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Tags: essential | nonessential | ruleoflaw

Essential and Non-Essential? Restore Rule of Law

a storefront with an open sign and mannequins wearing masks
Some businesses deemed "essential," are allowed to open in during the pandemic, while others deemed "non-essential" by government authorities have had to remain shut. (AFP via Getty Images)

Bruce Abramson By Tuesday, 01 September 2020 11:21 AM EDT Current | Bio | Archive

America as we've known it is gone.

After years of warnings, the final blow arrived this spring with so little debate that many have yet to notice. It arrived, as the demise of freedom often does, in an emergency declaration. It was not the pandemic itself that killed America, nor was it the severity of the shutdown. No, the death blow was far subtler.

Buried within the various emergency measures enacted since March was a dangerous assumption: Governors, mayors and other local officials possess the authority to divide human activity — otherwise legal human activity — into the "essential" and the "non-essential," and regulate the two categories differently. That assumption overturned the rule of law — and with it, our hallowed Bill of Rights. Without the rule of law, America simply is not America.

Over the past five-plus months, courts, politicians and commentators have weighed in on specifics. Some designations seemed sensible, others capricious or vindictive. Some governors wielded the power responsibly, others less so. But the power of designation itself has received far less notice than it warrants.

It's impossible to underestimate what's at stake when government officials claim that power. The U.S. Federal Courts website defines the rule of law as the "principle under which all persons, institutions and entities are accountable to laws that are: Publicly promulgated; Equally enforced; Independently adjudicated; And consistent with international human rights principles."

The moment the government reserves the right to determine which activities are essential and which are not, laws stop being enforced equally. A regime in which a grocery can remain open subject to certain rules of occupancy and behavior while a hardware store must be shuttered is inherently unequal. 

Announcements about rule changes that go into place overnight and change frequently cannot be adjudicated fairly — much less independently. A high profile illustration arose earlier this year, in a case unrelated to the pandemic.

Several years ago, New York passed gun control legislation that many believed infringed the second amendment. By the time the case reached the Supreme Court, New York had made minor changes to its laws. The Court ruled that the case was moot because the precise provision challenged was no longer relevant. Under that standard, an emergency provision that changes every few weeks could never make it to court.

Public promulgation of laws typically requires more than a mere announcement. There is an entire body of Administrative Law containing "notice and comment" provisions to ensure that all new regulations are deliberated and understood before going into effect.

In another recent high profile case unrelated to the pandemic, the Supreme Court rejected President Trump's executive order repealing President Obama's executive order on DACA because the White House had provided inadequate materials explaining the repeal. 

For obvious reasons, emergency and temporary laws are generally exempt from notice and comment provision. That exemption, however, applies to the laws themselves — not to the power underlying them. Thus, for example, it's well established that governors can issue mandatory evacuations and arrest citizens who refuse to leave their homes. Specific uses of that authority evade public debate only because the power is already established.

Finally, freedom of religion is one of the most basic internationally recognized human right. Governors and mayors who have infringed this right over the past few months have made front-page news around the country. 

The government behavior we've seen over the past few months has obliterated every  element of the rule of law. Nowhere has it been clearer than in the blanket exemptions given to protestors claiming to champion progressive causes — a rationale that makes no sense at all in the context of public health.

These obscenities plaguing America did not arise in a vacuum. The rule of law has been eroding for a long time. Less than a decade after the Civil Rights Act of 1964 finally applied the rule of law consistently independent of race, affirmative action programs began re-injecting racial divisions into the application of the law.

Even before that, few believed that rich and poor, individuals and corporations, had equal access to the law. Courts, judges and lawyers adopted numerous mechanisms that demonstrated deep concern with this inequality. The unmistakable preferential treatment of big businesses over small businesses and individuals in the current climate undermines all of those efforts.

In the run-up to the 2012 election, the IRS provided differential treatment to liberal and conservative groups seeking non-profit status. And few can miss that General Flynn, Roger Stone and Paul Manafort were prosecuted only because of their ties to the Trump campaign.

It's becoming harder and harder to pretend that America is governed by clear laws applied equally to all. A public that has lost confidence in that central pillar of justice is no longer free. It is incumbent upon our leaders to restore not only the rule of law, but public confidence in the rule of law. It's a minimum step towards restoring America.

Dr. Bruce Abramson is a Principal at JBB&A Strategies, a Director of the ACEK Fund, a founder of the American Restoration Institute and the author most recently of American Restoration: Winning the Second American Civil War. Read Bruce Abramson's Reports  —   More Here.

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After years of warnings, the final blow arrived this spring with so little debate that many have yet to notice.
essential, nonessential, ruleoflaw
Tuesday, 01 September 2020 11:21 AM
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