Brownstone Institute
Justice Neil Gorsuch Speaks Out Against Lockdowns and Mandates
In a statement made Thursday on a case concerning Title 42, Supreme Court Justice Neil Gorsuch breaks the painful silence on the topic of lockdowns and mandates, and presents the truth with startling clarity. Importantly, this statement from the Supreme Court comes as so many other agencies, intellectuals, and journalists are in flat-out denial of what happened to the country.
[T]he history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.
Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes.
They shuttered businesses and schools public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too.
They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.
Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide.They used a workplace-safety agency to issue a vaccination mandate for most working Americans.
They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.
While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent. Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.
Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat.
A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes.
We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.
But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.
Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate. Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hopefully, we have relearned these lessons too.
In the 1970s, Congress studied the use of emergency decrees. It observed that they can allow executive authorities to tap into extraordinary powers. Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.
At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order. In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.
Despite that law, the number of declared emergencies has only grown in the ensuing years. And it is hard not to wonder whether, after nearly a half-century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level.
At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.
Justice Neil Gorsuch’s opinion in Arizona v. Mayorkas marks the culmination of his three-year effort to oppose the Covid regime’s eradication of civil liberties, unequal application of law, and political favoritism. From the outset, Gorsuch remained vigilant as public officials used the pretext of Covid to augment their power and strip the citizenry of its rights in defiance of long standing constitutional principles.
While other justices (even some purported constitutionalists) absconded their responsibility to uphold the Bill of Rights, Gorsuch diligently defended the Constitution. This became most apparent in the Supreme Court’s cases involving religious liberty in the Covid era.
Beginning in May 2020, the Supreme Court heard cases challenging Covid restrictions on religious attendance across the country. The Court was divided along familiar political lines: the liberal bloc of Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to uphold deprivations of liberty as a valid exercise of states’ police power; Justice Gorsuch led conservatives Alito, Kavanaugh, and Thomas in challenging the irrationality of the edicts; Chief Justice Roberts sided with the liberal bloc, justifying his decision by deferring to public health experts.
“Unelected judiciary lacks the background, competence, and expertise to assess public health and is not accountable to the people,” Roberts wrote in South Bay v. Newsom, the first Covid case to reach the Court.
And so the Court repeatedly upheld executive orders attacking religious liberty. In South Bay, the Court denied a California church’s request to block state restrictions on church attendance in a five to four decision. Roberts sided with the liberal bloc, urging deference to the public health apparatus as constitutional freedoms disappeared from American life.
In July 2020, the Court again split 5-4 and denied a church’s emergency motion for injunctive relief against Nevada’s Covid restrictions. Governor Steve Sisolak capped religious gatherings at 50 people, regardless of the precautions taken or the size of the establishment. The same order allowed for other groups, including casinos, to hold up to 500 people. The Court, with Chief Justice Roberts joining the liberal justices again, denied the motion in an unsigned motion without explanation.
Justice Gorsuch issued a one paragraph dissent that exposed the hypocrisy and irrationality of the Covid regime. “Under the Governor’s edict, a 10-screen ‘multiplex’ may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there,” he wrote. But the Governor’s lockdown order imposed a 50-worshiper limit for religious gatherings, no matter the buildings’ capacities.
“The First Amendment prohibits such obvious discrimination against the exercise of religion,” Gorsuch wrote. “But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Gorsuch understood the threat to Americans’ liberties, but he was powerless with Chief Justice Roberts cowing to the interests of the public health bureaucracy. That changed when Justice Ginsburg died in September 2020.
The following month, Justice Barrett joined the Court and reversed the Court’s 5-4 split on religious freedom in the Covid era. The following month, the Court granted an emergency injunction to block Governor Cuomo’s executive order that limited attendance at religious services to 10 to 25 people.
Gorsuch was now in the majority, protecting Americans from the tyranny of unconstitutional edicts. In a concurring opinion in the New York case, he again compared restrictions on secular activities and religious gatherings; “according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians… Who knew public health would so perfectly align with secular convenience?”
In February 2021, California religious organizations appealed for an emergency injunction against Governor Newsom’s Covid restriction. At the time, Newsom prohibited indoor worship in certain areas and banned singing. Chief Justice Roberts, joined by Kavanaugh and Barrett, upheld the ban on singing but overturned the capacity limits.
Gorsuch wrote a separate opinion, joined by Thomas and Alito, that continued his critique of the authoritarian and irrational deprivations of America’s liberty as Covid entered its second year. He wrote, “Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner.”
Like his opinions in New York and Nevada, he focused on the disparate treatment and political favoritism behind the edicts; “if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.”
Thursday’s opinion allowed Gorsuch to review the devastating loss of liberty Americans suffered over the 1,141 days it took to flatten the curve.
From the Brownstone Institute
By
By late 2020, the media and public health establishment had two obsessions. One of their obsessions involved forcing the public to wear masks, even though the mountains of data and several studies had already confirmed that they don’t stop the transmission of respiratory viruses. The second obsession was forcing everyone to take Covid vaccines, regardless of their actual efficacy, risk of side effects, age or underlying health, or the vaccines’ rapidly waning efficacy.
Neither of those obsessions has abated, though even the most extreme, hardened Covid extremists have acknowledged that the vaccines were flawed, mandates were a mistake, and side effects should be acknowledged.
The media, unwilling to give up on the increased power, influence, and moral judgment it gained during the pandemic, has refused to accept that it effectively ended years ago.
So it’s no surprise that media outlets have noticed that, as we’ve seen every single summer since 2020, cases have increased, predominantly across the Western and Southern United States. Thankfully though, Los Angeles media, of course it had to be Los Angeles, has determined the culprit.
The Media Refuses to Accept Covid Reality
Turns out it’s not seasonality causing the increase, it’s outdated Covid vaccines and a lack of public masking, of course!
NBC Los Angeles “reported” that Covid cases in California and Los Angeles have “doubled” in the last month. This sounds horrifying and scary, doesn’t it? Yet it again, as is so often the case with Covid coverage, is misleading.
Let’s take a look at the current daily average of new cases in Los Angeles County:
Cases are so low they’re functionally indistinguishable from zero.
You can see why the media is scared, given how dramatic this surge appears to be compared to those in the previous four years. And thanks to NBC’s crack reporting and expert analysis, we know why this terrifying increase is happening. Spoiler alert: it’s all your fault that you haven’t controlled an uncontrollable respiratory virus with individual behavior that has no impact whatsoever on the spread of the coronavirus.
“People aren’t necessarily wearing masks; they’re not required to in certain places,” nurse practitioner Alice Benjamin, referenced as an expert by NBA LA said. “We’re traveling, we’re getting out for the summer. We also do have some reduced immunity. The vaccines will wane over time.”
Nowhere in the story is it mentioned that the massive jump in Covid cases in late 2021 and early 2022 happened immediately after LA County Public Health issued a press release celebrating the county for achieving 95+ percent masking rates at indoor businesses. No one seems willing or able to ask this nurse practitioner why she believes wearing masks would reduce this “surge,” if it failed so spectacularly in previous surges.
Endless Misinformation from ‘Experts’
She wasn’t done with the misinformation though. Benjamin warned that not enough Angelenos are getting the “updated” vaccine, which explains the summer increase.
“If you got it in October and later, that’s generally the updated vaccine,” Benjamin said. “If you got it prior to October, double check because if you did get the bivalent which has not been phased out, we recommend you do get an updated vaccine.”
And according to her, everyone should get it. Because the CDC said so.
“Per CDC recommendations, anyone 6 months or older should have at least one of the updated Covid vaccines,” Benjamin said.
Though, of course, no one on the crack NBC Los Angeles team thought to ask Benjamin why the “updated” October vaccine would help against the now common FLiRT variant when it emerged six months after the “updated” vaccine was released. Especially when the “study” process for booster doses is effectively nonexistent anyway. Pfizer and Moderna churn out a “targeted” dose that is supposed to protect against a variant that’s no longer circulating, never has to show any real-world benefit, and the regulatory agencies sign off on it, while the CDC recommends everyone get it.
Rinse, repeat.
Nor did anyone ask her what possible rationale there could be for forcing six-month-old babies to get vaccinated with a booster that has no studied efficacy against the currently circulating variant.
Her comments and the media reaction exemplify the problems with Covid discourse that started in 2020 and will apparently continue forever. A complete and purposeful ignorance of the facts, the data, and the evidence base. A willingness to advocate for the same sort of restrictions and interventions that have already failed. Ignorance of the booster process and endless appeals to public health authorities. Even though those authorities have made countless mistakes and refused to update their findings after being proven wrong.
The obvious question is: How does this type of absurdist discourse ever end? The answer, as we continue to see, is it doesn’t.
Republished from the author’s Substack
From the Brownstone Institute
We’ve just come across a document hosted by the Department of Homeland Security, posted March 2023, but written in 2007, that amounts to a full-blown corporatist imposition on the US, abolishing anything remotely resembling the Bill of Rights and Constitutional law. It is right there in plain sight for anyone curious enough to dig.
There is nothing in it that you haven’t already experienced with lockdowns. What makes it interesting are the participants in the forging of the plan, which is pretty much the whole of corporate America as it stood in 2007. It was a George W. Bush initiative. The conclusions are startling.
“Quarantine is a legally enforceable declaration that a government body may institute over individuals potentially exposed to a disease, but who are not symptomatic. If enacted, Federal quarantine laws will be coordinated between CDC and State and local public health officials, and, if necessary, law enforcement personnel…The government may also enact travel restrictions to limit the movement of people and products between geographic areas in an effort to limit disease transmission and spread. Authorities are currently reviewing possible plans to curtail international travel upon a pandemic’s emergence overseas.
“Limiting public assembly opportunities also helps limit the spread of disease. Concert halls, movie theaters, sports arenas, shopping malls, and other large public gathering places might close indefinitely during a pandemic—whether because of voluntary closures or government-imposed closures. Similarly, officials may close schools and non-essential businesses during pandemic waves in an effort to significantly slow disease transmission rates. These strategies aim to prevent the close interaction of individuals, the primary conduit of spreading the influenza virus. Even taking steps such as limiting person-to-person interactions within a distance of three feet or avoiding instances of casual close contact, such as shaking hands, will help limit disease spread.”
There we have it: the pandemic plans. They once seemed abstract. In 2020, they became very real. Your rights were deleted. No more freedom even to have house guests. In those days, the rule was to enforce only three feet of distance rather than six feet of distance, neither of which had any basis in science. Indeed, the actual scientific literature even at that time recommended against any physical interventions designed to limit the spread of respiratory viruses. They were known not to work. The entire profession of public health accepted that.
Therefore, for many years before lockdowns wrecked economic functioning, there had been two parallel tracks in operation, one intellectual/academic and one imposed by state/corporate managers. They had nothing to do with each other. This situation persisted for the better part of 15 years. Suddenly in 2020, there was a reckoning, and the state/corporate managers won it. Seemingly out of nowhere, liberty as we have long known it was gone.
Back in 2005, I first came across a Bush administration scheme, an early draft of the above, that would have ended freedom as we know it. It was a scheme for combating the bird flu, which officials back then imagined would involve universal quarantines, business and event closures, travel restrictions, and more.
I wrote: “Even if the flu does come, and taxpayers have coughed up, the government will surely have a ball imposing travel restrictions, shutting down schools and businesses, quarantining cities, and banning public gatherings…It is a serious matter when the government purports to plan to abolish all liberty and nationalize all economic life and put every business under the control of the military, especially in the name of a bug that seems largely restricted to the bird population. Perhaps we should pay more attention. Perhaps such plans for the total state ought to even ruffle our feathers a bit.”
For years I wrote about this topic, trying to get others interested. It was all there in black and white. At the drop of a hat, under the guise of a pandemic that only state managers can declare, real or drummed up, freedom itself could be abolished. These plans were never legislated, debated, or publicly discussed. They were simply posted as the result of various consultations with experts, who worked out their totalitarian fantasies as if scripting a Hollywood film.
The 2007 blueprint is more explicit than anything I’ve seen. It comes from the National Infrastructure Advisory Council, which “includes executive leaders from the private sector and state/local government who advise the White House on how to reduce physical and cyber risks and improve the security and resilience of the nation’s critical infrastructure sectors. The NIAC is administered on behalf of the President in accordance with the Federal Advisory Committee Act under the authority of the Secretary of the US Department of Homeland Security.”
And who sat on this committee in 2007 that decided that governments “may close schools and non-essential businesses”? Let us see.
- Mr. Edmund G. Archuleta, General Manager, El Paso Water Utilities
- Mr. Alfred R. Berkeley III, Chairman and CEO, Pipeline Trading Group, LLC, and former President and Vice Chairman of NASDAQ
- Chief Rebecca F. Denlinger, Fire Chief, Cobb County (Ga.) Fire and Emergency Services
- Chief Gilbert G. Gallegos, Police Chief (ret.), City of Albuquerque, N.M. Police Department
- Ms. Martha H. Marsh, President and CEO, Stanford Hospital and Clinics
- Mr. James B. Nicholson, President and CEO, PVS Chemical, Inc.
- Mr. Erle A. Nye, Chairman Emeritus, TXU Corp., NIAC Chairman
- Mr. Bruce A. Rohde, Chairman and CEO Emeritus, ConAgra Foods, Inc.
- Mr. John W. Thompson, Chairman and CEO, Symantec Corporation
- Mr. Brent Baglien, ConAgra Foods, Inc.
- Mr. David Barron, Bell South
- Mr. Dan Bart, TIA
- Mr. Scott Blanchette, Healthways
- Ms. Donna Burns, Georgia Emergency Management Agency
- Mr. Rob Clyde, Symantec Corporation
- Mr. Scott Culp, Microsoft
- Mr. Clay Detlefsen, International Dairy Foods Association
- Mr. Dave Engaldo, The Options Clearing Corporation
- Ms. Courtenay Enright, Symantec Corporation
- Mr. Gary Gardner, American Gas Association
- Mr. Bob Garfield, American Frozen Foods Institute
- Ms. Joan Gehrke, PVS Chemical, Inc.
- Ms. Sarah Gordon, Symantec
- Mr. Mike Hickey, Verizon
- Mr. Ron Hicks, Anadarko Petroleum Corporation
- Mr. George Hender, The Options Clearing Corporation
- Mr. James Hunter, City of Albuquerque, NM Emergency Management
- Mr. Stan Johnson, North American Electric Reliability Council (NERC)
- Mr. David Jones, El Paso Corporation
- Inspector Jay Kopstein, Operations Division, New York City Police Department (NYPD)
- Ms. Tiffany Jones, Symantec Corporation
- Mr. Bruce Larson, American Water
- Mr. Charlie Lathram, Business Executives for National Security (BENS)/BellSouth
- Mr. Turner Madden, Madden & Patton
- Chief Mary Beth Michos, Prince William County (Va.) Fire and Rescue
- Mr. Bill Muston, TXU Corp.
- Mr. Vijay Nilekani, Nuclear Energy Institute
- Mr. Phil Reitinger, Microsoft
- Mr. Rob Rolfsen, Cisco Systems, Inc.
- Mr. Tim Roxey, Constellation
- Ms. Charyl Sarber, Symantec
- Mr. Lyman Shaffer, Pacific Gas and Electric,
- Ms. Diane VanDeHei, Association of Metropolitan Water Agencies (AMWA)
- Ms. Susan Vismor, Mellon Financial Corporation
- Mr. Ken Watson, Cisco Systems, Inc.
- Mr. Greg Wells, Southwest Airlines
- Mr. Gino Zucca, Cisco Systems, Inc.
- Department of Health and Human Services (HHS) Resources
- Dr. Bruce Gellin, Rockefeller Foundation
- Dr. Mary Mazanec
- Dr. Stuart Nightingale, CDC
- Ms. Julie Schafer
- Dr. Ben Schwartz, CDC
- Department of Homeland Security (DHS) Resources
- Mr. James Caverly, Director, Infrastructure Partnerships Division
- Ms. Nancy Wong, NIAC Designated Federal Officer (DFO)
- Ms. Jenny Menna, NIAC Designated Federal Officer (DFO)
- Dr. Til Jolly
- Mr. Jon MacLaren
- Ms. Laverne Madison
- Ms. Kathie McCracken
- Mr. Bucky Owens
- Mr. Dale Brown, Contractor
- Mr. John Dragseth, IP attorney, Contractor
- Mr. Jeff Green, Contractor
- Mr. Tim McCabe, Contractor
- Mr. William B. Anderson, ITS America
- Mr. Michael Arceneaux, Association of Metropolitan Water Agencies (AMWA)
- Mr. Chad Callaghan, Marriott Corporation
- Mr. Ted Cromwell, American Chemistry Council (ACC)
- Ms. Jeanne Dumas, American Trucking Association (ATA)
- Ms. Joan Harris, US Department of Transportation, Office of the Secretary
- Mr. Greg Hull, American Public Transportation Association
- Mr. Joe LaRocca, National Retail Federation
- Mr. Jack McKlveen, United Parcel Service (UPS)
- Ms. Beth Montgomery, Wal-Mart
- Dr. J. Patrick O’Neal, Georgia Office of EMS/Trauma/EP
- Mr. Roger Platt, The Real Estate Roundtable
- Mr. Martin Rojas, American Trucking Association (ATA)
- Mr. Timothy Sargent, Senior Chief, Economic Analysis and Forecasting Division, Economic and Fiscal Policy Branch, Finance Canada
In other words, big everything: food, energy, retail, computers, water, and you name it. It’s a corporatist dream team.
Consider ConAgra itself. What is that? It is Banquet, Chef Boyardee, Healthy Choice, Orville Redenbacher’s, Reddi-Wip, Slim Jim, Hunt’s Peter Pan Egg Beaters, Hebrew National, Marie Callender’s, P.F. Chang’s, Ranch Style Beans, Ro*Tel, Wolf Brand Chili, Angie’s, Duke’s, Gardein, Frontera, Bertolli, among many other seemingly independent brands that are all actually one company.
Now, ask yourself: why might all these companies favor a plan for lockdowns? Why might WalMart, for example? It stands to reason. Lockdowns are a massive interference with competitive capitalism. They provide the best possible subsidy to big business while shutting down independent small businesses and putting them at a huge disadvantage once the opening up happens.
In other words, it is an industrial racket, very much akin to interwar-style fascism, a corporatist combination of big business and big government. Throw pharma into the mix and you see exactly what came to pass in 2020, which amounted to the largest transfer of wealth from small and medium-sized business plus the middle class to wealthy industrialists in the history of humanity.
The document is open even about managing information flows: “The public and private sectors should align their communications, exercises, investments, and support activities absolutely with both the plan and priorities during a pandemic influenza event. Continue data gathering, analysis, reporting, and open review.”
There is nothing in any of this that fits with any Western tradition of law and liberty. Nothing. It was never approved by any democratic means. It was never part of any political campaign. It has never been the subject of any serious media examination. No think tank has ever pushed back on such plans in any systematic way.
The last serious attempt to debunk this whole apparatus was from D.H. Henderson in 2006. His two co-authors on that paper eventually came around to going along with lockdowns of 2020. Henderson died in 2016. One of the co-authors of the original article told me that if Dr. Henderson had been around, instead of Dr. Fauci, the lockdowns would never have taken place.
Here we are four years following the deployment of this lockdown machinery, and we are witness to what it destroys. It would be nice to say that the entire apparatus and theory behind it have been fully discredited.
But that is not correct. All the plans are still in place. There have been no changes in federal law. Not one effort has been made to dismantle the corporatist/biosecurity planning state that made all this possible. Every bit of it is in place for the next go-around.
Much of the authority for this whole coup traces to the Public Health Services Act of 1944, which was passed in wartime. For the first time in US history, it gave the federal government the power to quarantine. Even when the Biden administration was looking for some basis to justify its transportation mask mandate, it fell back to this one piece of legislation.
If anyone really wants to get to the root of this problem, there are decisive steps that need to be taken. The indemnification of pharma from liability for harm needs to be repealed. The court precedent of forced shots in Jacobson needs to be overthrown. But even more fundamentally, the quarantine power itself has to go, and that means the full repeal of the Public Health Services Act of 1944. That is the root of the problem. Freedom will not be safe until it is uprooted.
As it stands right now, everything that unfolded in 2020 and 2021 can happen again. Indeed, the plans are in place for exactly that.
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