origin and application. . .They violate the Equal Protection Clause of the Fourteenth Amendment."

"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." (p. 65)

[T]he solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment." (p. 66)

"The Constitution cannot accept the concept of a 'new normal' where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency." (p. 66)

"Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional." (p. 66) — William S. Stickman IV, United States District Judge, who ruled in favor of Plaintiffs, September 14, 2020.

Thank you Judge Stickman!!

There are 61 tweets in this thread. Consider it a short cut version of Federal District Judge Stickman’s excellent ruling against Pennsylvania Governor Wolf’s unconstitutional shutdown and stay-at-home orders.