Even though the liberty-killing actions taken by the executive branch at the state and national levels in response to COVID have been based on the belief that a “State of Emergency” declaration gives government the constitutional power to suspend our God-given rights, is it really constitutional or is it tyranny?
When COVID first made the news, we watched as most U.S. state governors issued a state of emergency, and on the national level, Donald Trump also issued a COVID-19 Emergency Declaration. And in 2021, the executive branch has brought us Nazi-esque vaccine mandates and vaccine passports, along with another round of mask mandates and shutdowns
In each of these cases, serious constitutional questions need to be answered.
According to the Constitution, be it state or federal, the executive’s job is minimal. Executives are to execute existing law, and their power is limited by the laws written by the legislature.
Executives are merely the enforcement agent of the most important branch: the legislative branch. Executives can’t make law, they can’t tell people what to do, and they can’t fix or harm the economy.
These facts fly out the window during a national or state emergency, which is why executives love a good crisis. During a crisis, people generally demand executives be more than they are constitutionally empowered to be, even if doing so results in tyranny.
Constitutionally ignorant and/or indifferent people look for a “king” during a crisis, and most executives are more than willing to assume the role. Unfortunately, they rarely give up the unconstitutional power seized during the crisis, and their tyranny grows and expands upon itself with each subsequent crisis.
In an academic paper of mine, I backed up this claim. For example:
“Robert Cushman (1944) says, ‘No nation has ever fought a tough war without overriding for the duration some of the civil liberties of its people’.
“Justice Thurgood Marshall says, ‘History teaches that grave threats to liberty often come in times of urgency, when Constitutional rights seem too extravagant to endure’.
“This acknowledged curtailment of civil liberties for security during a war or crisis has been a cause for concern for many government officials and citizens alike. Further, data support the claim that liberty is sacrificed for security during war.
“Epstein et al (2005) find that, indeed, for non-war related cases dealing with issues of liberty and security, Supreme Court rulings favor security over liberty to a higher extent during war than during times of peace.”
Executives take on the power of a king whenever they declare a “State of Emergency.”
We’ve seen flamboyant displays of kingship by U.S. governors throughout the COVID situation, and it’s about time we the people educate ourselves about where our governors and executives get the power to do what they do. Is it constitutional or is it tyranny?
The people are the first and most important source of power for executives during a crisis, yet they usually demand that government do something to fix the problem (crisis). In the past, we used to depend on local governments, local communities, churches, friends, and family during times of crisis.
Today, however, we almost always rely on the executive branch of government, be it the U.S. president or the state governor.
Here’s another quote from the same academic paper I referenced above:
“Research has shown that citizens are more willing to lower their support for civil liberties the more their sense of threat increases (Davis and Silver, 2004; Hetherington and Suhay, 2011).
“This means that there is a correlation between an individuals’ feelings of physical security and desire for civil liberties. ‘Many average Americans become susceptible to ’authoritarian thinking’ when they perceive a grave threat to their safety’ (Hetherington and Suhay, 2011, 546).”
Did you catch that? Citizens are likely to embrace authoritarian power when endangered, as COVID tyranny has shown us.
It’s a statistical fact that the legislative and judicial branches of government will defer to the executive during a crisis. In other words, the other two branches step back from their constitutional role of checking executive power in order to let executive power run rampant during a state of emergency.
During a crisis, the executive seizes tyrannical authoritarian powers while the other two branches either stand by and let it happen or participate in giving that power to the executive by spreading the politics of fear — as we’ve witnessed during COVID hysteria.
There is ample evidence to support the fact that whenever there is a crisis, liberty is always sacrificed for security.
When the legislative defers to the executive or writes a law that gives emergency powers to the executive during a crisis, they abandoned their constitutional responsibilities and move into the realm of arbitrary power and tyranny.
According to the Congressional Research Service: “With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency.”
Let me dispel the lie that the Constitution gives permission to suspend the Constitution during a crisis; I’m not sure where the notion originated, but it’s false. The U.S. Constitution gives no provision for suspension during a time of crisis.
Habeas corpus, or the right to a fair trial and protection against indefinite incarceration without said trial, is the only right the Constitution allows to be temporarily suspended in “Cases of Rebellion of Invasion.” According to the Cornell Law School Legal Information Center:
“Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.”
So, even the one provision that can be suspended, can only be suspended by Congress, not the executive. This means that if the other branches allow such executive power, they themselves are violating the Constitution.
Almost all executive power during the COVID crisis comes from pre-existing legislative laws and are not constitutional powers; they are implied or inherent powers. Many proponents of executive power during a crisis argue that such powers are implied or inherent. They use phrases like “promote the general welfare” or “necessary and proper” to justify extra-constitutional arbitrary emergency powers.
Much of the executive power running rampant in states and in Washington today under the banner of “national emergency” due to the COVID “crisis” isn’t justifiable because it’s tyranny, not constitutional.
We need to stop our demand for an authoritarian executive every time a crisis like COVID comes around because eventually, after enough crises have come and gone, we’ll find ourselves living in a land without liberty.
Madison knew it in his time, and may we remember it now:
This article has been edited for publication on this site and is used by permission.
Christin McMasters is a South Carolinian now residing in North Carolina and has a Ph.D. in political science. She is a budding blogger and political science instructor, and her passion is politics.
Using her keyboard as her weapon of choice, Christin imparts some of her excitement, passion and knowledge about American government on her website, TheLibertyBelleNC.com.