Let's Not Forget The Bigger Battle

The outcome of the November 3 election has little direct effect on an issue that's been simmering for much of the year, the arbitrary and inconsistent COVID restrictions imposed by the states, over which (so far) the president has little direct control. At my old blog, I covered the ongoing legal campaign to limit extra-legislative actions by state, county, and municipal authorities to override First Amendment rights of speech, assembly, and free exercise of religion using the largely manufactured COVID-19 "pandemic", for instance in this post from October 19.

The status of various cases moving through federal and state courts is very mixed. The most important cases are currently an opinion by Judge William S. Stickman IV in the federal Western District of Pennsylvania courts effectively declaring the Pennsylvania COVID restrictions unconstitutional. I covered this in my old blog, for instance here. HIs order is stayed pending appeal.

Another case is a ruling by a Sutter County, CA judge invalidating many California COVID restrictions based on the idea that the governor modified state laws in several areas without going to the legislature to change them. I covered this in the old blog here. This is also in limbo.

These issues have tended to fall off the radar during the election crisis. The COVID crisis, though, emerged under President Trump, but in his capacity as president, there was little he could do about it. The Tenth Amendment to the US Constitution reserves the rights not designated to the federal government in the Constitution to the states or the people. The ability to regulate local health rules seems to be generally subject to the Tenth Amendment and is delegated to state legislatures.

Thus as understood up to now, the president has no authority to impose national lockdowns or mask mandates, nor to override them in the states. The efforts to go to the US Supreme Court are an attempt to use that court's authority to declare various arbitrary or discriminatory state measures unconstitutional.

Among the most recent cases that are making their way to the Supreme Court are lawsuits by ultra-Orthodox synagogues in New York State, as well as the Roman Catholic Diocese of Brooklyn, intending to overturn COVID orders by Gov Cuomo that severely restrict attendance at "houses of worship" in order to reduce the number of COVID cases in specific areas. So far, all these cases have been rejected by lower federal courts, but in recent days, both the Roman Cathlic Diocese and the synagogues have now asked the US Supreme Court for an injunction to overturn those limits.

In the Diocese of Brooklyn case, Justice Breyer has ordered the state to file a response by Wednesday, Nov 18.

It does appear that more governors and other local authorities are recognizing that COVID measures are unpopular. Ohio Gov DeWine has announced a curfew, but not a fuil lockdown, apparently on the theory that people spread positive test results by going to bars and getting drunk. Califonria Gov Newsom has announced he's considering a similar measure, but again, not a full lockdown.

On Tuesday morning, Dr Fauci said on CNN "he 'can’t understand why there’s pushback' against the health orders. He argued the measures are important because 'they save lives.'”

Whatever. At least something's sinkng in. But this is going to be a long struggle, in the end more important than a single election.