“It was the legislature that passed the Emergency Management and Disaster law, which gives the governor broad power to take action to protect public health during emergencies. And if a global pandemic that has infected millions of people globally and killed 150,000 in this country in four months’ time is not an emergency, what is?” — Nancy Marcus, a Fort Wayne attorney quoted in the July 29 Fort Wayne Journal Gazette as an expert on the U.S. Constitution
Ever since FDR’s “switch in time that saved nine,” our legal system and law schools have spewed out innumerable constitutional law “experts” who often claim that whatever any government official, agency, bureaucrat or cop can do to people is OK. They do this by ignoring our short and simple constitutions to unleash an interminable fusillade of judicial pronouncements and federal/state code sections that, by their number of words alone, do seem to overwhelm the few political powers constitutions authorize.
Nobody claims Gov. Eric Holcomb’s COVID-19 mandates were actually authorized by any constitutions, state or federal. The constitutions absolutely forbid executives from making laws. Executive orders are constitutionally actionable only if they’re only the details of executing laws written by legislators.
Other than invoking armed force against insurrection or invasion, the governor’s only constitutionally authorized emergency power is to call an emergency session of the general assembly.
To be clear, the constitutions say that what the governor did and is still doing is unconstitutional in both word and intent. The governor cited not the Indiana Constitution, but Indiana Code, as his authority, specifically the statute, IC 10-14-3, the “Emergency Management and Disaster Law.”
That particular ream of legal effluvium does indeed appear to authorize every possible decree, action or mayhem, if read by itself; and if ignoring all the key principles of separation and limitations of powers in a republic.
But consider what the Indiana Code says about its own authority in the hierarchy of law. What follows is IC 1-1-2 § 1-1-2-1:
“Section 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.
“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 (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.”
Please note the order. Last, or fourth, is case law. This is what most U.S. citizens now think comes first. Supreme Court does, in fact, sound supreme. But it’s actually dead last in the legal hierarchy that determines what politicians can decree what we can do, can’t do, and must do for them.
Third is the federal code. Second is the Indiana Code, as long as the code doesn’t contradict the constitutions, state or federal.
First on the list is, of course, the constitutions that say only legislators can legislate. The Indiana Constitution’s Article I, Section 26 says very clearly that only the legislature has any authority to suspend the laws protecting our rights from politicians under any circumstances. Article I, Section 25 very clearly says that laws cannot create any authority not already granted. And nowhere is the legislature granted authority to delegate away its power and more local accountability by the stroke of a pen.
The law is clear. Why the governor refuses to call our legislators to work is not. You’d think he wouldn’t want all the protests, disagreements from sheriffs and Indiana’s attorney general landing on him alone.
Unless, of course, he intentionally crossed this Rubicon and wants to be Caesar.
That’s history we really shouldn’t want to repeat.
Andrew M. Horning, an adjunct scholar of the Indiana Policy Review Foundation, has run for Congress and state offices as a Republican and a Libertarian. He is an authority on federal and state constitutions. Send comments to [email protected].