This is not about whether we should voluntarily wear face masks, it’s about whether the government has the right to:
mandate that businesses close
prohibit live church services
force us to stay at home
keep us 6ft apart in public
stop live political rallies
check our temperatures
outlaw live sporting events
require we wear face masks
prevent dinner parties at home
Last week I explained that The Constitution grants the federal government specific powers like coining money, regulating interstate commerce, granting patents/copyrights, establishing bankruptcy laws, raising an army, and levying taxes for defense and the general welfare.
Powers not given to the federal government are reserved to the states, which has been interpreted to allow states to do most anything in “establishing and enforcing laws that protect the welfare, safety, and health of the public.”
Restrictions on State Power
States typically cannot take away liberties our founding fathers held precious and codified in The Bill of Rights (the first 10 Amendments to The Constitution).
Our most court-guarded and protected liberties include freedom of speech, press, religion, peaceable assembly, and the right to due process, which essentially means having an impartial hearing before a jury of our peers before being imprisoned or having property seized by the government.
In some situations courts have allowed states to limit precious liberties like free speech. For example, states can punish the production, sale, and possession of child pornography because it is so reprehensible it does not deserve 1st Amendment free speech protection.
The liberty courts seem to protect at the highest level is religion. Currently, three churches have filed a lawsuit against the state of California alleging it does not have the right to prohibit live church services.
National Emergencies Act
Until 1976, neither the state nor federal government could likely have forced us to wear face masks, stay at home, or do the other things listed above without declaring martial law. That changed in 1976 when Congress enacted the National Emergencies Act. This law gave state and federal governments virtually unlimited power, including suspending civil liberties during times of national emergency, which includes public health emergencies like pandemics.
Martial Law
Even before the National Emergencies Act, the President and state governors had the power to declare “martial law” in extreme situations, which suspends civil liberties and puts the military in control of enforcing civil obedience. The U.S. Supreme Court declared that the President alone cannot declare martial law without congressional approval.
March 13, 2020
On March 13, 2020 President Trump signed a proclamation making COVID-19 a national emergency. The key provisions in the proclamation:
The spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems. As of March 12, 2020, 1,645 people from 47 States have been infected with the virus that causes COVID-19. It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability. Additional measures, however, are needed to successfully contain and combat the virus in the United States.
NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5), do hereby find and proclaim that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020.
Face Masks?
Can we be required to wear face masks and do the things I listed above?
Probably yes… except freedom of religion has been so protected that the California courts may prevent the state from prohibiting live public church services as long as the litigation gets to a decision while the services are still being restricted. Otherwise the issue will become moot and the courts won’t hear it.
Bottom line? I found a stylish face mask on Amazon Prime.
“Power doesn’t corrupt people, people corrupt power.“
– William Gaddis
