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If You Won't Repeal Emergency Powers, You Might Be a RINO

People take action fastest and best when governments leave us alone. Governments only leave us alone when rules and penalties must be passed by legislators who we hold accountable. Legislators can only be accountable when emergency powers are repealed—either by current Republicans now, or by future replacements as soon as possible.

James Anthony
March 5, 2021

Picture1

Figure:  Information flows, strong (solid) or weak (dashed) –
– with customers controlling producers by choosing freely between producers,
– with state governments controlling producers but customers still free to move to new states, and
– with the national government controlling producers, leaving customers no freedom [1]

 

What is an emergency?

  • Is a viral infection suddenly an emergency for the first 15 days after government controls are imposed?
  • Is that viral infection still an emergency 10 months later?
  • Is a direct military attack on our soil an emergency?
  • Is a computer virus an emergency?

Viral infections, military battles in specific locations, and computer viruses with specific impacts in specific locations are examples of departures from the conditions that prevailed before. They are changes.

If a change puts lives directly at risk, then the change is an emergency for those persons who are directly, imminently at risk. For everyone else, the change is not an emergency.

What works best in an emergency?

That’s easy: decentralized action by free customers and producers.

The only alternative will still finish with decentralized control by customers and action by producers. But first, this alternative will interpose added layers of supervisory control by government people [2]. This control by government people always:

  • Delays the final control by customers and action by producers.
  • Makes the action by producers slower.
  • Drastically reduces the extent to which customers are free to optimize their control.
  • Drastically reduces the extent to which producers are free to optimize their actions.
  • Makes some valuable actions illegal [3].
  • Makes some harmful actions mandatory [4].

 

Why do government people get involved in emergencies?

Because people imagine that emergencies have better outcomes if government people get involved.

This is hard to refute when government people usually get involved, and especially when government people nearly everywhere add the same controls.

Also, this is hard to refute when news and history are favorable toward government people getting involved. And such favorable stories are the easiest stories to write, since government people spend considerable time in and out of office handing stories to media and historians.

Government people also get involved in emergencies because they can: because government people aren’t limited by any people who have concentrated power to quickly stop them, other than other government people.

How do government people arrange to always be involved in emergencies?

First, they arrange in advance to unconstitutionally put power and responsibility in the hands of unaccountable people.

Then when a perceived emergency arises, they themselves don’t use their actual constitutional powers, but they do jump on the bandwagon clamoring for the unaccountable people to do something.

How can this dynamic be stopped?

That’s easy: by repealing emergency powers.

But without emergency powers, what would happen in an emergency? What would happen during an enemy attack?

Every person has the right to defend both himself and others when attacked. Military people have the right to defend both themselves and others when attacked. And for all people, the right to bear arms shall not be infringed. So in an enemy attack, people would defend themselves, of course.

But what would happen in other emergencies?

In every other emergency, people take action on their own to protect themselves and others. It’s what people do. Pursuit of happiness and all that.

To stop people from doing the best things they know to do and from learning quickly as they do, it takes something really powerful to block them. Like a government person who says he’s here to help.

What’s legally supposed to happen is, above all, that people remain free to act on their own. To shop for what they want. To invent and sell what people want.

If government people are going to do something on top of that, then legally what legislators are supposed to do is:

  • Go into session.
  • Consider all the tradeoffs, especially by listening the most closely to the relatively-few economists, doctors, or other specialists whose aren’t incentivized by pay or by social status to look favorably on government control.
  • Individually evaluate whether every part of a possible bill would be constitutional: Whether it consists entirely of laws and penalties. Whether it’s not unreadable, it doesn’t direct the executive or the judiciary, it doesn’t delegate legislative authority, it’s not misleading, and it doesn’t exceed enumerated powers [5].
  • Consider whether a bill would add more value for everyone than it would cost everyone.
  • Vote, on the record, for or against each bill.

What executives are supposed to do is:

  • Individually evaluate whether every part of every existing statute is constitutional and whether every part of every new bill would be constitutional [6].
  • Consider signing new bills.
  • Enforce all statues that they themselves consider constitutional. Use the executive’s power to manage the overall effort of enforcing all the constitutional laws the best they know how. Work within the overall spending authorization that they’re responsible to use wisely, and that they’re accountable for using wisely [7].

Delegation of the legislature’s power to enact laws (rules and penalties) violates the Constitution. It also violates state constitutions, county charters, and city charters.

Under nondelegation, power is solely in the hands of people who have incentives to leave us alone. With delegation, power is handed to people who have incentives to get in our faces.

Even under nondelegation, even given the appropriate incentives, legislators and executives still can’t be trusted to leave us alone [8]. Witness the many stimulus bills, and the few incumbents who didn’t run again and win.

But under delegation, accountability is deeply undermined.

But don’t agencies only exist by using delegation—by using something like emergency powers?

  • Don’t legislators delegate to executives the powers to enact laws (rules and penalties), and don’t the agencies actually enact regulations (rules and penalties)?
  • So if you’re right, wouldn’t this mean that all agencies have to be repealed?

Yes, all agencies have to be repealed. That’s the big picture.

But we can’t let the massive scale of the full repeal that’s needed be the excuse to not take the first step of repeal that’s urgently needed right now. What’s killing us fastest right now—because, COVID [9]—is government people using emergency powers. Repeal the emergency powers now.

But Republicans aren’t in power, so they can’t do anything till they get back in power, right?

Republicans have the power to sponsor and file bills in Congress to repeal emergency powers, and to make the case of these in the media.

Republicans have majorities in the legislatures and are the governors in 23 states. Republicans have majorities in the legislature in 7 more states. Republicans are the governors in 4 more states. So Republicans can repeal emergency powers, can vote in majorities to repeal emergency powers, or can refuse to use emergency powers in 34 states [10].

Republicans have majorities in the legislature and are the executives in most counties. So Republicans can repeal or refuse to use emergency powers in most counties.

You’re kidding, right? You can’t possibly think that any government people would repeal emergency powers during an emergency?

No, you’re right. Given their past records [11], definitely all Democrats and probably most Republicans wouldn’t repeal emergency powers ever.

But someone will. Whether that someone is current Republicans or that someone will be new people is entirely up to current Republicans, now

References

  1. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, p. 12.6.
  2. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, pp. 12.1-16.
  3. Hooper, Charles L., and David R. Henderson. “The FDA’s Deadly Caution.” AIER Daily Economy, 16 Dec. 2020, www.aier.org/article/the-fdas-deadly-caution/. Accessed 19 Feb. 2021.
  4. Schow, Ashe. “Nursing Home Deaths in New York Appear to Be Massively Undercounted, New York Ag Finds.” The Daily Wire, 28 Jan. 2021, www.dailywire.com/news/nursing-home-deaths-in-new-york-were-massively-undercounted-new-york-ag-finds. Accessed 5 Mar. 2021.
  5. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, pp. 4.1-8.8.
  6. Lawson, Gary. “Everything I Need to Know About Presidents I Learned from Dr. Seuss.” Harvard Journal of Law & Public Policy, vol. 24, no. 2, Spring 2001, pp. 381-92.
  7. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, pp. 5.1-9.
  8. Lawson, Gary. “The Constitution’s Congress.” Boston University Law Review, vol. 89, no. 2, Apr. 2009, pp. 399-407. 
  9. Tucker, Jeffrey A. “Death by Lockdown.” AIER Daily Economy, 2 Nov. 2020, www.aier.org/article/death-by-lockdown/. Accessed 5 Mar. 2021.
  10. “List of United States State Legislatures.” Wikipedia, 2 Mar. 2021, en.wikipedia.org/wiki/List_of_United_States_state_legislatures#State_legislators_by_party. Accessed 5 Mar. 2021.
  11. Anthony, James. “Votes Matter When a Party Requires Good Voting Scores.” rConstitution.us, 6 Nov. 2020, rconstitution.us/votes-matter-when-a-party-requires-good-voting-scores/. Accessed 5 Mar. 2021.

James Anthony is the author of The Constitution Needs a Good Party and rConstitution Papers, is the publisher of rConstitution.us, and has written in The Federalist, American Thinker, and Foundation for Economic Education. Mr. Anthony is a chemical engineer with a master’s in mechanical engineering.

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