Our President at His Best!


Observations by a Citizen

Hal Rounds

 

Where Do Orders Come From?

 

We pride ourselves, and seek justice by using John Adams’ phrase that “we are a government of laws, not of men.”  So, let’s check:  Federal, state and local governments have begun making rules for “social distancing” due to the Corona Virus “pandemic.”  Are we just a bit too anxious about this flu to protect our legal foundations?  Are our governments just enforcing properly legislated laws, that were made carefully, or are we accepting rules made in the spur of the moment, accepting the judgment of men (however well-intentioned) rather than the law?

 

Our Constitution authorizes just a few powers to the federal government.  They are listed, and the 10th amendment specifically reserves all powers not on that list to the states or us, the People.  So states are given the power – and perhaps the responsibility – to prepare for other dangers, like an epidemic, themselves. 

 

There are only a couple of circumstances when the federal government can assist – or interfere – in a state.  Insuring a republican form of government and defending against invasions are prominent.  Things that most closely affect the people of each state are left to the states.  Crimes are state and local problems, so there is no federal power regarding theft, homicide, etc.  Health care regulation was a state responsibility until federal overreach came in to “help.” 

 

What if a state has some kind of emergency?  A state may apply to the federal government for protection – but only “against domestic violence.” 

 

Trump is aggressively marshalling federal resources in a massive campaign to stop the Corona Virus; but there is really no Constitutional authority to do that.  For such a universal problem, maybe we should consider altering that plan – but, for now, it is not a Constitutional power, just a political necessity for governing a population that doesn’t know it’s Constitution.

 

States can work together to create a state-based emergency system.  What powers or laws can Tennessee authorities use to respond as is happening now, like ordering businesses closed, “social distancing,” and such?  There is no reference to a health or similar emergency in the state Constitution – but the powers there are vague and broad.

 

The Governor, and our county and town mayors have referred to parts of the Tennessee Code:  TCA 58-2-110, 58-2-105, 38-9-101 et seq.

 

What do these sections actually say?  58-2-110 is part of “Title 58 - Military Affairs, Emergencies and Civil Defense; Chapter 2 - Disasters, Emergencies and Civil Defense.”  It uses terms related to war or civil disturbance “emergencies.”  There is no mention of epidemics, but “each political subdivision” has authority to “provide for the health and safety of persons and property…”  It does not mention a power to restrict the activities of the population at large, although such power must be part of handling actual emergency locations.  And there is this: “The duration of each state of emergency declared locally is limited to seven (7) days; it may be extended, as necessary, in seven-day increments…” 

 

Title 38 make rules for “Prevention and Detection of Crime.”  In it we find that “Civil emergency means… riot or unlawful assembly characterized by actual force or violence” and “natural disaster” is floods, earthquake explosions, and such.  Only here do we find references to curfews, and that a “curfew shall have the force and effect of law and shall continue …  not to exceed fifteen (15) days.”  The only kinds of business closures specified are liquor, gun and gasoline sales – the kind of things that can contribute to riots. The authority in Title 38 is limited to 15 days. 

 

So, we are accepting clear stretching of our existing laws.  I’m sure it is well-intentioned – but the stretching rarely contracts back to the intended purpose when the excitement subsides.  It is up to the people – us – to protect government by law, rather than by “men.”