"The Wisconsin Legislature filed a lawsuit last month in an attempt to reopen the state and block the extension of the stay-at-home order issued by state health officials to slow the spread of the coronavirus. 'I'll direct your attention to another time in history, in the Korematsu decision, where the [U.S. Supreme Court] said the need for action was great and time was short and that justified, and I'm quoting, 'assembling together and placing under guard all those of Japanese ancestry' in assembly centers during World War II,' said [Justice Rebecca] Bradley.... 'Could the [Department of Health Services] secretary under this broad delegation of legislative power or legislative-like power order people out of their homes into centers where are they are properly social distanced in order to combat the pandemic?... The point of my question is what are the limits, constitutional or statutory? There have to be some, don't there, counsel?... My question for you is where in the Constitution did the people of Wisconsin confer authority on a single unelected Cabinet secretary to compel almost six million people to stay at home and close their businesses and face imprisonment if they don't comply with no input from the legislature without the consent of the people? Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work?'"
CNN reports.
MEANWHILE: A Southern District of New York judge un-cancelled the New York primary,
the NYT reports. Democratic members of the State’s Board of Elections made the decision to cancel the primary, and the challenge was brought by Bernie Sanders and Andrew Yang.
“If all but one of the presidential candidates are removed from the ballot and the primary is not held, Delegate Plaintiffs will be deprived of the opportunity to compete for delegate slots and shape the course of events at the Convention, and voters will lose the chance to express their support for delegates who share their views, [U.S. District Judge Analisa Torres wrote]. “The loss of these First Amendment rights is a heavy hardship."
Torres was appointed by Obama.
Posts
42 comments:
They had to destroy the country in order to save the country.
That internment was reasonable, though disparaged today. As I recall, they could move from the west coast or be interred. Nobody knew at the time where their loyalties were and an invasion was expected.
Many fought in Europe.
"Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work?'"
Yes.
what happened to their property while they were interned?
It's the same question with Muslims today - if they don't want to assimilate, if they don't agree with the Constitution (cartoon the prophet), they shouldn't be here. To cut off that discussion, it's useful to deplore the interment of the Japanese-Americans for the same reasons.
On its face, the Korematsu decision is horribly and irredeemably racist. Full Stop. End of discussion. Period. Therefore, no further analysis or consideration necessary or allowed.
To mandate and compel people of a single sex and largely of one race, the majority race, to leave their homes and be kept in camps, there to put into involuntary servitude and then shipped off to another land and made to go onto a battlefield and there to be killed or maimed by any manner of horrible methods -- all of that is perfectly acceptable and allowed.
But to mandate and compel another category of people to leave their homes and be kept in camps to safely and peaceably live amongst themselves temporarily -- that is intolerable.
"Isn't it the very definition of tyranny for one person to order people to be imprisoned for going to work?"
And now the Storm-Blast came, and he
Was tyrannous and strong:
He struck with his o’ertaking wings,
And chased south along.
"As I recall, they could move from the west coast or be interred."
Interred means buried.
"The evil that men do lives after them/The good is oft interred with their bones...."
Tyrannous and strong is a good example of musicality in verse. The same sounds in the words.
No the internment of issei and nisei was overbroad so is this flatline
When does the decision come down?
My lawyer friends in Wisconsin, all two of them, say the outcome is likely determined by the partisan structure of the court, i.e., Republicans dominate.
So, is the Supreme Court’s decision the end of the road, or does this just go to SCOTUS?
Visit Manzanar. Go in the museum. Read what the Army officers had to say about taking American citizens of Japanese descent from their homes. If you can stand it.
Her whole line with the defense attorney was really bizarre, like she wanted the platform to bloviate.
Did you notice when Kelly (who just lost reelection) called his colleague 'Mrs Dallet'? What a stupid childish insult
Shouting Thomas, this has to do with the State Constitution - this is the end of the line.
"Nobody knew at the time where their loyalties were and an invasion was expected."
Only partially correct since nobody knows where anyone else's loyalties lie. And therein lies the entire problem.
1. The Japanese internment was race based--a large group of American citizens were deemed security threats because of their ancestry. (Nothing similar happened to citizens of German or Italian ancestry.) Not only that, but the general in charge falsified evidence of espionage activity--and then relied upon it as the basis for the decision. So Korematsu was a case that should have been decided under a strict scrutiny standard, and, based on that scrutiny, the relocation orders should have failed.
2. The Wisconsin shelter in place policy, in contrast, is not based on a suspect classification. Or falsified evidence, for that matter. So no strict scrutiny. Some form of rational basis review.
3. And there is clearly a rational basis for shelter in place--it reduces the incidence of disease and prevents hospital overload and spiraling death rates. There's a lot of law, as I recall, suggesting that this kind of public health rationale does--and ought to--go a long way.
4. Which doesn't mean that the conservative justices on the Wisconsin Supreme Court won't go for a different view. If so, though, it will be both bad law and bad policy.
Sigh.
Don't fall for it.
It ain't me, babe.
It is time.
The numbers were never there.
They have been wrong and lying about this from the start.
Every single death certificate has covid19 on it in places in New York. This is a fraud.
It is time for the police state to line up on one side and the free people to line up on the other.
When I fill out my census questionnaire, just to be an ass, I enumerate only.
And skip all the other questions.
10 years ago I had a woman come to my home 5 times to tell me I didn’t complete the questionnaire appropriately. Every time she came I gave her a copy of the Constitution and told her to get the hell off of my property.
She went to my neighbors at least 2X to ask them about me.
So...when Evers said essential travel, my husband and I drove to our cottage just to check on it.
The next weekend we met with our plumber to tuen the water on at the cottage.
The next weekend met with a guy to dump a dump truck load of sand on our property.
The next weekend we met with the people who put in our pier and boat.
This coming weekend we are going to take care of the lawn on the property.
Soon, we will spend a whole week there.
We anticipate friends visiting overnight, cooking out and drinking together with no masks!
Evers can take his definition of essential travel and shove it.
My behavior is not going to change anyone else’s but I am doing what I can in my own way to say stop the government overreach.
Justice Bradley for the win! Smart cookie.
Meanwhile, a legal case on another front --
The third fight in the contraceptive mandate saga comes before the U.S. Supreme Court tomorrow with the left still trying to force a bunch of chaste Catholic nuns to provide contraception coverage to their fellow sisters or else be bankrupted, when all they want to do is care for old folks (and they themselves are increasingly elderly and beyond childbearing age).
Korematsu was a case that should have been decided under a strict scrutiny standard
Korematsu was a case that WAS decided under a strict scrutiny standard.
Stephen,
Outline for us the limiting principle. When is the exercise of this power appropriate, and when is it not?
Sorry the Japanese living on the West coast did not have a choice; they had to leave their farms and property as they were shipped to the camps, but a number of Japanese who lived on the East coast, a small amount, were not affected. This comparison just reveals the cheap ideological thinking that marks the present Wisconsin Supreme Court members. Further the shelter in place are the government recommendations on not just the Wisconsin's governor, and as far as I have experienced there are no armed guards checking my movements.
and as far as I have experienced there are no armed guards checking my movements.
So you say there is no enforcement, no consequences. In real effect, no stay at home order. Good news.
" as far as I have experienced there are no armed guards checking my movements."
Gee, the police in my town have guns.
Narayanan said...
"what happened to their property while they were interned?"
Glad you asked. It was stolen by the State of California, which then sold it off for pennies to well-connected Chicago gangsters.
Earl who?
"Meanwhile, the earliest and most prominent advocate of the internment policy was California Attorney-General Earl Warren, who used the political issue with great effectiveness to unseat the state’s incumbent Democratic governor in the 1942 election."
Italians on the West Coast were also under some restrictions. My wife’s family in Eureka were restricted to a small area of town, while her father was serving in the South Pacific.
https://www.amazon.com/Internment-History-Relocation-Italian-Americans/dp/0805791086
invoked the internment of Japanese-Americans during World War II
They should just revoke that pesky 13th amendment.
When I fill out my census questionnaire, just to be an ass, I enumerate only.
That's all that's legally required.
10 years ago I had a woman come to my home 5 times to tell me I didn’t complete the questionnaire appropriately.
She was wrong about that. "You are free to choose where to report your identity and which boxes to mark, or not to mark." (it was the same in 2010)
She went to my neighbors at least 2X to ask them about me.
That's what they're supposed to do, but just to get a count.
Who knew that Manzanar was right here on my cul de sac! And it's less than 10 miles from downtown Los Angeles!
Mark, I don't read Korematsu as a case that applied a strict scrutiny standard. That's not the standard that the Court said it was applying, and it's not the level of justification it asked for from the government, as Justice Murphy's dissent makes clear.
Fritz, I did not say that white Americans of Italian and German descent suffered no discrimination, only that it did not remotely resemble that suffered by citizens of Japanese descent.
Finally, Yancey, an example of a case where a restriction on personal freedom should clearly have been struck down is the Wisconsin voter ID law, which, as Judge Posner persuasively demonstrated, was supported by a wholly unproven theory of prevention of fraud that was a "fig leaf" for a strategy to disenfranchise Democratic voters. The contrast with this case, where the state can marshal massive scientific and medical evidence--not to mention the practice of virtually every other nation in the world--in support of the approach adopted, could not be clearer.
So, Yancey, which is it for you? Are you prepared to strike down both the Wisconsin shelter in place order and the Wisconsin voter ID law? Or would you uphold them both? Pretty hard to have it both ways, I'd say.
Stephen said...
2. The Wisconsin shelter in place policy, in contrast, is not based on a suspect classification. Or falsified evidence, for that matter. So no strict scrutiny. Some form of rational basis review.
3. And there is clearly a rational basis for shelter in place--it reduces the incidence of disease and prevents hospital overload and spiraling death rates. There's a lot of law, as I recall, suggesting that this kind of public health rationale does--and ought to--go a long way.
1: The prediction for Florida was 168k hospitalized by April 24 IF they did "social distancing". Actual number: < 3k
So your claim that the order isn't based upon "falsified evidence" is cute, but unsupported by reality.
2: Do you have a RCT proving that "shelter in place" A: reduces the incidence of disease and B: prevents hospital overload?
How many hospitals in the US right now are laying off people / cutting salaries / etc because "shelter in place" has led to severe drops in usage, and so sever drops in income?
Here's a reality check: "it makes sense to me" does NOT qualify as a scientific justification for a policy.
How many people are killed by auto accidents in WI each year? Does some WI official have the power to order that everyone stop driving other than for "essential reasons", in order to stop those car deaths?
There's this amazing process. you might have heard about it. It's where the Legislature passes laws, and the governor signs them, in order to make significant changes to how society operates.
A one month order, followed by the orders go away unless laws are passed to back them up, MIGHT be reasonable.
The current situation? It has no rational basis in representative democracy and / or the rule of law.
Here's hoping the WI Justices strike it down
Did the Obama judge follow the Obama line?
Stephen said...there is clearly a rational basis for shelter in place--it reduces the incidence of disease and prevents hospital overload and spiraling death rates. There's a lot of law, as I recall, suggesting that this kind of public health rationale does--and ought to--go a long way.
--
The question is who decides.
I heard a clip of Birx earlier today talking about states that have such low and basically flattened curves already, it will be hard to reduce from there.
And when hospitals are furloughing staff..
Then there are the countless other medical issues being ignored while waiting for that big wave.
Wow, Stephen, that response was ridiculous. In short, your answer is there is no limiting principle to the shutdowns- just marshall "scientific evidence", and you can suspend the Bill of Rights without limit.
Your non sequitur about voter ID was also ridiculous. I need a fucking ID to buy liquor and to buy a gun, so an ID to actually make sure the right person voting isn't an infringement. If it were, you wouldn't even have to fucking register to vote in the first place under your belief system.
Adam Jarchow
@AdamJarchow28
·
10h
Wisconsin’s Lt. Gov. calls tens of thousands of businesses being shuttered and hundreds of thousands unemployed, a mere “inconvenience”.
Quote Tweet
Mandela Barnes
@TheOtherMandela
· 11h
People mistake inconvenience for oppression, and what that does is minimize the real pain and historical trauma that actually oppressed communities deal with. That's what we call privilege.
Fernandistein: Well, what SHOULD BE is NOT what actually happened.
The woman asked my neighbors if I was always such a trouble maker.
Because I enumerated she had no reason to go my neighbors but she was in a snit that I had told her to go away.
If enumeration is all that is required why did she come to my house 5 times?
Because she thought she could intimidate me .
She thought she had the authority of the “government” behind her.
She did not and I knew it.
"That internment was reasonable, though disparaged today. As I recall, they could move from the west coast or be interred. Nobody knew at the time where their loyalties were and an invasion was expected.
Many fought in Europe."
Besides the camps for Italians and Germans were much bigger. [Many fought in the Pacific Theater".
Blogger walter said...
People mistake inconvenience for oppression, and what that does is minimize the real pain and historical trauma that actually oppressed communities deal with. That's what we call privilege.
Well, actual "privilege" is "the gov't protects your rights, and not other people's rights".
The right to function in society is the most basic and fundamental right. And it's being destroyed by these "stay at home" orders.
Quarantineing indiviudal people because they've been exposed to a deadly pathogen? THAT is a reasonable use of the State power.
"Quarantining" any entire State or Country, because there are sick people, somewhere?
That is abusive insanity, and utterly without legitimacy.
See MI, and Gov Whitmer. Why did she ban gardening? Because her voters don't get to do it, so "justice" requires that nobody gets to do it.
Which is to say, because she's pushing a political agenda, not a health one. And when the government uses a health crises to push a political agenda, they should be struck down.
Blogger Stephen said...
Finally, Yancey, an example of a case where a restriction on personal freedom should clearly have been struck down is the Wisconsin voter ID law, which, as Judge Posner persuasively demonstrated, was supported by a wholly unproven theory of prevention of fraud that was a "fig leaf" for a strategy to disenfranchise Democratic voters. The contrast with this case, where the state can marshal massive scientific and medical evidence--not to mention the practice of virtually every other nation in the world--in support of the approach adopted, could not be clearer.
1: The only thing that "Judge Posner" persuasively demonstrated is that he's a dishonest ass.
2: There's been multiple actual studies of the effect of photo ID laws on voting by blacks. They've consistently found no decrease in black voter participation
3: You can not legally function in modern American society without valid State issued photo ID. The laws that require you to show it while voting, and let you get one for free if you can't afford it, enfranchise every law abiding citizen.
So unless "Democratic voters" are all a bunch of criminals, the laws are a win for them
4: If we're going to bring in international standards here, you're going to lose even harder. Every place that wants to have legitimate elections uses measures to make sure people only vote once, and their vote isn't coerced. Which is why there were all those pictures of Iraqis celebrating with purple thumbs after they voted. No absentee voting for them!
5: "The contrast with this case, where the state can marshal massive scientific and medical evidence"? Really? By all means, provide us with that "evidence". You might want to try to start with Sweden, if you can find any actual and honest studies comparing it with its neighbors.
In short, you're completely and utterly full of shit.
Actually, I've now read the read the principal briefs in the case. I recommend them to those who are interested. http://www.thewheelerreport.com/blog/2020/05/02/wi-supreme-court-wi-legislature-v-palm/
It turns out that the core merits issue is whether the current order had go through a formal rule making process to be valid. The statute allows the agency to issue both rules and orders--the legislature's contention is that although this is an order, it is really a rule for purposes of the rule making statute, which would require a process that would take at least 20 days for each iteration of the order. The Attorney General responds that order means order and that imposing rule making would hamstring the state in responding to a volatile pandemic. There is also an arbitrary and capricious argument, but it is a strikingly weak one.
There are also difficult issues of whether the case is properly before the Supreme Court, because the legislature's standing to challenge the interpretation of one of its own laws is doubtful, both as a matter of case law and of the separation of powers, and because some of the claims appear to call for factual analysis. Since the legislature can override the order by statute, if it thinks it is a good idea to do so, why should it also have the general power to sue to get its preferred interpretation enforced? Isn't this just a way for the legislature to criticize from the outside without offering a cogent solution of its own?
No constitutional issue is presented under either federal or state law--both the standing and merits objections to such a suit would be insuperable.
Given the framing of the case, Justice Bradley's question about Korematsu is doubly weird--it is a long way from the issues presented.
The remedy sought is an injunction against the order. Will the justices grant such an injunction at the behest of an entity that has suffered no concrete injury, without a trial court record, at a moment when the number of cases has suddenly spiked in Green Bay? Not if they have even a smidgen of good judgment.
Post a Comment