Glenn Roper is an attorney with the Pacific Legal Foundation, who has been closely following the latest developments at the state and local level. He argues in a recent article that emergency powers such as those being exercised by governors violate the separation of powers written into state constitutions. In Wisconsin, for example, health officials were delegated the authority to make the rules on business re-openings — rules which, if violated, implied criminal penalties including arrest. PLF is keeping tabs on where such rules have been enacted, and defending citizens from unconstitutional closures of their businesses.
I spoke to Roper for the full hour on why a crisis like COVID makes it more important — not less — to enforce a strict separation of powers. If the government is going to take away our rights due to extraordinary circumstances, they must go through the elected legislature. The courts have intervened in Wisconsin, dealing a blow to the “mini-administrative state” there, but elsewhere such as Michigan, the citizens still need help.
Tune in and support the PLF in their important mission to protect the individual rights of Americans during the COVID-19 crisis.
Download MP3 or read the transcript below.
Links:
- Pacificlegal.org
- Governments should uphold separation of powers during COVID-19 | Pacific Legal Foundation by Glenn Roper, July 20, 2020
- Issues & Insights: Are Continued Shutdown Orders Constitutional? | Pacific Legal Foundation by Larry Salzman April 27, 2020
- Rebuilding America Requires Freedom | Pacific Legal Foundation’s Roadmap to Recovery
Related Shows:
TRANSCRIPT
Bob Zadek: James Madison once observed that the accumulation of all power, legislative, executive and judiciary, in the same hands may justly be pronounced the very definition of tyranny.
Does that describe how we are living in many states today with the accumulation of all powers, legislative, executive and judiciary, in the hands of governors, mayors, and county executives? As if it could not get any worse, it is now in the hands of health department officials who have received delegated authority, and are dictating how we organize our lives and whether we can or cannot earn a living. This is the definition of tyranny. Pretty scary stuff. To explore perhaps the most important single concept, which dictates how our state, local, and of course, federal government is structured. The core structure is reliant upon the separation of power. Those are not empty words. Those words as we will learn this morning, say it all. Once we lose the separation of power, we are subjecting ourselves or we will become subjected to tyranny.
To help us explore the importance of what is going on today in the governance dictated by the pandemic concerns, I’m happy to welcome the show Glenn Roper. Glenn is a practicing attorney and a litigator with the Pacific Legal Foundation.
I almost cannot say the phrase without forming goosebumps in the back of my neck. I have profound admiration for the work of PLF. They are an important government public interest firm law firm which litigate on behalf of all of us for individual liberty, separation of powers, rule of law, economic freedom and private property.
Glenn has had a wonderful career. He has served in government. He has served in the high levels of the legislative and judicial branches of state and federal government. He brings enormous amounts of wisdom and understanding about what’s going on under the hood of government. Glenn will help us understand the importance of the doctrine and the practice of separation of powers.
Before we get into separation of powers, help our friends out there understand what the mission of PLF is. You have been unbelievably successful in the courts, you have had eight or nine victories in the US Supreme Court. So tell us the mission of PLF.
Glenn Roper: Yes, of course. That is something I love to do. With this last Supreme Court term, I think we’re actually up to 12 victories in the United States Supreme Court. Pacific Legal Foundation is a nationwide nonprofit public interest law firm where our mission is to protect individuals and entities against government overreach.
We promote property rights, economic liberty, the separation of powers, equal protection, we do it all without charging our clients a nickel. We provide pro bono representation for people who need this sort of assistance and can’t afford it on their own. It is entirely donor funded and it is our mission to protect Constitutional rights against government overreach and abuse.
Bob Zadek: It sounds like this is a paid commercial for PLF but it’s not, this comes from my heart and my mind. PLF, in the most profound sense of the word, represents the little guy, the smallest of proprietorships — an independent business person or property owner trying to make an honest living, cooperating with others to create wealth and jobs. These are the people who, without PLF, would have no voice. When you prevail, you don’t prevail just for the single plaintiff who has a legitimate beef with the government. The cases establish precedents that help through the multiplier effect, tens of thousands of other similarly situated small business people and small property owners. The multiplier effect of your success is just incredible. Thank you so much for your work and the work of PLF.
Separation of Powers: A Crucial System of Checks and Balances
Bob Zadek: Okay, let’s roll up our sleeves. Let’s get into this morning’s work. We have a lot of interesting concepts to understand. Separation of powers. Those words sound like something out of a high school textbook and I’m sure they are. They are not empty words. They are where it’s at in terms of the control of government. Help us understand what the founders had in mind regarding separation of powers and explain why that concept is so important in our political lives.
Glenn Roper: Separation of powers is a fundamental American idea and ideal. It is really what helps protect us. One of my heroes, Justice Antonin Scalia, before he unfortunately passed away a few years ago, said that the foundation of our freedom is not based in the Bill of Rights. I’m a constitutional litigator. I’m fighting every day to promote the freedoms and liberties in the Bill of Rights. But he was emphatic about this. It’s not the Bill of Rights. He would say “every tin pot dictator has a bill of rights.”
You can go to North Korea and find American dictation of the Bill of Rights protecting freedom of speech and freedom of the press when we know those kinds of rights are really not available to the average citizen. Justice Scalia would say, what ensures our freedom is the structure of government. If you look at the Constitution itself apart from the Bill of Rights and the other amendments, it is the structure that is set up, the checks and balances between the different branches of government that really helps hold each branch accountable and help to protect our freedom and our liberty.
“It’s not the Bill of Rights.” [Scalia] would say, “Every tin pot dictator has a bill of rights.”
You’ve got the legislative branch with Congress, you’ve got the executive branch headed by the President. You’ve got the judicial branch, and there’s push and pull between them and boundaries between them and that, and that push and pull helps make sure that, as James Madison also said, “ambition can counteract ambition.”
What did he mean by that? Well, the legislature wants to take power into its own hands but that is offset by some of the power of the executive and the judiciary — that push and pull and check and balance is really what helps to protect our freedom and our liberty much more than any of the the rights listed in the Bill of Rights.
Bob Zadek: There has been a lot in the media, a constant conversation, about how we are ruled by this cadre of elites — people who take themselves to be smarter than the rest of us. They are the wise men and they know how to run our lives better than we do. Therefore they deserve to have the power over us. If they did not, we would ruin our lives. The founders of course, in the past concept of the separation of powers, acknowledged that there is not a single group of elites who know better than others how life should be organized and how the country should be run.
By pitting political groups, the legislative against the executive and perhaps against the judicial, you end up with the collective wisdom which is better than the wisdom of any single branch of government. It is common sense that the more branches of government that are involved in the process checking each other’s excesses that produce less excess and better decision making. So the corollary is when that separation of powers disappears, and power ends up being collected in the executive alone — in this case because of the pandemic — that’s where bad decisions are made, because we lose those checks and balances.
“By pitting political groups, the legislative against the executive and perhaps against the judicial, you end up with the collective wisdom which is better than the wisdom of any single branch of government.”
Executive Emergency Powers: A Trend Towards Tyranny
Bob Zadek: When we talk about checks and balances and separation of powers, we can observe that there is great executive authority during periods of crisis or emergency. Tell us about this concept of what has happened in the pandemic, the state of emergency, because it’s kind of unprecedented. How has power come to reside in the executive branch for such a long period and with such strong powers at that. How does that all happen?
Glenn Roper: You raise the number of fascinating concepts that hopefully we’ll be able to explore a little more, but just like with the federal government, every state has a separation of powers. So you’ll have legislative bodies and executive bodies and the judiciary. The founders and people who studied these at the outset of the country were not unfamiliar with emergencies and with problems. They had just come out of the war against England as they formed the Constitution. They did not kind of blindly set up the separation of powers in ignorance of the fact that you can have emergencies that needed to be dealt with. So because of that there isn’t a general emergency exception to everything in the state and federal constitutions.
Instead, what you have are state legislators who will enact laws that give some measure of emergency powers to the executive. They recognize that there may be a need to act swiftly and efficiently in the face of an emergency. They’ll have legislation that lays out what the governor or other officials are allowed to do. The restrictions and limitations on it. It’s not unprecedented or something that nobody thought of, and it’s not an unbounded power.
The executive will be allowed to declare certain types of emergencies such as a public health emergency. Unfortunately, the problems that we are seeing, and part of what PLF is focused on, is the limits not being respected. That’s where you get some of the erosion of the separation of powers and the checks and balances that we need to have and that we expect to have.
Bob Zadek: One of my observations about the use of executive power is that the legislative process often takes quite some time. It cannot act on a dime, although the declaration of war after Pearl Harbor took a second. Congress also acted with remarkable speed, regretfully, after 9/11. So legislators can act fast, but they are not known to act fast. So therefore, in recognition of the fact that government must on occasion be nimble when there are states of emergency are declared by the executive, for a that period of time the executive is automatically granted powers that otherwise would be nothing short of dictatorship.
What has been forgotten is that the reason that we have this extraordinary ceding of power to the executive is only to give the legislature time to react as legislators do. It is a stopgap. It is the exception, not the rule. And therefore, the executive declares a state of emergency and makes the immediate decisions that must be made until the legislature steps in. So what has happened is the exception has become the rule. There is no mechanics for the executive to voluntarily declare that the state of emergency is now over. That concept that it’s supposed to be very temporary has been lost in the wash, right?
Glenn Roper: You raised three or four different issues that we could talk about, but the first thing that I thought of is that power is given to the governor not because the legislature made the determination that the governor is the smartest person in the state or is the the best able to handle and balance competing considerations. It’s just a matter of that fact that we need somebody to be able to act decisively and nimbly at a time when the legislature might not be in session. You may have legislators spread throughout the states who have difficulty in an emergency situation and are getting together and convening. So the governor is given these temporary powers.
We are speaking generally here. Of course, we’ve got 50 different states and 50 different solutions. But there are states where often these emergency powers have explicit time limits, like 15 days or 30 days. I think even where the legislation itself does not have that kind of a written time limit, it’s still understood that these are intended to be temporary kinds of powers. How do we enforce that?
How do we make sure that happens? Well, unfortunately, sometimes there’s no way to address it other than bringing in a third branch and going to the judiciary and bringing a lawsuit and saying the governor or Mayor or county official, whoever it is, is going beyond the kinds of powers that are granted in the emergency act. A lot of these restrictions are going to be things like closing businesses. That’s what we’ve seen happening across the country.
It really is important to keep in mind that it’s one thing to impose kind of a temporary stopgap so people can assess and understand a new disease. Unfortunately, what we’re seeing is something much bigger — more of a power grab, paralyzing economic activity and turning it into a central planning situation. You’ve got officials who are determining what kinds of businesses we should or shouldn’t have, what’s essential, what’s not essential. Unfortunately, sometimes the only way that we can push back against that is bringing lawsuits on behalf of the people who are harmed by these kinds of orders. We’re also seeing a little bit of a movement among state legislators, who are looking at the rules and saying, “Wow we may have granted a little too much power to the executive here.”
“Sometimes the only way that we can push back against that is bringing lawsuits on behalf of the people who are harmed by these kinds of orders.”
There are about 20 or so states that are now considering legislation to cut back on their governor’s emergency power. Now that they’re seeing the fruits of it in action, they’re taking some of those steps. So there’s a legislative route to fix some of these concerns that we’re seeing, and there’s the route of people bringing lawsuits to try to hem in and enforce the limitations on the governor’s power.
There is also of course the power of the voting booth where people can go and make their voices heard and maybe make a positive change at the polling place. But it is a problem that we’re seeing, with people going beyond the power that is intended to be granted to them and treating this not as a temporary stopgap measure, but taking it as an opportunity to grab more of the power that should be separate.
Bob Zadek: Has there been even one instance where any governor or mayor has said, “Okay, legislature has had enough time. There is enough time now for the legislature to act and therefore I am undoing my declaration of emergency. I am like George Washington or like Cato, going back even much farther.”
George Washington at the end of the war handed over his sword and said, “I’m going back to be a planter in Virginia. My work is done here.”
Is there any instance where a governor who has four months or so into the crisis told the legislature to take over?
Glenn Roper: I’m not aware of something like that. There are too few people who model their service after George Washington. But there have been differences on how it’s been approached. Governor Desantis in Florida and Governor Abbott in Texas, specifically, have taken what I consider a more measured approach to some of these things, but I really can’t think of an example off the top of my head where somebody has rescinded some of these orders. I just have not seen that happening.
“There are too few people who model their service after George Washington.”
We need these checks and balances because of that ambition we talked about and that James Madison talked about. The incentive and the path that they followed was to try to aggregate power.
Bob Zadek: Of course you haven’t seen any examples. That was a loaded question. I was sandbagging you because there is no such instance of where power is voluntarily released and ceded back. It only happens under great pressure. As I recall, at the federal level, there are something in the low 20s of existing states of emergency going back 20 or 30 years.
States of emergency have the effect of creating unusual accumulations of power during a “temporary” crisis. They never go away because it’s too good for the government. Why would they ever want to relinquish power?
Let us all watch and let us give a free copy of profiles in courage to the first governor who voluntarily says “I have gotten us through the tough stuff. So legislature, do your job.”
“States of emergency have the effect of creating unusual accumulations of power during a “temporary” crisis. They never go away because it’s too good for the government. Why would they ever want to relinquish power?”
The Disastrous Effect of Unchecked Executive Control
Bob Zadek: That just hasn’t happened. And it is so interesting to look and see if it ever will happen. The next word that pops into our cynical brain is “arbitrary.” Once you have unchecked power, then you have the holder of the unchecked, almost unlimited power, exercising it in a way that is arbitrary. That translates into everyday discussion into essential and non-essential businesses, an almost laughable distinction. So tell us how the absolutely predictable accumulation of power in the executive, which the founders abhorred because they abhorred any accumulation of power anywhere in government or in the country at large,has resulted in arbitrary, almost humorous decisions in everyday life.
Glenn Roper: When the legislature is enacting legislation, they will hold hearings, they’ll propose bills, they’ll discuss their compromises. They’ll listen from different interest groups. We’re not seeing any of that when the governor bypasses the normal legislative process and takes to find him or herself the extraordinary power of deciding what economic activity can continue and what needs to stop. One of the best examples of the arbitrariness is a case actually that the Pacific Legal Foundation is litigating right now in Connecticut, where the governor has issued a number of different orders, sometimes conflicting, sometimes changing.
He is drawing these arbitrary distinctions. It’s not just against who needs to be closed but as to when they can reopen. The state of Connecticut, the governor and his economic development office, withdrew and put different kinds of businesses in different categories, and then decided who can reopen when. Well, our client Louise Ramirez, owns a nail salon. The governor issued an order saying that he is going to allow hair salons to reopen, but not nail salons. So we’ve brought a lawsuit on behalf of Mr. Ramirez and his business challenged this arbitrary distinction.
The arbitrariness of it is really highlighted in the fact that the governor himself and his health and economic officials specifically categorized nail salons and hair salons as having the same risk profile. They did that on the one hand. And then on the other hand, they said, “Nonetheless, we’re going to draw a distinction and say that one can reopen and the other cannot.” They gave no reason to justify this.
“The governor issued an order saying that he is going to allow hair salons to reopen, but not nail salons. So we’ve brought a lawsuit on behalf of Mr. Ramirez and his business challenged this arbitrary distinction.”
There is no reason why the same sorts of precautions can’t be taken in the nail salon. In fact, Mr. Ramirez has spent some of his own money on his increasingly dwindling funds to implement some of these precautions so that when they reopen, he’ll be ready to go with the masking and the distancing and all the precautions that they recommend. There are just these arbitrary lines that get drawn. It is laughable, but it is not laughable in that these are real people trying to support their families whose businesses are just closed down. It’s very damaging, and it’s very dangerous. It highlights some of that arbitrariness that we are seeing in these shutdown and reopening orders.
Bob Zadek: In the litigation in Connecticut, is there any indication of a rationalization? Is there any pretense that it is a data driven and considered conclusion? Or is it totally arbitrary.
Glenn Roper: That litigation is ongoing so the state has moved to dismiss our complaint and we’re in the middle of briefing that right now. But really, they can’t make that kind of distinction because they’ve already issued these risk profiles grouping nail and hair salons together. So they haven’t given any scientific literature and conducted studies. It really is just a naked exercise of arbitrary power.
The Problem of Standing
Bob Zadek: Anybody who is even a casual student of government and the relationship between citizens and government would have to say that it is important to preserve the separation of power. We start with an exercise of executive power for far too long and with the executive enjoying more power perhaps then King George III had over the colonies, and hopefully not for as long a period of time.
Once we start with something that is clearly unconstitutional and violative of America’s first principles. People around the country are starting to get angry. There’s no real way to enforce that and to compel the governor to cede power back and undo the executive order. It’s a standing issue.
“We start with an exercise of executive power for far too long and with the executive enjoying more power perhaps then King George III had over the colonies, and hopefully not for as long a period of time.”
So tell us about the mechanical problems. We have PLF and perhaps lots of other organizations which would like nothing more than to get to the heart of it and undo this unconstitutional seizure of power for too long. You have no direct remedy, do you?
Glenn Roper: Well, you mentioned standing. That’s an important requirement that the courts have set up, which is that you can’t go in and challenge a policy just because you don’t like it or because you see problems with it or because you can identify constitutional violations. Instead, you have to show that you are concretely impacted in a substantial way and that by bringing this lawsuit, if you were to prevail, that would help remedy the problem that you’re facing.
Until we have a client who has been concretely affected, we can’t bring a lawsuit. We really rely on our clients who really are the heroes in these situations. These are everyday ordinary Americans, men and women who are trying to run their businesses live their lives, and support their families. We rely on finding those people and hearing about those people to bring lawsuits on their behalf because you’re right, you can’t just go challenge a policy because you don’t like it.
“Until we have a client who has been concretely affected, we can’t bring a lawsuit.”
You have to be able to show that you’re someone who’s affected by it, and who can by challenging it get some relief.
Economic Rights: A Second Class Set of Rights
Bob Zadek: What’s so interesting about this whole laboratory, showing us the adverse effects of the violation of the core principle of separation of powers is that it requires the government to make what seems like a profoundly apples and oranges distinction, but it must be made. That is, this clash between protecting the health, welfare and safety of citizens, which is perhaps the most important single mission of government behind besides preserving the rule of law and protecting the economic well-being of the country.
The focusing on what we call “economic rights,” the right to have your contracts enforced, the right to enter into a bargain with another consenting adult and have that contract if it doesn’t harm anybody.
There’s a whole range which Pacific Legal Foundation is so profoundly aware of, which is the protection of what we call economic rights. Just imagine if under the guise of the pandemic, a governor declared he was going to shut down the newspapers because they are fomenting dissent which is contrary to the public order or something like that. If the government were interfering with freedom of the press or free speech or freedom of assembly, or freedom to practice your religion, then there would be angry protests. It couldn’t survive.
But there is not the same rising up in protest when the government is interfering with economic rights. Economic rights were every bit as important to the founders in the sense that there are provisions in the Constitution in first and founding documents that protect freedom of contract and the like. Economic liberty has become a second class set of rights. Therefore, it has been relatively easy for the executive branch to further deny people their economic rights such as the right to earn an honest living.
Glenn Roper: One of PLF’s important missions and values is to enshrine the value that is given to economic rights. It’s just the right to make a living, the right to run your business, the right to seek after and pursue a profession of your choice, and unfortunately over the years that right really has been given this kind of second class status. To the extent that when we challenge some of these regulations under economic rights and economic liberties, courts will apply what they call the “rational basis” test. Really, the rational basis test is that in drawing these distinctions that harm economic rights or economic liberty, if we can identify a rational reason for why the government would have this restriction, then we will uphold it.
So unless you can show that the legislature the governor was actually acting irrationally in a way that makes no sense, they will uphold these restrictions. Unfortunately, we’re seeing it go even further than that, which is where courts will say we’re not only going to look at the reasons that the government gives for the restriction, we’re also going to try to imagine other reasons that they may have for coming up with this restriction. If we can imagine a reason for why they would have this restriction on economic rights and the right to own and use your property to run your business to make a living, we’re going to uphold it.
That really is a far departure from the understanding at the founding of the importance of allowing people to live their economic lives. Just as much as we want people to be able to live their religious lives, their their social lives, who they associate with, and to be able to speak freely, we at PLF also believe it is very important that people be able to live their economic live in the way that they see fit and the way that they think best with their family.
Governmental Violations of Substantive Due Process Rights
Bob Zadek: On the principle of extraordinary executive power during a state of emergency. One of the powers that government has is to take away freedoms temporarily, but only after a showing that, as to this individual and this exercise of this individual’s freedom, it has a harm to society. That is, in every instance due process, if not simple, dictates that you cannot lump an individual simply as part of a group and say, we know nothing about this individual’s behavior but this individual is part of a larger group and since the larger group poses a danger then this individual does and we can deny this individual liberty.
Think of something that seems to be totally irrelevant, but it’s not. Think of the core principles of Black Lives Matter, for example. The core objective, and I don’t mean to minimize it, but the core objective is that blacks are complaining that as a class, they have been harmed. Not every single black person has been harmed, but as a class, and they are complaining not as individuals, but as members of a class, of being treated unfairly.
Well, this same principle applies when you say that every nail salon must be closed, there has been no government finding that this specific nail salon poses a threat. Therefore, because this nail salon is in general a business and businesses as a whole might pose a threat, this specific nail salon must close.
The same thing with stay at home ordinances. When I am ordered to stay at home, nobody has made a finding that I constitute a danger but I am part of a class of humans who may collectively pose a danger. So I think this is kind of unusual in American jurisprudence that substantial liberty has been deprived to us not because of our individual behavior, but because of being a member of a border group or broader group.
Glenn Roper: We could spend the whole hour talking about that. But I think you have hit on one of the key problems that we see with these kinds of orders. Stepping back, I think as Americans for the most part reasonable people we recognize that when there’s something that’s unknown, uncertain, and potentially very deadly, we are willing to give a little bit of the benefit of the doubt in the early days of a pandemic and recognize we are trying to deal with things that aren’t emergency level. Maybe you’re painting with a little bit of a broad brush, but as things continue, and we’re four or five, six months into recognizing the danger of a pandemic now.
We are long past due to step back and say, these kinds of things are a big problem. Another one you didn’t mention are the travel restrictions some states are trying to impose. Saying, if you have touched foot in the state of wherever, you must be quarantined when you come back to our state — with no analysis of whether you were infected or in danger.
“We are long past due to step back and say, these kinds of things are a big problem.”
This kind of broad brush painting, of putting people in different classes without the sort of individualized determination that the government should be implementing, is worrisome. Particularly at this point where we’re months into the pandemic, these kinds of broad brush restrictions don’t make sense anymore. We’re learning more every day about the virus and about what danger it poses or doesn’t pose. Because you are a business, or because there is money or goods changing hands, we’re going to impose broader restrictions than on any other sort of human activity really doesn’t make any sense. It is damaging. When you allow people to get together and play cards, but don’t allow them to do somebody’s hair or nails or exchange goods, it really is a problem.
Going back to the arbitrariness. It’s really important to me because I see the danger and the damage that is doing to people’s lives. Governor Whitmer in Michigan is a particularly egregious example of issuing orders that say you can go to Home Depot and buy plumbing supplies but you can’t buy paint for your home. You can go buy furniture at Walmart but if you are an appliance store you have to close. It is arbitrary.
“Governor Whitmer in Michigan is a particularly egregious example of issuing orders that say you can go to Home Depot and buy plumbing supplies but you can’t buy paint for your home. You can go buy furniture at Walmart but if you are an appliance store you have to close.”
At PLF we find these individuals and we take them to the courts and make them pay attention to the individual circumstances. It’s not enough to just put people into classes and apply these restrictions across the board.
Bob Zadek: My last thought is that implicit in all of the arbitrary actions taken by all of the governors who have taken upon themselves extraordinary dictatorial powers is they have made a decision that writ large people staying healthy is more important than people earning a living.
Remember Governor Cuomo said that even one life is priceless. Governor Wolf in Pennsylvania said first we deal with life then we deal with livelihoods. Utter insanity. So we have the government making this not data-driven decision to subordinate economic well being to health well being, an utterly irrational decision.
How can all of our friends out there can follow your writing and the work of PLF?
Glenn Roper: Thank you so much for having me on. You can find more information about PLF at Pacificlegal.org. We’ve got a number of attorneys there, we’ve got a blog that includes both my writing and the writing of other attorneys here on these and other issues.
Originally published at http://www.bobzadek.com on July 30, 2020.
