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Nazareth, Pa., United States

Friday, May 15, 2020

The Lesson From Wisconsin's Supreme Court

On Wednesday, a divided Wisconsin Supreme Court invalidated a draconian lockdown remarkably similar to one that passed constitutional muster in Pennsylvania. Both decisions were 4-3 rulings. In Pennsylvania, the Court rejected both statutory and constitutional objections. In Wisconsin, the court never had to rule on any constitutional question because it found that the Executive branch had exceeded its authority. Within moments of the ruling, the good people of the dairy state responded, not with milkshakes, but Miller Lite. They flooded the bars to celebrate restored freedom as the Governor groaned that his state had become the "Wild West." Dissenting Justice Rebecca Dallet complained that the ruling "will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history." In my view, the court simply ruled that the executive branch exceeded its statutory authority. But it did so with stark warnings about the danger of concentrating power into the hands of a single branch of government. The Court is also bothered that the Governor seems to think he can assert dictatorial powers indefinitely.

Chief Justice Patience Drake Roggensack noted that a "Governor's emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. For example, if a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely."

Justice Rebecca Gradley warned against the concentration of power in a single person, i.e. an unelected Health Secretary. Noting that all governmental power is derived "from the consent of the governed," she noted it is usually diffused among three different branches of government. "Whenever any branch of government exceeds the boundaries of authority conferred by the people, it is the duty of the judicial branch to say so." She added that the framers of the US Constitution believed that concentration of power in one branch of government is an "extraordinary threat to individual liberty," and quoted the words of James Madison in Federalist No. 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, . . . may justly be pronounced the very definition of tyranny."

She referred to Blackstone Law Dictionary, which defines a "tyrannical government as one in which 'the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men,' for 'wherever these two powers are united together, there can be no public liberty.'"

Gradley concluded with Thomas Jefferson's warning that "concentrating [all the powers of government] in the same hands is precisely the definition of despotic government."

In Pennsylvania, Governor Tom Wolf has been exercising emergency powers since mid-March. After 90 days, he can extend his own powers without the approval of the legislature. The legislature has the power to stop despotic government, but needs a 2/3 majority to do so.  Thus, we are stuck with what in essence amounts to a tyranny.

The exercise of extraordinary power by a few during times of emergency will inevitably lead to extraordinary abuses of the citizens. Pa.'s lockdown has thrown nearly 2 million Pennsylvanians, both employed and unemployed, out of work. The despotic action of Governor Wolf and Secretary Levine has been done with no regard for families that are unable to collect unemployment benefits because an uncaring state is using a 40 year-old computer system that crashes repeatedly and refuses to man the phone or answer emails.

When a lockdown was imposed by the Chinese in Wuhan, pundits noted that something like that could never happen here. It did. Amazingly, many Americans have willingly surrendered.

But not everyone.

Today, there will be another demonstration in Harrisburg from those who want the state to re-open.


Anonymous said...

Bernie, I love your blog, you cover the real local stories that old media no longer can cover. However, I feel the need to call you on one line in you latest (and accurate) abuse of power by Wolf:

"The legislature has the power to stop despotic government, but needs a 2/3 majority to do so."

You are correct. The Republicans want to stop this nonsense. The Democrats stonewall efforts to get PA back to work and remove Wolf's insanity.

Please call out our own Democratic Party in aiding Wolf and not stopping the insanity.

The party division is so bad if the Republicans could turn their poop into gold bars are give them to Democratic Legislatures, they would turn up their noses.

It is not just Tom Wolf in on this. Our fellow democrats need to stop playing with our lives.

Bernie O'Hare said...

Agreed, and I think I will start calling them out. The Democratic party to which I belong has historically been a champion of blue collars, the working poor and those who need a hand up as opposed to a hand-out. Somewhere along the way, it has morphed into a collection of politically correct elitists who cater to special interests that have no interest in helping our shrinking middle class.

Anonymous said...

Our legislators should amend our Governor's emergency powers law and model it after Wisconsin. There is no reason not to and no one should have such absolute power indefinitely.
Very well written article Bernie, hat tip.

Anonymous said...

"Our fellow democrats need to stop playing with our lives."

Our FELLOW Democrats. OK, since you are kissing up to Bernie's pet peeve, he will play along. You like many who post like you are no Democrat. You Trumpians are not nearly as clever as you think you are.
What a bunch of maroons!!!

Anonymous said...

We really are in dangerous territory with what these state government zealots are doing. Both political parties have their own slugs in government who lack the courage to stand-up on behalf of their citizens. But, Bernie is correct about his own part of preference, the Democrats. This is not the Democrat Party we grew-up to know.

Hardcore radicals have taken over the Democrat Party. Here in Pennsylvania and across America. But, I hold silent, cowardly Republicans equally responsible.

The Republicans must conduct a Roll Call Vote in the Legislature. We need every representative to put their name on their action or inaction. No voting ‘Present.’ No one staying away from Harrisburg to avoid voting.

Let’s make it all very clear. Who really is the problem? We need to name them and confront them.

Anonymous said...

4:15 - Many of us have left both political parties. Over many years, I’ve been a Democrat and a Republican. Now, I’m Independent. Why, you might ask? They both suck. Too many career grifters, even some criminals, I’m sure.

Hold all of them personally accountable. If they’re not working hard for you (who put them in power and pay them) it doesn’t matter what alphabet letter comes after their name.

Anonymous said...

The politicians in the state legislature are very bad weak people-they will never go after wolf--look at school taxes they were going th change these terrible tax method for over 30 years --they will never go after wolf dem or rep.

Anonymous said...

Wow Bernie, you really have gone off the deep end with this authoritarian BS. Part of what you stated above referenced what some Wisconsonites did right after the ruling...went to bars, no social distancing, of course no masks. If you think people can be trusted to police their own behavior you're extraordinarily ignorant of humans. You're frustrated like many people because your job has been hit, I get that of course. But your irresponsible flogging of "authoritarian" power grabs is off the rails since this thing started. Wait until the fall and winter when the second big wave hits. I guess we'll see how great we humans are at voluntarily masking and distancing. Let's hope the hospitals can handle it.

Anonymous said...

do not forget the Wisconsin Supremes made sure they were protected when deciding that little people can die so Olive Garden turns a buck.
They hid behind Zoom,
Another winner was the Georgia Gov.
You used to be able to tour the Gov's mansion yet that has been suspended.
Wonder why?
As to PA' upcoming protest of gun humpers and rabble rousers--when i see the rep leaders in the Pa legislature carrying a sign at that protest then they might deserve listening ro.
Watch how the biggest political mouths suddenly cant make it they have to wash their hair

Anonymous said...

Pennsylvanians need to wake up when voting for Judges. the court has been stacked by the government unions to preserve the status quo of big government in this state. Their rulings are always in favor of preserving government power over people.

Anonymous said...

It seems the reason the Wisconsin situation is where it is is that the Governor refused to seek compromise with the legislature. Common sense restrictions would probably have survived if he hadn't acted like a dictator.

Anonymous said...

"You Trumpians are not nearly as clever as you think you are."

May 15, 2020 at 4:15 AM

Well, the chief Trumpian was clever enough to campaign in Wisconsin...


Anonymous said...

Only the ignorant, the foolish, the brainwashed, will support a Police State in America. We’ve never been closer to losing this nation. This march to totalitarianism must be stopped before it’s too late.

The goal of hardworking Americans has always been to build a good life for their families. To leave this Earth in comfort knowing they’ve left their children a better place to prosper.

Why is this mission being reversed? We are staring at a Twilight Zone. Brought to us by power-hunger, selfish politicians who actually believe they will escape the pain ahead. They can’t.

How can any freedom-loving citizen be so blind as to where we are headed? Put your family ahead of any R or D label.

Anonymous said...

On the matter of this crisis, I see little relief coming out of our local people in state government. Mostly silence and excuses for their inaction. Writing a letter doesn’t count, Lisa Boscola. Providing links to where we can find more information, Pat Browne and Susan Wild, is nothing of any real service. Why are you hiding in tolerance of the harm being done to your constituents?

Be openly active and aggressive against this Shut-Down . . . . Or be gone!

Anonymous said...

Wisconsin has smart judges we in pa have stupid judges

Anonymous said...

At this point, Pennsylvania has other options (states) where to live. That’s the benefit of Federalism. My greatest fear is seeing our national government being taken over by the fascist/communist/globalist politicians and their minions. Should that happen with the next Federal Election, where we ‘gonna run?

Bernie O'Hare said...

"Our FELLOW Democrats. OK, since you are kissing up to Bernie's pet peeve, he will play along. You like many who post like you are no Democrat. You Trumpians are not nearly as clever as you think you are.
What a bunch of maroons!!!"

Perhaps you are the maroon. I have many Democratic friends who feel exactly as I do. They are less vocal about it bc they hate being shouted down the way Democrats are often shouted down by the extremists within our own party. My Democratic party is the one that stands yo for the working poor, blue collars and believes government is there to help those who are vulnerable. We have morphed in recent years into very politically correct elitists so caught up with undocumented immigrants, the me too movement, LGBTQ issues and climate change that we have forgotten about the working poor and blue collars. Take this virus crisis. Why would Wolf close down business without first making sure an infrastructure is in place to protect the working poor and blue collars?

While I have sympathy for the collateral issues, our main focus should always be on the working poor, blue collars and those who need a hand up. We have lost our way.

Anonymous said...

What are maroons?
Great post Bernie! I left the democrat party in 2006 for exactly the same reasons you list. Am I hard core Republican, no! But as a retired LEO who grew up in a working class family, I felt their values no longer aligned with mine. I felt the party had left me, so I left the party.

Anonymous said...

Rest assured, the media will avidly follow every new case in Wisconsin with the ghoulish zeal they've used in "non-compliant" governments. (I think for the first time in my lifetime, I see the media actually rooting against Sweden and the Social Democrats in Germany.)

In fact, Newsweeks headline writers are already implying the Supreme Court ruling is already having an effect.

https://www.newsweek.com/wisconsin-coronavirus-cases-rise-stay-home-order-lifted-1504274 (What would I do without Google News? I would never know Newsweek even still existed.)

Tricky thing that virus, it used to have an average 5-7 day incubation period, but now, the effects of freedom seem to be immediate.

The disaster that was hoped for regarding the in-person voting controversy in WI never emerged. Something like 50 people who voted in person got the virus, but they also did a lot of other things besides vote, and several hundred thousand people who voted in person DIDN'T get the virus.

But there's always hope for headline writers.

Anonymous said...

I’m sure this is a real predicament for longtime Democrats. They are seeing, possibly living with, the ill effects the ‘new radicals’ in their party are helping to prolong. Yes, there are overly partisan people registered as Republican, too!

The question is, what can we best do about our displeasure with either party? First, withhold your vote! Either choose someone different or sit out the next election if you find that tolerable. Nothing will change if you keep voting the same way.

I’m going all in, by deciding not to vote for any Incumbent Pennsylvania politician from this community. But, registered as I am, I can’t vote in the Primary.

Anonymous said...

Vote for the dems in novenber---an America as we knew will not exist and it will not be any better-I pity the people who will have to live under these people--this virus has given us a preview of how the dems want to rule. this may be deleted because bernie hates the truth about his dems

Anonymous said...

As job losses mount and eventually roll into more government positions (there's always a delay), it's important to remember that we're all in this together and we have to stay safe until we flatten the ....... until we have a widely distributed, safe and reliable vaccine. And all mail-in voting.

Anonymous said...

Well said. The rally in Harrisburg will be just another political rally complete with gun carrying idiots hoping for a confrontation with law enforcement.
Bernie needs to find a synonym for "draconian." We get it. He's affected and is angry. Everything he writes now is blatantly obvious he supports the survival of the fittest in the herd mentality.

Bernie O'Hare said...

I use the word "draconian" to describe the lockdwon bc it's true and it pisses you off. I am affected but so are 2 million Pennsylvanians. You obviously are not.

Anonymous said...

House moves to shift power from Pa. Gov. Wolf.....


Anonymous said...


Anonymous said...

waiting how long?
"By placing this amendment on the ballot, and receiving the approval of Pennsylvania citizens, we will ensure that representation exists even during an extended state emergency"
guess they do not have the stones to do anything now.
Basically a cop out.
They get to act so far down the road if it is approved.
The term lame comes to mind

Anonymous said...

You nailed it, 9:40. There was some reference in that Bill indicating ‘after two legislative sessions go by.’ The small business owners of this state can’t wait that long!

It’s time for immediate and forceful action by our state politicians. Sending a letter is not enough, Lisa Boscola. Co-signing someone else’s legislation (the extent of action by too many other politicians) is ‘weak sauce.’ It’s time to vote on a measure to ignore Gov. Wolf and his incompetent administration. Sign your NAME to something meaningful and ramp up your disgust over the burning down of our economy. Stand in support of re-opening on the sidewalk in front of a business that can’t take any more of this abuse. Interview that owner, let him speak!

Anonymous said...

Do we have a local politician willing to stand-up and pledge their next month’s salary to charity until this shut-down is completely over ?
It’s not too much to ask our “ruling class” to share the pain.

Besides, national media attention will come with such a pledge. That kind of thing is of huge benefit near election time. Think of the photo ops!

Anonymous said...

Germany is going back to school now because Germany has tests. That's because Germany has a real national leader.

Anonymous said...

Pennsylvania has plenty of available tests for whenever there is a real need to be tested. That means at least 2-3 pre-indicator symptoms. It is not necessary for Pennsylvania to have a test for everyone who decides they want to be tested. If a doctor’s note advises being tested, of course.

Anonymous said...

May 16, 2020 at 1:02 PM

Anonymous Anonymous said...

"Germany is going back to school now because Germany has tests. That's because Germany has a real national leader."

Tests per million people: USA 35,298; Germany 37,585