For good, obvious reasons, I don’t like to leap to Nazi analogies, references or allusions.
But so many people have been claiming that the Governor is fully authorized to suspend rights because of what they think are constitutional “emergency powers,” that I’m afraid I must point out six fundamental truths (before I exhume the Nazis):
1. Indiana Code (IC 10-14-3, “Emergency Management and Disaster Law”), and not the constitution, is where the emergency powers were passed as “law.” You will not find any emergency Executive powers in either state or federal constitution. Please look yourself.
My contention is that this IC chapter that seems to conjure this power is unconstitutional, not law, and should be entirely eliminated, for the reasons that follow.
2. Indiana’s constitution is the necessary, fundamental authority for all Indiana laws. Just as you and I can’t just make laws from our easy chairs, the Indiana General Assembly can’t just do whatever it wants. It has to be properly authorized to do whatever it does. The Indiana Constitution is that authority. And the Governor cannot make any laws at all (Article 4).
FIRST, authority, and THEN, law:
Article I Section 25: “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”
The constitution used to clearly state that any law that transcends what’s clearly written is null and void (they “amended” that away)…but they never removed Article I Section 25.
And even the Indiana Code agrees about the constitutional hierarchy of law. This is IC 1-1-2: Sec. 1:
The law governing this state is declared to be:
- First. The Constitution of the United States and of this state.
- Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.
- Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.
- Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.
The Governor and GA cannot give away what does not belong to them…and that includes our rights. The actions taken by our Governor specifically violated Article I Section 25; Article I, Section 26; Article 3; and Article 4, Section 9.
3. Our rights, however, can be compromised in emergencies. There is constitutional authority for that…but only by the General Assembly!
Article I, Section 26: “The operation of the laws shall never be suspended, except by the authority of the General Assembly.”
If you read what was said about this in period, there are very good reasons for local accountability. Different regions have different needs. A tornado doesn’t destroy the whole state. Rural areas are different from cities. And, mostly, no one person should have so much power…or accountability!
We need to have more access to the people who make decisions that affect us so severely, and we want to be able to fire them or reward them with another term as needed.
I understand why legislators don’t want to make tough decisions that could get them fired on a Tuesday in November…but this is the point!
We want these people accountable to us, locally. So there IS an emergency power structure…and it’s in only the GA. …Not in the Executive office.
4. This is clarified by Article 3 – Distribution of Powers: “The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”
There are good, unequivocal reasons and principles here that should not be violated. Ever. …I mean it, not ever.
5. Ditto the federal constitution and its only-somewhat-related US Code.
Here’s the Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is the same principle as the Indiana Constitution’s Article I Section 25.
Politicians cannot take, abuse or give away what doesn’t belong to them.
6. “Ah, but…” the fancy pants pseudointellectuals claim in their whiny voices, “…the constitution doesn’t specifically prohibit emergency Executive powers, so the real question is how to properly limit them in scope and duration.”
Shut up and read the preceding again.
Yes, the constitution does specifically prohibit such powers, and no court case, bench ruling or pundit rumination can change that.
Whatever isn’t specifically authorized is completely prohibited.
We didn’t throw away our rights and erect Caesars over polio or the 1918 flu. There were emergencies, and there were emergency sessions in legislative assemblies all across the country to deal with them…at state and local levels. Even in this pandemic hysteria, there have been many Mayors, businesses and other local institutions that took local action while Presidents and Governors hesitated. That’s the right way for things to happen.
There has always been a right way to respond to emergencies, and it’s all written down…in constitutions, state and federal.
A few more details before I get to the Nazis.
First, the obligatory Confucius quote: “An oppressive government is more to be feared than a tiger.”
Next, this country made it over 200 years before passing the National Emergencies Act.
Think about how many emergencies (pandemics, droughts, floods, wars and economic catastrophes) had already come and gone by 1976.
OK. So. I’ll not say much about Nazis other than to say you really ought to look up the “Enabling Act of 1933,” or “Gesetz zur Behebung der Not von Volk und Reich” (“Law to remedy the plight of the people and the empire”).
I assume I need not mention how that turned out.
But I do need to mention that this was signed into law by Reich President von Hindenburg, when Hitler was only Reich Chancellor.
So first, the enabling act of expanding power and reducing rights; and then…
Governor Holcomb is no madman Hitler. Not even close. I like the guy, actually.
But you should never, ever, law or no law, give ANYBODY this much power, because the next Executive, Caesar, Poohbah or King will only add to that power.
Power takes power. It accumulates and festers and expands until societal calamity.
On August 3, 1857, in an era of much greater harshness than we face from a virus, Frederick Douglass spoke the words that, more than any other single thing I can think of, pushed me toward philosophical libertarianism:
“Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.”
You know this, right? It’s all over human history that people’s own government becomes their biggest enemy, right?
Well, the Germans didn’t think it could happen to them, either.
But right is right and 
No one person should wield so much power. And under our constitutions, 
While I think what politicians have been doing in response to this pandemic is based more in fear and 
We Declare 