Officials of the 50 states and numerous localities have seen fit to deprive millions of Americans of their jobs and much else. Many of their actions, backed up by local and state penalties, are illegitimate. They exceed the powers of these governments. The general remedy is to sue for relief and damages. Lawsuits of this type against state and local officials and against these governments as bodies are essential to meet the requirements of justice; and they are likely to be forthcoming in the following months. They might come in the form of class-action lawsuits. They are a check on government power.
One should not also be surprised to see lawsuits against officials who squandered tax dollars and failed to be prepared for a contingency like a new disease. They misused their powers. But the far more important class of lawsuits are those directed against the closet totalitarians who exceeded their powers.
The courts will decide whether or not such suits have standing. Courts will decide these cases. They are unlikely all to judge matters in the same way. Surely at least a few will go on official record as strongly condemning the excessive exercises of power we have seen emanating at state and local levels of government. Some will no doubt excuse them as justified by emergency or by unwritten state and local police powers. The mixed verdict of courts might lead to Supreme Court cases.
What needs to be the general outcome and judgment is that states and local governments in many instances exceeded their legal authority. The law of the land cannot let stand these law-breaking actions as precedents. Basic freedom and justice demand verdicts that put governments back into their law-abiding places, such as they were. These pre-pandemic places (exercises of government powers) already were not to be taken as respecting the ideals of freedom, justice and property rights. Nonetheless they were better than the current exercises in totalitarian lockdowns, restrictions and deprivations. Returning to them with freedoms unscathed is the challenge.
The basic question is whether or not courts will rubber-stamp what are clearly illegitimate exercises of power by governments. One factor influencing their decisions is public opinion, that is, public satisfaction or dissatisfaction with the general law-breaking that has occurred and that has currently replaced the market order with an order of deprivation. A rapid movement back to normality might blunt public dissatisfaction. Looking ahead, political forces have been set into motion that are complex and whose composition and final disposition are unknown. We’re in unknown and deep waters. We’ve been there before, as during the excessive measures taken during various wars; and the results have usually been to codify the excessive government powers.
What will help prevent such rubber-stamping and codification of new government powers is now to identify each and every instance in which governments are exceeding their powers. A kind of extensive legal brief that tabulated these excesses and provided close and sound arguments for their illegitimacy would be most helpful.
10:03 am on April 23, 2020
