This commentary is by Tom Evslin of Stowe, an entrepreneur, author and former Douglas administration official. It is republished from the Fractals of Change blog.
Twenty years ago Congress quickly enacted the Patriot Act, which abridged some civil liberties to confront a clear and present danger whose extent we did not know. In the last two years many civil liberties have been curtailed because of the actuality of a pandemic and the impossibility of predicting its course.
Twenty years after 9/11 many question whether the Patriot Act and other reactions were worth the cost in loss of civil liberties and in the abuses of the surveillance powers granted by the act. The questions are worth asking even though the simple answers on either side are garbage.
A democratic society must be able to react to threats or it is a sitting duck. I think it was right to waterboard Sheik Mohammad to find out what might be coming next (the waterboarding was not specifically authorized by the Patriot Act but it was allowed by the government). I think it was right to authorize new surveillance of communication with FISA Court approval. There has not been another major attack by foreign terrorists on US soil (fingers crossed) since 9/11.
On the other hand our focus on foreign terrorists led us to underestimate domestic threats from both the right and the left. We saw our capital under siege and then invaded. Portland, Oregon is still the scene of almost daily violence between the right and the left. Kenosha is still not rebuilt after riots decimated its downtown. The FISA Court was misled and misused to spy on the Trump Campaign in 2016; that’s wrong no matter what you think of Trump. We live in a surveillance society — but that’s more because we choose to use Google, Facebook, Amazon etc. than because of the surveillance powers granted to government.
The Patriot Act had sunset provisions starting in 2005. Smaller and smaller subsets of it were reauthorized legislatively under both Bush and Obama until 2020 when the last provisions expired so it is no longer a threat to any civil liberties.
Starting in March of 2000 both the executive branch of the federal government and many state governors took emergency action because of the pandemic. It seemed inconceivable at the time that we could be ordered to stay at home, businesses could be ordered to close, interstate travel essentially banned, and landlords forbidden to evict tenants for non-payment of rent. Who knew there was so much executive power? But most of us accepted most of the restrictions since we had good reason to fear the pandemic simply overwhelming our medical facilities. With hindsight some actions were probably excessive — closing schools, for example — but we didn’t know, and still don’t know, how much worse the pandemic might have been just as we don’t know how many terror attacks would have happened without the Patriot Act and hard interrogation.
Even with hindsight I think much emergency executive action was necessary. However, prolonging the states of emergency which allowed for these unilateral actions by the executive branch was not necessary and puts civil liberties at great danger now. When the Vermont Attorney General was asked when the state of emergency would be over, he said something like “when the governor declares it over.”
Fortunately for Vermont, Governor Scott did end the state of emergency although many other governors haven’t. In the wake of the Delta variant, Scott has been criticized by legislators and other for not reimposing a state of emergency which would, among other things, order rather than advice school districts to adopt mask mandates on their own.
Where the hell are congress and the state legislatures?
The governors had to act quickly and unilaterally last spring. It’s been a year and a half since the pandemic was recognized but very few state legislatures have acted either to impose their own mandates or to give the governor the explicit authority to do so or set rules for their own review of emergency decrees. The Vermont legislature could have voted for a mask mandate – hopefully with a sunset. They didn’t; more convenient to let the governor take the heat one way or the other. Cases are rising alarmingly again in Vermont. What is the legislature doing this time? Criticizing the governor for not declaring another emergency, apparently without realizing the harm to both health and democracy they do by not acting.
Biden was right to require vaccinations for federal workers and federal contractors. Similarly requiring care facilities which are paid by Medicare or Medicaid to require their employees to be vaccinated is good public health and passes constitutional muster. The federal government requiring employers of over 100 people to require vaccination serves a good purpose but is constitutionally shaky. State legislature, who have authority over workplace safety could legislate a similar requirement, but they haven’t. The federal government could require passengers in interstate commerce to be vaccinated just as it required them to be masked. But it hasn’t.
The FDA claimed the authority in a health emergency to suspend many evictions. The Supreme Court ruled that was overreach. Congress probably has this authority; but it didn’t act. Instead President Biden reimposed the expired FDA rule despite what even he acknowledged was its inability to withstand a constitutional challenge (it didn’t). Biden looked sincere when he took the oath to defend the constitution ;but, gosh, it’s an emergency.
Every interest group in the country is claiming that their cause is a “health emergency” meaning that the democratic process can be ignored if it stands in the way of their goals. Can’t pass gun control? Just declare an emergency and impose it by executive order. If racial injustice is a “health emergency”, then anything done in the name of racial justice can bypass the legislative process. What about climate?
The Patriot Act was passed by Congress and included sunset provisions. The states of emergency are largely both unlegislated and unlimited.
Democracies die in a state of emergency!