Governor Overreach
Why the silence from mainstream media on the question of civil rights and limiting state power?
People often bristle when President Trump tweets something absurd. He tweets his usual madness; then everyone scrambles to see if he has the authority to do whatever crazy thing he suggested. We ask if he possesses the authority to do whatever he said. Some go even further by questioning if his authority is legitimate, and is his power consistent with federal law? People, who think deeply may even ask, is his authority being used for a legitimate purpose?
Why do so many ignore asking questions like this when it comes to the powers of their governors during the pandemic?
Many people accept the fact our police forces are vested with extraordinary powers to deprive people of liberty. For that reason alone, we should never allow them to wield those powers arbitrarily and indiscriminately. The recent focus on policing has brought this into the cultural crosshairs. The limits we have on official government power represent a crucial safeguard against tyranny. The moment we abandon legal restraints on official authority, we’ve deposited ourselves on a slippery slope that could ultimately lead to a police state. It’s naive to trust powerful officials to care more about our rights than we do.
Why have the opponents of President Trump’s power grabs and authoritarian tendencies become suddenly unconcerned about sweeping powers that have been seized by more than 40 U.S. state and territorial governors since the pandemic began? The complacency is dismaying. The effect to which controls have already been put is staggering; hundreds of thousands of businesses shuttered, tens of millions of citizens were forced into conditions approaching house arrest, entire industries unable to re-open—all resulting in millions of people having to file for unemployment benefits and living without health coverage. All this was achieved with minimal public debate.
In 2001, a bill called the Model State Emergency Health Powers Act (MSEHPA) was passed to respond to a catastrophic bioterrorism attack. It was adopted because of potential terrorism concerns in the aftermath of the 9/11 attacks. The broad language of the MSEHPA gave governors the authority to declare public health emergencies.
According to the ACLU, although extraordinary measures may be required during an emergency, the MSEHPA is replete with civil liberties problems. Its three top flaws are that:
It fails to include basic checks and balances. The Act grants extraordinary emergency powers, but that kind of authority should never go unchecked. Public health authorities make mistakes, and politicians abuse their powers; there is a history of discriminatory use of the quarantine power against particular groups of people based on race and national origin, for example. The lack of checks and balances could have serious consequences for individuals' freedom, privacy, and equality. The Act lets a governor declare a state of emergency unilaterally and without judicial oversight, fails to provide modern due process procedures for quarantine and other emergency powers, it lacks adequate compensation for the seizure of assets, and contains no checks on the power to order forced treatment and vaccination.
It goes well beyond bioterrorism. The act includes an overbroad definition of "public health emergency" that sweeps in HIV, AIDS, and other diseases that clearly do not justify quarantine, forced treatment, or any of the other broad emergency authorities that would be granted under the Act.
It lacks privacy protections. The Act requires the disclosure of massive amounts of personally identifiable health information to public health authorities, without requiring basic privacy protections and fair information practices that could easily be added to the bill without detracting from its effectiveness in quelling an outbreak. And the Model Act undercuts existing protections for sensitive medical information. That not only threatens to violate individuals' medical privacy but undermines public trust in government activities.
The act is a throwback to a time before the legal system recognized basic protections for fairness; before public health strategies were rooted in voluntary compliance, and before the information age dictated the need for privacy protections of individuals' personal information.
While quarantines and other robust exercises of government power may be necessary, it doesn’t justify such a complete handover of authority.
Why haven’t we seen more of a public debate on such an unprecedented seizure of government power? I see mostly silence from mainstream media on the question of civil rights and limiting state power.
I’ve written about my own Governor Andrew Cuomo’s government overreach HERE, HERE, HERE, HERE, HERE and most recently HERE. I’ve seen just how far our governor has gone. He loves to keep harassing people.
Consent of the governed refers to the idea that a government's legitimacy and moral right to use state power is only justified and lawful when consented to by the people or society over which that political power is exercised. Are we consenting to this? If so, why, and for how long? It is clear to me our media is working overtime, frightening people, sowing mistrust, and confusing the general public. Our elected leaders are enjoying the power grab and appear to delight in the capitulation of their constituents. The shortest path to such acquiescence is through fear.
Its moments like these when it is imperative to remain skeptical. We should be asking questions of those who are slicing up the Bill of Rights with “emergency” measures that may be with us for years to come.
Think Things Through. Are all of the governors who are ruling us by fiat acting constitutionally? Are people and small businesses who are currently suffering from the plethora of restrictive measures going to be financially compensated? Has anyone thought or cared about the people who are driven by economic insecurity into depression or drug abuse? Who will provide health insurance to people who have suddenly lost their coverage with their jobs? How many weeks or months does this “emergency” last, and in what ways does it justify the shutdown of democracy?
I spoke to a government official today and asked him some of these questions. I could not get a straight answer. It is frustrating. I feel we all should be in contact with our elected representatives as often as possible. We should be working with political organizations that already have established relationships with our leaders to apply additional pressure. There must be a multi-pronged campaign from many angles that will require commitment and careful political judgment at each step. Citizens should balance legitimate grievances, but also understand the reality of a still yet untamed disease.
We cannot sit back any longer. Our elected leaders have been improvising for way too long. At this point, we know much more about COVID-19 than we did in March. It’s time to stop acquiescing to the arbitrary and contradictory rules ordered by our respective governors. Routine oversight of all levels of government is imperative in protecting both our lives and our liberty.
Power is intoxicating. It must be contained.
Clayton Craddock is an independent thinker, father of two beautiful children in New York City. He is the drummer of the hit broadway musical Ain’t Too Proud. He earned a Bachelor of Business Administration from Howard University’s School of Business and is a 25 year veteran of the fast-paced New York City music scene. He has played drums in a number of hit broadway and off-broadway musicals including “Tick, tick…BOOM!, Altar Boyz, Memphis The Musical and Lady Day At Emerson’s Bar and Grill. In addition, Clayton has worked on: Footloose, Motown, The Color Purple, Rent, Little Shop of Horrors, Evita, Cats, and Avenue Q.