Horning: Where the Law Meets the Virus

July 8, 2020

by Andrew Horning

My first job in healthcare was in the arbovirus surveillance unit of the Indiana Board of Health in the mid 1970s. My job was all about the flaviviruses carried by birds and mosquitos.

As a young man thus indoctrinated in the hemorrhagic syndromes, fatal mucosal disease, birth defects and encephalitis caused by such viruses, I became one of the many with serious concerns about humanity’s preparedness for pandemics. We really could all go down like a bunch of American Chestnut or Dutch Elm trees – which were wiped out, coincidentally, by diseases originating in Asia.

Since then, I’ve worked in medical research, diagnostic clinical, education and industry roles. I attend conferences chasing CME credits (Continuing Medical Education) and work with personnel at every level of healthcare all over the world every day.

However, I still can’t concisely, accurately or completely define “healthcare.” I’m certain only that nobody else can, either. Not in our politically and ethically compromised healthcare industry, and certainly not our politicians. While I will attest to fabulous advances, our understanding of health in many circumstances is still equivalent to chanting over chicken bones and incense.

A good example would be comparing the efficacy of Reiki touching or a good massage, with whatever the heck it is we’ve been doing in response to COVID-19.

Like macroeconomics, public health is a chaotic system because there are so many variables at play. Age, general health and financial status, population density, transportation methods and who-knows-what-else are all critical factors in assessing risk in generalities. But as an individual, your results may vary.

So my contention is that, like economics, our public policy response to healthcare emergencies should be the opposite of central planning. Fortunately, a distributed, nimble and scientific model of health emergency management is already law. It’s a danged shame that when it most mattered, our government violated the most critical aspects of that law.

Quick review of the fundamentals: This is IC 1-1-2 § 1-1-2-1. “The law governing this state is declared to be:

First. The Constitution of the United States and of this state.

Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions. (my emphasis)

Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.

Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First . . .” (etc., etc., et cetera . . . This is the part that judges and lawyers think comes first, so it blathers on incomprehensibly).

Fortunately, our federal government didn’t egregiously violate the “Third,” and our judges didn’t interrupt their usual violation of the “Fourth” to do anything especially bad.

On the other hand, the actions taken by Gov. Eric Holcomb specifically violated Article 3, Article I Section 25, Article I Section 26; and he failed to invoke Article 4, Section 9 of the Indiana Constitution — and that’s the thing that comes “First” in our hierarchy of law.

Just as you and I can’t just make laws from our easy chairs, politicians aren’t authorized to tell us what we can do, can’t do and must do in any way they like. By fundamental law they must be properly authorized and limited. The Indiana Constitution is that authority, and that limitation.

First, authority, and then, law. After the law is passed, then it’s executed.

The governor cannot make legitimate laws any more than my dog can (Article 3). Legitimate executive orders are only the detailed orders of executing laws already written by legislators.

This is clarified by Article 3 – Distribution of Powers: “The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

There are no emergency executive lawmaking powers in either the state or federal constitutions. The statute, IC 10-14-3, “Emergency Management and Disaster Law” (listed as “Second” in the hierarchy of Indiana law, and not the Constitution) is where the governor’s emergency powers were confabulated by unconstitutional delegation of responsibility and accountability by the General Assembly.

Article I Section 25: “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”

Article I, Section 26 of the Indiana Constitution does grant authority to compromise our rights in emergencies, but only to our legislators: “The operation of the laws shall never be suspended, except by the authority of the General Assembly.”

There are good reasons for the local accountability for lawmaking inherent in our state’s Constitution. Different regions have different needs. A tornado doesn’t destroy the whole state. Rural areas are different from cities. Pandemics work differently even where parameters of technology, population density and transportation are similar (e.g., New York City versus Tokyo).

I understand why legislators don’t want to make tough decisions that could get them fired on a Tuesday in November . . . but this is the point. We want these people accountable to us, locally. So there is an emergency power, but it’s in only the General Assembly, not in the executive office.

No one person should ever have so much power, or accountability, to unilaterally whip out rules to suspend fundamental human rights all across the state.

COVID-19 is a terrible disease. If the numbers can be trusted (it’s a sad shame that this is in question), the death toll has already passed the grim statistics of the Swine flu of 2009, the Hong Kong flu of 1968, and the Asian flu of 1957.

But we didn’t throw away fundamental rights, destroy economies, pass enabling acts and erect Caesars. There were emergency sessions in legislative assemblies all across the country, and they passed emergency laws at state and local levels. Even in this current pandemic hysteria, there have been many mayors, businesses and other local institutions that took local, faster action while presidents and governors queried pollsters.

There has always been a right way to respond to emergencies, and it’s all written down — and it’s the law. We need to get this right, because by the time even the best healthcare experts have finally gathered enough data to correctly understand this virus, it will change or be replaced by the next pandemic.

And, yes, it looks like the bubonic plague could be coming back. Welcome to 2020.

Andrew M. Horning is an adjunct scholar of the Indiana Policy Review Foundation who lives in Freedom, Ind. A past Republican candidate for Congress, Horning writes frequently on classical-liberal topics and is an expert on federal and state constitutions. He is the author of “The Truth about Excelsior,” a unique perspective on today’s cultural madness, and a glimpse into a world of peace, prosperity and freedom.


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