A Government of the People, by the People, for the People?
The three branches of government
Let's go back to school. There are three branches of government.The legislative, executive, and judicial. Each one is purposely independent, even though they stem from the same "tree." The United States Constitution separated the Government into three branches so no individual or group would have too much power.
Each branch can respond to the actions of the other branches. This is the essence of the system of checks and balances. The legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. Most States utilize the same form of government. The authors of the Constitution didn't like the idea of giving one person the power to control our lives. Thus, power is not absolute.
What's the deal with these executive orders?
The short answer is they are not enforceable. On April 15, 2020, Governor Cuomo said during an interview on CNN with Chris Cuomo:
"Look, Chris, nobody had to listen to anything I said. From day one, I had no ability to enforce this. The reason I communicate so much with the public right now is I want them to understand the facts and the plain truth and why I'm taking these actions. If they believe it makes sense, they will do it. This is New York."
You can view the transcript of the entire interview.
The authority vested in the New York State Governor to issue Executive Orders is covered by Section 29-A of the Executive Law. It allows the Governor to suspend laws in very specific situations. It further lays out the scope of the power. Section 29-A doesn't give him the power to create laws; especially, where civil or criminal penalties may be imposed. Why? Because that would give one person absolute power. Like a King or dictator.
But Cuomo is making the right choices. who cares about the law?
When personal opinions are used to justify mandates, we have a problem. For example, take the most recent Executive Order requiring us to wear face masks when social distancing isn't possible. It sounds reasonable. It's easy to do. And it will protect us from each other when we go out in public. But what about the people who disagree? Shouldn't their opinions count? What should happen to the people who don't wear face masks? Should the police be allowed to intervene with force like they did in Philadelphia?
It's instinctual for the people who agree with the mandates to demonize and silence the people who don't. But isn't that a little short sighted? After all, we don't know what the future holds. You may agree the mandates of today, but what about the mandates of tomorrow? What happens when an Executive Order you disagree with is mandated? When does it go too far?
think about the bigger picture
Think about what it means to require people to wear face masks. It obliterates our autonomy as Americans to choose. Even if choosing not to wear a face mask is the wrong one, it's still our choice to make. It actually goes even further by forcing us to affirmatively do something. Think of the criminal law for a second. 99% of the criminal law prohibits us from engaging in specific conduct. Put very simply, it punishes action. It doesn't punish people for inaction (excluding the small class of crimes where someone has a duty to act and doesn't). For example, it's not a crime to watch two people fighting over the last roll of toilet paper in the supermarket. But what if the Governor issued an Executive Order requiring bystanders of a fight, or any crime, call the police? And as part of the Order imposed civil or criminal penalties for not complying. How would you feel about that?
Opinions change and are never universally shared. For example, the Governor of Michigan took things too far according to thousands of protesters. The Governor restricted travel and banned stores from selling paint, carpet and other items. Some people agree with the Governor though. Then there are other people who may agree with some aspects of the mandate and disagree with others. The variations of opinions are infinite. The law makes opinions irrelevant.
the legislature makes the law for a reason
Circling back to the separation of powers, the legislative branch makes the law. They are a group of elected officials. They debate the issues, listen to experts, and deliberate. The executive branch doesn't have the power to make the rules. And it's for good reasons. Every Executive Order whittles away our freedom. It gives the executive branch a disproportionate amount of power. One person should never have that much power. Even when an Executive Order seems to be in the best interest of the public it isn't always.
For example, during WWII President Franklin Roosevelt signed Executive Order 9066 which forced Japanese Americans living on the West Coast into detention centers. It was supported by the public and even upheld by the Supreme Court. But it was morally wrong and unconstitutional. And it's an example of what could happen when we blindly obey authority.
challenge the government
As society attempts to return to normal in the coming months critically evaluate the Government's response. Remember all the rights we have as Americans. Don't wait until you are affected. For example, the Government will probably be scanning our body temperatures when we're out in public. It's a sensible response assuming it will be accurate. But that's a big assumption. What will happen to people that appear to have a fever? Will they be swept away and quarantined? It's very convenient to look the other way. To be indifferent. But what if that person is you?
Please comment, share your thoughts, and this article to get other people thinking about the difficult issues we are facing and will face. How should the Government respond? What freedoms are worth giving up to protect the public?