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As lockdowns intensify, political resistance, constitutional concerns grow

Trump: America will head back to work, and soon

April 17, 2020 by Richard Moore

It started on change.org this past Saturday, a petition drive to end the intensifying shutdowns of businesses and shut-ins of people across Wisconsin and the U.S. amid the coronavirus pandemic.

“COVID-19 does not need to shut down our way of life,” the “Reopen Wisconsin” petition stated. “People are losing jobs, children are missing valuable days of schooling, and our nation’s debt is about to soar with all the fiscal policies being discussed to prevent our economy from going into a recession. Let’s use common sense and ‘Reopen Wisconsin!’”

Some 48 hours later, only 105 people had signed the petition. Still, the message was reflective of a larger chorus of concern about the radical measures being taken in the U.S. to try and prevent the spread of the disease.

In Wisconsin, Gov. Tony Evers has enacted draconian measures, for better or for worse depending on your point of view, with lightning speed. Those measures first called for closing schools and prohibiting large gatherings of 50 or more people. Then restaurants and bars were closed for dining-in, while gatherings of 10 or more were prohibited.

Barbershops, hair salons, malls, and gyms were closed. Finally, by last week, Evers had announced he would issue a stay-at-home order and directed all nonessential businesses to close.

Not even a sleepover would the government allow, Evers said.

It was pretty much the same across the U.S., to greater or lesser degree, and by the beginning of this week the Reopen petition and other resistance efforts were beginning to emerge.

Notably, on the very day Evers announced his most restrictive order, President Donald Trump began to question the strategy, as stock markets continued their worst decline in decades, as unemployment applications swelled — 69,342 initial claims in Wisconsin for the week ending March 21 — and economic experts warned of a recession greater then the Great Recession, and perhaps a depression.

Trump warned against killing the patient to cure the disease.


Later Monday, Trump said the federal government would soon recommend “new protocols to allow local economies to cautiously resume their activity at the appropriate time.”

“America will again, and soon, be open for business — a lot sooner than three or four months, which somebody was suggesting,” Trump said.

To be sure, public health officials inside the administration don’t agree, and some have even urged the president to “double down” on restrictions, but another administration chorus believes that, while public health officials are right to be focused on the response to the medical pandemic, the administration must balance that fight with battling an emerging economic pandemic, namely, a national economic collapse that they say could conceivably destroy as many or more lives than the virus.

Even New York Democratic Gov. Mario Cuomo addressed the issue last week, saying at his daily briefing he believed his own drastic measures were necessary, but the nation needed to plan to pivot back to economic functionality.

“I am very proud of the measures we’ve taken to address this public health crisis,” Cuomo said. “But I’m also very aware you cannot — it is unsustainable to run this state or run this country with the economy closed down.”

As expressed by the growing voices inside the Trump administration, Cuomo said the threat from the virus had to be measured against the threat to the economy.

“Remember, you study the numbers across the countries that have been infected,” he said. “The survival rate for those who have been infected is like 98%. A lot of people get it, very few people die from it. How do we start to calculate that in?” 

Cuomo said his state had implemented New York Pause, and it was necessary now to start thinking about New York Forward. 

“And (my top private sector advisors), who I’ve worked with for 30 years and now in the private sector, they’re going to start to think about this, how do you restart or transition to a restart of the economy?” he said. “How do you dovetail that with a public health strategy? As you’re identifying people who have had the virus and have resolved, can they start to go back to work? Can younger people start to go back to work because they’re much more tolerant to the effect of the virus?”

While Cuomo might or might not ultimately agree with Trump on the timeline, it’s clear that both administrations are pivoting away from a sole focus on public health toward a strategy of focusing on, and balancing, both public and economic health.

Not alone

Trump and other public officials aren’t alone in their desire to make America open again. 

In states around the nation, many businesses, while compliant, have been openly critical of the restraints, and some have been outright defiant. In Washington, D.C., The Hill Restaurant Group — owners of a number of popular establishments around the D.C. area — at first said it was planning to defy D.C. mayor Muriel Bowser’s restrictions on restaurants and bars, saying on Facebook that its businesses would “continue to operate as normal.”

“We understand the gravity of effects that coronavirus has or will have on our community, especially the hospitality industry,” the post said. “However, we will not bow down to pressure from the mayor’s office or any group for that matter who covertly is attempting to shut us down.” 

The restaurant group later backtracked and complied after all, but it was a public expression of skepticism and frustration that many private businesses have been sharing about the need for such severe measures.

Across the U.S. there have been other scattered attempts at defiance, and in a few places police have stepped in or threatened to step in to force compliance. In Cincinnati, Ohio, after serving a full buffet after being warned, police moved in and padlocked and barricaded the Queen City Lounge, according to WLWT News of Cincinnati. In Pendleton, Oregon, patrons left the Rainbow Cafe only after the Oregon State police said they were on their way to shut it down.

Nationally, many other business owners have complied only reluctantly, expressing concern about their own businesses and their employees.

That skepticism has been echoed in the past week in the editorial pages of major newspapers such as The Wall Street Journal.

“If this government-ordered shutdown continues for much more than another week or two, the human cost of job losses and bankruptcies will exceed what most Americans imagine,” the newspaper wrote in a March 19 editorial. “This won’t be popular to read in some quarters, but federal and state officials need to start adjusting their anti-virus strategy now to avoid an economic recession that will dwarf the harm from 2008-2009.”

No society can safeguard public health for long at the cost of its overall economic health, the newspaper’s editorial board opined. 

“Even America’s resources to fight a viral plague aren’t limitless — and they will become more limited by the day as individuals lose jobs, businesses close, and American prosperity gives way to poverty,” the editorial stated. “America urgently needs a pandemic strategy that is more economically and socially sustainable than the current national lockdown.”

That call for another strategy has found a political voice in many Republican Party corners, too, as GOP leaders are voicing concerns not only about the short- and long-term economic damage of a national economic shutdown but about the implications for constitutional rights.

In Pennsylvania, for example, state House leaders issued a statement blasting Democratic Gov. Tom Wolf’s decision to close all non-essential businesses as of St. Patrick’s Day.

“We feel compelled to respond on behalf of the hundreds of business owners in Pennsylvania we have heard from in the last few hours who feel blind-sided by today’s ‘statewide’ shutdown announcement and confused by what it actually means,” the GOP leaders stated. “ …We agree this is a time to limit exposure to large groups of people, but if you, or a business owner you know, wishes to remain in business, it is their right to do so.”

In Wisconsin, prior to Evers’s shuttering of non-essential businesses, GOP lawmakers had urged the governor to go no further than the restrictions he had already put in place, and Evers appeared to take that position. 

“With news that states around the country and even Illinois are moving to suspend business operations, we as legislative leaders agree with the governor’s statements on Friday (March 20) that a further shutdown of businesses in Wisconsin is unnecessary,” Republican legislative leaders said in a statement last week. “The consequences felt by citizens and small businesses around the state have already been tremendous.”

After Evers reversed course, Assembly speaker Robin Vos (R-Rochester) and Senate majority leader Scott Fitzgerald (R-Juneau) said the governor had created mass confusion.

“For days, Gov. Evers took a measured approach and reassured business owners that a shelter-in-place order may not be necessary,” the two leaders said in a statement. “Legislative leaders even complimented him for it. The governor’s sudden change of course and lack of specific guidance have increased the level of uncertainty and anxiety in our state. The people of Wisconsin deserve clear communications during a public health emergency.”

There also needs to be a better understanding as to why such decisions were being made because of the impact on the economy, businesses, and residents of the state, the lawmakers said.

“It appears at the end of the governor’s press conference, there are more questions than answers,” they stated. 

Specifically, they wanted to know, what were the metrics that the decision was based on? What is considered an essential and non-essential business? How is that being determined? What changes need to happen for the order to be lifted?

“The governor’s executive order came as a surprise to the Legislature,” Vos and Fitzgerald said. “It was a complete reversal of his repeated assurances. It should be noted that legislative leaders have asked on a daily basis whether or not this was the direction the governor was headed, and we were told it was not. … We would ask the governor to do a better job communicating to the people of Wisconsin.”

Constitutional concerns

Though in the minority, two members of the state Supreme Court have raised concerns about the constitutional ramifications of the government’s emergency actions.

On a 5-2 vote, the high court this past week suspended jury trials in Wisconsin until late May in an effort to help prevent the spread of COVID-19 infection. Justices Daniel Kelly and Rebecca Bradley dissented, with Bradley penning a scathing dissent and Kelly joining the dissent.

In her dissent, Bradley wrote the court’s majority had suspended the constitutional rights of Wisconsin citizens, citing the exigency of a public health emergency. But, she wrote, the constitution does not countenance such an infringement. 

“Emergency does not create power,” she wrote, quoting an earlier court decision. “… The constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were determined in the light of emergency, and they are not altered by emergency.”

The Sixth Amendment to the United States Constitution commands that in all criminal prosecutions, the accused shall enjoy the right to a speedy trial, Bradley wrote.

“Wisconsin’s highest court says a public health emergency justifies a blanket 60-day suspension of a constitutional right,” she wrote. “If that is true, then the following constitutionally enumerated rights of the people (among others) are also subject to suspension by judicial decree: The free exercise of religion; the freedom of speech; the freedom of the press; the right of the people to peaceably assemble; the right of the people to petition the government for a redress of grievances; the right of the people to keep and bear arms; the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”

In fact, Bradley continued, the constitution, informed by the lessons of history, was established to safeguard the rights of the people even under the most exigent circumstances. 

“Nothing in the constitution permits the judiciary to limit the fundamental rights secured under the Sixth Amendment,” she wrote. “If the framers had contemplated suspension of Sixth Amendment rights or any other liberties, they would have said so in the text.”

What’s more, Bradley continued, the court’s blanket order dispenses with both constitutional and statutory requirements to consider, on a case by case basis, the rights of the accused, the interests of victims, and the best interests of the public. 

In sum, Bradley wrote, justifying the suspension of the people’s constitutionally guaranteed rights based on a public health emergency nullifies our constitution. 

“If the people’s constitutional rights may be suspended by the judicial branch in the name of a public health emergency, our freedom is in peril; our republic is lost,” she wrote. “More than one million Americans have died defending our liberty from external threats. The liberty for which so many have laid down their lives should not be cast aside even in ‘troublous times.’ If the government will not protect constitutional rights designed to preserve our freedom, it is up to the people to reclaim them.”

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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