1. Free Legal Help, Legal Forms and Lawyers. TheLaw.com has been providing free legal assistance online since 1995. Our most popular destinations for legal help are below. It only takes a minute to join our legal community!

    Dismiss Notice

Stay At Home Orders

Discussion in 'Constitutional Law & Civil Rights' started by mightymoose, Apr 9, 2020.

  1. justblue

    justblue Well-Known Member

    Messages:
    1,621
    Likes Received:
    678
    Trophy Points:
    113

  2. adjusterjack

    adjusterjack Super Moderator

    Messages:
    8,107
    Likes Received:
    2,206
    Trophy Points:
    113

    As long as we are quoting Robert Heinlein, here's another:

    "The most preposterous notion that H. Sapiens has ever dreamed up is that the Lord God of Creation, Shaper and Ruler of all the Universes, wants the saccharine adoration of His creatures, can be swayed by their prayers, and becomes petulant if He does not receive this flattery. Yet this absurd fantasy, without a shred of evidence to bolster it, pays all the expenses of the oldest, largest, and least productive industry in all of history."
     
    justblue likes this.
  3. cbg

    cbg Super Moderator

    Messages:
    8,359
    Likes Received:
    1,486
    Trophy Points:
    113

    Name one.
     
  4. adjusterjack

    adjusterjack Super Moderator

    Messages:
    8,107
    Likes Received:
    2,206
    Trophy Points:
    113

    justblue likes this.
  5. justblue

    justblue Well-Known Member

    Messages:
    1,621
    Likes Received:
    678
    Trophy Points:
    113

  6. PayrollHRGuy

    PayrollHRGuy Well-Known Member

    Messages:
    1,039
    Likes Received:
    509
    Trophy Points:
    113

  7. mightymoose

    mightymoose Law Topic Starter Moderator

    Messages:
    11,301
    Likes Received:
    1,936
    Trophy Points:
    113

    I appreciate your analysis, but it leaves me questioning whether ordering millions of people to stay in their homes except for specified reasons is narrowly tailored.
    I agree, what really is needed is fresh legislation to address the current issue, but we do not have it, and without it the current orders and attempts to enforce them are on shaky ground.

    I am still looking for previous executive orders at state/local level which compelled individual citizens to take certain actions rather than directing government agencies in policy and performance. I have not yet found a good way to search that information. I am not certain the authority of a governor's executive order is intended to be directly applicable to the people. EO's are intended to control the functions of government.
     
  8. mightymoose

    mightymoose Law Topic Starter Moderator

    Messages:
    11,301
    Likes Received:
    1,936
    Trophy Points:
    113

    Maybe it is a Texas thing, or perhaps the article just didn't get in to it, but why is a judge issuing this order to begin with? Wouldn't it have to come from a local council or some legislative body?
     
    hrforme likes this.
  9. PayrollHRGuy

    PayrollHRGuy Well-Known Member

    Messages:
    1,039
    Likes Received:
    509
    Trophy Points:
    113

    I may believe that and you may believe that. But there are folks out there that think they have to dress up Sunday morning and go to a building with others that believe the same or they will go to hell.
     
    army judge likes this.
  10. Tax Counsel

    Tax Counsel Well-Known Member

    Messages:
    1,163
    Likes Received:
    591
    Trophy Points:
    113

    What lesser restrictive means would you suggest that would achieve the same goals and is grounded in medical science? If you have a good answer to that then you may have a good argument that the restrictions are overbroad and thus unconstitutional.

    A governor or president can exhort people to do anything by proclamation or executive order. The question is whether there is anything the government can do to sanction people if they do not comply. And in order for that to occur, there must be legislation that provides the penalty for not complying. For example, there are some laws out there that trigger certain requirements upon citizens when the president or governor declares a natural disaster — which can include things like evacuation orders, etc. While an evacuation order in a disaster would affect the people's right to peaceably assemble in the disaster zone, such orders would still pass constitutional muster because the state does have a compelling interest in clearing out the affected area until the disaster abates.

    So the key here is whether there is a law in place that would apparently cover what the government wants to compel the public to do and provides a sanction if the public doesn't do it. If there is, then a person may well find himself/herself facing that sanction. Ask your lawyer about any specific restriction you are interested in.

    But I would hope that you would not risk the health and lives of others by ignoring the restrictions, even if they are just recommendations, no matter how much you chafe to get together with buddies for beer in the park or whatever else you have in mind to do. Everyone would like to return to normal and no one I've talked to likes the restrictions. But sometimes you have to put the common good above your own wants and desires.
     
  11. cbg

    cbg Super Moderator

    Messages:
    8,359
    Likes Received:
    1,486
    Trophy Points:
    113

  12. army judge

    army judge Super Moderator

    Messages:
    32,488
    Likes Received:
    4,949
    Trophy Points:
    113

    I am wondering when the litigation will begin.

    I recall the nationwide MANDATORY 55MPH speed limit that motorists ignored such that governments were compelled to rethink them.

    Americans and Aussies are unlike their French, British, Mexican, Asian, African, and German cousins who tend to usually obediently comply with their governmental decrees.

    I suspect for many Americans we understand that our constitution makes us free citizens and not subjects to be ruled.
     
  13. mightymoose

    mightymoose Law Topic Starter Moderator

    Messages:
    11,301
    Likes Received:
    1,936
    Trophy Points:
    113

    Governor or not, anyone can exhort, proclaim, encourage, or wish for anything. However nobody is required to actually do anything as a result.

    An order compels compliance and comes with penalties for failure to do so.

    These stay at home orders are commands to every person in the state, not just suggestions. Although some of the orders frequently use the words "guideline" and "recommend", they also confusingly contain language asserting authority that imply there is no choice, and criminal penalties apply.

    Yes, the governor can ask for compliance, but I do not believe it can ordered in this way. The governor can order state agencies to conduct business a particular way, and may even have some extra authority in a state emergency to do certain things without the legislature, but does not have anything that clearly gives authority to issue a blanket order to all citizens to compel them to do or not do anything. Even evacuation orders that attempt to force people from their homes are still hotly contested.

    Would it not also be for the common good to relinquish all firearms? How many protected freedoms should be given up for the common good? Would it not be safer for everyone if we had fewer freedoms and more restrictions?

    I agree, and that is what I believe does not exist (at least in CA which is mostly what I have been looking at). This is an abuse of executive orders (citizens are not under the command of the governor) and an overreach of state and local governments that infringes on basic civil rights.

    The solution here is in communication. Issue guidelines and recommendations and use social resources to inspire action or persuade cooperation. People can decide for themselves what precautions to take and how to limit their social contact as necessary. Those who are most fearful may choose to stay home. Some will heed the caution, others won't- same as we have now anyway. However by preserving choice we protect civil liberties and do not offend the founding principles of our country.
     
    hrforme and army judge like this.
  14. army judge

    army judge Super Moderator

    Messages:
    32,488
    Likes Received:
    4,949
    Trophy Points:
    113

    The ability to do as one wishes as long as he doesn't harm others is one of the many things that distinguish our nation.

    I find this sudden "you must comply" doctrine startling, especially when so many cities and states have "legalized" substances the federal government has determined to be illegal, and are providing sanctuary and sustinence for people who invade our sovereign borders.

    I have never broken any laws, nor do I plan to do so now.

    I have watched draft dodgers scamper off to Canada only to be forgiven after 55,000 patriots died doing their duty.

    I am holed up in a secure underground shelter. We have everything required to stay here for two years.

    Just because I have no dog in the fight doesn't mean I am not going to observe and comment on the fight.

    I wish the best for each of you, stay safe, stay healthy.
     
    hrforme likes this.
  15. mightymoose

    mightymoose Law Topic Starter Moderator

    Messages:
    11,301
    Likes Received:
    1,936
    Trophy Points:
    113

    That came from the legislature though. Can you imagine the difference if the president had ordered 55 mph by executive order?

    As they say, delayed justice is injustice.
    The sooner the better, but it requires the right case with standing to get through the door.
    For me I have not been significantly effected, other than that my grocery store is depleted and other stores are closed.
    As law enforcement continues to attempt to enforce these orders more candidates to challenge them will come forward.
     
    army judge likes this.
  16. army judge

    army judge Super Moderator

    Messages:
    32,488
    Likes Received:
    4,949
    Trophy Points:
    113

    I'm sure you recall from your military service days lawful orders as opposed to unlawful orders.

    I understand the issues you've discovered.

    I suppose you and I would be called "early spotters".
     
    hrforme likes this.
  17. mightymoose

    mightymoose Law Topic Starter Moderator

    Messages:
    11,301
    Likes Received:
    1,936
    Trophy Points:
    113

    I don't know a particular religion in which physical attendance is required, however I agree that some view attendance more significant than others. Failure to attend services shows a lack of faith. Many people are raised in a way attendance is perceived as compulsory... It's just how it is done.

    A public gathering, or congregation of believers of a faith is empowering to their cause, and worshipping together holds them accountable to each other. A congregation provides spiritual and moral support to individuals and entire communities. Denying them the right to congregate devalues and demeans their faith.

    Some may choose to not attend over health concerns, but none should be prevented from doing so by any law or order.
     
    hrforme likes this.
  18. mightymoose

    mightymoose Law Topic Starter Moderator

    Messages:
    11,301
    Likes Received:
    1,936
    Trophy Points:
    113

    Yes. One"s title or rank may put them in an authority position, but to issue compelling and lawful orders you must have authority to give the order. That authority does not come by rank alone, but is rooted in some legislative form that also defines scope and scale.
    The governor's orders are not necessarily binding to the public simply because he/she is the governor. Extending the order to the entire public is an overreach beyond any other previously.
     
  19. Tax Counsel

    Tax Counsel Well-Known Member

    Messages:
    1,163
    Likes Received:
    591
    Trophy Points:
    113

    No. Again, ownership/possession of firearms is a very different situation from the spread of an extremely contagious and potentially disease. If you cannot see that, then I don't what to tell you. I understand you want to equate them to galvanize second amendment supporters to your point of view on this, but logically there is no connection here between the two. I support the second amendment, but I do not entirely agree with your position on this. Moreover, my comment was meant to suggest that even if you have the right to go out and socialize you ought to consider the common good and voluntarily refrain so that you don't unknowingly harm your fellow citizens by infecting them. Again, it is possible to be contagious with this disease and not even know it.

    And, as food for thought, do you think that you should have the right to infect others? Does your right to free assembly mean that you have a right to present that risk to others? After all, though you have a right to own & possess handguns, you'd not say you have a right to go around killing people, right? No right that we have is absolute. At the very least, those rights may give way when your exercise of that right would harm others.
     
    justblue likes this.
  20. Tax Counsel

    Tax Counsel Well-Known Member

    Messages:
    1,163
    Likes Received:
    591
    Trophy Points:
    113

    Denying them that right without a compelling reason to do so would of course be unconstitutional. But I disagree that preventing that gathering for a limited time in the face of a serious public health crisis would necessarily be unconstitutional and IMO certainly would not devalue and demean their faith.
     
    justblue likes this.

Share This Page