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[...] In the majority opinion, Roggensack determined Health Services Secretary Andrea Palm should have issued regulations through a process known as rulemaking,

by DenisM 6y ago

[...] In the majority opinion, Roggensack determined Health Services Secretary Andrea Palm should have issued regulations through a process known as rulemaking, which gives lawmakers veto power over agency policies. [...] GOP lawmakers who brought the lawsuit have said the legal challenge was necessary to get a seat at the table where Evers and state health officials make decisions about how to respond to the outbreak [...] This is a fairly narrow decision, it only says the legislative must be involved into this. Alas it did not address the question I had hoped it would - do sheltering rules violate the Bill of Rights?

duxup 6y ago
>do sheltering rules violate the Bill of Rights? Is an outstanding question about that? There have been other pandemics, government actions to enforce health standards and etc. I don't think they've been ruled to be unconstitutional.
- SpicyLemonZest 6y ago
  Quarantine for people who are sick or known to be exposed is definitely legal. But orders for everyone to stay at home are pretty much unprecedented.
  - DenisM 6y ago
    Hence my question. I also want to know where are all the other people asking the same question?
    - SpicyLemonZest 6y ago
      There's been widespread misinformation that similar orders were implemented during the Spanish Flu, which I think has defused a lot of the curiosity about it.
      - DenisM 6y ago
        Our society is not lacking in people who are either well-informed or resourceful enough to explore the subject, or both. Where are they? I don't think they are dead, or threatened. Did they just agree to stay quiet?
        SpicyLemonZest 6y ago
        Sorry, I don't follow the question. Where are who?
        DenisM 6y ago
        I mean where are "people who are either well-informed or resourceful enough to explore the subject", and why are they not raising the obvious question of violation of the consitution.
        SpicyLemonZest 6y ago
        They are. William Barr had a whole letter about how he was watching carefully, and many personalities (Matt Walsh is the first example that comes to mind) have been very vocal that they think the Constitution's being violated and lockdowns must end immediately.
  - duxup 6y ago
    I wonder how many orders actually forced anyone to stay at their home? Most that I'm thinking of didn't actually force you into your home, business was restricted, large gatherings... but it wasn't a situation where you weren't allowed to go outside. Maybe some did but I can't think of any.
    - SpicyLemonZest 6y ago
      I think most of them did. The Wisconsin order certainly doesn't mince words: > All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below. https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf
      - duxup 6y ago
        It outright says you can go outside for activities, the type of activity you can do depends, largely on the number of people it would seem. It doesn't mince words about that ...
        SpicyLemonZest 6y ago
        This strikes me as a dishonest response. The fact that the government graciously grants exceptions doesn't diminish the gravity of the order.
        duxup 6y ago
        It's not an exception...its the nature of the order. You're not forced to remain in your home.
        hsitz 6y ago
        That was not at all a dishonest response. And, no, the exceptions don't diminish the gravity of the order. But the exceptions, which I believe every such order has had, do diminish the severity of the restriction. It is a huge stretch, actually dishonest, to imply that any of these orders prohibited people from leaving their home. Many of them were accompanied with language that in fact encouraged people to get outside to clear their heads. I will eat my hat if you can find a single one that prohibits people from going outside simply to exercise.
  - Retric 6y ago
    No they also occurred for the 1918 Spanish flu pandemic which also required people to ware face masks in public.
    - SpicyLemonZest 6y ago
      You've fallen victim to a widespread disinformation campaign. There were orders to close restaurants, ban public gatherings, etc., but general orders to stay at home were not issued during the Spanish flu. (It is true that many cities required people to wear face masks in public, and I agree that's almost surely constitutional.)
      - sterlind 6y ago
        What extra powers would you need to order people to stay home, if you can already order them not to assemble publicly?
        SpicyLemonZest 6y ago
        A lot of extra powers. Even in normal times there are some restrictions on public gatherings.
      - Retric 6y ago
        Uhh, people are still allowed to go outside. The so called ‘stay at home orders’ are just using that name.
      - dragonwriter 6y ago
        There is no substantive difference between prohibiting most of the things people can do outside of the home and prohibiting leaving the home except for things that wouldn't be on that list of prohibitions. The framing of today's shelter-in-place orders is different than the orders issued in the 1918-1919 epidemic, the substance (in outline, details differ because the scope of options available to address is different) is not.
  - jjav 6y ago
    Not at all. The 1918 pandemic was very similar; stay at home, no gatherings, wear masks in public. Some of the articles from then read as if they were written last week. Reading the history about the second and third wave into 1919 as a result of reopening and then re-closing business also makes for interesting and educative reading, recommended.
  - dragonwriter 6y ago
    > But orders for everyone to stay at home are pretty much unprecedented. Orders prohibiting most gatherings for non-essential purposes (with essential defined by the entity issuing the ruling), shuttering non-essential businesses, etc., very similar to today's shelter-in-place orders were fairly common in the 1918-1919 flu epidemic. They aren't at all unprecedented in the US.
    - koolba 6y ago
      Internment camps and limiting who had the right to vote weren’t unprecedented at that time either. That doesn’t make either acceptable by modern interpretations of the constitution.
      - aaronbrethorst 6y ago
        Weird how the same people most interested in limiting who has the right to vote today are the same people who are most interested in overturning these shelter in place orders...
      - jdkee 6y ago
        Care to offer a citation for your claim?
        Pfhreak 6y ago
        That there were internment camps in the US? There's a long history of moving first people into concentration camps in the US, and FDR moved Japanese Americans to concentration camps during WW2. https://en.m.wikipedia.org/wiki/Executive_Order_9066 https://en.m.wikipedia.org/wiki/Executive_Order_9066 There are more recent examples as well from America that house immigrants and prisoners from the Middle East.
        dragonwriter 6y ago
        > That there were internment camps in the US? I think the challenge is for evidence that the broad principle (either internment camps or limitations on the franchise) conflicts with current application of Constitutional law, rather than that the practice occurred in the US. > There are more recent examples as well from America that house immigrants and prisoners from the Middle East. Yeah, that's a weakness of the claim, not evidence for it.
  - ashtonkem 6y ago
    Arguably true, but not as far as I believe you’re implying. The ability of the government to quarantine entire towns and counties has been tested and upheld in the courts over the centuries. What’s new here is that people are being ordered to stay at home. But putting an imposition on a whole group of people without focusing on infected individuals is neither new nor unconstitutional.
  - srj 6y ago
    There were absolutely mass closure orders during the 1918 pandemic. Famously a San Francisco official shot someone for refusing to wear a mask.
- DenisM 6y ago
  Yes. For great many Supreme Court rulings there was an opposite ruling in the past. It used to be that the black did not have rights, the gays could not marry, the women could not vote, and speaking up against war was treason. Times change.
  - duxup 6y ago
    Do you feel like something has changed? Allowing people to vote and other liberties don't present the obvious yin and yang of freedoms vs public health and etc.
    - DenisM 6y ago
      Most certainly. All the things I have enumerated have turned around completely. Most (all?) of these arcane laws were presented in their time as justified curtailing of individual freedoms for the common good. You could not oppose war without going to jail - one could, and did, argue that such any such opposition was detrimental to resolve and ultimately the victory itself, leading to untold casualties. And yet here we are - oppose all you want! Every oppressive law is introduced with justification of needing to protect the public, but finding the balance is not as simple as saying "yep, this might help in our fight against blah". The balance needs to be found in accordance with the Bill of Rights, in particular the 4th amendment.
  - vmception 6y ago
    uhhh some of those things became constitutional by modifying the constitution, overruling the Supreme Court by making unconstitutional things constitutional
ipsum2 6y ago
That's been ruled on in Jacobson v. Massachusetts: > The Court's decision articulated the view that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state. From https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts
- DenisM 6y ago
  A lot of Civil Rights rulings in force in 1905 were overturned in the century since. See my sibling comment: https://news.ycombinator.com/item?id=23173737 https://news.ycombinator.com/item?id=23173737
  - erichocean 6y ago
    There weren't any "Civil Rights" rulings (note capital letters) prior to the mid-1960s, as the legislation and legal system supporting it didn't exist prior to that.[0] Modern "Civil Rights" is a parallel legal system in the US that overrides the former Anglo-derived legal system (though both are still on the books) whenever they conflict. That's why you get people on the Right muttering about "muh Constitution" wondering why Supreme Court rulings that were considered impossible 70 years ago are commonplace today. Civil Rights legislation even overrides the Bill of Rights. It is what is. But it's 100% anachronistic to being talking about Civil Rights rulings in 1905—that's roughly equivalent to discussing Marxist governance in ancient Rome. ---- To those downvoting, explain the right already lost in the 1st Amendment to Civil Rights: the right to be a racist asshole and choose who you associate with. That was 100% legal under any Anglo-derived system (hell, it's literally in the Bill of Rights!), but it's obviously not legal under a Civil Rights regime. Hence, what was once legal is now illegal, "muh Constitution" and "muh Bill of Rights" or not. And why didn't it take an amendment to the Constitution to lose that right? Precisely because Civil Rights established its own legal system and justifications, allowing the Supreme Court to re-interpret previously held rights through the lens of Civil Rights whenever convenient. Boom: no more legislation and laws supporting racist assholes. This is also why things like The Federalist Society and their quote-unquote originalists are so potentially damaging. When they say "originalist", they literally mean the original Anglo-derived legal system (complete with racist assholes) vs. the new Civil Rights-derived legal system. That's what the conflict is about. Nothing I've written here should be remotely controversial. [0] Not strictly true, the rulings started in the mid-1950s with Brown v. Board of Education, and you can find various overrides of the Anglo-derived system even further back.... However, I would argue the legal (as opposed to ethical) basis for earlier decisions is dubious, and didn't actually arrive until the mid-1960s.

by DenisM 6y ago

duxup 6y ago

>do sheltering rules violate the Bill of Rights? Is an outstanding question about that? There have been other pandemics, government actions to enforce health standards and etc. I don't think they've been ruled to be unconstitutional.

SpicyLemonZest 6y ago
Quarantine for people who are sick or known to be exposed is definitely legal. But orders for everyone to stay at home are pretty much unprecedented.
- DenisM 6y ago
  Hence my question. I also want to know where are all the other people asking the same question?
  - SpicyLemonZest 6y ago
    There's been widespread misinformation that similar orders were implemented during the Spanish Flu, which I think has defused a lot of the curiosity about it.
    - DenisM 6y ago
      Our society is not lacking in people who are either well-informed or resourceful enough to explore the subject, or both. Where are they? I don't think they are dead, or threatened. Did they just agree to stay quiet?
      - SpicyLemonZest 6y ago
        Sorry, I don't follow the question. Where are who?
        DenisM 6y ago
        I mean where are "people who are either well-informed or resourceful enough to explore the subject", and why are they not raising the obvious question of violation of the consitution.
        SpicyLemonZest 6y ago
        They are. William Barr had a whole letter about how he was watching carefully, and many personalities (Matt Walsh is the first example that comes to mind) have been very vocal that they think the Constitution's being violated and lockdowns must end immediately.
- duxup 6y ago
  I wonder how many orders actually forced anyone to stay at their home? Most that I'm thinking of didn't actually force you into your home, business was restricted, large gatherings... but it wasn't a situation where you weren't allowed to go outside. Maybe some did but I can't think of any.
  - SpicyLemonZest 6y ago
    I think most of them did. The Wisconsin order certainly doesn't mince words: > All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below. https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf
    - duxup 6y ago
      It outright says you can go outside for activities, the type of activity you can do depends, largely on the number of people it would seem. It doesn't mince words about that ...
      - SpicyLemonZest 6y ago
        This strikes me as a dishonest response. The fact that the government graciously grants exceptions doesn't diminish the gravity of the order.
        duxup 6y ago
        It's not an exception...its the nature of the order. You're not forced to remain in your home.
        hsitz 6y ago
        That was not at all a dishonest response. And, no, the exceptions don't diminish the gravity of the order. But the exceptions, which I believe every such order has had, do diminish the severity of the restriction. It is a huge stretch, actually dishonest, to imply that any of these orders prohibited people from leaving their home. Many of them were accompanied with language that in fact encouraged people to get outside to clear their heads. I will eat my hat if you can find a single one that prohibits people from going outside simply to exercise.
- Retric 6y ago
  No they also occurred for the 1918 Spanish flu pandemic which also required people to ware face masks in public.
  - SpicyLemonZest 6y ago
    You've fallen victim to a widespread disinformation campaign. There were orders to close restaurants, ban public gatherings, etc., but general orders to stay at home were not issued during the Spanish flu. (It is true that many cities required people to wear face masks in public, and I agree that's almost surely constitutional.)
    - sterlind 6y ago
      What extra powers would you need to order people to stay home, if you can already order them not to assemble publicly?
      - SpicyLemonZest 6y ago
        A lot of extra powers. Even in normal times there are some restrictions on public gatherings.
    - Retric 6y ago
      Uhh, people are still allowed to go outside. The so called ‘stay at home orders’ are just using that name.
    - dragonwriter 6y ago
      There is no substantive difference between prohibiting most of the things people can do outside of the home and prohibiting leaving the home except for things that wouldn't be on that list of prohibitions. The framing of today's shelter-in-place orders is different than the orders issued in the 1918-1919 epidemic, the substance (in outline, details differ because the scope of options available to address is different) is not.
- jjav 6y ago
  Not at all. The 1918 pandemic was very similar; stay at home, no gatherings, wear masks in public. Some of the articles from then read as if they were written last week. Reading the history about the second and third wave into 1919 as a result of reopening and then re-closing business also makes for interesting and educative reading, recommended.
- dragonwriter 6y ago
  > But orders for everyone to stay at home are pretty much unprecedented. Orders prohibiting most gatherings for non-essential purposes (with essential defined by the entity issuing the ruling), shuttering non-essential businesses, etc., very similar to today's shelter-in-place orders were fairly common in the 1918-1919 flu epidemic. They aren't at all unprecedented in the US.
  - koolba 6y ago
    Internment camps and limiting who had the right to vote weren’t unprecedented at that time either. That doesn’t make either acceptable by modern interpretations of the constitution.
    - aaronbrethorst 6y ago
      Weird how the same people most interested in limiting who has the right to vote today are the same people who are most interested in overturning these shelter in place orders...
    - jdkee 6y ago
      Care to offer a citation for your claim?
      - Pfhreak 6y ago
        That there were internment camps in the US? There's a long history of moving first people into concentration camps in the US, and FDR moved Japanese Americans to concentration camps during WW2. https://en.m.wikipedia.org/wiki/Executive_Order_9066 https://en.m.wikipedia.org/wiki/Executive_Order_9066 There are more recent examples as well from America that house immigrants and prisoners from the Middle East.
        dragonwriter 6y ago
        > That there were internment camps in the US? I think the challenge is for evidence that the broad principle (either internment camps or limitations on the franchise) conflicts with current application of Constitutional law, rather than that the practice occurred in the US. > There are more recent examples as well from America that house immigrants and prisoners from the Middle East. Yeah, that's a weakness of the claim, not evidence for it.
- ashtonkem 6y ago
  Arguably true, but not as far as I believe you’re implying. The ability of the government to quarantine entire towns and counties has been tested and upheld in the courts over the centuries. What’s new here is that people are being ordered to stay at home. But putting an imposition on a whole group of people without focusing on infected individuals is neither new nor unconstitutional.
- srj 6y ago
  There were absolutely mass closure orders during the 1918 pandemic. Famously a San Francisco official shot someone for refusing to wear a mask.
DenisM 6y ago
Yes. For great many Supreme Court rulings there was an opposite ruling in the past. It used to be that the black did not have rights, the gays could not marry, the women could not vote, and speaking up against war was treason. Times change.
- duxup 6y ago
  Do you feel like something has changed? Allowing people to vote and other liberties don't present the obvious yin and yang of freedoms vs public health and etc.
  - DenisM 6y ago
    Most certainly. All the things I have enumerated have turned around completely. Most (all?) of these arcane laws were presented in their time as justified curtailing of individual freedoms for the common good. You could not oppose war without going to jail - one could, and did, argue that such any such opposition was detrimental to resolve and ultimately the victory itself, leading to untold casualties. And yet here we are - oppose all you want! Every oppressive law is introduced with justification of needing to protect the public, but finding the balance is not as simple as saying "yep, this might help in our fight against blah". The balance needs to be found in accordance with the Bill of Rights, in particular the 4th amendment.
- vmception 6y ago
  uhhh some of those things became constitutional by modifying the constitution, overruling the Supreme Court by making unconstitutional things constitutional

ipsum2 6y ago

That's been ruled on in Jacobson v. Massachusetts: > The Court's decision articulated the view that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state. From https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts

DenisM 6y ago
A lot of Civil Rights rulings in force in 1905 were overturned in the century since. See my sibling comment: https://news.ycombinator.com/item?id=23173737 https://news.ycombinator.com/item?id=23173737
- erichocean 6y ago
  There weren't any "Civil Rights" rulings (note capital letters) prior to the mid-1960s, as the legislation and legal system supporting it didn't exist prior to that.[0] Modern "Civil Rights" is a parallel legal system in the US that overrides the former Anglo-derived legal system (though both are still on the books) whenever they conflict. That's why you get people on the Right muttering about "muh Constitution" wondering why Supreme Court rulings that were considered impossible 70 years ago are commonplace today. Civil Rights legislation even overrides the Bill of Rights. It is what is. But it's 100% anachronistic to being talking about Civil Rights rulings in 1905—that's roughly equivalent to discussing Marxist governance in ancient Rome. ---- To those downvoting, explain the right already lost in the 1st Amendment to Civil Rights: the right to be a racist asshole and choose who you associate with. That was 100% legal under any Anglo-derived system (hell, it's literally in the Bill of Rights!), but it's obviously not legal under a Civil Rights regime. Hence, what was once legal is now illegal, "muh Constitution" and "muh Bill of Rights" or not. And why didn't it take an amendment to the Constitution to lose that right? Precisely because Civil Rights established its own legal system and justifications, allowing the Supreme Court to re-interpret previously held rights through the lens of Civil Rights whenever convenient. Boom: no more legislation and laws supporting racist assholes. This is also why things like The Federalist Society and their quote-unquote originalists are so potentially damaging. When they say "originalist", they literally mean the original Anglo-derived legal system (complete with racist assholes) vs. the new Civil Rights-derived legal system. That's what the conflict is about. Nothing I've written here should be remotely controversial. [0] Not strictly true, the rulings started in the mid-1950s with Brown v. Board of Education, and you can find various overrides of the Anglo-derived system even further back.... However, I would argue the legal (as opposed to ethical) basis for earlier decisions is dubious, and didn't actually arrive until the mid-1960s.