It’s been one year since COVID restrictions began going into effect in states and counties across the nation.
Although some of these restrictions were reasonable (and temporary) measures designed to keep hospitals from being overwhelmed, others seemed arbitrary and bore little connection to health and safety.
At best, they were slightly ridiculous; at worst, they were an exercise of raw government power to control its citizens. And many of them have hung around long after they possibly could have been justified by the uncertainty that was present at the start of the pandemic.
But it wasn’t just the measures themselves that were troublesome. The enforcement of these new laws was also overzealous and absurd.
In each case, COVID restrictions were imposed by executive branch officials—governors, mayors, sheriffs, and law enforcement—relying on broad grants of power delegated by legislatures. The legislators did not write or vote on the restrictions themselves. Instead, it was left to the officials who are responsible for enforcing the restrictions to decide what is banned and what is allowed.
That approach is contrary to the separation of powers that underlies the American system of government. Under our system, power is supposed to be divided among different branches that check and balance each other, for the protection of our rights and freedom. Laws are supposed to be enacted by the legislative branch. The executive branch is supposed to enforce the laws, not make them. It is that constitutional structure that helps protect our liberty and freedoms.
As Justice Antonin Scalia said:
“If you think a bill of rights is what sets us apart, you’re crazy. Every banana republic in the world has a bill of rights.”
“Every president for life has a bill of rights. The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it literally. It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!
“Of course, just words on paper. What our Framers would have called a ‘parchment guarantee.’ And the reason is that the real constitution of the Soviet Union—you think of the word ‘constitution’—it doesn’t mean a ‘bill’ it means ‘structure’: say a person has a sound constitution [you mean] he has a sound structure. The real constitution of the Soviet Union—which our Framers debated [our constitution] that whole summer in Philadelphia in 1787, they didn’t talk about the Bill of Rights, that was an afterthought wasn’t it—that constitution of the Soviet Union did not prevent the centralization of power in one person or in one party. And when that happens, the game is over, the Bill of Rights is just what our Framers would call a ‘parchment guarantee.’”
So, the real key to the distinctiveness of America is the structure of our government and the separation of powers.
Unfortunately, the COVID pandemic has once again shown that when government officials are allowed to reach beyond their proper role, it is the people and their freedoms that suffer. Pacific Legal Foundation is working to limit arbitrary and abusive executive authority and restore the balance of power guaranteed in our Constitution.