Limit the Governor’s Power to Restrict Constitutional Freedoms at His Sole Discretion

by James C. Sherlock
Updated May 9 at 8:15 AM

The U.S. Constitution proceeded from and combined with the Declaration of Independence to form the basis on which we the people agreed to form a government. At its core it limits government so that government cannot limit freedom. The separation of powers within each state government and all laws of each state must conform to its requirements.

Judge Andrew Napolitano sees violations of the U.S. Constitution in the responses of some Governors to COVID-19. We need not agree to see what can be done to limit the power of a single individual to restrict freedoms while preserving state capabilities to act in extremis.

The law change I propose for Virginia is appropriate for every state in the country that gives its Governor the unfettered authority to declare an emergency and then, by virtue of that declaration, govern through executive orders and levy penalties for their violation without approval of the General Assembly.

I am going to take the judge’s findings and offer a layman’s assessment of current law and the constitution of Virginia of what might be done to meet potential U.S. constitutional objections.

The findings here about the shortcomings in Virginia law reflect objective assessment of Virginia law as written and of the U.S. Constitution.

My proposition is that if changes can be made in Virginia law to protect rights without negatively affecting state government response, then they must be made.

Virginia Law

§ 44-146.17. Powers and duties of Governor (partial quote)

“The Governor shall be Director of Emergency Management. He shall take such action from time to time as is necessary for the adequate promotion and coordination of state and local emergency services activities relating to the safety and welfare of the Commonwealth in time of disasters.

The Governor shall have, in addition to his powers hereinafter or elsewhere prescribed by law, the following powers and duties:

To proclaim and publish such rules and regulations and to issue such orders as may, in his judgment, be necessary to accomplish the purposes of this chapter including, but not limited to such measures as are in his judgment required to control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services and resources under any state or federal emergency services programs.

He may direct and compel evacuation of all or part of the populace from any stricken or threatened area if this action is deemed necessary for the preservation of life, implement emergency mitigation, preparedness, response or recovery actions; prescribe routes, modes of transportation and destination in connection with evacuation; and control ingress and egress at an emergency area, including the movement of persons within the area and the occupancy of premises therein.

Executive orders, to include those declaring a state of emergency and directing evacuation, shall have the force and effect of law and the violation thereof shall be punishable as a Class 1 misdemeanor in every case where the executive order declares that its violation shall have such force and effect.

Such executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1.

This law is unnecessarily broad. I honestly think § 44-146.17 reflects a failure of imagination. When this law was written, the General Assembly was thinking hurricanes (Katrina) and terrorist attacks (9/11), both kinetic events, not long lasting pandemics. I also note that this law as written makes it irrelevant whether the General Assembly is in session or not.

The Issues

The judge postulates that: “If governments interfere with our personal choices — and we have not consented to their power to interfere — the interference is invalid, unlawful and, because our personal choices are essentially protected from governmental interference by the Bill of Rights, unconstitutional”.

He specifies three issues.

Unconstitutional restrictions on freedoms

“The current interferences with the exercise of rights protected by the Bill of Rights devolve around travel, assembly, interstate commercial activities and the exercise of religious beliefs. These infringements have all come from state governors who claim the power to do so, and they raise three profound constitutional issues. “

“The first is: Do governors have inherent power in an emergency to craft regulations that carry the force of law? The answer is no. The Guarantee Clause of the Constitution mandates a republican (lowercase “r”) form of government in the states. That means the separation of powers into three branches, each with a distinct function that cannot constitutionally be performed by either of the other two. Since only a representative legislature can write laws that carry criminal penalties and incur the use of force, the governor of a state cannot constitutionally write laws.”

Unconstitutional Delegation of Authority by the Legislature

“The second constitutional issue is:

Can state legislatures delegate away to governors their law-making powers?

Again, the answer is no because the separation of powers prevents one branch of government from ceding to another branch its core powers. The separation was crafted not to preserve the integrity of each branch but to assure the preservation of personal liberty by preventing the accumulation of too much power in any one branch. We are not talking about a state legislature delegating to a board of medical examiners in the executive branch the power to license physicians. We are talking about delegating away a core power — the authority to create crimes and craft punishments. Such a delegation would be an egregious violation of the Guarantee Clause.”

Of course, that is exactly what Code of Virginia § 44-146.17 does.

Unconstitutional Use of the Powers of the Legislature

“The third constitutional issue is:

Can a state legislature enact laws that interfere with personal liberties protected by the Bill of Rights, prescribe punishments for violations of those laws and authorize governors to use force to compel compliance?”

“Again, the answer is no because all government in America is subordinate to the natural rights articulated in the Bill of Rights and embraced in the Ninth Amendment.”

So the General Assembly must at least stand up and be counted if Virginia restricts constitutional rights and levies punishments for violations of such restrictions.

Federal courts are much more likely to give a state the benefit of the doubt that it acted with proper consideration of the consequences to freedoms if the legislature concurs in such actions. “We the people” would certainly want that to be the case.

A Potential Solution

In preparing for the next session of the General Assembly, members should consider introducing legislation to amend § 44-146.17 of the Code of Virginia.

The Virginia constitution requires that laws be considered and passed by the appropriate committees of the Virginia House and Senate and then by the whole of each chamber. With modern communications most executive orders can be turned into laws by the actions of the General Assembly without necessity of meeting in Richmond. The state constitution calls for “meetings.” Secure mobile communications, including meeting software, can get the job done. Recording and making public those committee meetings and votes of the General Assembly would fulfill the needs of the sunshine laws and would tend to ensure that votes were not taken without full consideration of the consequences.

The change can permit the Governor to issue executive orders in extremis (term would have to be carefully defined) that must be passed as law by the General Assembly within a specified number of days or be automatically repealed.

The kinds of executive orders that we have seen in this pandemic have not been issued in extremis. They could have been considered by the General Assembly in electronic meetings. Such a procedure would remove the considerable threat to liberty posed by a single person in effect writing laws and enforcing them.

The bi-cameral General Assembly, with two party membership, would be much more likely to consider the limits on laws constraining rights protected by the U.S. Constitution than would that single person given dictatorial powers.

So it is clear that one does not need to agree with Judge Napolitano to thank him for raising the issues.

We can do better.

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88 responses to “Limit the Governor’s Power to Restrict Constitutional Freedoms at His Sole Discretion

  1. Well said and timely.

    This and some other governor’s dictates in this “crisis” have made it pretty urgent that we and citizens of every state wake up and realize how close we are to the same situation in Germany which resulted in a horrific government.

    Keep posting how such an effort can be supported.

  2. Contact your members of the General Assembly. Republicans will run on this if the changes are not made. I think a lot of Democrats will agree with the recommendations. They didn’t run for office to watch the governor effectively write laws for months without their participation when not acting in extremis.

  3. Interesting. Need to spend time thinking about it.

    One question, how would public notice and opportunity to weigh in be handled in your virtual decision making model? Even more than I fear a governor overstepping boundaries, I fear decision making that can be conducted without public awareness until it is too late.

    • If you read my post, I was trying to find bi-partisan solution that would make things better than they are, not perfect, because everyone’s definition of perfect is different. I hope I achieved my goal. We have more lawyers than clerks in the GA. They can fine tune my layman’s view. I think the Virginia Bar Association, not a Republican stronghold, will support the changes I recommend.

  4. Virginia has sometimes been considered a weak governor state, as evidenced by our one term system (a “Commonwealth” oddity?) . I was little surprised the prior repub GA’s did not do more to prevent executive orders by the Dem Gov (in enviro matters etc). If I recall the EPA Clean Power Plan seemed like GA had no say.

    • I honestly think it was a failure of imagination. When this law was written, the GA was thinking hurricanes (Katrina) and terrorist attacks (9/11), both kinetic events, not long lasting pandemics.

    • Actually, in terms of his overall powers (veto, appointment, etc.), Virginia’s governor is considered one of the stronger governors in the country. That is one reason why the GA has refused to consider a constitutional amendment to allow a governor to have successive terms. The fact that the GA meets for such a short period each year (thank goodness) enhances the governor’s power.

      • James Wyatt Whitehead V

        I always thought the line item veto power made the governor the last word on shaping public policy. I believe most states have this now. Can you name the only president who possessed but never used the line item veto?

  5. Huh? Trump shirks his duties in a global crisis and you serve up this crap that Northam is the next Mussolini? Get real, Captain!

    • Good heavens, Peter. The findings in the post about the shortcomings in Virginia law reflect objective assessment of Virginia law as written and of the U.S. Constitution. My post applies to every state in the Union that, like ours, has ceded law-making powers to the Governor. I offered a bi-partisan solution that will not affect decisions that need to be made in extremis.

  6. So which part of Mr. Sherlock’s post do you take exception to and what factual info can you provide to refute it. I’ll go back and re-read the post again. I’m trying to find that Mussolini reference.

  7. Ah, The DNC Propagandist has weighed in with his typical garbage denunciation of Trump. Touch Peter and you get filth about businessmen, Republicans and Trump. Great stuff to keep the Blog balanced.

    • Filth? You mean this kind of filth?
      The outcome of long term Consevative thinking:
      “Due to the meatpacking, though, that’s where the Brown County got the (corona virus) flare. It wasn’t just the regular folks in Brown County,” Wisconsin Supreme Court Chief Justice Patience Roggensack said.

      Twain saw 100 years ago
      Huck Finn: “Well, running aground wasn’t the real problem—that only held us up a little. We also blew out a cylinder head .”
      Aunt Sally: “Good gracious! anybody hurt?”
      Huck Finn: “No’m. Killed a n——.”
      Aunt Sally: “Well, that’s lucky, because sometimes people get hurt.”

  8. Actually, he can. And, they can. Moreover, they do. And, he does. You clearly misunderstand the difference between asking permission and forgiveness, and the differences between will and shall.

    They do what they damned well want and the courts resolve the issues, to wit: Trump, War Powers Act, etc., and more to the State issues, Virginia laws against adultery, for example, are still on the books even after Lawrence v. Texas.

    There are, conservatively, 10s of 1000s of federal laws. No one knows the exact number. Seriously, there isn’t a count, only estimates–plural. In addition, there are treaties that impose restrictions and remedies that are the equivalent of laws. Then, there are “administrative codes”, for example, a $50,000 fine for spending money in Cuba imposed by Dept of State, and not subject to judicial appeal.

    Now, consider the State codes… no don’t bother.

    So nothing strikes me as funnier than a sea lawyer, i.e., a layman pronouncing legal opinions, and we oughttas. Even those trained in the law are inadequate to discuss the subject at length. The difference is they admit it.

    Hence the two highest American precepts; “So sue me”, and “Sue the bastards”.

    BTW, the USA long ago passed France as the world’s greatest bureaucracy, and the word itself is French.

  9. The question posed doesn’t require a law degree, just high school civics. You are a citizen. What is your opinion about Virginia law discussed in the post? Should we leave it as it is or change it?

    • Leave it as it is. But not because as it is written it has been, or might be, applied unexpectedly or improperly, but because I don’t trust it will be changed for the better.

      Then too, knowing it is there as written, it’ll at least make those aware of it vote wisely,

      BTW Northam has definitely overstepped his authority. Went to the ABC today only to walk in and find all of the aisles chained off with signs saying “Employees Only”. The ABC is converting the stores into “counter stores” like they were in the 1960s.

      When you enter, you queue up. When you reach the register, you tell them what you want, and they send a gopher to fetch it.

    • BTW, a suit has been file. I says, “let the courts weigh in first.”

      Also, if we start ANYPLACE, we should start with the President and preemptive nuclear strikes. One man deciding on retaliatory, okay. But, I don’t want to rely on someone someplace disobeying orders to save the world from preemptive strikes. It wasn’t an issue until 2017.

  10. so the real source here is a fox news analyst? I am failing, I should have tagged that earlier

    • He used to be a real judge. Now he pontificates, often self-contradictorily, to lend credence to wildly fictitious applications of precedence for money. He’s a millionaire shilling for billionaires.

  11. FOX, non-partisan, SGillispie, nonpartisan, my head is spinning!

    Just to note – Conservative types across the country are onto this issue now… I’ve not seen too many “leftie” types with fires in their belly on this.

    • “I’ve not seen too many leftie types with fires in their belly on this.” Astute observation. Many people of the progressive left love government, the more the better, think the bill of rights is antiquated and want it obliterated by the judicial branch. That is the source of the passion for packing the Supreme Court. So you hit the nail squarely on the head. Probably the most consequential core political disagreement of our time.

  12. You know what’s really stunning about this post is that a conservative takes us on a ponderous journey on the supposed extra powers of liberal governors while trump is taking the extraordinary step of dropping charges against former security adviser michael flynn who plead guilty to twice lying to the fbi. Where’s the rule of law here?

    • Trump didn’t drop the charges against Flynn, the DOJ dropped them because they got caught with their hands in the cookie jar. Regardless of his guilt, he was guilty you can’t very well suppress Brady Evidence. That’s a miscarriage of Justice, and if you’re not upset that someone’s civil right are being trampled because of their political affiliations, your opinions on the matter are worthless.

  13. I was absorbed in reading a Dickens novel (Great Expectations) yesterday afternoon and missed this discussion.

    I disagree with the premise of this post. The GA did not delegate to the Governor the power to “create crimes”. The State Code section authorizes the Governor to take certain actions in emergency situations and sets out that a violation of those actions is a crime. The GA “created” the crime and authorized the Governor to execute the law. It would be impossible to set out exactly in Code what actions that could be taken in circumstances that could not be known at the time the Code section was being written.

    As for having the GA meet in times of emergencies to debate what actions the Governor may take, there is often not enough time to do that. For example, if there is a major hurricane approaching Virginia Beach, should the GA have to come into session and debate whether the Governor may order the evacuation of the area, the hurricane will upon the area, wreak its damage, and be gone by the time the GA can even convene. The same would be true of a pandemic. It would have taken a couple of weeks, at least, for the GA to work out any terms of stay-at-home orders that the Governor could issue. The lobbyists for various commercial groups, e.g. the restaurants, the gun shops, the nursing homes, etc. would have been busy trying to craft exemptions for their clients. In the meantime, the virus would have been spreading.

    • Dick, your hurricane example would be covered in my proposed “in extremis” exception.
      As for the pandemic response, we have been dealing with it for months and will be until there is a vaccine. Your argument about lobbyists is another way of saying that democracy is messy. See my quote below concerning Article III of the Virginia Constitution.
      My question to you: Should the Governor be able to write executive orders with the force of law that impose penalties and then enforce those penalties until January when the regular GA session begins?

      • Yes, he should be able to do so. The reason that you and so many others are so antsy during this pandemic and arguing against the Governor’s authority to control movement is that, relatively speaking, not that many people are dying. And, as one commenter on this blog frequently points out, most of those dying are old people in nursing homes. But, suppose that the death rate for COVID-19 was much higher, 50 percent perhaps, or maybe “just” 20 percent. I doubt if anyone would be complaining about government orders restricting movement then.

        It is heartening to me that, although this governor and other governors do have broad power in emergencies, all seem willing to ease up on, and eventually rescind, their orders as the conditions begin to get better. In fact, in some instances, they are easing up in spite of warnings by medical experts.

        By the way, your “in extremis” exception would be awfully hard to define. The only way to limit it would be in terms of time, e.g. any emergency orders issued by a governor would automatically expire at the end of XXX days.

        • “But, suppose that the death rate for COVID-19 was much higher, 50 percent perhaps, or maybe “just” 20 percent. I doubt if anyone would be complaining about government orders restricting movement then.”
          Under such circumstances, the General Assembly would agree with the proposed restrictions. This particular GA would likely, but not certainly, agree with everything the Governor has done. If so, his actions would have democratic legitimacy in Virginia, whether or not they violate the federal constitution.

          • Nancy_Naive

            “Under such circumstances, the General Assembly would agree with the proposed restrictions.”

            Wait just a durn minute. Are you saying that suddenly they will be reasonable?


      • A possible reconciliation between Mr. Sherlock and Mr. Hall-Sizemore –
        The issue is whether the pandemic posed an ‘in extremis’ emergency similar to a hurricane.
        Clearly, at the start, it did. Deaths due to coronavirus increased geometrically. Any delay in taking action has fatal consequences. Especially if we have doubts that the GA could have convened and debated the issue in a timely manner.
        Over time, however, as we get control over the management of the crisis, the GA has the opportunity to revisit the governor’s actions.
        The question, then, is at what point do emergency orders require the affirmation of the GA. One response is that the failure of the GA to challenge the emergency orders is its affirmation of them. Which seems to be where we are today.

    • “The State Code section authorizes the Governor to take certain actions in emergency situations and sets out that a violation of those actions is a crime. … It would be impossible to set out exactly in Code what actions that could be taken in circumstances that could not be known at the time the Code section was being written.”

      This statement sinks to the bottom of the deep blue sea, Dick’s case.

      Virginia should not be Russia or China. It should not allow the ‘executives of its regime’ to make up its laws and its punishments for their convenience as they go along, violating citizen’s rights on whims disguised as emergencies.

      For Dick’s better understanding and appreciation of this principle, I suggest, in lieu of Dicken’s Great Expectations, that Dick confine his Covid – 19 readings to:

      1/ Fyodor Dostoyevsky’s Crime and Punishment, The Idiot, Notes from Underground, The Dream of a Ridiculous Man, Demons, The House of the Dead, and The Insulted and Humiliated ; and

      2/ Aleksandr Solzhenitsyn’s Cancer Ward, One Day in the Life of Ivan Denisovich, The Gulag Archipelago, and;

      3/ Nikolai Gogol’s Dead Souls; and

      4/ Mikhail Bulgakov’s Heart of a Dog; and

      5/ for the Bohemian approach to despotism, Franz Kafka’s Der Prozess (1925; The Trial) and the story Die Verwandlung (1915; The Metamorphosis).

  14. Way to change the subject, Peter. President Trump has published no executive order that limits the freedoms of American citizens. He has an office of legal counsel.
    Governors all over the country have written orders that violate freedoms guaranteed by the U.S. Constitution. Do they run them by legal counsel? If so, they should get better lawyers.
    The law change I propose for Virginia is appropriate for every state in the country that gives its Governor the unfettered authority to write laws through executive order and levy penalties for their violation without approval of its legislature.
    The Constitution of Virginia:
    ARTICLE III Division of Powers
    “Section 1. Departments to be distinct.
    The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time.”
    I think it reasonable to opine that Code of Virginia § 44-146.17. Powers and duties of Governor, has been shown to violate Virginia’s Constitution. Emergency powers of the Governor must be limited as much as possible to conform with that provision, and as we have seen, they are not.

    • It is the responsibility and authority of the Governor to execute the laws passed by the General Assembly. If the General Assembly had not enacted a law authorizing the governor to take “measures as are in his judgment required to control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services,” then Northam’s actions would be unconstitutional. But the GA did enact such a law and, under the terms of that law, the Governor took the actions he did. Some members of the General Assembly have questioned the wisdom of some of those actions and have recommended modifications of some of those actions, but I have not heard of any GA member saying that the Governor did not have the authority to take them.

      • That law, not the Governor’s actions under it, is the source of my discontent. It is unnecessarily broad. I recommend narrowing it to involve the legislative branch wherever possible.

        • I would probably agree with you if Virginia had a full-time legislature or even one that met for longer than 60 days during mid-January to March. But that would change the nature of the legislature and state government entirely. That might be a good thing, but it would be fundamentally different and we should think carefully about it.

          • Your points, as usual, are well taken. The Governor is issuing executive orders under the state of emergency that he declared. The law be written so that a gubernatorial declaration of an emergency automatically calls the General Assembly into Special Session that can be conducted remotely. That would not change the nature of state government. It would honor the requirement in the state constitution that no single individual can exercise the responsibilities of the executive and legislative branch simultaneously.

        • Let’s first work out the problems involved in the General Assembly conducting special sessions remotely.

      • Once upon a recent time Virginians voted to ban gay marriage via an amendment to the state constitution. As required, this amendment went though a detailed legislative process before getting on the ballot. The ban clearly represented the majority opinion of the legislature but also of the people of Virginia.

        When newly elected AG Mark Herring looked at court cases across the US he determined that Virginia’s ban on gay marriage, while legally enacted in the state of Virginia, violated the US Constitution. He made this determination before the US Supreme Court case that definitively resolved the matter in favor of gay marriage being legal.

        Once again, Virginia’s General Assembly has granted powers to the governor that are in conflict with the US Constitution. At least, I believe that is Capt Sherlock’s point. The critical question is whether you believe that or not. If you do believe that then the second question is whether you supported Mark Herring’s refusal to enforce Virginia law when he, and he alone, felt it conflicted with rights guaranteed to Virginians under the US Constitution. If you believe Virginia law illegally gives the executive legislative powers and you believe that the Attorney General should refuse to enforce Virginia laws that conflict with the US Constitution then consistency would require that you ask AG Herring not to enforce Northam’s lockdown laws.

        There are no asterisks in the US Constitution exempting Virginia. Thank God. If there were slavery in the state would have been legal into the twentieth century and Massive Resistance based segregation might still be on the books.

        This is a critical question given Virginia’s centuries long willingness to violate the civil rights of its citizens.

        • I am not sure that I follow your consistency argument. I do not believe that the Virginia law illegally (isn’t that a contradiction in terms? How can a law be “illegal”?) gives the executive legislative powers. It sets out conditions in which he can declare an emergency, authorizes him to take certain actions, and establishes a criminal penalty for anyone violating his orders.

          As for an Attorney General enforcing a state law that he believes violates the U.S. Constitution, that is a tough one. Generally, I would say that it is the duty of the state Attorney General (and the U.S. Attorney General, for that matter) to defend state law (or federal law in the case of the U.S. Attorney General) in court, although he may feel that it violates the U.S. Constitution. However, if we believe that, we cannot blame Virginia Governors and Attorney Generals for defending Virginia’s segregationist laws in court.

          • Two short answers:
            1. It is self evident that laws can be unconstitutional. That is a primary reason for the establishment of the Supreme Courts of the states and of the United States. They have not shied away from that responsibility since the founding of their governments. I believe this law is unconstitutionally broad. I recommend it be narrowed. I recommend the GA narrow it. If they don’t, I recommend a challenge to it in both state and federal courts.
            2. No Attorney General is bound to defend a law that he or she believes is unconstitutional.

          • A state law can be illegal if it violates the US Constitution. Virginia’s constitutional amendment banning same sex marriage became illegal once the US Supreme Court decided that bans on same sex marriage were contrary to individual rights guaranteed by the US Constitution.

            Perhaps “unenforceable” or “legally unenforceable” would be a better term. As far as I know Virginia’s ban on same sex marriage is still part of our state constitution (the heave been legislative efforts to strip it out). Given that, would you think it acceptable for some county in Virginia to try to enforce that provision of the state constitution? If not, what should happen to any official who tried to enforce that part of Virginia’s constitution?

          • Nor should we have accepted AG Herring’s refusal to enforce Virginia’s ban on same sex marriage. I guess he should have been removed from office for that stance under the belief that Virginia AGs must enforce Virginia law until those laws are specifically ruled unconstitutional by a court with jurisdiction over Virginia.

            Herring set a precedent for Virginia AGs being able to nullify Virginia law if the AG finds the law contrary to the US constitution.

            Given that, does Virginia’s law which gives the governor (executive) powers reserved for the legislature in the US Constitution violate the US Constitution? If Herring believes this to be tru then he should refuse to prosecute any violations of Northam’s lockdown laws the same way he refused to enforce Virginia’s ban on same sex marriage before the US Supreme Court decision.

    • What about actions as opposed to EOs? Did he not attempt an end run around Hunter Biden’s 4th Amendment rights? Sure he did. Blackmail or no, he attempted to coerce/get a foreign power (one he BELIEVED capable of hacking the DNC computers) to open a warrantless investigation into an American citizen when the DoJ refused to do so.

      So, what gut would you spill open if Northam enlisted a criminal to break into your basement because he suspected you of having a meth lab when the AG refused to apply for a search warrant for lack of probable cause?

  15. One of the interesting things here is that none of the GOP governors are saying that they should not use this power also.

  16. Capt Sherlock can correct me if I am mistaken about his post but here is my summary:

    From the US Constitution –

    1. Crimes and punishments are defined through laws.
    2. Laws are drafted, voted upon and implemented only by the legislative body.
    3. Therefore, the executive body has no power to create a crime or establish a punishment on its own.
    4. In cases where the US Constitution conflicts with a state constitution the US Constitution will prevail

    Virginia’s constitution gives the governor the right to effectively create crimes and punishments during emergencies. This is what Northam (and many other governors) did. That may have passed muster with the state constitutions but it violates the US Constitution. Therefore, those actions are unconstitutional.

    I find it fascinating how the leftists on this blog try to defend the actions of Ralph Northam in this matter. Frankly, I am sure that a Republican governor like Bob McDonnell would have taken similar actions. I suspect that the liberals would have had no problem charging McDonnell with unconstitutional behavior. However, Northam is a Democrat and must be defended by the partisans.

    Moreover, I would expect that our blackfaced Attorney General would stand up for the US Constitution and refuse to enforce Northam’s “laws” because they are unconstitutional and in violation of both the US Constitution and the rights of Virginians under the US Constitution. This is exactly what he did when Virginia’s absurd prohibition against gay marriage conflicted with a growing series of court cases outside Virginia that held gay marriage was a right guaranteed under the US Constitution. He refused to defend the Virginia Constitution which explicitly defined marriage as consisting of one man and one woman. Where is AG Herring now? Will he side with plaintiffs who sue the state over Northam’s unconstitutional lockdown laws? Don’t hold your breath. Liberal AGs are nothing if not selective in their interpretation of the law.

    • Where in the U.S. Constitution does it say that “crimes and punishments are defined through laws”? First of all, the U.S. Constitution deals only with the structure of the U.S. government and the powers of the federal branches. As for states and their governing structures, it says only, “The United States shall guarantee to every state in this union a republican form of government.”

      Many regulations carry the force of law, along with penalties for their violation, but are not laws in the sense they were adopted by the legislature (state or Congress).

      For the record, I think Herring should have defended the Virginia law banning gay marriage. He could have made it plain that he disagreed with it personally, but felt it his duty to defend it in court. (That is what lawyers do–defend the guilty.) Furthermore, I don’t think liberal AGs have a monopoly on selective interpretation of laws.

      • He should have, but he also has an obligation not to waste taxpayer money. If I recall, the defense was taken up by a private concern, some Conservative version of the ACLU.

        But, his best course of action would have been a halfhearted defense, i.e., throw the fight in the first round.

      • Where in the US Constitution ….

        Wasn’t that a key point in Capt Sherlock’s summarization of Judge Napolitano’s legal argument? To wit:

        “The first is: Do governors have inherent power in an emergency to craft regulations that carry the force of law? The answer is no. The Guarantee Clause of the Constitution mandates a republican (lowercase “r”) form of government in the states. That means the separation of powers into three branches, each with a distinct function that cannot constitutionally be performed by either of the other two. Since only a representative legislature can write laws that carry criminal penalties and incur the use of force, the governor of a state cannot constitutionally write laws.”

        Given the focus of the Founders on a separation of powers I find it hard to imagine that a republican form of government can reasonably be defined as one where the governor can assume legislative responsibilities.

        Regulations that carry penalties have to be quite specifically authorized by laws passed by the legislative body. How many lawsuits have we seen about the definition of WOTUS? And those laws have to allowable under the US Constitution.

        Capt Sherlock’s post, in my opinion, infers that a republican form of government cannot exist without the executive, legislative and judicial components described by the US Constitution. Furthermore, those functions may not cede their core powers to the other functions.

        On a more practical level – this has gone on long enough. I want my elected Delegate and State Senator on the record as to what they will allow Northam to do and what they won’t allow Northam to do.

        I am neither a lawyer nor a Democrat but State Senator Chap Petersen is both. He had misgivings about Northam’s exercise of power back on April 21. Petersen is routinely one of the very few General Assembly members who demonstrates independence of strict party lines and an understanding that Virginia’s state government needs serious reform.

      • Regulations that are not authorized by law are illegal. That is why every state and federal regulation will reference the law under which the regulation is authorized.

    • If you live in a city, leave your trash can on the street past 7AM the day after collection. You’ll be fined, without crime. The are tons of penalties assessed in the absence of crimes. The Feds, States, and Localities do this all the time. The best part is that since these are “crimeless” punishments, the citizen is left without judicial recourse. You can sue, but not appeal. Good luck with that.

      • Northam’s edict claims that violations of that edict constitute a Class 1 misdemeanor. Under Virginia law violations of Class 1 misdemeanors can bring penalties of up to one year in jail and / or fines up to $2,500.

        Sounds like a crime to me.

        The trash can fine you cite has to be based on a reasonably narrow enabling law in order to be enforceable. The point of Capt Sherlock’s post (I think) is that Virginia’s enabling law is so broad as to allow Northam to legislate which is a violation of the requirement in the US Constitution that states implement a republican form of government.

        • Good. You can appeal. Time for a courageous act of civil disobedience. Lemme know, I’ll donate something to your defense fund.
          August 1972, I had a bag packed, a full tank of gas, and a map of Canada in the event of a low lottery number.

  17. Reed. Kudos on bulgakov. Not many americans know about him. Wild man!

  18. Have you ever notice when the Democrats are in power, the Republicans want to limit that power? Similarly, when the Republicans are in power, the Democrats want to limit that power. Have you ever noticed that periodically we switch back and forth between which party is in power? Wouldn’t it be best to limit those powers in general, then we wouldn’t have folks on either side of the aisle flip flopping their positions every time there is a transition of power? When I read the Constitution, it conveys to me that the founding fathers set up our government to keep it in check, not to allow it to run amok. We vary from that idea at our peril.

    • Well said. Once it became apparent that Democrats would become the majority in the statehouse it became equally evident that Republicans would fall out of love with the state’s strict implementation of Dillon’s Rule. No sooner than the Dems take control we have conservative counties becoming “second amendment sanctuary counties” and right wingers insisting that Northam’s reopening policies should vary by region.

      A strict implementation of Dillon’s Rule should be seen as archaic and ridiculous in a state with regions that vary as widely as those in Virginia. That is true regardless of who is in power. Our implementation of Dillon’s Rule is simply another absurd power grab by a General Assembly that needs to be dramatically cut down to size.

    • Exactly. The U.S. Constitution proceeded from and combined with the Declaration of Independence to form the basis on which we the people agreed to form a government. At its core it limits government so that government cannot limit freedom. All laws passed by federal and state legislatures must conform to its requirements.
      “The Constitution is not a suicide pact” expresses the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people. My recommended changes to current Virginia law would simply involve the GA in such decisions where feasible depending on the nature and duration of the threat. I hope that ten months of gubernatorial governance by decree seems too long to everyone. If this had started in early December, the GA would have been in session to weigh in. We cannot let the calendar dictate those checks and balances.
      I hope the sentiment to change current law that permits this one-man rule is not controversial, just the terms of the change.

  19. It strikes me that a Governor would have additional powers during an emergency but those powers must come from the legislative body. There must be some flexibility given to the Governor to act within the specified and implied powers in the legislation. During an emergency, any governor will make some mistakes and, as such, should be given some deference by courts.

    But how far should courts go in sustaining the executive? Lincoln suspended the right of habeas corpus during the Civil War. FDR interred Japanese-American citizens during WWII.

    I also submit that there must reach a point that, even in the face of emergency-caused situations, executive authority cannot continue to limit basic rights. It may be constitutional for a court to order the seizure of firearms from a person subject to a protective order or based on testimony from relatives that the person is dangerous to himself and/or others. But that cannot continue indefinitely. The person needs to be given the right to appear in court and challenge his accusers.

    It seems reasonable for a Governor to effectively suspend worship services by restricting gatherings of more than 10 people. But for how long? Six weeks? Six months? Six years? Can a Governor prevent a worship service at a drive-in theater where everyone stays in her/his vehicle?

    • Time limits are key. When liberal Democratic president Franklin Roosevelt imprisoned Americans for the “crime” of being of Asian descent America saw just how far off the rails our government can go in times of “emergency”.

      Any law passed in Virginia making the vague concept of “contempt of governor during an unspecified emergency” a crime should require a legislative vote on the specific emergency, the specific crime and the specific penalties within 15 days. Another vote of continuance should be required every 30 days thereafter.

      Suspending the US Constitution should be very hard to do and it should require our legislators to “stand up and be counted” on the matter. This is especially true in the only state in America where the governor cannot stand for immediate reelection.

      A part time legislature is no excuse for a full time tyrant.

    • Yes, Tyrants love emergencies. Crisis expands the Tyrant’s power, authority, control, and self-righteousness. Thus tyrant’s true believers, the useful idiots of Tyrants, who nearly without fail will rally around the Tyrant’s demagoguery, hate, and lust of illicit power, armed for battle.

      Hence, tyrants often ignite and inflame emergencies to solidity power. Some emergencies the tyrants keep festering, keeping embers in reserve, so the tyrant so they can flame the embers up into bonfires whenever the Tyrant needs more power and control of his useful idiots. This creates chronic hysteria across all citizens under the boot of the tyrant.

      Thus Charlottesville happened in Spring and summer of 2017. Thus Coonman’s racist redneck campaign video to win election in 2016. Thus, the Virginia Attorney General’s office certified letter asserting racism and assortment of threats against Loudoun public schools to assert control of and grip on Loudoun County public education system. Thus, too, the passage of Virginia Values Act to weaponize hate and fear for political advantage of regime in power, to be deployed at the whim of its rulers.

      • So, for example, in Virginia:

        “Pence: Citation for small Virginia church service ‘beyond the pale’
        THE ASSOCIATED PRESS 21 hrs ago

        RICHMOND — Vice President Mike Pence says it is “beyond the pale” that the pastor of a Virginia church was issued a criminal citation for having 16 people at a Palm Sunday service that authorities claim violated the state’s coronavirus restrictions.

        The U.S. Department of Justice has sided with the Lighthouse Fellowship Church in Chincoteague in a lawsuit the church filed against Gov. Ralph Northam after its pastor was cited last month.

        Speaking on “The Brian Kilmeade Show’’ on Fox News Radio on Wednesday, Pence, who heads the White House Coronavirus Task Force, said he agreed with the DOJ’s decision to file a statement of interest supporting the church.

        “Look, even in the midst of a national emergency, every American enjoys our cherished liberties, including the freedom of religion,” Pence said.

        “The very idea that the Commonwealth of Virginia would sanction a church for having 16 people come to a Palm Sunday service, when I think the church actually seats about 250, was just beyond the pale, and I’m truly grateful for Attorney General William Barr standing by religious liberty,” Pence said.

        The federal lawsuit alleges the church’s pastor, Kevin Wilson, was issued a criminal citation because he held a service with 16 people on April 5.

        The Justice Department’s filing, citing the lawsuit, says the church had maintained social distancing and had extensive sanitizing of common surfaces. The church said attendees had to stay six feet apart and use hand sanitizer before entering the building.”

        The Justice Department said Virginia “cannot treat religious gatherings less favorably than other similar, secular gatherings.”

        Authorities allege the church violated the state’s ban on gatherings of more than 10 people.

        The state was expected to file a legal brief in the lawsuit on Thursday.” End Quote

        For more see:

      • Meanwhile, too, others of different persuasions are catching on, especially as to secrecy. For example, this from Virginia Mercury:


        Scant information is publicly available on the governor’s COVID-19 work groups. By Kate Masters – May 8, 2020

        As Virginia’s fight against the coronavirus pandemic stretches on, Gov. Ralph Northam has assembled a series of workgroups and task forces to coordinate the state’s response to specific concerns.

        The health equity working group first assembled on March 11, a few days after Virginia’s first confirmed case of COVID-19. In mid-April, Northam convened a long-term care task force to address rising outbreaks at nursing homes and assisted living facilities. A few days later, he announced a new testing task force amid reports that Virginia’s screening efforts were lagging far behind other states.

        On April 24 — the same day he unveiled his blueprint for gradually reopening the state — Northam announced the formation of a new COVID-19 business task force “to provide advice and guidance” as his administration drafted industry-specific safety guidelines, according to a news release from his office.

        Those guidelines are expected to be released on Friday — a week before the anticipated first phase of Northam’s reopening plan.

        But in the weeks since the groups were assembled, other details remain scarce, including in some cases who’s involved, when they’re meeting and what they’re talking about. While the administration publicly announced the members of its business task force, it’s still unclear who makes up the other workgroups and how they were selected. A published description of the health equity work group — available online through the Virginia Department of Health — notes that it includes “representatives from private human service organizations, advocacy and stakeholder groups, community leaders, and diverse faith leaders,” but provides no other specifics.

        There also appears to be little available information about meeting times, agendas, or public comment opportunities for any of the groups. None have been publicized on the state’s public meetings calendar for government entities. And Northam spokeswoman Alena Yarmosky did not immediately respond to a request for more information on whether details of the meetings had been — or would be — available to the wider public.

        Technically, there’s no requirement to make that information available. Megan Rhyne, executive director of the Virginia Coalition for Open Government, said the state’s Freedom of Information Act does define task forces and commissions as “public bodies,” but only when they’re created by other public bodies or agencies.

        “The problem is that if an individual — the governor or a mayor or a sheriff — is the person creating it, then it is not a public body for the purposes of FOIA’s meetings provision,” she added. While records from the groups are generally subject to disclosure, there’s no requirement for members to meet in public.” End Quote

        For more of article see:

  20. Credit where credit’s due Capt. Sherlock. Sixty three comments. You are a draw!

  21. Yes… first COPN, then Nursing Homes, then testing and now Jackpot!

    SGillispie is pleased.


  22. Btw, as long as we’re discussing Con Law, Compare the Supreme Court decision in Tahoe Preservation (2002) to its decision in Lucas (1992). In Lucas the Court ruled a regulation that permanently deprives an owner the value of its property is a ‘taking’ requiring compensation under the 5th Amendment. In Tahoe it rejected a claim that an order temporarily closing a business while an environmental impact statement is written is not a taking under, not prohibited by the constitution.

    • Zoning is a police power, right? And people are not compensated as a result of zoning decisions…

      • Down-zoning raises confiscation issues. Most courts reject the idea that a failure to rezone to more density takes property unless the owner is left with no real use for the land.

  23. The point being, if it’s ok to shutter a business temporarily while waiting for an EIS, what are the odds that it’s ok to temporarily shutter a business during a state of emergency?

  24. Can a business be shut down if it is deemed unsafe for the public? Don’t states shutter restaurants all the time for have unsafe conditions?

    If a State can tell you what speed to go or to not cause panic in a store or to not operate a restaurant if you don’t have water/sewer/electricity – than how far is that from an uber contagious disease in restaurants?

  25. However, we’re not closing the businesses because they’re dangerous, it’s the world around them. We’ll open the businesses once it’s safe to do so.

    • But aren’t they dangerous and not that different if a water/sewer line broke a half mile away from them?

      I don’t think as long as the virus is around that ANY restaurant configured like they used to be is going to be “safe” in the eyes of the public no matter what govt says.
      In fact, if the govt said they were safe – and it turn out they were not, people will no longer trust the govt either.

      Govt is trying to protect the public. There are some who say the govt has overstepped it’s authority – but the polls show that huge numbers of people dont think it’s safe.

      here’s an article from a Restaurant industry group:

      ” In general, support for reopening the economy is somewhat split along partisan lines, according to each of the polls. Republicans were more likely than Democrats to say they would eat at a restaurant, go to a shopping mall or take a vacation.

      Yet a majority of Republicans were still not comfortable with any of those activities. In the Morning Consult poll, for instance, 27% of Republicans said they were comfortable eating at a restaurant, compared with 10% of Democrats.”

      even among the Republicans, less than 1/3 are comfortable.

      This is totally separate from the Govt actions.

      For some reason – the distinction between what govt is doing and what people think themselves is not being recognized. In fact, the entire issue is portrayed as something the govt is doing and totally ignoring what the virus is doing IMHO of course.

  26. Give ’em hell, DHS! Despite the Judge in front of his name, Napolitano is just another attorney and can opine on anything he wants. His opinions are just that. In fact, his opinions are just as valid as those of the Virginia Attorney General. Bosun

  27. LarrytheG: the of the game here is to”lay this at the feet of Ralph Northam” in the words of our fearless. Never mind he’s been in office for all of 18 months, all states have problems with nursing homes and The Washington Post just ran a front page probe of Maryland’s problems. In the new right wing thinking at BR none of this is “relevant” just as Trump is not “relevant.” You should feel like that not everything you write is “filth” and somehow that comment is not an Ad Hominen attack! It’s a new world big guy!

  28. (of an argument or reaction) directed against a person rather than the position they are maintaining.
    Ironic that Galuszka is offended by Ad Hominem attacks when that is what characterizes almost all of his comments and posts when not just attacking generally and usually erroneously, as in the above. Of course no one on this BLOG, conservative or otherwise, has ever said Trump is irrelevant. Galuszka usually finds a way to insert a Trump-bashing comment on almost any topic, often irrelevant to the Post being discussed; so perhaps the observations of his non sequiturs is the irrelevance he is noting and what offends him.

    • Seems like no end of those in BR that want to go after Northam – on issues that are a lot like other states – both GOP and Dem.

      I thought it just this side of hilarious that we talk about a “bipartisan” solution to the “problem” of Governor’s authority and we kick it off with a FAUX news celebrity.

      Never mind that few, if any of those “nitlibs” see a problem with the Governors authority on public health – by DANG it’s a problem with Conservatives and it’s GOT TO BE DEALT WITH.

      So, then we get a list of “helpful suggestions”.

      and of course SGillispie is all over it!

      lord. lord.. what next?

  29. Bash Trump? You bet! He’s been an issue for years. What is exactly your assessment of Trump? Give it a go! Show some guts to actually post something! And not some musings from janus bullshit.

  30. Typically eloquent Mr. Galuszka. I have posted my views very directly many times. I know you have absolutely no interest in hearing any views about Trump which don’t excoriate him; but for your displeasure I offer the following:

    In the face of and despite the most withering and seditious opposition from the media and a Party that has completely lost its way,
    my assessment is that Trump is one of the top 5 or so most competent Presidents we have had in our short history.

    Economy and Economics
    Trump and perhaps Roosevelt are the only Presidents who have driven policy most helpful to Main Street and the consumer economy;
    Trump is one of two or three who actually understand and comprehend Trade deals and gauge their impact on the US Economy–ie his trade policies have been the best we have ever had since Marshall; Trump’s successes with NAFTA, NATO and China are beyond what anyone would have imagined needed or possible before he came on the scene.

    International Politics and Relations
    Trump is the first to call out the naked Emperors — I.e. our Allies — and force a reset with Europe and Canada which was long overdue.
    Fortunately, Trump saw and is addressing the new and potentially devastating economic warfare China has been waging and is one of very few who have understood and crafted geopolitical strategies using trade and economics as leverage instead of the military;

    Trump’s actions re Iran and the Middle East have been the best conceived of any President since the British Suez Canal debacle. History will show that stopping Iran in its tracks from its plans to turn the middle East into its own caliphate has and will save countless lives for a long time to come.

    To his great credit Trump has courageously exposed and addressed the growing anti-semitism and Islamic domination of Democrat party thinking and policy. And his approach to the Palestinian issue with the recognition of Jerusalem as the capital and subsequent Peace Plan are extraordinary examples of bold, effective, and right-minded strategies.

    Main Street
    Trump is the first Presidents to craft economic strategies which truly benefit African Americans and have some possibility of ameliorating the devastatingly misguided Democrat approach to poverty and social alienation;

    There is nothing more insidiously destructive yet hard to find and quantify than excessive and unreasonable government regulation which went wild in the Obama years. Trump is the first President to fight this phenomenon effectively, for whom the greatest beneficiaries are the average American and small business.

    The US Education System
    Trump has done more than any recent President but not nearly enough to turn back the destruction of our Educational system by Democrat and liberal policies where we continue to slide in comparison to other similar countries and recent studies show have declined even more rapidly in recent years as a result of Common Core.

    Trump has been absolutely correct and remarkably effective in staunching the incredible destruction of our awful and irresponsible immigration polices in spite of unbelievable Democrat opposition to even basic common sense measures. The Wall is a signal achievement.

    The Rule of Law
    Trump has done a great deal to restore the rule of law and to stop the very dangerous slide in the pride and confidence of law enforcement throughout America after years of destructive and seditious, ill-conceived policies and rhetoric which of course continue today with Democrat behavior that honors laws they think help them and subverts laws they think don’t.

    Restoration of the Courts
    Trump has done a great deal to restore the courts to the rightful role of adjudicating instead of legislating and in reducing the growing, arrogant, and destructive over-reach of corrupt judges who abuse their authority to create outcomes they like rather than enforce laws they don’t.

    This is a short list for which I could supply speeches, laws, regulations but have not because this topic is not really in the BR domain and it’s probably enough for you to rail about what a joke I am and whatever epithets such apostasy from the liberal catechism might elicit from you.

    Perhaps his greatest contribution is to expose the extraordinary disintegration of the Democrat party from a party of noble ideals and values to an unprincipled cult whose tactics are increasingly to smear, silence, damage, ruin, and destroy every American institution, person, and practice which might interfere with their lust for power disguised as a reach for Utopia.

    That enough for you?

  31. Gee steve. I don’t know where to start at dissembling this incredible fantasy. Give me a day or two

  32. Mr. Galuszka, your statement above of your intention with regard to my response to you is precisely why I call out your postings. You are a consistent dissembler in almost everything you post.

    If you want to dissemble something, you have already bashed the Flynn decision in another post, joining dozens of esteemed and experienced–we are told–prosecutors on CNN, MSNBC, NBC, other media and even Obama, Holder, and Comey dissembling that this is unprecedented, the DOJ has lost its way and Trump and Barr have undermined the rule of law.

    Holder did exactly the same thing for almost exactly the same reasons.

    Maybe you can show your DNC Propagandist bone fides by improving on your previous shallow posting and their dissembling.

  33. Gillispie. I have never been an official of the Democratic National Committee. That is a lie you keep putting out. I’d watch doing this if I were you.

  34. So, Galuszka, you challenge me with a profane insult, “What is exactly your assessment of Trump? Give it a go! Show some guts to actually post something! And not some musings from janus bullshit.” And when you make a fool of yourself you want to change the topic with a veiled threat.

    For you and those other than you and me who have read anything I have posted in challenging your writings, let me say that I have no reason to believe Galuszka is an official of the Democratic National Committee and apologize to those who so interpreted my remarks.

    In the future when pointing out the lies, distortions, and falsehoods of your postings as Democrat party propaganda — to wit “Trump shirks his duties in a global crisis” — I will not implicate you as a DNC official.

  35. Can I ask for a truce between SGillispie and Peter Galuszka?

    I think it’s fair to say neither of you will convince the other of the merits/demerits of Trump. Is there really a point to bashing each other over him?

    Since he has little to say about our home front in Virginia, does it really matter for our discussions what he has said, done or tweeted?

  36. Fair point, InTheMiddle. Apologies to the BR community.
    I will give it a rest.

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