Truth Bombs from Judge William S. Stickman IV

Federal Judge William S. Stickman ruled that the COVID-19 executive orders issued by Pennsylvania Governor Thomas W. Wolf were unconstitutional. Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020). Below are some irrefutable truth-bombs from that 66-page opinion.

Emergency As An Artifice for Government Taking Away Rights Forever

[G]ood intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good—especially in a time of emergency. In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions—while expedient in the face of an emergency situation—may persist long after immediate danger has passed.

Id. at 1.

Constitutional Rights Were Framed During An Emergency They Cannot Thus Be Altered by An Emergency

As the Supreme Court has observed: “[t]he Constitution was adopted in a  period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” Home Building & Loan Ass’n. v. Blaisdell, 290 U.S. 398 (1934).

Id. at 10.

Hypocrisy of Governor

The plain language of the orders makes no exception for protests, which seemingly run directly contrary to the plain language of the May 27, 2020 Order that states, “[a]ny gathering for a planned or spontaneous event of greater than 250 individuals.” (ECF No. 42-58). However, the record unequivocally shows that Defendants have permitted protests, and that the Governor participated in a protest which exceeded the limitation set forth in his order and did not comply with other restrictions mandating social distancing and mask wearing. (ECF No. 42-101).

Id. at 12.

Constitutonal Right to Assemble

The right of assembly is a fundamental right enshrined in the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.” U.S. CONST. AMEND. 1, in relevant part.

The imposition of a cap on the number of people that may gather for political, social, cultural, educational and other expressive gatherings, while permitting a larger number for commercial gatherings limited only by a percentage of the occupancy capacity of the facility is not narrowly tailored and does not pass constitutional muster. Moreover, it creates a topsy-turvy world where Plaintiffs are more restricted in areas traditionally protected by the First Amendment than in areas which usually receive far less, if any, protection.

“If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.” Tabernacle Baptist Church, Inc. v. Beshear, ––– F. Supp. 3d ––––, ––––, 2020 WL 2305307, at *5 (E.D. Ky. May 8, 2020). The same applies here. The congregate limits in Defendants’ orders are unconstitutional.

Id. at 13-15.

Unprecedented Lock-Down Order Based on Communist China’s Model

The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China—a nation unconstrained by concern for civil liberties and constitutional norms—started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective.

Id. at 22.

Right to Walk the Streets

“The right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered  society.” Id. at 22, quoting Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989), citing Papachristou v. Jacksonville, 405 U.S. 156, 164-65 (1972).

Id. at 22.

Lockdowns Are Presumptively Unconstitutional

Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of a lockdown may render this a high bar, indeed. Id. at 23.

Unprecedented Business Shutdown

As with the lockdown, Defendants’ shutdown of all “nonlife-sustaining” businesses is unprecedented in the history of the Commonwealth and, indeed, the nation. Id. at 24.

Never before has the government exercised such vast and immediate power over every business, business owner, and employee in the Commonwealth. Never before has the government taken a direct action which shuttered so many businesses and sidelined so many employees and rendered their ability to operate, and to work, solely dependent on government discretion.

Id. at 24.

Constitutional Right to Work and Make Money

Contrary to Defendants’ [Pennsylvania Governor’s] argument, the right of citizens to support themselves by engaging in a chosen occupation is deeply rooted in our nation’s legal and cultural history and has long been recognized as a component of the liberties protected by the Fourteenth Amendment. Over a century ago, the Supreme Court recognized that “[i]t requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Id. at 25, quoting Truax v. Raich, 239 U.S. 33 (1915).

“The right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within both the ‘liberty’ and the ‘property’ concepts of the Fifth and
Fourteenth Amendments.” Id. at 25, quoting Piecknick v. Comm. of Pa., 36 F.3d 1250, 1259 (3d. Cir. 1994) (citing Greene v. McElroy, 360 U.S. 474 (1959).

Id. at 25

Shutdown Causes Critical Damage to Business Survival

A total shutdown of a business with no enddate and with the specter of additional, future shutdowns can cause critical damage to a business’s ability to survive, to an employee’s ability to support him/herself, and adds a government-induced cloud of uncertainty to the usual unpredictability of nature and life.

Id. at 26.

Arbitrary Rules Benefitted Large Companies

Another layer of arbitrariness inherent in the business shutdown components of Defendants’ orders are that many “non-life-sustaining” businesses sell the same products or perform the same services that were available in stores that were deemed “life-sustaining.” For example, Plaintiff R.W. McDonald & Sons is a small appliance and furniture store that was deemed a “non-life-sustaining” business and required to close. (ECF No. 30, p. 1). But larger retailers selling the same products, such as Lowes, The Home Depot, Walmart and others remained opened. Mr. McDonald stated that his business “lost approximately $300,000 in revenue” and that his business has been “financially devastated.” (ECF No. 30, p. 2). He also averred that he lost business to the bigbox retailers that were permitted to remain in operation.

Defendants’ actions did not rationally relate to this end [of minimizing the spread of COVID-19 by limiting the scale and scope of personal interaction]. Closing R.W. McDonald & Sons did not keep at home a consumer looking to buy a new chair or lamp, it just sent him to Walmart. Refusing to allow the Salon Plaintiffs to sell shampoo or hairbrushes did not eliminate the demand for those products, it just sent the consumer to Walgreens or Target. In fact, while attempting to limit interactions, the arbitrary method of distinction used by Defendants almost universally favored businesses which offered more, rather than fewer products. As such, the largest retailers remained open to attract large crowds, while smaller specialty retailers—like some of the Business Plaintiffs here—were required to close. The distinctions were arbitrary in origin and application. They do not rationally relate to Defendants’ own stated goal. They violate the Equal Protection Clause of the Fourteenth Amendment.

Id. at 29-31.

Economy Is An Organic System

An economy is not a machine that can be shut down and restarted at will by government. It is an organic system made up of free people each pursuing their dreams. The ability to support oneself is essential to free people in a free economy. The late Justice William O. Douglas observed:

The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, ‘A man has a right to be employed, to be trusted, to be loved, to be revered.’ It does many men little good to stay alive and free and propertied, if they cannot work. To work means to eat. It also means to live. For many it would be better to work in jail, than to sit idle on the curb. The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man. Id. at 29, quoting Barsky v. Board of Regents of University of State of New York, 347 U.S. 442, 472, 74 S.Ct. 650, 98 L.Ed. 829 (1954) (Douglas, J, dissenting).

Id. at 29

Constitutional Rights are Inalienable

[I]n an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.

Id. at 31.

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