John Klar: Vermont’s lockdown is unconstitutional

By John Klar

The Wisconsin Supreme Court struck down that state’s COVID-19 stay-at-home orders because they “exceeded the executive branch’s authority.” Vermont’s Governor Phil Scott has similarly exceeded his authority, both in extent and duration.

When President Trump announced that the federal government would control the reopening of the nation’s economy, Governor Scott swiftly opposed him:

It didn’t take federal action to spur us into action and it’s not going to be the federal government that determines when we take appropriate steps here in Vermont.

Scott said he would rely on data and public health experts to determine how to slowly resume economic activity in Vermont. Picking an “arbitrary date” for states to reopen would be irresponsible, he said.

John Klar

Notably absent from this analysis is whether Vermont’s Governor possesses the power to “take appropriate steps,” or what limits (by the Constitution, not federal authorities) there are to what is “appropriate.” This is not an issue for public health experts, or data, or federal versus state powers — it is a legal question that has been persistently ducked.

Governor Scott does not possess unilateral power to institute whatever laws he wishes just by pinning the name “public health” on them. He has imposed the coronavirus restrictions via gubernatorial edict, not democratically-enacted statutes. If the Legislature passed a stay-at-home law, then perhaps that would withstand constitutional challenge, but no such law has been passed — this is all just Governor Scott’s edicts.

The United States Supreme Court ruled in Jacobson v Massachusetts that the state could fine a pastor who refused to receive a mandatory smallpox vaccination, ruling that states possessed the power to curtail individual rights for the health and safety of the public. But, there was no creation of an unlimited carte blanche for Governors to do whatever they wanted in the name of public health — in that 1905 case, there was a statute (a law) which a) had been passed by the legislature with attendant guarantees; and b) could be tested against the Constitution. And, the pastor only lost a $5 fine — Vermont’s businesses are losing everything.

State laws restricting travel, or contact, or the operation of a business, are subject to challenge.  Governor Scott has issued a series of Executive Orders — gatherings of 250 people were banned, then 100, then 50, now 10. Restaurants and other businesses were simply ordered to shut down.  (It is still unclear whether gun stores are violating the Governor’s murky pronouncements — are they essential services or not?). Governor Scott’s Orders fail to meet constitutional muster.

Vermonters possess a constitutional right to travel. The pursuit of happiness definitely includes running one’s business.  Governor Scott has no constitutional power to arrest, incarcerate, or fine someone for not wearing a mask, not staying home, or for opening the doors of their business. If people were charged or fined under his edicts, they could appeal to the Vermont courts, where Due Process, the right to counsel, and other protections would apply (those haven’t been suspended by the Governor… or have they?). And in those courts, constitutional concepts such as “vagueness” could be applied: the State of Vermont would have to demonstrate a sufficient state interest to deprive the citizenry of these numerous rights.

This raises another question in the coronavirus chaos. Any state government (including its Governor) must demonstrate a substantial enough public safety need to justify such broad restraints on liberties. Can Vermont justify these business-destroying measures based on a health and safety argument?  The purported justification for these harsh measures — to “flatten the curve” — now seems to have morphed into “keeping everyone from getting sick.” In Governor Scott’s Executive Orders, it is not just the contours of the laws that are vague and unclear — it is the justification itself. This bait-and-switch might prevail in the political world, but not in a court of law.

Governor Scott defies President Trump and says he will decide when Vermont’s citizens’ regain their inalienable freedoms. But Phil Scott never had the right to take those freedoms away to begin with, nor did he ever present the legal argument why he should. The question is not whether the state or federal government controls Americans’ constitutional rights: the question is whether either does.

Medicine does not have all the answers for COVID-19: it certainly doesn’t negate our Constitutions. Whether or not this lockdown is medically advisable, it is not constitutional — the Constitution requires the government to provide clear justification for its actions, and clearly delineate what conduct is proscribed. Governor Scott’s Executive Orders fail on both counts.

John Klar is an attorney and farmer residing in Brookfield, and former pastor of the First Congregational Church of Westfield. He is running for governor in 2020.

Image courtesy of Vermont National Guard

29 thoughts on “John Klar: Vermont’s lockdown is unconstitutional

  1. It’s nice to see someone taking this topic on.
    AG Barr said the the Constitution is not suspended in times of crisis.

    There have been horrible things that are far worse than a flu that have happened and yet life went on.
    My mother tells me about her childhood where they were taught to crawl under the desks during the Cuban Missile crisis.
    Can you imagine they sent kids to school not knowing if a missile would strick them- and yet we’ve shut all of our down over a flu with a 98% recovery rate.

    People really need to get a grip- we are off into Looneyville now.

  2. It is interesting to note the obvious – we have to test to know if an individual has Covid-19 … why? because there are no outward manifestations

  3. It would appear that Scott is well within his Constitutional and statutory authority. He has the weight of Vermont law:

    20 V.S.A. § 2


    § 2. Definitions
    As used in this chapter:
    (1) “All-hazards” means any natural disaster, health or disease-related emergency, accident, civil insurrection, use of weapons of mass destruction, terrorist or criminal incident, radiological incident, significant event, and designated special event, any of which may occur individually, simultaneously, or in combination and which poses a threat or may pose a threat, as determined by the commissioner or designee, to property or public safety in Vermont.
    § 9. Emergency powers of Governor
    Subject to the provisions of this chapter, in the event of an all-hazards event in or directed upon the United States or Canada that causes or may cause substantial damage or injury to persons or property within the bounds of the State in any manner, the Governor may proclaim a state of emergency within the entire State or any portion or portions of the State. Thereafter, the Governor shall have and may exercise for as long as the Governor determines the emergency to exist…

    I do not pretend to be a constitutional scholar or lawyer so this may be subject to discussion. I would recommend same for ex-pastor Klar.

    • I’m missing the part that says the Constitution is suspended during these times. Perhaps you could point that out to us.

      • Exactly what I’ve maintained in my comments and I’ve asked people posting these statutes to show me where the Vermont Constitution allows for statutes that are in violation of it.

        • The same argument can be made for Sanctuary Cities.
          It’s a very bad road to go down when cities and states decide to just do whatever feels good at the time.

  4. Although the virus is real, too many of our state government’s reactions are irrational with underlying tones of harboring ulterior motives. And the state that does not drastically cut expenses and boost business to replace lost revenue is self-defeating.

    A free market and a nation’s people arrive at better solutions for economic, political and medical challenges when liberty thrives. The people are angry and restless. We remember you, Patrick Henry.

  5. Those who still revere the principles of our founding can see something is wrong, those who are oblivious to such principle cannot see danger and will be consumed by the crisis at hand. No leader will save us from the ignorance of our founding, the most we can hope for is a leader that will remind us of these principles and inspires us to embrace them again!

    I believe John Klar is such a leader, we cannot endure the corruption of our governance if we cannot see that corruption, John will point it out and challenge it, while others will simply continue to participate in our manipulation.

    The crisis we face is corruption of a global magnitude, please take a minute and watch this youtube video,

    Ask yourself why are so many speaking up about COVID only to be censored by the media, what happened to freedom of speech?

    You can trust in your founding principles, who can you trust when only one side of the COVID narrative is allowed?

    I Trust John Klar!

    • Lynn, I’m watching this video……amazing.

      So what is Vermont to do? John certainly have my vote, he’s by far the best candidate and your support, people like you mean so much. So then what?

      Say we have him running against Zuckerman. Are we educated enough as a state to recognize what is going on? Will his message appeal to enough to get into office. Do we have enough informed people that will come together and make a change?

      This video is amazing, amazing. They talk of reverse Robin Hood, how this is the gutting of the middle class, Vermont (general population) is actually supporting and experiencing this yet thinking they are doing the opposite.

      One of the best examples is our affordable housing scam, where we gut the middle class and lower class by supporting and insane housing concept and KEEP people poor forever.

      We build homes more expensive than any luxury project for “affordability”, subsidized by all the middle class tax payers. Who then have to subsidize the high rent. And the people never get out of the trap, because if their pay goes up their rent goes up. Even if they break out, they……can’t find an affordable home! It’s why, one of the main reasons why Vermont is UNAFFORDABLE, they are stealing from the middle class, just like they describe in the video but on a slightly different level.

      Great video, great video thank you so much.

  6. Wonder if suicide is unconstitutional because that’s what the protesters against staying at home want us to do. They have this cavalier idea that it will never happen to them. Yet when they get Covid-19, they scream the loudest.

    • No, that is what you and other lockdown advocates want people to do and doctors across the country have predicted that is one of many negative results. But you and your fellows have revealed that the Constitutions truly mean nothing to you, that they are merely archaic documents.

      • Further, the current Wuhan virus stats for this state insist that you don’t have a leg on which to stand with your facetious arguments.

    • No, if a healthy young person gets Covid, they aren’t going to scream the loudest. In fact, they might not even know they have it, since a good number of cases are asymptomatic. I have zero fear of Covid, and I’m over 60. My fear is of a police state.

      Now that we’re told that Vermont can test everyone, let’s do it. But let’s not scare people with the number of “new cases”; what we want to know is what the symptoms are. My guess is that, reflecting what testing around the world has told us, the vast majority of cases would turn out asymptomatic or mild. So yes, test, but no, don’t scare us by saying “we found 50 new cases.” We want to know how many of those 50 show symptoms and how many were hospitalized and how many were in the ICU. What we know so far is that the pattern is consistent: older people are at minor risk of serious complications while younger people generally are not.

      Let’s stop this excessive fear-mongering. Let’s target those most at risk and keep them safe: no one will object to that. But stop treating the rest of us like we have to be protected from something that’s going to kill us if we get within six feet of someone without a mask. This is disgraceful. We already know the answer: most people will be fine. If we want extra protection, then take vitamins C and D and eat lots of fruits and vegetables. That’s what your immune system needs, not a police state.

    • Haven’t heard anyone dismissing house arrest having Wuhan Flu ‘screaming the loudest’ – if you have prove it or kindly wire it shut. Comments are routinely fearmongering based upon propaganda. Those who arrogantly refuse to post links of sources to back up clearly fraudulent claims are not interested in a discussion bc they are:
      – Authoritarian control-freaks who think they know it all and as such do not care abt the rights and freedoms of others
      – Overgrown children incapable of caring for anyone but themselves and want everyone to go along w/selfserving opinionated lies to make themselves feel better
      – Unable to prove they’re ridiculous assertions
      – Know theyre wrong and do not want to be proven a liar
      – Are paid shills and wish to keep the scheme going
      Or all of the above.
      You’ve really reached the bottom this time by declaring those who disagree w/your bossiness want opponents such as yourself to ‘commit suicide’ which interestingly is whats happening to the victims of those such as yourself – but the likes of you will never face them bc they’re gone. Bullying cowards such as yourself do not commit suicide – those who feel that they can no longer go on most likely do to lack of income do – also unlike yourself – and most often never tell anyone – unfortunately I’ve known several.

  7. Okay, today we found out that Vermont has the lowest amount Covid cases in the US, the entire USA……… why are we closed down? This is total insanity, why haven’t we banned cars etc. for people since there are so many road fatalities as an example. Life comes fraught with challenges, but we do not lock ourselves up and curl into a ball. We are Americans, the greatest race of people in the entire world. We fight for the betterment of the entire planet and yet now we are deemed to stupid to go outside? And that is what our politicians seem to want us to do, sit around and complain about not receiving money in one’s account yet, waiting for someone to tell us it is safe. ………this complacency will kill us before this stupid virus………….the hell with what “they” say, break free and get out there and work!

  8. I’m not Catholic; in fact, I’m hardly religious at all in the traditional sense. Yet I find the on-line petition instigated by bishops and archbishops to be the purest voice of truth that I’ve yet to hear in all this. Here’s part of what they say:

    “The facts have shown that, under the pretext of the Covid-19 epidemic, the inalienable rights of citizens have in many cases been violated and their fundamental freedoms, including the exercise of freedom of worship, expression and movement, have been disproportionately and unjustifiably restricted. Public health must not, and cannot, become an alibi for infringing on the rights of millions of people around the world, let alone for depriving the civil authority of its duty to act wisely for the common good. This is particularly true as growing doubts emerge from several quarters about the actual contagiousness, danger and resistance of the virus. Many authoritative voices in the world of science and medicine confirm that the media’s alarmism about Covid-19 appears to be absolutely unjustified.

    “We have reason to believe, on the basis of official data on the incidence of the epidemic as related to the number of deaths, that there are powers interested in creating panic among the world’s population with the sole aim of permanently imposing unacceptable forms of restriction on freedoms, of controlling people and of tracking their movements. The imposition of these illiberal measures is a disturbing prelude to the realization of a world government beyond all control ….

    “We also ask government leaders to ensure that forms of control over people, whether through tracking systems or any other form of location-finding, are rigorously avoided. The fight against Covid-19, however serious, must not be the pretext for supporting the hidden intentions of supranational bodies that have very strong commercial and political interests in this plan.”

    Couldn’t have said it better: “Many authoritative voices in the world of science and medicine confirm that the media’s alarmism about Covid-19 appears to be absolutely unjustified.” As those two California doctors said before they were censored by FB, “something else is going on.” That “something else” is far more insidious than a relatively harmless virus whose danger has been blown all out of proportion, and whose early and effective treatment with hydroxychloroquine (with some precautions for people with an inherited genetic condition) has been shunted aside and denied by those who seem to want people to get sick and die, the better to instill fear and thus establish control.

    Governor Scott and other officials are paying no heed to the true danger. The lockdown is unconstitutional, and even evil.

    • Welcome to the NWO……”something else is going on”…yeah follow the charlatans behind the microphones….you’ll quickly understand who the puppet masters are.

  9. I was at a real estate closing today, people are really insane with thinking a mask is going to save them. It makes no sense, people are terrified. Yeah, everybody touches all the same things, shopping, real estate closing, going into a building.

    Take out, they touch your food, they touch your money. Some are putting them in plastic containers to hand them to you….but everyone touches the container.

    The propaganda is so massive and people are so unable to critically think. Oh my God….30 more people have become infected….notice nobody is reporting that they all get better? Notice nothing on how everyone recovers?

    Notice how nobody is talking about how we don’t currently have a vaccine that is more than 47% effective for our current flu’s and nothing for the common cold.

    So on this one….yeah, how are you going to do better? We haven’t been able to do better on ALL the other flu viruses.

    People are crazy with this. Plug me into my “smart phone”, plug me into my “tv”…… do not think just down load all the garbage they give you.

    Notice how nobody has been rushing to find out how many people have already had the virus and are fine? So we could make an intelligent decision…..nope they’ll stay far away from that one.

    Propaganda, the best kind has truth and tells no lies. What it does is paint a false picture. These propaganda phones are the best thing ever for subverting a country and getting people to believe lies. Take the cops, is there in the united states, some jerk, some racist doing something stupid every day, say 365 times a year. Videos push this, and it’s true. What this does is get people thinking, hey, these cops are racist, look at what is happening every, EVERY single day.

    What they don’t show is the millions and millions of interactions between the police and the public that are wonderful, peaceful and respectful every day. That’s the whole picture, the whole truth.

    And so it goes with Covid….same propaganda format, and they conveniently changed how the deal with deaths, they totally screw our elderly, where all the deaths are happening due to neglect and out right stupidity….just look at what New York did with the elderly.

    Interesting times.

    • Hi Neil,
      I was going to say similar. You all are missing a HUGE Point here and that is the role that the news propaganda played in growing the panic and then this irrational fear forcing the Governors hand (along with other people in charge). They spooked the Herd- on purpose.
      They are reacting to the population and who is controlling the population- The Media.
      (and why are the people so easy lead by the Media= Failed Education).
      You don’t like what the Government is doing? Well how about dealing with your Media that controls the people. I see no one ever taking this on there and it’s a big problem that is clear as a bell to someone not living there.
      I’m across the river in NH, but know your state as well as my own.
      The way you all handled this was stunningly different than we did here and as a result.. we’re in a different situation. Were all getting back to it here, we haven’t been wiped out to the degree you have, and a whole lot of us never stopped really- short of that mandated period of lockdown we all had. We were not scared and we kept the ship floating- we insisted upon it really. We’ve got a lot of little shops over here that never shut down, they refused to do it and we supported them in this. So they are still there! they made it.

      I blame the VTDigger for much of what ails Vermont.
      The amount of fear mongering and manipulation that place put upon the people was staggering.
      Right from the beginning, I was posting over and over for the folks to read and follow the actual data from the state NOT This Article they just read- of nothing but personal opinions from scared people- but of course we all know about the censorship that goes on there that deprives the people of the real truth. We don’t have anything like that going on over here really.. a site that so many read that scares the wits out of people and flat out lies to everyone.
      And how ironic that we aren’t scared now and well equipped to move forward eh?
      Fear is Slavery.. Fear stops you. Can you see why they use that as a tool to manipulate people?
      That site is a huge part of the states problems.
      One of the most important things you need to do to take back your state is to get your people to stop drinking the Koolaid at that place.
      As a person from another state, I find it shocking. I don’t think you all understand how bad the place is.
      You need a cultural shift that then votes the sweeping change needed in government.
      The people need to bury the Digger.

  10. Unconstitutional, probable by the time you run it through the Liberal courts
    or TJ…………. good luck !!

    If you have a business tell your clients to wear a mask and social distance than
    open the doors, If you have medical issues or concerns stay ay home !!!

    We take a risk every day of our lives………….

  11. I’ve been saying this all along. No one wants to hear it because they’ve been scared to death by the media whose goal in part is to gin up interest so their readers or listeners will tune in. Notice for awhile everything was covid-19 in the news and on TV. But no one can get the truth.

  12. So are there any businesses in Vermont challenging the extended emergency orders to June 15 and the stay smart, stay safe! We only have 87 active cases in the whole state and 1 in the ICU out of a population of 623,000. Why are we not fully open in counties where there are no current cases and have not been for weeks now? Why doesn’t Phil Scott donate half of his $174,000 salary, which is the 6th highest in the country! Along will many others.

    • If we could build a wall around Chittendon county and make it a state we would all be better off.

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