Category: Constitutional Law

Get Thee [Insurance] For It Is Written: Florida Pastor Loses Insurance In Defiance Of Pandemic Order

Call if Luke 4:8 abridged. Jesus said “Get thee behind me, Satan: for it is written, Thou shalt worship the Lord thy God.” We can now add getting insurance behind you. We have discussed the defiance of the pandemic order against groups over 10 people and how Rodney Howard-Browne, the head pastor at the River at Tampa Bay Church, has refused to comply. His holding of large services led to his arrest recently, but Howard-Browne insisted that he would continue to fight against “government tyranny.” He will now have to do so without insurance and that could prove more a far greater challenge than state sanctions.

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Why Calls For A “National Quarantine” May Be More Rhetorical Than Legal

Below is my column in the Hill on how the calls for a “national quarantine” ignore both the historical and legal foundations for such orders. While the President can reduce travel at transportation hubs and certainly call for a national quarantine as “an aspirational” matter, the legal authority to enforce a national quarantine is far from obvious.

Here is the column:

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If every citizen had N95 Masks, Would Government Be Justified in Locking Down The Population Next Time?

By Darren Smith, Weekend contributor

I have to wonder if our state government’s lockdown of the population, curtailment of civil liberties, destruction of job opportunities, and denial of basic medical, education, and cultural needs would have been necessary and legally justified had each of us been equipped with our own supply of masks.

At the beginning of the self-declared State of Emergency, Washington Governor Jay Inslee declared, among many other restrictions, that access to basic medical services, such as routine doctor visits, dental procedures, diagnostic services were to be prohibited, ostensibly on the fact that masks should be diverted from these services and conserved to supply hospitals and critical care centers that were lacking in preparedness and woefully out of stock. He further reiterated that because the public will spread corona virus, we were ordered to self-quaranteen, resulting in tens of thousands of job losses, an upset in daily life and the general loss of liberty.

Before the next virus crises hits, I propose we adopt a new symbol of American Freedom and Liberty–The N95 Mask–and shield ourselves from the next outbreak of panic legislation and overreach by executive and administrative power

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Washington State: Hunting Bear and Turkey Spreads Corona Virus

By Darren Smith, Weekend Contributor

The Washington State Department of Fish and Wildlife has once again submitted to absurdity, this time by declaring that the hunting of bear and turkey presents a threat to public safety.

No, it is not that bears and their natural allies–the gobblers of Washington–have formed an alliance and threatened retaliation against suburbia if hunters invaded their lands. It is more insidious. Hunting outdoors spreads COVID-19 among the human population.

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Laying Hands On Religious Super-Spreaders: Florida Police Arrest Megachurch Pastor

We recently discussed defiant ministers who have refused to end large-scale services like Pastor Tony Spell in Louisiana. Now Florida police have criminally charged Pastor Rodney Howard-Browne of The River at Tampa Bay Church for defying pandemic orders with a mass service.

Fox 29 reports that law enforcement tried to dissuade Howard-Browne but the minister refused to yield and exposed his congregation and their neighbors to spreading the virus. He is charged with “unlawful assembly” and “violation of public health emergency order.”

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Governors Practice Political Distancing In Shifting Blame To Federal Government

National Gallery of Art

Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.

Here is the column:

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Fahgettaboudit: Cuomo Threatens Lawsuit Against Rhode Island For Stopping New Yorkers

New York Gov. Andrew Cuomo is threatening to sue Rhode Island for its effort to stop cars with New York license plates to be sure that New Yorkers quarantine for two weeks. This includes police going door-to-door. Apparently, the image of some guy with a bell crying “bring out your New Yorkers” in the streets is not appealing to Cuomo. Yet, this could present a knotty legal issue.

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Spelling Disaster: Louisiana Asks For Disaster Declaration As Louisiana Pastor Defies Authority With 1000 Person Service

Louisiana Governor John Bel Edwards has asked for a federal declaration of disaster in Louisiana where he claims numbers of coronavirus are rising faster than anywhere in the world. The state previously banned groups greater than 50 and has now called on all citizens to shelter at home. That is clearly not resonating with Pastor Tony Spell who defied authorities (and widespread pleas) by holding services with 1000 followers of his Life Tabernacle Church in Baton Rouge. Spell, who has claimed to cure such things as AIDS and cancer at such services, insisted that this is a “politically motivated” effort and promised to hold additional such services.

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Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

Here is the column:

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Supreme Identity Politics: Biden Pledges To Only Consider Black Females For Supreme Court Pick

Below is my column in The Hill newspaper on former Vice President Joe Biden’s pledge that he will select a black women as the next nominee to the Supreme Court.

Here is the column:

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MSNBC Legal Analyst: Trump Must Be Investigated For Negligent Homicide And Manslaughter

YouTube Screenshot/MSNBC

We recently discussed how an American University professor called for the impeachment of President Donald Trump over his handling of the coronavirus outbreak. Not to be outdone, MSNBC legal analyst Glenn Kirschner is now declaring that Trump should be charged with negligent homicide over his conduct. While insisting that, as a former prosecutor, this is something he “actually know[s] too much about,” Kirschner proceeds to utterly misrepresent the controlling law and definitions of such a criminal case. While I come from the other perspective of a criminal defense attorney, the argument being put forward by the MSNBC legal analyst is devoid of any basis in the law. It does however play well for those who believe impeachment or prosecution are entirely fluid and relative concepts when it comes to Trump.

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“The Holy Cup Cannot Carry Disease”: Greek Orthodox Churches Announce That Shared Drinking Of Wine Will Continue Despite Corona

We recently discussed videotaped of Iranians licking the doors and objects of Islamic shrines in the belief that such traditions are protected by God from Coronavirus. Now, Greek Orthodox churches in Australia have announced that they will allow congregations of hundreds of people to sip wine from the same spoon during mass because “the holy cup cannot carry disease.”

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Connecticut’s Gun-Control Law Triggers New Challenge Under Heller

The Supreme Court has still not dismissed a New York gun case where New York City officials passed, in my view, a clearly unconstitutional gun control measure. Then, after proclaiming that they would defend the law to the Supreme Court, they tried desperately to withdraw the case after review was granted. That creates a serious question of mootness in New York State Rifle & Pistol Association Inc. v. City of New York. However, they may have pushed this game too far with the Court, which clearly did not like being played by politicians using the courts for grandstanding. Yet, there is a case out of Connecticut that could prove equally, if not more, important in defining the edges of the Second Amendment.

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American University Professor Calls For Trump Impeachment Over The Coronavirus Response

Professor Chris Edelson, assistant professor of government at American University, has penned an opinion column calling for President Trump to resign or be impeachment for his handling of the coronavirus crisis. It is just the latest in a long line of such impeachment theories that reflect a fundamental misconception of the function and standard for the removal of an American President.

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Court Finally Releases Chelsea Manning After Suicide Attempt

I have previously objected to how the Justice Department uses grand juries to punish certain individuals who refuse to cooperate with federal investigations. This concern was heightened during my representation of Dr. Sami Al-Arian who signed a plea bargain with the understanding that, after serving his time, he would be allowed to leave the country. Instead, he was forced before a grand jury and remained in jail for years as a matter of contempt. The Justice Department often prolongs the incarceration while piling on fines to ruin individuals who refuse to cooperate. That was the case with Chelsea Manning. Like Al-Arian, she had already served time for her role in the Wikileaks controversy but the remainder of her sentence was commuted by President Barack Obama. The Justice Department proceeded to pull her before another grand jury where she refused to testify (like Al-Arian). After a long incarceration and an equally excessive 256,000 in fines, she finally tried to kill herself this week by hanging in the Alexandria jail. Only then did U.S. District Judge Anthony Trenga finally order her release.

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