I realize that some people considered my post about the unconstitutionality of government restrictions on gatherings to be alarmist. We are in the midst of an unusual situation that calls for unusual measures in order to save lives, after all. Before I go on, let me clarify that at no time did I intend to suggest that all recommendations and guidelines should be ignored or that COVID-19 is a farce. I understand that the virus is real, I understand that there may be need for precautions and even extraordinary steps to be taken. At the same time, please realize that there are real, informed and legitimate differences of opinion on what those steps should be. Even more importantly, please realize that someone—namely, at the moment, me—can simultaneously value life, acknowledge the threat that is COVID-19 and still believe that the Constitution should not be violated. I happen to believe that constitutional protections are there for a reason and need to be protected even when they are most inconvenient.
When I posted Unconstitutional Limitations I actually hoped that my concerns were a bit overwrought…that the restrictions on group gatherings, and thus on religious gatherings, was going to be the extreme end of end of government violations of the Constitution. I hoped that we would make it through COVID-19 and then, as cooler heads prevailed, people would look back and realize that the actions taken during the scare were not okay and could not be permitted to happen again. Sadly, I was wrong.
In the past week, there have been more, and more egregious, examples of government overreach and constitutional violation by state and local governments. President Trump still seems to realize the constitutional limitations on the federal government and has even expressed them in explaining why he is not issuing a national stay-at-home order. Just yesterday, at his White House briefing, CNN’s Jeremy Diamond asked President Trump why he is not following the recommendations of Dr. Fauci and others and issuing such an order. “We have a thing called the Constitution, which I cherish, number one,” was Trump’s response. He did not stop there, though. He continued, regarding the eight governors that have not issued state-wide stay-at-home orders, “Number two, those governors, I know every one of them, they’re doing a great job. They’re being very, very successful with what they’re doing. And, as you know, I want governors to be running things. In some cases, we’ll supersede.” That is called federalism, and that is exactly how the United States is supposed to operate.
My own state’s governor, Kristi Noem, is one of those that has not issued such an order. When asked why, she said, “South Dakota is not New York City. The calls to apply for a one-size-fits-all approach to this problem is herd mentality. It’s not leadership.” She expressed her respect for the Constitution, and then said, “The people themselves are primarily responsible for their safety. They are the ones that are entrusted with expansive freedoms. They’re free to exercise their rights to work, to worship, and to play. Or to even stay at home, or to conduct social distancing.” It is indeed a sad day when it is newsworthy and even controversial for a governor to say that the people have been entrusted with “expansive freedoms” and are responsible for the how the utilize those freedoms.
Last Monday, Rodney Howard-Browne, the pastor of The River at Tampa Bay church, was arrested for “‘intentionally and repeatedly’ defying emergency orders mandating that people maintain social distance and stay at home,” according to the New York Times. The Hillsborough County sheriff announced that he had the arrest warrant and Howard-Browne turned himself in. He was freed less than an hour later after posting bond. The sheriff, Chad Chronister, said this regarding the arrest:
His reckless disregard for human life put hundreds of people in his congregation at risk and thousands of residents who may interact with them this week in danger. Our goal here is not to stop anyone from worshiping, but the safety and well-being of our community must always come first.
As best I can tell from a very cursory exploration of The River at Tampa Bay’s web site, I do not agree with a lot of what they teach and practice. But that doesn’t matter. What matters is that a pastor was arrested for exercising his constitutionally-granted rights to religion and assembly.
The good news is that the Hillsborough County Council recognized the dangerous ground upon which their sheriff had tread and voted on April 2 to reverse its order and recognize churches as essential. The mayor wanted to impose ten-person limits and six-foot distancing requirements on churches by the Council overruled her recommendation. Also, on April 1, Florida governor Ron DeSantis issued Executive Order 20-92, amending 20-91, and declaring religious worship as an “essential activity.” DeSantis said, “I don’t think the government has the authority to close a church. I’m certainly not going to do that.” Governor Greg Abbott issued a similar executive order on March 31, GA 14, which includes “religious services conducted in churches, congregations, and houses of worship” as essential services. According to an article in The Guardian, Delaware, Louisiana, Michigan, Mississippi, New Hampshire, Tennessee and West Virginia have also issued exemptions for religious gatherings and, as mentioned in the previous post, Michigan has exempted them, as well.
Robin Fretwell Wilson, Brian Smith and Tanner Bean authored the essay “Defiant Congregations in a Pandemic: Public Safety Precedes Religious Rights,” which can be found on the web site of the Canopy Forum. “Now is not the time to stand on our rights. It is not the time to pursue contentious religious freedom claims in the courthouse. Instead, it is a time to lead by example, as so many congregations and people of faith have done,” they wrote. I have to disagree. Congregations need to prayerfully and carefully consider whether or not to meet in person, and I am by no means recommending that all churches decide to do so. But it is absolutely the time to stand on our rights. It may not be the best time to file “contentious religious freedom claims in the courthouse” but if it comes to that then yes, such action should be taken. Hopefully, that is not likely to happen. Hillsborough County was facing a lawsuit over its arrest of Howard-Browne, and it chose to back down.
Some leaders, though, may choose to push the matter, and if they do, laying down and allowing our constitutional rights to be trampled is not what anyone should do. On
March 27, New York City mayor Bill de Blasio said of churches and synagogues, “[Law enforcement] will inform them they need to stop the services and disperse. If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently.” Permanently. Jeremy Dys of First Liberty Institute said, “The American people will tolerate a lot during a time of a national pandemic. They will not tolerate government threats to permanently close Houses of Worship.” Ken Ham, founder and president of Answers in Genesis, tweeted, “It’s a warning for the future when one person claims they have the power to close churches permanently. That’s what we’ve seen in China & Cuba.”
Thankfully, the backlash against de Blasio was swift. Kristen Waggoner, of Alliance Defending Freedom, wrote an editorial for the New York Daily News entitled “Sorry, mayor, you can’t close churches permanently: De Blasio’s wild overreaction to houses of worship that buck social distancing.” News outlets all over the country reported on the threat and most of the stories included the remarks in opposition and even explanation as to why de Blasio could do no such thing.
There are other examples of government overreach this past week, too. They do not relate to religious freedom specifically, but they should be as alarming to anyone who loves the Constitution. Governor Andrew Cuomo of New York said in his April 3 briefing,
I’m going to sign an executive order that says the state can take ventilators and PPE from institutions that don’t need them now and redeploy them to other parts of the state and other hospitals that do need them. Those institutions will either get their ventilator back or they will be reimbursed and paid for their ventilator so they can buy a new ventilator.
The Wall Street Journal was incredibly kind to Cuomo in its report on his briefing, headlining its story, “New York State to Shift Ventilators to Hospitals in Need.” Thankfully, the sub-heading was more accurate, reading, “Gov. Cuomo to sign order allowing state to take unused ventilators, masks from institutions.” Bob Lonsberry, of Syracuse’s 570 WSYR radio station ripped Cuomo’s announcement; his post started this way:
You’ve been triaged, upstate New York.
The governor put the black tag around your neck.
Some will live and some will die and, well, you don’t get to live.
That’s what Andy Cuomo’s decree of Friday means. Your ventilators go to his voters and when you get the COVID, well, good luck to you. If all goes well, your family can have a memorial service in a year or two, after the Chinese sell us the vaccine.
Maybe you think that’s an overreaction, but I imagine that if someone was promising to confiscate the ventilators from your local hospital you would be upset too.
And in Los Angeles, Mayor Eric Garcetti encouraged Angelenos to snitch on anyone violating his Safer at Home order. At his March 31 briefing he said,
If any non-essential businesses continue to operate in violation of the stay at home order, we’re going to act to enforce the safer at home order and ensure their compliance. You know the old expression about snitches. Well, in this case, snitches get rewards.
He later said, “We want to thank you for turning folks in and making sure we are all safe.”
I don’t know what the rewards are, and I don’t want to know. What I do know is, encouraging people to spy on and report their neighbors sounds an awful lot like the U.S.S.R. I simply cannot imagine that that is the United States of America that anyone really wants to live in.
Shredded Constitution photo credit: Shutterstock.
Kristi Noem photo credit: U.S. Department of Agriculture/Public Domain .
We are truly living in strange times. Every day there is more news about COVID-19—and every day the news we receive continues to be conflicted. For every news report shouting how bad things are I can find one that says the opposite. For every report that says things are going to get worse, I can find one that says the worst is over. For every report that says COVID-19 is far worse than the flu and is going to take tens, if not hundreds, of thousands of lives, I can find one that says those estimates are vastly overblown and the mortality rate is about the same as the flu. But I am not going to discuss all of that right now. What I am going to discuss is the ongoing, flagrant violation of the Constitution that is happening all over the United States.
One of my favorite movies is A Few Good Men. My friend Dave and I watched it many times in high school as we imagined our Mock Trial successes leading us to influential (and lucrative) law careers. In that film, Kevin Bacon’s character, the prosecutor, says, “These are the facts of the case. And they are undisputed.” My dreams of a career in law never came to fruition, but I am about to present the facts…and they are undisputed. When I get to the part where I share my opinion I will make that clear.
On Monday, March 23, Ralph Northam, the governor of Virginia, issued Executive Order Number 53 (2020). The very first part of the directive states this:
Effective 11:59 p.m., Tuesday, March 24, 2020 until 11:59 p.m., Thursday, April 23, 2020, all public and private in person gatherings of 10 or more individuals are prohibited.
Northam, when asked if churches could meet, said, “Any time that there’s a gathering of more than 10 people, we would certainly discourage that.” Discourage? That is not what the executive order says. The wording above is explicit: if there are more than ten people present, the gathering is prohibited. There is nowhere in the order that exempts churches or says anything about church services being discouraged. In fact, the end of the executive order says:
Violation of paragraphs 1, 3, 4, and 6 of this Order shall be a Class 1 misdemeanor pursuant to § 44-146.17 of the Code of Virginia.
The ban of public and private gatherings of more than ten individuals is in paragraph one. The order is remain in effect until it is “amended or rescinded by further executive order.” Therefore, Ralph Northam has declared that attending church services, if there are more than ten people present, is a crime.
Northam’s order, by the way, lists “essential retail businesses” that are exempt from the order and are allowed to remain open. Among them are lawn and garden equipment retailers and beer, wine and liquor stores.
Two days later, on March 25, Northam signed another executive order, this one ordering the postponement of elective surgeries due to COVID-19. The order did not, however, apply to abortions; those can continue.
In short, Ralph Northam has made it a crime to attend church but declared that liquor stores are essential businesses and abortion is essential surgery. I lived in Virginia for ten years; I have never been so glad I do not live there now.
Roy Cooper, the governor of North Carolina, issued an executive order in mid-March restricting mass gatherings to less than one hundred people. On March 23 he issued a new order, Executive Order No. 120, restricting such gatherings to less than fifty people (after twenty paragraphs trying to justify his decision that all began with “Whereas”). Four days later, on March 27, he issued Executive Order No. 121, ordering all individuals in the state to stay at home other than for exceptions granted in the order. Wisely, Cooper included travel to and from places of worship as permissible travel, but he later specified that religious gatherings, including funerals, are subject to the limitations on gatherings listed later in the order. What is that limit? Ten people in a single room or space at the same time. Oh, and the provisions of that limitation will be enforced by state and local law enforcement, with violations punishable as a Class 2 misdemeanor.
Eric Holcomb, the governor of Indiana, issued Executive Order 20-08, a Stay at Home order. It states, “All businesses and operations in the State of Indiana, except for Essential Businesses and Operations, are hereby required to cease all activities within the State” except for minimum operations. It bans all public and private gatherings of any number of people outside of a single family home, and any gathering of more than ten people is prohibited unless exempted. Religious gatherings were exempted “provided they adhere to the CDC’s guidance on social gatherings.” Of course, that doesn’t help a whole lot, because the CDC’s guideline says that if there is minimal-to-moderate community transmission, gatherings up to 250 people are okay, but “the cutoff threshold is at the discretion of community leadership.” The CDC’s recommendation to cancel is only applicable if there is “a substantial level of community transmission.” This is the equivalent of a child asking mom for permission to go to a party, mom says, “My answer is no, but ask your father.” Dad then says, “I don’t see a problem with it, but you have to listen to your mom.” So, Eric Holcomb creatively made it a crime to attend church. He can point to the order to say that he didn’t, but in reality, he did. And the order is enforceable by state and local law enforcement.
Governor Tim Walz of Minnesota, issued Executive Order 20-20 in which he ordered that “all persons currently living within the State of Minnesota are ordered to stay at home or in their place of residence except to engage in the Activities and Critical Sector work set forth below.” The only allowance made for religious activities was for “officials, workers, and leaders in houses of worship and other places of religious expression or fellowship, wherever their services may be needed. This category also includes workers necessary to plan, record, and distribute online or broadcast content to community members.” In his order, Walz urged Minnesotans to “voluntarily comply” but added that “a person who willfully violates this Executive Order is guilty of a misdemeanor and upon conviction must be punished by a fine not to exceed $1,000 or by imprisonment for not more than 90 days.”
I could keep going, because it is certainly not just these four governors that have signed executive orders like these. If I go through every example, though, most readers will lose interest and miss the point I am endeavoring to make. To make that point, I am going to focus in particular on the orders signed by Tim Walz in Minnesota and Ralph Northam in Virginia. But before I do, it is necessary to look first at the United States Constitution.
The First Amendment reads,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I am sure you noticed that there is no exception given. There is no caveat. No asterisk. No escape clause. Congress cannot make a law that prohibits the free exercise of religion or the peaceable assembly of “the people.” You can read through Articles I and II of the Constitution if you would like, but you will find nothing there giving either the Congress or the President any authority to violate the First Amendment. There is, therefore, no constitutional authority for the federal government to restrict peaceable assemblies or to prohibit the free exercise of religion.
More than any of the other executive orders cited here, Tim Walz relies heavily on the recommendations and actions of the federal government to justify his order. “This Executive Order is consistent with a growing nationwide effort to contain the spread of COVID-19,” the first full paragraph on page two begins. He cites President Donald Trump’s March 16 guidelines to limit gatherings to not more than ten people and points out that as of March 24, “twenty-four states representing almost 200 million Americans have issued orders or public health directives closing non-essential businesses or limiting residents from participating in non-essential activities.” You have to give Walz credit for his efforts to legitimize his order, but there is a significant problem. Neither President Trump nor any of those twenty-two states have the authority to do what Walz is claiming validates his actions. To say that because twenty-two states have issued similar orders is about as valuable as telling a police officer who has pulled you over for speeding that everyone else is doing it. Neither popularity nor commonality equal legality.
Walz references President Trump and he even correctly states that the president issued guidelines. It is true that those guidelines say “avoid social gatherings in groups of more than 10 people. But a guideline is not a law. A guideline cannot carry a legal penalty. A guideline is, by definition, “a general rule, principle, or piece of advice.” Synonyms for “guideline” include recommendation, suggestion and advice. Regardless of what you think of President Trump, he has, thus far, recognized that he cannot violate the Constitution—even for what some might claim is the best interest of the country.
Walz’s order says that “practicing social distancing at all times” is “required to mitigate the community spread of COVID-19 in Minnesota and nationwide.” The italics are mine, but those are important words, because they leave no wiggle room. There is no exception to “all times” and no exception to “required.”
Walz also cites the Department of Homeland Security’s Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response, issued on March 23. That’s all well and good, but if you check that guidance you will find that it says, in bold print, “This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard.” Why is it only advisory in nature? Because the Department of Homeland Security is a federal agency and no federal agency can violate constitutional rights. Furthermore, this guidance is designed to prevent state and local governments from shutting down work that is absolutely essential for national security and other necessary infrastructure.
Walz’s order cites Minnesota Statutes 2019, section 12.21, subdivision 1, as giving him the authority to “control the state’s emergency management as well as carry out the provisions of Minnesota’s Emergency Management Act.” Here’s the rub, though: that statute only gives the governor such authority when there is “a national security emergency,” when there is “an energy supply emergency,” or “during the existence of an emergency resulting from an incident at a nuclear power plant that poses a radiological or other health hazard.” None of those apply to the COVID-19 situation.
Minnesota Statutes 2019, section 12.21, subdivision 2 allows the governor to declare a peacetime emergency. The only allowance for such a declaration that fits with COVID-19 is if the virus is considered an “act of nature.” That could be debated, but let’s give him the benefit of the doubt. The emergency also has to be one that “endangers life and property and local government resources are inadequate to handle the situation.” Well, the virus does endanger life, but are the local resources inadequate? That could be debated too, since the actual numbers are no where near the projections, but again, let’s given him the benefit of the doubt.
This is where it becomes necessary to look at the Minnesota Constitution. It includes a right to free exercise of religion but, interestingly, it also includes a caveat. Here is how Section 16 reads:
The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.
Here is why it is interesting. First, it contradicts itself. Notice that it says that the right to worship God “shall never be infringed” but then later says the this right “shall not be so construed as to excuse acts… inconsistent with the peace or safety of the state.” So, in Minnesota, your freedom of religion cannot never be violated…except when it can. Second, it violates the First Amendment of the Constitution of the United States. Or does it? The Tenth Amendment is an important one, especially for those who favor a limited federal government. It says,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
We have already seen that the Congress does not have the power to infringe upon the free practice of religion; the First Amendment says that in no uncertain terms. But unless the Constitution prohibits states from doing so, does the Tenth Amendment mean that states can infringe upon that right? Yes, that is what it would mean…but for the fact that Constitution does prohibit states from doing so. Specifically, in the Fourteenth Amendment. It reads, in part:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Legal scholars call this the incorporation doctrine, and acknowledge that prior to its ratification in July 1868, the Bill of Rights only applied to the federal government. In the 1934 case Hamilton v. Regents of the University of California, the Supreme Court’s decision states, in part, “There need be no attempt to enumerate or comprehensively to define what is included in the ‘liberty’ protected by the due process clause.” In his concurring opinion for that case, Justice Cardozo said, “I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states.”
In the 1940 case Cantwell v. Connecticut, the Supreme Court’s ruling stated, “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.” The decision also states,
The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.
Incompetent here does not mean that the state legislatures do not know how to; it means what that word literally means—that they are not able to. And they are not able to because the Constitution prohibits it. The decision goes to say,
Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. … it safeguards the free exercise of the chosen form of religion.
The Cantwell decision also states that while the freedom to believe is absolute, the freedom to act is not. “Conduct remains subject to regulation for the protection of society,” the decision says. If there is any justification for the government—state or federal—to infringe upon the free exercise of religion, this is where such exceptions would be found. The decision, then, is vital to understanding this entire situation.
Before looking at what the decision says, it is worth noting the details of the case. Newton Cantwell and his two sons, who were Jehovah’s Witnesses, were arrested and charged with violating Connecticut law. The three men had been going house to house, peddling books and tracts and soliciting financial donations. One of the books, entitled Enemies, attacked the Catholic faith—and 90% of the residents in the neighborhood where the Cantwells were arrested were Catholic. The statute the Cantwells were accused of violating read,
No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council.
The Cantwells claimed that their actions were not within the statute because they were only distributing printed material. However, the trial court found that,
in addition to the sale of the books and the distribution of the pamphlets, the defendants were also soliciting contributions or donations of money for an alleged religious cause, and thereby came within the purview of the statute.
That court claimed that it was not the free exercise of their religion that prompted the charges against the Cantwells, but their solicitation of funds. The court also held that the statute was legal, since it was “an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes.”
Now, with that understanding, what the Supreme Court say were justifiable exemptions to the absolute right of religious freedom?
The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee.
If this were the extent of the ruling, it would leave orders banning religious gatherings on tenuous ground. Protecting the health of the public may be a “permissible end,” and since livestreaming and other means of preaching or disseminating religious views are still available, one could argue that banning in-person church gatherings is permitted per the Cantwell decision. That ignores the caveat, though, that such regulations must not “unduly…infringe upon the protected freedom.” One could argue that prohibiting the in-person gathering of religious groups does unduly infringe—especially for adherents to the Bible, which includes the instruction not to give up meeting together (Hebrews 10:25).
This was not, however, the extent of the ruling. It continued,
It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment.
Most of this is not applicable to the current situation, because I am not discussing solicitation or meeting occurring on public streets. The permission given here for “other respects” is confined to safeguarding the “peace, good order, and comfort of the community.” It would have to be successfully argued, then, that prohibiting religious gatherings is a justifiable prohibition for the government to enact and enforce in order to safeguard those things. Church gatherings ted to prompt peace, so that’s out. Good order and comfort could, arguably, apply to the COVID-19 situation, but again, the successful argument that violating the First Amendment is justified has not been made by anyone that I have seen.
The decision later asserts,
Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury.
But the “injury” here is not physical injury or physical health. It refers to the injury of fraud. That is made clear in the decision. And later, the decision states that part of Cantwell’s conviction is to be set aside because the state’s interests did not outweigh Cantwell’s. Specifically,
The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State’s interest … has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.
So, here’s the conclusion of the matter:
When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.
What does all that mean? For the purposes of this discussion, it means that states can only ban religious gatherings of more than ten people if they can prove that allowing such gatherings poses an immediate threat to public safety. To ban them only “under the guise of conserving desirable conditions” is not permissible. It is, in short, unconstitutional. To wit, the Cantwell decision continues,
[T]he people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.
I realize that this is getting quite lengthy, but I want to also point out DeJonge v. Oregon, a 1937 case in which the Supreme Court ruled that the state cannot violate the freedom of assembly even if the what is said at such a meeting violates the freedom of speech by inciting violence.
If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
The decision was, then, that abuses themselves could be dealt with by the state, but the freedom of assembly could not be curtailed. For COVID-19, then, this means that if a church were to engage in activity that would knowingly cause or contribute to the spread of the virus, there may be consequences for that—but that fact that a religious gathering might contribute to the spread of the virus cannot be used to violate the freedom of assembly. Government, put simply, cannot punish people, or curtail their rights, for something that they might do.
Now, what about Ralph Northam’s executive order?
Well, Northam, too, tries to manipulate the CDC recommendations to serve his own ends. His order reads, in part,
Guidance on School Closures from the Centers for Disease Control and Prevention indicates that medium term closures (8-20 weeks) have greater impact on minimizing the spread of COVID-19 than shorter term closures (2-8 weeks).
That is true, but only partially true. First of all, the CDC defines medium-term closure as 4 weeks. A closure of 8-20 weeks is classified as long-term. The CDC’s guidelines for school closure say that closures of 8-20 weeks have a greater impact on stemming spread based on “[m]odeling data for other respiratory infections where children have higher disease impacts….” No doctor anywhere has suggested that children have a high disease impact with COVID-19. Just the opposite, in fact.
Furthermore, the CDC’s guidelines say that long-term closure is likely to increase the amount of student congregating outside of school, which is also problematic, since such gatherings…
Will increase risk to older adults or those with co-morbidities, as almost 40% of US grandparents provide childcare for grandchildren. School closures will likely increase this percentage.
Plenty of other health care organizations and officials have echoed the probability that students are safer going to school than staying home. But I am getting sidetracked, as my primary focus here is the lack of governmental authority to prohibit religious gatherings.
Northam cites Article V, Section 7 of the Constitution of Virginia as the authority for his order, but if you read Article V, Section 7 you will find absolutely nothing even remotely related to Northam’s order. Even a creative reading of the section would leave you stumped trying make a connection. But Northam also cites § 44-146.17 of the Code of Virginia as authority, so what about that?
Well, at least this one has some semblance of relevance, as it deals with emergencies and disasters. And it does seem, at first, to allow Northam to do what he has done, as it reads, in part,
Executive orders, to include those declaring a state of emergency and directing evacuation, shall have the force and effect of law and the violation thereof shall be punishable as a Class 1 misdemeanor in every case where the executive order declares that its violation shall have such force and effect.
Such executive orders declaring a state of emergency may address exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth.
But what else does Virginia law say? The Code of Virginia, in § 32.1-48.05, says,
Upon a determination by the State Health Commissioner that exceptional circumstances exist relating to one or more persons in the Commonwealth who are known to have been exposed to or infected with or reasonably suspected to have been exposed to or infected with a communicable disease of public health threat…the State Health Commissioner may invoke the provisions of this article relating to quarantine and isolation.
But how are quarantine and isolation defined? One need only look to § 32.1-48.06 to find out:
“Isolation” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are infected with or are reasonably suspected to be infected with a communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other uninfected and unexposed individuals.
“Quarantine” means the physical separation, including confinement or restriction of movement, of an individual or individuals who are present within an affected area, as defined herein, or who are known to have been exposed or may reasonably be suspected to have been exposed to a communicable disease of public health threat and who do not yet show signs or symptoms of infection with the communicable disease of public health threat in order to prevent or limit the transmission of the communicable disease of public health threat to other unexposed and uninfected individuals.
Notice that isolation requires infection, or reasonable suspicion of infection, and quarantine requires known or reasonably suspected exposure to the communicable disease or location within an affected area. Northam, like so many others, is declaring his entire state to be an affected area. The code, however, clearly indicates the existence of unexposed and uninfected individuals. The next part of the code says, “Any quarantined persons shall be confined separately from any isolated persons, to the maximum extent practicable.” That does not seem to allow for state-wide quarantining. Furthermore, it says, “Any quarantined or isolated persons shall be immediately released from quarantine or isolation upon a determination by the State Health Commissioner that such quarantined or isolated persons pose no risk of transmitting the communicable disease of public health threat to other persons.” That would mean that even if state-wide quarantining is permissible, the state would be required to test every person in the state in order to determine whether or not they pose a risk of transmitting the disease.
The code goes further. Specifically,
In the case of any person who has been quarantined or isolated in a location other than a medical care facility, the State Health Commissioner shall authorize health care professionals to enter the premises of quarantine or isolation. No person, other than such authorized health care professionals, shall enter the premises of quarantine or isolation, unless authorized by the State Health Commissioner.
If you this section is applied literally, if the entire state is quarantined, no one other than a health care professional is allowed to enter the state, or any area of the state, unless the State Health Commissioner gives authorization for them to do so. I am guessing that the commissioner has not issued 8.5 million such authorizations.
The code also says that anyone in Virginia subject to a quarantine order can appeal it by filing a petition for an appeal and serving it to the State Health Commissioner or his legal representative. Any such appeal is to be heard within 48 hours. Of course, precisely because he does not have the authority to order a state-wide quarantine or isolation, and he no doubt is not interested in dealing with appeals, Northam has not used the words “isolation” or “quarantine” in his executive order.
The Virginia Code includes a great deal about isolation and quarantine. It even includes, in § 32.1-48.017, the authority for the State Health Commissioner to require the use of a public or private building to implement orders of quarantine or isolation. What it does not anywhere include is the authority of the governor or the State Health Commissioner to prohibit the use of public or private buildings for any reason, and certainly not for religious gatherings.
Virginia’s constitution includes a Bill of Rights, and Section 16 deals with religion. That section includes this glorious run-on sentence:
That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion , according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.
By prohibiting public and private gatherings of more than ten people, and not making an exception for religious gatherings, Ralph Northam is violating the Constitution of the Commonwealth of Virginia.
I am by no means the first person to address the questionable constitutionality of so many executive orders stemming from COVID-19, specifically when it comes to banning religious gatherings. But many of the others dealing with this issue are concluding that the states do have the right to ban them. Damon Root, writing for Reason, for example, says that “the Supreme Court has also said that religious liberty does not trump all forms of government regulation, even when the regulation clearly impacts a specific religious practice.” In support of that assertion he cites Justice Scalia’s decision in Employment Division v. Smith (1990). In that decision, Scalia said the use of peyote as part of a Native American church ceremony was not protected in so far as that when its use resulted in a failed drug test the state could still withhold public benefits from the individuals who failed the tests. In his decision, Scalia wrote, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” That is exactly the point, though; the state is not free to regulate religion or the free exercise of religion. Root suggests that because the bans on mass gatherings apply across the board and not only to religious gatherings, “they would therefore likely pass muster under Employment Division v. Smith.” I disagree wholeheartedly, and I feel rather confident that Justice Scalia would too if he were still here for us to ask him.
David French, writing for The Dispatch, says that the “underlying statutory structure is complex and varied at the federal, state, and local levels, but the relevant constitutional principles are relatively simple, they make sense, and they’ve been understood and applied since the nation’s founding to safeguard public health.” States, French says,
possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.
Ahem. I believe we have clearly established that there is a specific limitation. It is in the First Amendment, extended to the states in the Fourteenth Amendment, and it exists in state constitutions.
French also asserts that “the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact ‘quarantine laws’ and ‘health laws of every description.’” That is true, but is taken out of context. That 1824 case dealt with the regulation of navigation and commerce and the differentiation of state and federal powers when it comes to such regulation. “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress,” the decision says. The entire focus of the case deals with competing steamboat licenses possessed by Ogden and
Gibbons, one granted by New York and the other granted by Congress. The case is important both for confirming congressional authority over interstate commerce and for confirming that federal law trumps state law. But if we could get Chief Justice John Marshall’s opinion I am quite confident that he would say that nothing in his opinion was intended to relate in any way to the COVID-19 fiasco.
French also quotes Jay Cost of the American Enterprise Institute, who tweeted that “a state legislature has ‘the sovereign power to make you go home if you are a menace to “public health.”’” I agree with that, but it would necessitate confirming that someone is indeed a menace to public health. French, too, quotes Employment Division v. Smith and says that the executive orders would not violate the neutral law of general applicability since they limit gatherings not only in churches but also in restaurants, bars, theaters, etc. In fact, French goes so far as to state that
Even laws that directly curtail First Amendment freedoms will be upheld if they can pass a legal test called “strict scrutiny,” which requires the government to demonstrate that its actions advance a compelling governmental interest and are enacted through the least restrictive legal means.
This is where differences of opinion and legal interpretation come into play. French says churches get no special treatment or consideration because the ban on gatherings is neutral. I say the ban on gatherings is itself a violation, but that churches are entitled to special consideration because the freedom of religion is so sacrosanct. French says the orders would pass any test questioning whether or not the least restrictive means were utilized. I disagree. According to French,
At present, that test would be easy to pass. There is unquestionably a compelling governmental interest in protecting the public from COVID-19, a communicable disease far deadlier than the flu. Because it is so easily transmitted through person-to-person contact, it’s easy to argue that even broad bans on public gatherings are among the least restrictive means of advancing the government’s interest.
Again, I disagree. To say that such an argument could be made so easily is to ignore the fact that some states, and other countries, have not implemented such draconian measures, to say nothing of the fact that they are not even consistent with the recommendations of the CDC.
John Inazu, a professor of law and religion at Washington University, wrote an article on this subject in The Atlantic. In it, he writes,
Let’s assume for the sake of argument that a church challenging a shutdown order would receive the highest level of legal protection, a test referred to by courts as “strict scrutiny.” Under this test, the government would need to articulate a compelling interest, and its directive would need to be narrowly tailored and executed in the least restrictive means toward accomplishing its interest. That’s a very high standard, and one that is not usually satisfied. But the government is likely to meet it here. The widespread protection of human life is clearly a compelling government interest, and in the specific circumstances of this crisis, given what we know now of the virus, a shutdown order, especially one aimed at gatherings over a certain size, is both narrowly tailored and the least restrictive means.
You will not be surprised to learn that I disagree. First, a shutdown order prohibiting gatherings over ten people is not narrowly tailored. Second, if the protection of human life is a “clearly a compelling government interest” that justifies shut down orders, then any and every state government should be allowed to shut down abortion providers permanently. Instead, we have Ralph Northam calling them essential. The Atlantic tends to be incredibly liberal, but Inazu’s article is thoughtful and reasonable. I just do not agree with his conclusion.
I do not think that the ban on religious gatherings is the only unconstitutional thing happening right now, but I have chosen to keep that my focus here. Churches should absolutely consider not having in-person services during this time, and churches should consider guidelines from government and health professionals. But the government cannot force churches not to meet. If we make exceptions now, for this crisis, we will putting ourselves into a precarious position from which we may never recover.
Gretchen Whitmer, the governor of Michigan, issued Executive Order 2020-21, instituting a “Temporary requirement to suspend activities that are not necessary to sustain or protect life.” Part of that order stated that, outside of exceptions given, “all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.” It is effective from March 24 to April 13 and “a willful violation of this order is a misdemeanor.” However, her order includes an exception:
Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 14.
In an appearance today on FOX News Sunday, Gov. Whitmer said, “That’s an area we don’t have the ability to directly enforce or control.” Michigan’s Speaker of the House, Lee Chatfield, said on Facebook,
People have a God-given right to assemble and worship, and that right is secured by both the United States and Michigan Constitution. While I do not think that that right can be taken away by an Executive Order, I believe that as Christians we also have a duty to love our fellow man and play our role within society. My recommendation is to find ways that you can abide within the order to the best of your ability.
Whitmer and Chatfield have it right. Michigan is not the only state that has it right, but there are far more that do not than there are that do. If you live in the United States, check carefully the orders being issued by your governor. I am no fan of Andrew Cuomo, governor of New York, but I do admire him for saying, on March 26, regarding the shut down in New York,
If you rethought that or had time to analyze that public health strategy, I don’t know that you would say quarantine everyone. I don’t even know that that was the best public health policy. Young people then quarantined with older people was probably not the best public health strategy because the younger people could have been exposing the older people to an infection.
That’s an admission we seldom hear from elected officials. The COVID-19 virus is real. Common sense, appropriate precautions should be taken.
These decrees — issued by those who have no legal authority to issue them, enforced by cops who hate what they are being made to do, destructive of the freedoms that our forbearers shed oceans of blood to preserve and crushing economic prosperity by violating the laws of supply and demand — should all be rejected by an outraged populace, and challenged in court.
I want to talk about fear. To be transparent, this is absolutely a response to the Coronavirus situation that is currently facing the world, but this is not going to be a political commentary, it is not going to be my thoughts on the news media or the medical professionals or the politicians… It is not going to be a rant. I assure you that I have plenty of thoughts on all of that, and maybe I will share them later, by not now.
But I have to say that over the past 36 hours or so in particular, I have been thinking a lot about this situation and specifically about the responses to the situation that we are seeing. It seems that every time we turn on the news or browse our social media we are hit with new stories of closing and cancellations and quarantines. Of toiler paper shortages. Or, as the New York Times reported yesterday, of the man in Tennessee who, with his brother, amassed over 17,000 bottles of hand sanitizer over the past two weeks so that he could sell them for a huge profit in the midst of this health scare.
And, I have to be honest with you, a lot of what is going on has made me angry. I want to offer you some biblical insight into why Christians are not to allow themselves to become paralyzed or overwhelmed by fear.
We are going to look at several passages and consider several principles, but I want to begin in 2 Chronicles 20.
In chapter 19, we see that Jehoshaphat instituted a number of reforms, including civil and religious. Then chapter 20 begins with, “After this…”
After this the Moabites and Ammonites, and with them some of the Meunites, came against Jehoshaphat for battle. Some men came and told Jehoshaphat, “A great multitude is coming against you from Edom, from beyond the sea; and, behold, they are in Hazazon-tamar” (that is, Engedi).
So, we see that there are a number of armies coming against Jehoshaphat and the Israelites, and they are getting close. Engedi was about 36 miles from Jerusalem.
Verse 3 says, Then Jehoshaphat was afraid and set his face to seek the Lord, and proclaimed a fast throughout all Judah.
Jehoshaphat was afraid. This is an absolute fear.
This is the same Hebrew word used in Nehemiah 2:2. King Artaxerxes sees that Nehemiah is sad and asks him why he has such a sad face—and Nehemiah was, it says, “overwhelmed with fear.”
This is the same Hebrew word used in 1 Samuel 28:5. Saul sees the Philistine army gathered together and camped in opposition to him, and Saul, it says, “was afraid, and his heart trembled greatly.” The NIV says “terror filled his heart.”
This is the same Hebrew word that is used in Jonah 1. Jonah is fleeing from the Lord, he has boarded a ship for Tarshish and God sends a violent storm—so violent that the experienced sailors on board the ship are terrified.
So, you get the idea… When it says that Jehoshaphat was afraid, he is not just concerned. He is not just alarmed. He is not apprehensive. He is panic-stricken. He is distressed. He is scared half to death, to borrow the colloquialism.
Here is where we would expect to see something sudden and dramatic happen. Alarms are sounding, troops are being rallied, defenses and being engaged, windows are being shuttered… A frantic frenzy of activity breaks out in response. Right?
What does it say? “Then Jehoshaphat was afraid and set his face to seek the Lord.” The New American Standard reads, “Jehoshaphat was afraid and turned his attention to seek the Lord.” I actually love the Contemporary English Version’s rendering. It says, “Jehoshaphat was afraid, so he asked the Lord what to do.”
How often, for you and me, is this actually the last thing we do? We try to problem solve, we ask other people for advice or help, we panic, we get stressed, we lose sleep, we lose weight—or we gain weight, depending on how we handle fear—and then, when nothing else works and we don’t know what else to do, we think, “maybe I should pray.”
Listen to what Oswald Chambers said: “We tend to use prayer as a last resort, but God wants it to be our first line of defense. We pray when there’s nothing else we can do, but God wants us to pray before we do anything at all.”
And that was exactly what Jehoshaphat did. I encourage you to read the rest of 2 Chronicles 20, at least through verse 17.
Now, someone might be thinking, “that was a visible, human army and this is an invisible virus.” That’s true. But the principles are the same. We are not to fear. The command “do not fear” is found repeatedly in Scripture. And there are some very good reasons why we are not to fear. But we will get to those in a minute.
I want you to consider this definition or description of fear from Kay Tye, a neuroscientist. This answer was published in Scientific American last summer as part of an article interviewing various scientists about fear. Dr. Tye said,
Fear is an intensely negative internal state. It conducts orchestration of coordinated functions serving to arouse our peak performance for avoidance, escape or confrontation. Fear resembles a dictator that makes all other brain processes (from cognition to breathing) its slave.
Did you catch that? “Fear resembles a dictator that makes all other brain processes its slave.”
This is one of the reasons, maybe the biggest reason, why God commands us not to fear. When we do fear—or, maybe to be more specific, when we fear and do anything other than go to him as our response—we are taking our focus off of God and allowing our focus to be shifted to, and dominated by—enslaved by, to use Dr. Tye’s words—something else. For most of us it will likely not be an actual army like it was for Jehoshaphat. But it can be so many other things. It can be the Coronavirus, it can be finances, it can be school, it can be our job, or our marriage, or our parents, or or or…
I have no idea if Dr. Tye is a Christian or not, but what she says in that article echoes what the Bible says about why our thinking is so important. I love the fact that Ravi Zacharias’s radio program is called “Let my people think.” Christians need to think! We need to use our minds and to think carefully and intentionally and having been informed by truth!
It is no accident that Romans 12:2 says, “Do not be conformed to this world, but be transformed by the renewal of your mind…” If we are not going to allow the world to press us into its mold, we must have minds that are renewed. We have to let God change the way we think, in other words—and that necessarily means changing what we focus on!
I grew up playing baseball. I loved playing it, and then, when I got older, I played on multiple church softball teams and loved that too. But if I had to guess, I would say that there were six words I heard more than any others throughout my years playing baseball: “Keep your eye on the ball.” When you’re in the batter’s box and the pitcher is staring into the catcher’s mitt, wanting nothing more than to blow a strike by you, you have to have laser-like focus on that baseball. You don’t get long to decide to swing or not swing—or, sometimes, to get out of the way! You cannot be thinking about anything else, you cannot be distracted by anything else, you cannot be kinda thinking about it… it has to be your sole focus.
That is why Paul not only wrote that we are to be transformed by the renewing of our minds, but he wrote in 2 Corinthians 10:5 that we are to “bring every thought into captivity to the obedience of Christ.” Did you catch that? Every thought! Why? Because what we think about very much shapes our lives.
Several years ago, Pastor Jonathan Parnell wrote,
Fear is like the monster under my kids’ beds — its power is fueled not by what’s really there, but by what might be, what we imagine could be. Fear is a hollow darkness in the future that reaches back through time to rob our joy now by belittling the sovereign goodness of God.
The might bes and could bes are driving an awful lot of what is going on in our country right now. Am I saying that we should be cavalier about all of this? Of course not. But we cannot allow ourselves to be overwhelmed by, or even distracted by, fear!
Let me tell you why…
God is with us and God will help us. Look at Isaiah 41…
Verse 10 – “Fear not, for I am with you; be not dismayed, for I am your God; I will strengthen you, I will help you, I will uphold you with my righteous right hand.”
Verse 13 – “For I, the LORD your God, hold your right hand; it is I who say to you, ‘Fear not, I am the one who helps you.'”
So, one reason we must not fear is that it distracts us—it takes our focus off of God. And that leads to the second reason, that has been resonating so much with me over the past 36 hours. When we take our focus off of God, and we are controlled by fear, we become absurdly susceptible to those who claim to have the solution.
According to Thucydides, the people of Athens included fear along with honor and interest as the three strongest motives for action. When we are afraid, and not focused on God, we think we have to do something! That’s the only explanation for the otherwise inexplicable fact that people are currently stockpiling toilet paper, for example.
Barry Glassner, in his book The Culture of Fear, says, “we are living in the most fearmongering time in human history. And the main reason for this is that there’s a lot of power and money available to individuals and organizations who can perpetuate these fears.”
What does that mean? If enough people are afraid of something, or multiple somethings, they will gladly give money and confidence and even obedience to those who claim to be able to resolve their fears. Back in 2005, Robert Higgs suggested that fear is the bedrock of every human government. “Without popular fear, no government could endure more than twenty-four hours,” he wrote. Now we may be able to debate that, but the underlying thesis there is that same notion that people will voluntarily submit themselves to someone or something that claims to be able to resolve their fears.
And I want to tell you, as I have watched what is happening in our country over the past week or so especially, I am seeing, for the first time in my life, how some of the things that we see in history could have come about. The fear that exists, and the willingness to go along with whatever, is troubling. Even more troubling perhaps is the unwillingness to stand up and stand out. We are seeing, played out before us, a massive example of peer pressure. You might think I am going to the extreme here, but I now see firsthand how Nazi Germany happened. Now don’t get me wrong, we are no where near that level, but Hitler was able to capitalize on fears and anxieties to enact his policies and very quickly it was so overwhelming and widespread that very few people were willing to stand up and say, “Wait a minute, what are we doing?”
And again, I am absolutely not saying that this is where we are now, but I believe that this is how the Antichrist will come to power. The fear and chaos and danger that is present will be the door to his authority. By appearing to have the solutions, he will gain the trust, the worship and the obedience of the world. Read Revelation 13 in particular.
The Old Testament account of the Israelites shows us just how quickly, and how stupidly, humans will turn to just about anything for answers. Think about Exodus 32… Moses has not come down from the mountain yet and the Israelites are impatient and they convince Aaron to make them a god… Exodus 32:1 says, “Come, make us gods who will go before us….” In other words, “make us gods who will lead us.” We are so impatient, we are so anxious, we are so afraid of being stuck out here in the middle of nowhere, we will follow whatever you make for us… Stupid!
So, we are not to fear, but we are to trust in God. Yes, be wise. Yes, take precautions. Yes, use common sense. But do not fear. In closing, consider the words of Jon Bloom:
This bold, happy confidence in God is not only an expression of trusting love in him; it also makes us feel lovingly expansive and encouraging toward others because we’re filled with hope in God. We can’t help but want to comfort and encourage others with the comfort and courage we have received from God (2 Corinthians 1:3–4). God is commanding us to love him, love others, and be happy.
Super Tuesday did not go so well for Michael Bloomberg and today he, too, dropped out. The DNC plan to have Joe Biden win the nomination went quite well yesterday and though Bernie Sanders still won several states and is, for all intents and purposes, tied with Joe Biden in the delegate count right now, the race is not over. There are four candidates remaining, though you would be hard pressed to know that from the limitations one of them is facing. Tulsi Gabbard, congresswoman from Hawaii, has not given up her quest for the Democratic nomination—and frankly, I doubt she will anytime soon.
If you are thinking, “Who is Tulsi Gabbard?” you are not alone. In fact, according to a businessinsider.com article on February 28, only 44% of likely Democratic voters have heard of Gabbard. Until last night, when she was included in the reporting only because there were so few candidates remaining, she had received scant attention from the major news networks and opposition from her own party. But last night she was included. In fact, Donna Brazile was trying so hard to make the point that the DNC is not favoring any candidate that she insisted on FOX News that Karl Rove list Gabbard and her one delegate from American Samoa on his little dry erase board. That little exchange was dually noteworthy since Karl Rove had said, earlier in the day, that Elizabeth Warren was the only woman left in the race. But Gabbard is very much a woman and very much still running. In fact, she later took to Twitter to address the swipe, posting, “I’m not quite sure why you’re telling FOX viewers that Elizabeth Warren is the last female candidate in the Dem primary. Is it because you believe a fake indigenous woman of color is ‘real’ and the real indigenous woman of color in this race is fake?” (That was a dig at Rove and FOX but also at Warren, who famously, and erroneously, claimed to be Native American).
Earlier this week, in The New Yorker, Andy Borowitz wrote a satirical piece that began this way: “Representative Tulsi Gabbard (D-Hawaii) is under intense pressure to drop out of the 2020 race for the Democratic Presidential nomination, her nine supporters announced on Monday. The announcement from Gabbard’s nine followers surprised many Democrats, who had been unaware that the Hawaii congresswoman was still running.”
Of course satire only works when it has an element of truth, and it seems that even many of those who are aware that Gabbard is running are simply choosing to ignore her. Consider, for example, Andy Kroll’s March 2 piece for Rolling Stone, entitled “Operation Bernie Block Is in Full Effect.” It said:
The Democratic field is now down to five candidates: Biden, Sen. Bernie Sanders, Sen. Elizabeth Warren, Mike Bloomberg, and Rep. Tulsi Gabbard. One way to organize the field is into two camps: the progressive flank (Sanders and Warren) and the moderate establishment flank (Biden and Bloomberg). Going into Super Tuesday, there is a leader and secondary figure in each flank — Sanders for the progressives and Biden for the moderates.
Did you notice that? Kroll acknowledged that Gabbard is still a candidate and then immediately discarded her. She was not included anywhere in the rest of the article.
I should point out here that I am not a Tulsi Gabbard supporter. I have admired a number of things about her over the past few months but I am not aware of a single political issue that we agree on, so I certainly would not vote for her. But a considerable part of my interest in Gabbard has been how completely and obviously she has been shut out by the Democratic party. On paper, Gabbard checks every box one would think the DNC would love to have in a candidate. Specifically:
She is a combat veteran. She deployed, voluntarily, twice—to Iraq and to Kuwait—becoming the first state official to voluntarily step down from public office to serve in a war zone. She currently holds the rank of Major in the Hawaii Army National Guard.
She is the first Hindu to serve in the U.S. House of Representatives.
She is the first-ever voting member of Congress who is Samoan-American.
She is young – only 38.
She is, obviously, female.
In addition to all of that, she holds views consistent with the Democratic party in just about every area. She is a combat veteran who opposes war. She favors increasing the federal minimum wage to $15/hour (and even a universal minimum income). She wants to abolish the death penalty and do away with private prisons. She thinks college should be free and existing debt-relief plans for student loans should be fixed and expanded. She supports universal background checks and banning assault weapons. She favors Medicare for All and opposes restrictions on abortion. She wants to legalize marijuana.
So, what’s not to like?
Well, Gabbard is a rebel. Just over four years ago she resigned her position as vice-chair of the DNC in order to endorse Bernie Sanders for president. She gave the nominating speech putting his nae forward at the Democratic National Convention. She openly criticized the DNC’s handling of the 2016 election and accused it of rigging the election so that Hillary Clinton would be the 2016 nominee. In November 2017 she said, “The DNC secretly chose their nominee over a year before the primary elections even occurred.” She said the DNC and federal campaign finance laws need to be overhauled.
Earlier in 2017 Gabbard faced considerable backlash after she revealed that she had met with Bashar al-Assad while she was on a fact-finding visit to Syria, though she said she had no intention of meeting with him when she originally planned the trip.
Last summer, in one of the debates she has actually been allowed to participate in, Gabbard harshly criticized Senator Kamala Harris, at that time considered one of the leading Democratic candidates, for her work as a prosecutor in California. Matt Taibbi then wrote in Rolling Stone, “Having wounded a presumptive frontrunner [Harris] backed by nearly $25 million in campaign funds, Gabbard instantly became the subject of a slew of negative leaks, tweets, and press reports.”
In December, Gabbard voted “present” on both articles of impeachment against President Trump. Gabbard said that she had reviewed the 658-page impeachment report and decided that she could not vote against impeachment because she thought that Trump was “guilty of wrongdoing” but that she also could not vote for impeachment “because removal of a sitting President must not be the culmination of a partisan process, fueled by tribal animosities that have so gravely divided our country.” In other words, Gabbard accused her own party of a politically-motivated impeachment.
In January 2020 Gabbard filed a lawsuit against Hillary Clinton for defamation. Clinton had referred to Gabbard as “a favorite of the Russians” and even a “Russian asset”—and Gabbard alleges that Clinton made that allegation as “retribution” for her backing of Sanders in 2016 and that Clinton “holds a special hatred and animosity” for Gabbard. Gabbard is suing for $50 million. She is not backing down from the suit, either; according to a February 12 interview with Maria Bartiromo, Gabbard says the first court date has been set.
Then, in February, after Trump had been acquitted on both counts of impeachment, Gabbard said that Trump was acting within his prerogative when he decided to fire Lieutenant Colonel Alexander Vindman, who had testified against him during the impeachment hearings, from his position with the National Security Council. That, of course, rubbed many Democrats the wrong way. Joe Biden, for example, said that Vindman deserved to be awarded the Presidential Medal of Freedom.
I do not know that Tulsi Gabbard is likely to win many more delegates than the one she picked up last night from American Samoa. And her continuation in the race will continue to bring criticism from those that choose to acknowledge it at all. (Anderson Cooper and others have suggested that she is auditioning for a place on FOX News). She might find herself gaining considerably more support from those who dislike their choice between the 77-year-old Joe Biden and the 78-year-old Bernie Sanders. Gabbard is, after all, literally half their age. Even setting age aside, some might not like the choice between “socialism and senility” as Marc Thiessen put it last night. But the only way Gabbard has any chance of gaining much support is if the DNC actually lets her participate in debates. She has been excluded from the last five—and took considerable umbrage to the fact that the DNC changed its qualifying rules to allow Michael Bloomberg to participate in the last two—but she does, at the moment, qualify for the next debate, scheduled for Sunday, March 15. In order to be a part of the last Democratic debate, candidates had to have one or more of the following: at least 12 percent support in two DNC-approved South Carolina polls, at least 10 percent support in four DNC-approved national polls, or at least one delegate from any contest that had been held so far. With her delegate from American Samoa, Gabbard now qualifies. But remember, I said at the moment. That’s because Xochitl Hinojosa, the communications director for the Democratic National Committee, already tweeted that the qualifying threshold “will go up” before that debate. And if it does, Gabbard will be left out again.
I have been paying attention to presidential elections since 1988. I know that is not all that long compared to some who may be reading this, but it is long enough for it to mean something when I say I do not think I have ever seen anything like what has happened among the Democratic candidates for president over the past few days.
Last Saturday, Nevada held its caucus. Bernie Sanders won, with nearly half of the vote. The remaining half went to Joe Biden (20%), Pete Buttigieg (14.3%), Elizabeth Warren (9.7%), Tom Steyer (4.7%) and Amy Klobuchar (4.2%). Sanders essentially tied Buttigieg in the first caucuses, held in Iowa on February 3, with only 0.1% separating them. Following them were Warren (18%), Biden (15.5%) and Klobuchar (12.3%). About a week later Sanders and Buttigieg switched places in New Hampshire, with Sanders winning with 1.3% more of the vote than Buttigieg received. But there Amy Klobuchar finished third. A strong third, with 19.8%. After her it was Warren (9.2%), Biden (8.4%), Steyer (3.6%) and Tulsi Gabbard (3.3%). At that point it was clear that Bernie Sanders was a force to be reckoned with, that Pete Buttigieg had managed to drum up more support than most anyone would have thought possible when the crowded Democratic field was taking shape…and that Joe Biden was in trouble. Ahead of the New Hampshire vote, USA Today said, “the former vice president is battling for his political future in a state that has a history of determining who the nominee will be.” Biden had told a gathering in New Hampshire, “Excuse my language, but I’ll be damned if I stand by and watch us lose this country to Donald Trump a second time.” And then he went on to finish fifth. Of course, it did not help Biden any that when a young woman asked him about his unimpressive finish in Iowa, and said in response to Biden’s question that she had been to a caucus, Biden called her a “lying dog-faced pony soldier” in a Q and A that then went viral. The USA Today article also quoted Quinnipiac University Poll analyst Tim Malloy as saying that Iowa had hurt Biden’s perception of electability, which was what many had considered his biggest asset.
So, what happened after New Hampshire? Nevada had its caucus eleven days after New Hampshire’s primary and then, on February 29, South Carolina held its primary. Note that in the first three contests Biden had finished fourth, fifth and second, with his 20% second-place finish in Nevada his best showing of the three. Many called South Carolina a must-win for Biden, and no doubt it was. He touted the fact that he had “worked like the devil” to win the state and his popularity among African American voters figured to be a factor in the outcome. In the South Carolina Democratic debate, though, the tenth one of the campaign season already, Biden did not acquit himself all that well. CNN said that Biden “turned his outrage meter WAY up” in the debate and made some points, but also observed, “Biden is still not a terribly good debater, however. He repeatedly stumbled as he tried to make his points.” Not only is not a terribly good debater, he looked old and weary during the debate. All of that pales, though, when considering that Biden also asserted that “150 million people have been killed since 2007 when Bernie [Sanders] voted to exempt the gun manufacturers from liability, more than all the wars, including Vietnam from that point on.” Jeffery Martin was being polite when he wrote for Newsweek that Biden had “misquoted statistics” about gun violence. Biden did not misquote—he seemingly made them up. According to the Center for American Progress, the number of gun deaths from 2007 to 2017, whether violent or accidental, was 373,663. In other words, Vandana Rambaran was not as kind but was much more accurate when she wrote on FOXNews.com that Biden had “grossly overstated the numbers.”
What about the others in the debate? Pete Buttigieg was “at his absolute best” CNN said, and Amy Klobuchar “did more with fewer opportunities than almost any other candidate on stage.” Elizabeth Warren was “totally fine” CNN claimed, though it also acknowledged that that was likely to make much difference for her. Michael Bloomberg was participating in his second debate. It would have been tough for him to do worse than he did in his first, so when CNN said that he “was better in this debate than in the last one” it could not help but quickly follow up with “but he wasn’t good.” When even CNN points out that Bloomberg “committed a near-Freudian slip early in the debate when he started to say he ‘bought’ a Democratic House majority before re-calibrating…” you know it wasn’t a good night for him.
That debate was held on February 25. The day before, Biden spoke at a Democratic Party dinner in South Carolina and said, during his comments, “My name’s Joe Biden. I’m a Democratic candidate for the United States Senate.” Yikes. Biden left the Senate twelve years ago. So common have such Biden blunders become that Ken Pittman, who hosts a radio show in Massachusetts, wrote, “I’ve tried to give him the benefit of the doubt, but it is now time to consider whether or not former Vice President Biden is showing early signs of senility, dementia, Alzheimer’s or some other affliction of one’s mental capacity and predominantly in our senior citizens.” I couldn’t agree more.
Still, on March 29, Joe Biden did something he had never done before, despite this being his third presidential run. He won a primary. He did what Sanders had done in Nevada, winning nearly half of the vote (48.4%) and Sanders did what Biden had done in Nevada, coming in second with about 20%. Tom Steyer had his best showing yet, with 11.3% and a third place finish, followed by Buttigieg (8.2%), Warren (7.1%), Klobuchar (3.2%) and Gabbard (1.3%). (It should be noted that Gabbard has not qualified for the last several Democratic debates).
This is when the craziness began. Tom Steyer “suspended his campaign” (which is political speak for “dropped out”). He had achieved, by far, his best performance, but he decided it was not good enough. “I said if I didn’t see a path to winning, that I’d suspend my campaign. And honestly, I can’t see a path where I can win the presidency,” he said. He had banked on South Carolina, too, having spent more time and money there than anyone else. And, despite his third place finish, he received no delegates from South Carolina, leaving him still sitting on zero after the first four contests.
On Sunday, March 1, Pete Buttigieg dropped out. That morning he went on “Meet the Press” and indicated that he was staying in the race, saying, “every day we’re in this campaign is a day that we’ve reached the conclusion that pushing forward is the best thing that we can do for the country and for the party.” Suddenly, that evening, he had changed his mind. Buttigieg went back to South Bend, Indiana, and announced that he was finished. Elena Schneider wrote on Politico.com that the result of his decision was “opening up a wider path for former Vice President Joe Biden to become the moderate alternative to Bernie Sanders.”
Monday it was Amy Klobuchar’s turn. Despite the fact that her home state of Minnesota will vote today, Super Tuesday, Klobuchar called it quits. And what did Elena Schneider say of that decision? It “pav[es] the way for Biden to capture a greater share of moderate Democratic votes against Bernie Sanders.” I assume you are noticing a theme here….
Tom Steyer had no delegates, and because of the way the system works it is not likely he was going to gain any…at least not anytime soon. But Buttigieg had 26 delegates and Klobuchar had 7. Sure, those are small numbers, but remember…it’s still early! Right now Sanders has 60 and Biden has 54. Today is what will make a significant impact, as Super Tuesday awards over 1,300 delegates. So why drop out days—or, in Klobuchar’s case, a day—before Super Tuesday? How much money would one really have to spend, after all, to see how it went for another day or two? Well, the Democrats just are not willing to risk it, and for two reasons.
The first reason is Bernie Sanders. Andy Kroll wrote an article for Rolling Stone headlined, “Operation Bernie Block Is in Full Effect.” Indeed it is. “That sound you hear is the collective exhale of the Democratic establishment after Joe Biden’s landslide victory in South Carolina,” Kroll began.
Biden’s victory unleashed a flood of endorsements by party fixtures and card-carrying members of the old guard — former Virginia governor and DNC chairman Terry McAuliffe, former DNC chairwoman Rep. Debbie Wasserman Schultz of Florida, former Sen. Barbara Boxer of California, along with dozens of mayors, state legislators, and sitting members of Congress. The New York Times reported Monday night that former Texas Congressman Beto O’Rourke would also endorse Biden less than 24 hours before voting began in the Texas primary.
Beto O’Rourke? He dropped out as a presidential candidate himself back in November. His campaign slogan was Beto For America, Beto For All, but he made it quite clear that it was really Beto for people who think like Beto…and that included commitment to policies such as the confiscation of guns and the elimination of tax-exempt status for any church or school that opposes same-sex marriage. In other words, you know you’re desperate—especially if you paint yourself as a moderate, which Biden usually does—if you are asking Beto for help.
The second reason is Michael Bloomberg. Bloomberg formally entered the race not too long after Beto O’Rourke dropped out, but he then decided to skip the first four states and pour all of his attention, and his considerable personal wealth, into Super Tuesday. The DNC manipulated its debate rules to let Bloomberg into the last two debates, but that’s only part of their Beat Bernie strategy. At this point, though, the fear is that if Steyer, Buttigieg and Klobuchar had remained in the race, and picked up some of those 1,300+ delegates at stake today, the race would drag on and even possibly run the risk of producing a contested convention. There hasn’t really been a contested convention since the Republican Convention in 1976 when Ronald Reagan almost swiped the nomination from Gerald Ford. But if a contested convention really did occur Bloomberg might find himself getting some traction. He even went so far today as to admit that that’s exactly what he needs. According to the AP, he told reporters today in Miami, “It’s the only way I can win.” Bloomberg says he is the only candidate that can beat Donald Trump, but show me a candidate who hasn’t said the same thing about themselves. The Democrats do not really want Bloomberg, either. In many ways he would be another Donald Trump. He brings plenty of his own baggage, and he has a knack for inserting his foot in his mouth, too. See the above reference to buying congressional seats, for one, and his recently resurfaced assertion that farming is so easy that he could teach anyone to do it for one of plenty of others.
The bottom line is simply this: the Democratic National Committee is absolutely determined to run the candidate it wants, and it doesn’t want Bernie Sanders. Not that it should, mind you. He is a committed socialist and he has gone so far recently as to praise Fidel Castro. But that is no excuse for manipulating the process. Sure, right now there can be no definitive proof of manipulation. Steyer, Buttigieg and Klobuchar really might have all decided to drop out over the last three days. Of course, the Astros might have just been banging out a rally rhythm on their dugout trash can, too. But there is a reason that people are skeptical of someone overly objecting to something, and when it comes to Donna Brazile’s comments earlier today on FOX News, Shakespeare’s line, “the lady doth protest too much, methinks,” could not be more fitting. Sandra Smith asked Brazile about RNC’s chairwoman Ronna Romney McDaniel suggesting that a brokered, or contested, convention is looming and that the DNC would manipulate it to make sure Bernie Sanders is not the candidate. Brazile started her response by attacking the Republicans for canceling primaries (there is really no one opposing Donald Trump for the nomination) and then brought in the Russians before finally shouting, “Ronna, go to hell! This is not about — No, go to hell! I’m tired of it!” McDaniel saw through the smokescreen, too, tweeting, “It’s ok, @donnabrazile, I’d be having a bad day too if my party was still hopelessly divided. Talk of a brokered convention and the DNC trying to stop Bernie obviously hit a little close to home.”
Yes, it did. We’ll have to see what the DNC has up its sleeve after today’s results come in. Who knows, they might even have to let Tulsi Gabbard back on the debate stage!
There simply are not enough hours in the day to address every foolish thing you see posted on social media, but there are some things that I just cannot let go. In the words of Christian comedian Ken Davis, “You can’t let people fall in the stupid pit” without out at least trying to help them. The push for an increased minimum wage is one of those things that I have to address. Lately, it has gotten even worse. Ever since it passed in Seattle, the magic number for many proponents of a minimum wage increase seems to be $15 an hour. According to the Washington Post’s questionnaires sent to Democratic candidates for president, all eight candidates still in the race favor an increase in the federal minimum wage to $15 an hour. (That includes Tulsi Gabbard, despite her exclusion from the debates and the DNC doing its best to shut her out. Of course, Gabbard is also the only one still in the race to favor a universal basic income, an idea most prominently supported by former candidate Andrew Yang). Tom Steyer actually favors a minimum wage of $22/hour.
Sure, a $15/hour minimum wage sounds like a great idea. But in reality it is no better than just printing more money. Does an increased minimum wage put more money in the hands of the people? Yes. Will they spend it? Yes, they will have to, because prices will go up.
Let’s use fast food restaurant employees as an example. The web site fightfor15.org features this statement on its homepage: “McDonald’s: Fast-food workers deserve $15 an hour and a union so we can pay our rent and support our families. Agree? Add your name now.”
If McDonald’s workers get a pay increase to $15 an hour, what will that do? Well, my understanding is that McDonald’s franchises employ about 750,000 people in the U.S. and that there about 14,150 McDonald’s restaurants in the U.S. That works out to an average of 53 workers per McDonald’s. Let’s narrow it down even more and look specifically at McDonald’s workers in Illinois, since Illinois has passed a law increasing their minimum wage. There are about 650 McDonald’s in Illinois. That would equate to 34,450 McDonald’s workers if we use the average. Let’s suppose only 60% of them are earning minimum wage, though I imagine that is exceedingly low. That would be more than 20,000 people just at McDonald’s restaurants earning minimum wage, and in Illinois this year the minimum wage went up by $1.00 per hour in January and will go up by another 75 cents per hour in July.
So, imagine 20,000 workers working, for the purposes of this illustration, 20 hours per week, and, come July, making $1.75 per hour more than they were in July 2019. That equates to $700,000 per week in wages that have to be paid by Illinois McDonald’s, or more than $36 million over the course of a year. Are the various owners of McDonald’s restaurants on Illinois going to collectively eat that increase (pun intended)? Of course not. They will raise prices. And every industry that has minimum wage workers will raise prices. So, costs will go up and that nice minimum wage increase will be negated. Various studies project that the cost of a Big Mac would increase by 4.3% if McDonald’s workers were paid $15 an hour. The rate of inflation in the U.S. hasn’t been that high since 1990. And that’s just a Big Mac!
In Seattle, where the $15/hour minimum wage push all began, housing values have increased by an average of 5.49% annually since 2000. The median rent for a two-bedroom apartment in Seattle is more than $1,600 a month–about $500 per month higher than the national median. The median for a one-bedroom in Seattle is $1,332 a month. The recommended food spending per month for a Seattle resident is 23% above the national average. The cost of a dozen eggs in Seattle is 68 cents above the national average. On average, the price of gas in Seattle is the highest for all major cities in Washington. Oh, and Seattle also has a sales tax of 10.1%! True, Washington has no state income tax, but I doubt you’ll notice any benefit by the time you absorb all those other high rates.
The minimum wage is not necessarily beneficial. When the first minimum wage in America was implemented in 1938 it was twenty-five cents an hour. Had it been increased at the rate of inflation, it would be somewhere between $4.50 and $4.80 an hour today. Instead, it is $7.25 an hour, more than 50% higher than it should be if it was only intended to keep pace with inflation.
When the minimum wage was implemented it was one part of a sweeping piece of legislation, the Fair Labor Standards Act, designed to address a number of Depression-era workforce issues. Other elements of the law addressed overtime pay and child labor. According to the Legal Information Institute of Cornell Law School, “The minimum wage was designed to create a minimum standard of living to protect the health and well-being of employees.” Franklin Roosevelt, in his statement after signing the National Industrial Recovery Act in 1933, said of wages, “It seems to me to be equally plain that no business which depends for existence on paying less than living wages to its workers has any right to continue in this country” and that “by living wages I mean more than a bare subsistence level—I mean the wages of decent living.” That statement has been used by many to argue that the minimum wage was always intended to be at least a living wage.
There is room to debate that assertion too, but let’s suppose for a moment that that has been the intent all along. The current federal minimum wage of $7.25 an hour would pay a worker who works 40 hours a week for fifty weeks a year and annual pre-tax income of $14,500. According to the Department of Health and Human Services, the 2019 Poverty Guideline for the 48 Contiguous States and the District of Columbia was $12,490 for an individual. The 2020 guideline was just released in January 17, and it is $12,760. (And, in case you are wondering, the Census Bureau and programs based on poverty level, such as SNAP, are based on gross income).
Maybe you don’t like the notion of basing the minimum wage’s relation to a “living wage” on a single individual. Fair enough. Let us suppose, then, that there is a family with two wage earners, both working 40 hours a week, fifty weeks a year, for minimum wage. The income for that family would be $29,000. That exceeds the poverty level for a two-person, three-person and four-person family. (The 2020 Poverty Guideline for a four-person family is $26,200). And, in case you are still uncomfortable, there is government assistance available for those families, since eligibility for programs based on poverty level requires that a family’s income be at or below 130% of the poverty line.
According to the Census Bureau’s 2018 report, the official poverty rate was 11.8%, which was the fourth consecutive annual decline and the first since 2007 that the poverty rate was significantly lower than it was that year, which was the year before the last major recession. Another interesting fact: the drop in poverty rate from 2017 to 2018 was highest among African Americans and second-highest among Hispanics. The was a bigger drop for females than males. And when considering educational attainment, the biggest drop was among those with “some college” while the only area where the poverty rate went up was among those age 25 and older who had no high school diploma. The interesting facts are abundant, in fact. The lowest poverty rate when considering family characteristics was among married couples, who had a poverty rate of only 4.7% in 2018. The highest percentage of poverty was among female householders with no spouse present, but that demographic also had the largest drop in poverty percentage.
If you consider the three-year average (2016-2018) of percentage of people in poverty by state, the state with the lowest percentage was New Hampshire, at 6.4%–and New Hampshire uses the federal minimum wage of $7.25. The five states with the next lowest percentages of poverty were Maryland (7.1%), Utah (7.9%), Minnesota (8.7%), Colorado (8.9%) and New Jersey (9.1%). Among those five states only Utah has the $7.25 minimum wage, but the minimum wages of the other states are still modest, and the average minimum wage of those five states is $9.31/hour. The states with the highest minimum wages were New York ($13), California ($12), Washington ($11.50), Oregon ($11.25) and Colorado ($11.10). We already saw that Colorado was among the states with the lowest poverty rates, but the other four states on this list did not fare so well. New York (11.8%), California (12.5%), Washington (10.3%) and Oregon (10.6%) were not the worst by any means, but even with Colorado included the average percentage of poverty was 10.82%. That put those states at 1.5% below the U.S. average that year of 12.3%, but still well above the average percentage of 8.34% for states 2-6 on the list. In other words, the five states with an average minimum wage of $9.31 had a poverty percentage two and a half percentage points below the five states with an average minimum wage of $11.77. I don’t know about you, but I do find it at least noteworthy that the states with an average minimum wage that was $2.46 higher led to a poverty percentage that was 2.48 percentage points higher. Maybe it’s a coincidence, but you just can’t get much closer than that.
You’ve no doubt heard the old proverb that politics makes strange bedfellows. Never have I experienced the reality of that on a personal level more than I have over the past couple of months, thanks specifically to the impeachment of Donald Trump.
Back in December, Mark Galli, who was the editor in chief of Christianity Today, wrote an editorial advocating for the impeachment of President Trump. I do not disagree with what Mark Galli said about Trump as a person, but being immature and nasty on Twitter is not an impeachable offense. Galli’s assertion that the “facts are unambiguous” about Trump’s phone call with Ukraine shows his lack of political understanding and his fervent desire for Trump to go. Sadly, he failed to realize that using impeachment to remove Trump because you don’t like him is just as wrong for evangelicals as it is for Democrats.
Shortly thereafter, Timothy Dalrymple, CT’s president, wrote to effectively defend Galli’s editorial. Dalrymple made some valid points, but he politicizes the term “evangelical.” What Dalrymple fails to acknowledge, and what was a huge problem with Galli’s editorial, is that if those who dislike Trump’s character and personal baggage–and I count myself in that group–allow that to become justification for impeachment, an incredibly dangerous precedent will be set. Impeachment has to be reserved for that for which it was intended or we risk seriously weakening our form of government. Does Trump have flaws? Absolutely. Should we jump on board the silly allegations from House Democrats to remove him? Absolutely not. The ends do not justify the means.
That whole situation left me, in the eyes of many anyway, defending President Trump, which is not something I have been inclined to do. He has done some wonderful things as president, including recognizing Jerusalem as the capital of Israel, appointing pro-life justices to the Supreme Court, defending prayer in schools, attending the March for Life Rally, etc. But he has also demonstrated immaturity, lack of tact and badgering/belittling behavior toward his opponents. In short, he has usually been anything but presidential. For those reasons, I cannot say that I like President Trump. It is almost a reversal of what the situation was like when Ronald Reagan was president. Many people who did not agree with Reagan politically liked him personally. Now, I agree with Trump politically quite often, but I cannot stand him personally.
Last week my proverbial bedfellow changed when I asserted my respect for Mitt Romney’s decision to vote to convict President Trump on one charge of the impeachment. I said then, and I say now, I do not agree with his conclusion, but after listening to Mitt Romney’s interview with Chris Wallace I do respect his decision to vote his conscience. Is that not, after all, exactly what we expect our elected officials to do?
Well, that position met with some opposition among my own friends but it met with far more opposition among Republicans and conservatives around the nation. One friend insisted to me that conscience was not what senators were to use to inform their vote; instead, they were to rely on the Constitution and on the facts that were presented. But I disagree; the two are not separate. Obviously, Mr. Romney felt like the actions of Mr. Trump were consistent with the constitutional threshold for impeachment. He said as much in the interview. Accordingly, he was voting his conscience and the Constitution by voting guilty on one charge. Article II of the Constitution specifically says “high crimes and misdemeanors.” Romney thought Trump’s actions rose to that level. He interpreted the “facts” as rising to the level of impeachment and thus, based on those facts, he believed guilty was the right vote. His conscience dictated that he vote accordingly–according, in other words, to his understanding and interpretation of the facts. He interpreted the Constitution strictly and that is precisely why he voted the way that he did–he believed that an impeachable offense had occurred, based on the facts and evidence he had received.
So, whether we agree with him or not–and as I said, I don’t–Romney’s conscience dictated that he do what he thought was consistent with his oath. Romney heard the facts that were presented, and in his interpretation, they met the threshold for impeachment. He then voted what he thought the facts warranted–guilty on one charge, not guilty on the other. He did what he thought was right, not what he knew his party wanted him to do. And that, by the way, is constitutional. He was faithfully executing his responsibility, just as he swore he would do. The fact that I, or seemingly most any other Republican, did not agree with his interpretation of the facts does not mean that he was wrong. (To throw another strange proverbial bedfellow into the mix, for these same reasons, I also respect Tulsi Gabbard’s earlier decision to vote “present”).
No “high crimes” are found in the Constitution. Article II, Section 4 says, “Treason, Bribery, or other high Crimes and Misdemeanors” (emphasis added). Obviously, then, impeachment can occur for offenses other than treason and bribery, but what those other offenses are is no spelled out. Abuse of power would certainly be one of them. If I thought Trump had abused his power then I might even agree with Romney. Based on the testimony I heard, I do not think he did, so I disagree with Romney. But I still respect his willingness to vote what he thought was right, knowing full well—as he was reminded by Chris Wallace—that he would face the full wrath of Donald Trump and an ongoing cold shoulder from his party. In short, there was no good reason, politically, for Mitt Romney to vote the way that he did. He knew that President Trump was not going to be convicted because there was no way there were going to be enough votes to meet the required two-thirds supermajority. So while others have chosen to attribute his vote to his personal animosity for Donald Trump, I am choosing to take Mitt Romney at his word. I cannot fathom any other reason why he would take the political risk he took to vote that way. And those consequences came swift and heavy. One person who had the audacity to say “Good for Romney” in response to a post on the Huck’s Army Facebook page stating that Romney was going to vote to convict, and asking for comments, received an immediate response from another individual saying “You are a jerk.” Really? Having a difference of opinion on Romney’s actions from the expected condemnation makes him a jerk? Why? Plenty of others called Romney pathetic, a disgrace, a traitor, a turncoat, a snake, a moron, a RINO and a Democrat masquerading as a Republican. Let’s not forget that just eight years ago Mitt Romney was the Republican nominee for President of the United States!
Furthermore, I was deeply troubled by how many people—professional pundits and social media commentators alike—who ridiculed Romney for invoking his faith as one of the reasons for doing what he thought was right regardless of the political consequences. We cannot want a politician to be both influenced by his faith and to ignore his faith. Many Republicans, and particularly many conservative Republicans, advocate for political positions, and even political action, that is based on and derived from a sense of morals that is often rooted in Judeo-Christian faith. Romney is a Mormon, of course, but most Mormons are quite conservative morally and socially. Would we really want a candidate or an elected official who was not influenced by his faith? How deep, sincere or meaningful would such faith be, anyway, if an individual were able to set it aside when considering some of the most important decisions he would ever make?
Finally, Romney’s vote also brought to light another matter that is worthy of serious consideration. Much has made of the fact that with his vote to convict, Romney became the first U.S. senator ever to vote to convict a president of his own party. That’s troubling to me, but not for the reason you probably think. Many seem to be taking the position that Judge Jeanine Pirro so obnoxiously took yesterday on her FOX show “Justice with Judge Jeanine.” “Permit me to introduce you to a non-leader,” Pirro began, before reminding viewers that Romney was the first senator to ever commit such a perfidious act. “How dare he!” she went on. “How could he? And why would he?”
Pirro went on to call Romney an “embarrassment” and to say, “Your jealousy of this man [Trump] is a constant rage burning within you because you can never rise to the heights that he has. Because guys like you fold like wusses and you don’t have any selflessness or the ability to think about others, as Donald Trump has thought about making America first.” Pirro later concluded her childish rant saying, “How about you get the hell out of the United States Senate?”
(By the way, add Pirro to those who lambasted Romney’s reference to his faith. She said, “Do you ever wonder why people never mention God or religion — only bring it up when they get caught doing something or when they need an excuse for something they did? What a bunch of phonies.” I don’t know how often Pirro expects Romney to mention his faith in order for it to satisfy her standards, but this is certainly not the first time he has mentioned it).
By now you have likely gathered that I was not only unimpressed with Pirro’s monologue but also with her position. I said that I am troubled by the fact that Romney is the first senator to vote to convict a president of his own party—but the reason that troubles me is because it hasn’t happened before. Donald Trump is the third president to be impeached, joining Andrew Johnson and Bill Clinton on that short list. There were eleven articles if impeachment filed against Andrew Johnson, though senators decided that eight of them were objectionable and only considered three. Like Trump, Clinton faced two charges. Why would it take until the sixth impeachment charge for a senator to vote for conviction of a president of his own party? That fact reveals two possibilities, neither of which are appealing.
On the one hand, it could indicate that impeachment charges thus far have always been politically motivated. That would be tragic. As I have already argued in this space, impeachment is to be used for “Treason, Bribery, or other high Crimes and Misdemeanors.” Those are not political matters. If we allow our elected officials to pursue impeachment out of political motivation then we will have a serious problem.
On the other hand, if impeachment articles have been legitimate and not motivated by politics, Romney’s first-ever vote could indicate that senators are more loyal to their party than they are to what is right. How did I reach that conclusion? Well, it seems improbable that there could be six articles of impeachment that were not politically motivated and yet all proved to be erroneous charges. But if the impeached presidents were actually guilty of even one of those charges, and the evidence supported that conclusion, but no senator of the president’s own party would vote accordingly, what other conclusion could there be? The votes on Trump’s impeachment actually confirm this likelihood, as it also was the first time ever that no member of the opposing party joined in support of the president.
George Washington warned sternly against “the baneful effects of the spirit of party” in his Farewell Address. Blind allegiance to party, said Washington, “serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions.” In other words, no good can come of it! Washington’s advice then? “[T]he common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”
As he so often has, Washington proves once again to be prophetic. We are seeing unmistakable examples of the “spirit of party” in the United States just about every day. This does not bode well for our nation or for our future.
Oh, one more thing regarding strange bedfellows… I don’t even like Mitt Romney.