Thursday, September 24, 2020

COVID Updates

A Canadian lawyer and YouTuber who goes by the name Viva Frei has published an update on the status of Pennsylvania Gov Wolf's appeal of Judge Stickman's opinion:
Yet again, the prestigious constitutional law bloggers have no coverage of this matter, which I think is an indication of the shell game even the educated elite public allows to be played in front of it. The focus, even in informed legal circles, has been on Justice Ginsburg's passing and the Kabuki being played out over her replacement. The fact is that the Senate Republicans have already gamed out all the moves; almost certainly there will be agreement on one of the nominees already known to be at the top of the list, and she'll be voted in before the election.

The hysteria, the threats to lie down in front of the hearing room, the vague threats of another impeachment, are all clickbait. It seems to me that the most important point is that he US president and the Republican majority leader have been able to keep sufficient Republican senators in line to make the outcome inevitable. Why? I would say that it's generally understood in Washington that the outcome of the November election is inevitable, and there will be a Republican sweep. Even Sen Murkowski is beginning to recognize her interests lie in getting with the program.

None of the Republican senators, even those who in past years would have basked in media praise at being called "sensible moderates" or "mavericks", wants to be on the wrong side of this outcome. If there were any sense that Trump would lose, or the Republicans would lose the Senate, one or more of that group would have been off the reservation by now. Isn't happening. McConnell gave Sens Collins and Murkowski passes, because he didn't need them (and he'd gamed that out weeks earlier). Now even Murkowski is deciding maybe she doesn't need that pass after all, notwithstanding she'll forego praise from the media for it.

My guess is that Chief Justice Roberts of the US Supreme Court voted against granting certiorari to the California religious freedom cases in May because he was waiting for a better case to come before the court. Based on Viva Frei's analysis, Judge Stickman's ruling may be that case. Viva Frei points out that the Stickman opinion is a declaratory judgment issued after a full evidentiary hearing, in which both parties had the opportunity to present their evidence and arguments.

On that basis, Stickman refused to grant Gov Wolf a stay of his order pending appeal, since such stays are typically granted in the context of temporary restraining orders or injunctions, not after a full evidentiary hearing. My guess is that Roberts will vote to grant certiorari on this case, but by the time it reaches the court, there will almost certainly be another conservative justice on the court anyhow, so that five justices could grant certiorari even without Roberts's vote.

But I've been saying all along that there's no single magic bullet that will end the lockdowns, and some combination of legal, electoral, and "other" strategies will continue to be needed. A group called Unlock Michigan has been conducting a petition campaign to repeal a law that has been interpreted to allow Gov Whitmer to impose unilateral and indefinite lockdown measures. It now says it has gained sufficient signatures to move to the next stage of implementing the measure.

Unlock Michigan reported on its Facebook page they have collected 500,000 signatures on their petition for legislation that would repeal the 1945 Michigan Governor's emergency powers act.

The 1945 act gives the Governor broad power when it comes to issuing executive orders during the time of an emergency.

The petitions will now be turned into the Bureau of Elections for verification.

If the petition is certified it will then go to Michigan lawmakers to be voted on.

It's likely that Michigan authorities will attempt to slow-walk the process, but it's increasingly clear that in some areas, the authorities are on the defensive.

I'm simply not clear at this point on how Judge Stickman's ruling affects daily life in his judicial district. Can restaurants reopen without restrictions, at least temporarily, for instance? The prestigiouis constitutional law professors are so far silent