“The fault, dear Brutus, is not in our stars, but in ourselves.”

Holcomb

Ever since FDR’s “switch in time that saved nine,” our legal system and law schools have spewed out innumerable “constitutional law experts” who often claim that whatever any government official, agency, bureaucrat or cop can do to people is OK.  They do this by ignoring our short and simple constitutions to unleash an interminable fusillade of judicial pronouncements and federal/state code sections that, by their number of words alone, do seem to overwhelm the few political powers constitutions authorize.

…Except, of course, to someone who’s actually read the laws.

Nobody claims that Governor Holcomb’s COVID-19 mandates were actually authorized by any constitutions, state or federal.  The constitutions absolutely forbid executives from making laws.  Executive Orders are constitutionally actionable only if they’re only the details of executing laws written by legislators.

Other than invoking armed force against insurrection or invasion (which would be as ineffective against a virus as was Caligula’s attack on Poseidon), the Governor’s only constitutionally authorized emergency power is to call an emergency session of the General Assembly.

To be clear, the constitutions say that what the Governor did, and is still doing, is unconstitutional in both word and intent.

The Governor cited not the Indiana Constitution, but Indiana Code as his authority, specifically the statute, IC 10-14-3, the “Emergency Management and Disaster Law.”

That particular ream of legal effluvium does indeed appear to authorize every possible decree, action or mayhem, if read by itself; and if ignoring all the key principles of separation and limitations of powers in a republic.Kirk

Ironically, it’s even less-limited than the federal 40 U.S. Code § 1315 that Trump’s folks invoked against Portland protesters.

But consider what the Indiana Code says about its own authority in the hierarchy of law. What follows is IC 1-1-2 § 1-1-2-1:

“Section 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.”

Please note the order.  Last, or fourth, is case law.  This is what most USA citizens now think comes first.   Supreme Court does, in fact, sound supreme.  But it’s actually dead last in the legal hierarchy that determines what politicians can decree what we can do, can’t do, and must do for them.

Third is the federal code. Second, is the Indiana Code, as long as the code doesn’t contradict the constitutions, state or federal.

First on the list, of course, are the constitutions that say only legislators can legislate.

The Indiana Constitution’s Article I, Section 26 says very clearly says that only the General Assembly (our legislature) has any authority to suspend the laws protecting our rights from politicians under any circumstances.  Article I, Section 25 very clearly says that laws cannot create any authority not already granted.

And nowhere is the legislature granted authority to delegate away it’s power and more local accountability by the stroke of a pen.

The law is clear.  Why the Governor still refuses to call our legislators to work, is not. You’d think he wouldn’t want all the protests, disagreements from Sheriffs and Indiana’s Attorney General landing on him alone.
Unless, of course, he intentionally crossed this Rubicon and wants to be Caesar.lucy-charlie-brown-football

That’s history we really shouldn’t want to repeat.

Open letter to Governor Holcomb

Governor Holcomb, I know you’re not a bad man.  In fact I believe you’re a man who means well.  I’m certain your advisors assured you that what you’ve been doing is legal.  And I know that many applaud your “leadership” in closing businesses and schools, forbidding all manner of association and movement, and in general, suspending rule of law as a state-wide, one-size-fits-all rule. Untitled But right is right and wrong is wrong.  And while I know you don’t believe you’ve done wrong, you have. I of course wish you had called an emergency session (Indiana Constitution Article 4 Section 9) so that Indiana’s General Assembly could have constitutionally authorized (by Article I, Section 26) what you have been doing …in violation of your oath of office. I’m betting they’d have come up with measured, regional plans that made more sense and relieved you of total accountability for this mess. The scared-stupid post-9/11 security blanket standing order from the legislature (IC 10-14-3) was both unconstitutional and foolish – not so different from 1973’s War Powers Act that so many regret today.  Such vague, inherently corrupt delegations/ surrender of authority nullify the whole point of the separation and limitation of powers.  Besides, Governor, unilaterally taking such unconstitutional authoritarianism upon yourself when it’s not only illegal, needlessly inflammatory, and raises fears about our new, dangerous form of government, is also bad politics. KingNo one person should wield so much power.  And under our constitutions, no one person does. I’m sure that, given the circumstance of the SARS-CoV-2 virus / COVID-19 disease, the General Assembly would have granted you specific, timely and focused authority to do what needed doing, where it needed doing …and without the suspension of laws that are in only the GA’s authority to suspend.PlagueDoctor While I think what politicians have been doing in response to this pandemic is based more in fear and self-interest than in fact (and the corruption has become obvious, in case you’re wondering), it should still be done by constitutional rules. Anything else is unconstitutional, specifically illegal (Article I, Section 25), and contrary to the most fundamental principles of this nation’s purpose. Please read this: https://wedeclare.files.wordpress.com/2016/03/indiana-constitution-book.pdf Remember You took “…an oath or affirmation, to support the Constitution of this State, and of the United States” I’m sure we’d all be both relieved, and favorably impressed, if in a public mea culpa, you’d recognize the chain of errors and misapplication of force, and resolve to do what’s right…and legal. Nobody expects a politician to be perfect, you know.  But we’re all looking for somebody to earn our trust in these pivotal, tumultuous times. Going legit, and governing our government according to constitutional rule of law, would be a great start.