Sunday, May 31, 2020

The People Must Often Feel Before They Can Act Right....

From the correspondence of George Washington, which I mentioned late last year, on May 10, 1786:

"It is one of the evils of democratical governments, that the people, not always seeing and frequently misled, must often feel before they can act right; but then evils of this nature seldom fail to work their own cure.  It is to be lamented, nevertheless, that the remedies are so slow, and that those, who may wish to apply them seasonably, are not attended to before they suffer in person, in interest, and in reputation."

Thursday, May 28, 2020

It's Because Some of the Governor's Emergency Powers are World War II Relics

I previously discovered the reason why so much of Indiana's "Emergency Management and Disaster Law" (IC 10-14-3) did not seem to have even been written for Indiana: much of it was in fact not written for Indiana, but was rather taken from the "Example State Disaster Act", a specimen of model legislation created by the Council of State Governments (once it was commissioned by the Nixon Administration to do so).  The iteration of the Indiana General Assembly that enacted an unsatisfactorily modified version of the example act seems to have done so in 1975, and its inattention to detail in adopting and adapting the example act is the reason why so many parts of the corresponding content in IC 10-14-3 do not fit Indiana for one reason or another.

(Because so much of the content of IC 10-14-3 refers to it as "this chapter" -- by which it means "Chapter 3" of Title 10, Article 14 of the Indiana Code -- I have decided to start referring to that chapter as "Chapter 3".  There is a risk that this will cause more confusion instead of less, but I have decided to take that chance.)

However, though many parts of IC 10-14-3 ("Chapter 3") were plainly derived from the example act, that chapter also contains quite a bit of material that the example act leaves unaccounted for.  Some of it probably is, in fact, the cumulative product of an unknown number of bills, authored by members of the Indiana General Assembly themselves, enacted over the course of several decades.  The General Assembly is certainly capable of enacting its own original legislation.  Like the material that I eventually discovered was drawn from the Example State Disaster Act, however, Chapter 3 contains sections (and parts of sections) that just don't seem to belong -- they do not fit the scheme or system of the rest of the chapter, or they cover the same subject as a different section in such a way that the other section would be redundant or useless, or they simply affect to grant the Governor such open-ended power that I find it impossible to believe that the Indiana General Assembly would have enacted it in peacetime and without its collective judgment having first been leveled by extreme fear.  What was the cause of this?

We deserve to know.  In particular, parts of IC 10-14-3-11 are alarmingly open-ended in what they say that they authorize the Governor to do.  IC 10-14-3-11(b): "In performing the governor's duties under this chapter, the governor may do the following: ... (2) Cooperate with the President of the United States and the heads of the armed forces ... in matters pertaining to emergency management and disaster preparedness, response, and recovery of the state and nation.  In cooperating under this subdivision, the governor may take any measures that the governor considers proper to carry into effect any request of the President of the United States and the appropriate federal officers and agencies for any emergency management action, including the direction or control of disaster preparations...."  If this power to "take any measures that the governor considers proper to carry into effect any request of the President of the United States" (relating to disaster preparedness, response, or recovery) is meant to be subject to any limits at all, neither IC 10-14-3-11 nor any other part of Chapter 3 hints at what those limits, if any, might be.  (I have a pretty good idea of the limits upon which I would insist, but that would be the answer to a very different question.)

I do not think that I have unrealistically high expectations of legislatures, but I do not believe that most legislatures, most of the time, would possess (to the degree that a legislature enacting anything like IC 10-14-3-11 would need) such enthusiasm for providing itself with a master and living under his dominion.  Hoping to learn when and under what circumstances Indiana's own legislature initially enacted this (as well as other, equally unwelcome provisions), I again went looking into the origins of Chapter 3.

I found what I was looking for.  This time, I was able to determine that the original source material for many sections of Chapter 3 is a collection of model statutes (especially the "Model State Emergency War Powers Act") recommended to state legislatures by the Roosevelt Administration in 1942, which were intended to allow the states to sufficiently adapt* to the severe demands and perils that accompanied World War II.  A comparison of the provisions of these model acts with the provisions of numerous sections of Chapter 3 makes it appear that somebody has decided that the extreme measures imposed as a part of "the war effort" (which, during the war, were judged necessary not as a general rule but only when considering the magnitude of the challenge those measures were meant to meet -- and that necessity was assessed from the viewpoint of a country that had not yet won the war, which still had the ability to lose the war, which remained exposed to all the dangers posed by the war) are both necessary and appropriate for Indiana to make perpetually available to every successive person serving as Governor, to activate at his or her discretion, allowing the Governor to wield those old war powers against sporadic weather disasters and, if necessary, react at a moment's notice to a virus that may or may not (as the case may be) have been anticipated for months before making its first contact with the state.  (Admittedly, it is possible for the state to face other, greater threats, but there probably will not be a threat that would, within so short a span of time that the General Assembly could not even be convened quickly enough to act, manage to be the equal of World War II.)

At least in their current forms, the parts of Chapter 3 that correspond with the "Model State Emergency War Powers Act" (as seen below) have been modified more heavily than the parts that were drawn from the Example State Disaster Act.  (This should be no surprise, given that World War II is not presently taking place.)  The versions found in Chapter 3 have been altered to contain far less that has special applicability to war and to say a bit more about the weather, terrorism, and something called an "Animal disease event", and also to remove references to air raid wardens, &c.  Still, compare IC 10-14-3-11 with Section 3 of the Model State Emergency War Powers Act, and you should be able to see that IC 10-14-3-11 and other parts of Chapter 3 have turned these extraordinary "war powers" into an ordinary tool of government (but left to the discretion of the executive) for use in emergencies of every type, scale, and duration.

I hope to find out for certain when and in what initial form Indiana enacted these model statutes.  At the moment, I can only confirm that they were enacted in 1951 (as indicated by the information that appeared under them on the state website before Indiana's "Emergency and Disaster Management Law" was recodified in 2003).  I do not yet know whether what the General Assembly enacted in 1951 replaced a version that it may have enacted during the war, which would make sense, and I do not know how any of the corresponding parts initially read.

Regardless of how they read when they were first enacted in Indiana, it is both amazing and objectionable that the versions that remain in the Indiana Code to this day retain provisions that provide for, in substance, what were supposed to be extraordinary war powers, but which now (in substance) continue to linger almost exactly seventy-five years after the war was won.

* I am not saying that I approve of all of these adaptations.  As it happens, I do not.  I am only saying that they were intended to meet the severe demands and perils of World War II.

Saturday, May 23, 2020

Regarding Indiana Governor Eric Holcomb Himself

Because it is possible that some people might otherwise manage to misunderstand some of what I have written here during the past couple of months, I write the following in order to take it out of their power to do so.

Let nothing that I have written (or may write in the future) that criticizes Indiana Governor Eric Holcomb's actions or decisions be taken as a reason to dislike him as a person.  I take the time to state this explicitly because I have raised objections to some of his actions and decisions, this year -- actions and decisions relating to the COVID-19 pandemic -- and in raising those objections, I have pointed out extraordinary and unusually serious problems with the course of policy that the Governor's office has pursued.  If someone reading what I have written were to assign the full weight of the blame for these problems to Governor Holcomb himself (and deem those problems a consequence of his character and judgment), saving nothing for the pandemic itself, that would be a very heavy weight -- and a weight that I have no interest in placing on anyone.

In my writing, my focus has been on these policies themselves, not on distributing the blame for them.  If I were, however, to assume responsibility for judging Governor Holcomb for the actions (the objectionable ones) that he has taken in relation to the pandemic, this year, I would keep in mind how important the difference is between taking those actions in 2020 (as Governor Holcomb has) and taking those actions in 2017, 2018, or 2019 (which he did not do), and I would assign to the coronavirus the quantum of blame appertaining to that difference before deciding how to allocate the remainder.

This is not to say that a pandemic justifies or excuses whatever actions might be taken or whatever decisions might be made in response to it.  It is also not meant to suggest that a governor's decisions in relation to a pandemic cannot reflect in some way on that governor's character or judgment.  My point is nothing more than that the objections that I have raised concern the policies (or the means used to implement them) themselves, but that if I had any interest in assigning blame for the problems with those policies, I would reserve for the pandemic the share that it is due.

Saturday, May 16, 2020

The General Assembly Was Supposed To Be In Session During A State of Disaster Emergency

We finally know why the part of the Indiana Code allowing the Governor of Indiana to declare a "State of Disaster Emergency" (which Governor Holcomb did declare in March in relation to the pandemic and has renewed several times since then) gives the only check on that power to the General Assembly, even though the General Assembly is only in session for a couple of months near the beginning of each year, making the check useless for most of the year: that part of the Indiana Code was neither written for Indiana nor by people familiar with Indiana.

(It was, of course, enacted by the Indiana General Assembly, or else the provisions of this "Example State Disaster Act" would not now be a part of the Indiana Code.  When the General Assembly did enact it, which I have learned that it did in 1976, it obviously wasn't paying attention.)

Like many "model" or "example" acts, the "Example State Disaster Act" was published with its own official commentary by its authors themselves.  The Example State Disaster Act's official commentary (which appears alongside the act itself in my previous post) seems to imply what I suspected: the person or persons who wrote the language to give the state legislature the power to end a "state of disaster emergency" by voting to do so expected the legislature of the state to actually be in session during the emergency.  The proposed check was intended and designed to be usable.  The commentary states, "Such provisions are included because the powers to be exercised during a disaster emergency are extraordinary ones and so should be confined to the periods intended by law."

The General Assembly that adopted this (in 1976) neglected to properly adapt it for use in Indiana, but it is nevertheless true that the people who actually planned and composed what the legislature adopted designed it with the expectation that a usable check would actually be in place.  Without that check -- and that is the position in which Indiana is currently situated -- the provisions of this act are unbalanced and dangerous.

This reasoning does not and cannot compel Governor Holcomb to call a special session of the Indiana General Assembly -- nothing can -- and the arguments that I have previously made for him to call a special session were not intended to bring the General Assembly into a position where it could put an end to this "state of disaster emergency".  (I doubt that the General Assembly would even do that -- at least for now.)  It is nevertheless a compelling additional reason why he should, exercising his own judgment, choose to call the special session that Indiana needs and deserves.

It is unnecessary for the General Assembly to actually exercise this particular power in order for its presence to be beneficial and proper.  If the current circumstances are extraordinary, and if they require the state government to take extraordinary action or exercise extraordinary powers, these are reasons why it should be done in the presence and with the supervision of the representatives of the people of Indiana, not why it should be done without them (out of fear that they will interfere).  Even to the extent that the conduct of the state government over the past two months has been properly executive or administrative in character, our elected representatives ought to be active and assembled, prepared to hear the grievances of the people of our state and possessing the ability to act to redress them.  The Executive and Administrative Departments of government, however diligent they might be, could never provide a satisfactory substitute for this.

Additionally, much of the recent conduct of our state government has not been executive or administrative at all; it has been legislative, and as overtly legislative as it could have been without actually applying that term to itself.  If the need for legislation is so urgent and undeniable as to drive our state's Executive Department to such desperation, there could never be a better or a more irresistible argument for a special session of the General Assembly -- this, and this alone, is the purpose of a special session, and this, and this alone, is why the Indiana Constitution gives the Governor the power to call special sessions.

The fact that the very emergency powers that the Governor has invoked were designed with the understanding that the General Assembly would be in session while they are in use only further exhausts what might have remained of any plausible pretense of justification for leaving our representatives inert and useless at a time when the state government insists on the necessity of it claiming and exercising such total and alien powers over the people of Indiana.

Friday, May 15, 2020

A Disaster Law Is Not Supposed To Mean A Law That Is A Disaster

While reexamining Indiana's "Disaster" law (IC 10-14-3) regularly over the past few months, I found the quantity and severity of its defects to be alarming.  (I had already read it a few years ago and was troubled by it then as well, but for some reason, I did not expect most of it to ever come into use.)

In addition to being objectionable, however, parts of it somehow felt as though they were somehow out of place -- they just don't fit.  I have already discussed that one of its provisions (IC 10-14-3-12(d)(1)), which purports to give the Governor of Indiana the power to suspend certain statutes during a "state of disaster emergency", is directly contrary to Section 26 of Indiana's Bill of Rights (as well as to the republican form of government itself).  It certainly is conceivable that legislators who had read Indiana's Constitution would vote for legislation that claims to grant a power that the constitution itself explicitly prohibits, but I still find it surprising that they would have done this so openly.

I have not mentioned that it also contains a provision, IC 10-14-3-12(a)(2) that supposedly grants the General Assembly the power to terminate a "state of disaster emergency" (once the Governor has proclaimed one) by passing a concurrent resolution to that effect.  For two reasons, I think it is strange that the General Assembly would have attempted to grant itself that power.

The first reason why I find that strange is that assuming that it is in session, the General Assembly has innate power to accomplish that legislatively (considering that the Indiana Governor's veto is little more than ornamental), even without the Indiana Code affecting to give the General Assembly a non-legislative check on one of the Governor's powers -- a power which presumably was intended to pass for "executive" in character, by the way, or else it would not have belonged in the hands of the Governor.  It would have been strange if anyone familiar with the Indiana Constitution wrote that.

The second reason why it would be strange to give the General Assembly that power is that if its purpose really was to create a "check" on the Governor's ability to maintain a "state of disaster emergency" indefinitely, then making the General Assembly the entity to which that check is entrusted would defeat that purpose.  The Indiana General Assembly is only in session for a few months of every year.  The Indiana Constitution does provide for the possibility of special sessions of the General Assembly, but only the Governor has the power to call a special session.  For most of the year, every year, the body to which IC 10-14-3-12(a)(2) gives a check on the Governor's "disaster emergency" powers is incapable of using it.  What is the purpose of creating a check that can only be used for (approximately) the first three and a half months of an odd-numbered year and the first two months of an even-numbered year?  Again, it is as though the author knew nothing about Indiana's government.

About a week ago, I started to look at the "disaster" emergency laws of a few other states, and it became immediately obvious that many of the states (including Indiana) had based their own respective versions on a common source.  I now know what that source was: the "Example State Disaster Act".

It was developed in the early 1970s by the Council of State Governments and something called "the Disaster Project", in conjunction with the Nixon Administration.  The Indiana General Assembly apparently gave little thought to it before passing it into law -- not even what little would have been required to adapt it as needed to fit Indiana's government, much less the attention that it ought to have given to how much of this "Example State Disaster Act" could be tolerable to a free state.

In the immediate future, Indiana must focus on convincing its Governor to call a special session of the General Assembly.  That way, it will have the opportunity to use the legislative power to do what can only be lawfully done by the legislative power.

After that, IC 10-14-3, which is a disaster of its own kind, should be replaced with something good.

An Additional Thought (10:31 AM EST, May 15, 2020): Concerning the Indiana General Assembly that enacted a poorly-adapted version of the "example" act discussed above: the General Assembly that took that action did so decades ago.  This weekend, I may try to identify precisely when this foreign object was dropped into Indiana law, but I am fairly confident that it happened either before or shortly after I was born, and I know for certain that it took place during the Twentieth Century.  I ask that those who are reading this refrain from angrily contacting or criticizing the present-day Indiana General Assembly or its members while under the mistaken impression that they were responsible for this.  Feel free to inform them prospectively of their responsibility to correct it, however.

Monday, May 11, 2020

Unconstitutional Even If You Can See It

Nobody intended to set these traps for you, but they exist.  I want to prepare you to recognize them.  These "traps", which are unusual among traps in that they form by accident, appear throughout the laws of the individual states and of the United States.  If you know how they work, you may be able to protect yourself from them.

The essence of the trap is this: though provisions of these laws are frequently unconstitutional -- they have often even been notoriously declared unconstitutional by an appellate court with the requisite jurisdiction -- they remain "on the books" until they are removed by the legislature by whose authority they were made.  By this, I mean that if you read your state's statutes (or those of the United States), you will see the unconstitutional parts just as you see the rest of them.

Some states, such as Pennsylvania, have been kind enough (though not always) to post notices informing us that the unconstitutionality of particular laws still found "on the books" has been settled since before I was born (as in the example found behind the previous link).  Most states, I think, have been somewhat less courteous (the magnificent State of Indiana, which is my own state, is one of the latter) to their own people or to their fellow Americans at large by flagging those of their laws that are known to be unconstitutional.  Some of the time, the unconstitutionality is pretty obvious (even when it appears in a state's own constitution), but the rest of the time, anyone reading statutes without the assistance of annotations* should remember: "laws" that you see on the page or on the screen could be unconstitutional, and those that are will not necessarily be marked with any perceptible sign of their unconstitutionality.  Be cautious.

And be aware: when a statutory provision that supposedly establishes something as a crime does not express in any useful way what conduct it criminalizes, that is a red flag.

* Annotations to statutes are helpful in that they can at least call attention to what courts have already managed to recognize as unconstitutional.  However, the information that they provide can only be as correct as the courts have been.  These annotations are designed for the use of the legal profession, for which anticipating what courts will consider the law to be in the future (by understanding how courts have previously dealt with the same or similar legal issues) is necessary in order to provide any kind of reliable assistance to clients.  For that use, the annotations serve their purpose.  However, for those who also see a need to maintain a more civic-minded, justice-seeking, truth-and-accuracy-friendly understanding of our constitutions and other law, court decisions may be neither an adequate nor an entirely reliable guide to understanding a constitution or a part of it.

Tuesday, May 5, 2020

The Primary Elections to Occur in Indiana on May 5th, 2020

I have already mentioned that Indiana Governor Eric Holcomb's Executive Order 20-07 not only lacks the authority to reschedule Indiana's 2020 primaries (it is not enough for something to be "a good idea" to make it legal) due to the familiar way in which the Indiana Constitution distributes the powers of government -- by vesting the legislative power in the Indiana General Assembly -- but is also expressly prohibited by Article 1, Section 26 of the Indiana Constitution.  I had hoped that the Governor would call a special session of the General Assembly before the (primary) Election Day established by law arrived.  This would have allowed the legislature to legitimately do the very thing that the Governor (with good reason) wanted done: reschedule the primary elections.

However, May 5th has arrived -- the date appointed by Indiana law for the 2020 primary elections -- and I am confident that there will not be elections in Indiana, today.  The Governor still can and should call the special session, because now that he has scheduled new primary elections for June 2nd, it would be desirable to make those elections legal.  The power to do that remains in the hands of the General Assembly alone, which will not have the opportunity to use that power by June without a special session.  No one can compel the Governor to call a special session against his will, but he should face the reality of what declining to do so will be.

Indiana's primary elections owe their form, their effects, and their very existence to legislation enacted by the General Assembly, which is collected into the Indiana Code.  Subject to the Indiana Constitution, these are the laws of our state, which control (among other things) when, where, how (to a surprising degree of detail), and for which elective offices primary elections are to be held, in addition to determining which political parties must submit to primary elections to choose their nominees for offices for the general election (as well as certain officeholders within those parties themselves, for their internal governance) and who may vote on a particular party's choice of nominees ... among other things.

These laws require, but also authorize, Indiana's primary elections to be held on the first Tuesday after the first Monday in May -- today.  Now, obviously, we are about to disregard the law's requirement that we hold primary elections today, which is a problem, but it is happening.  I do not find that surprising.  After all, whenever the claim is made that something (whatever it may be) is "the law" (regardless of how spurious the claim might be), if enough people and enough of the right people treat it as though it were the law, the effect of it in practice will very closely resemble authentic law.

Some people, I realize, do not consider this to be a problem -- either this or any of the numerous and far more objectionable other examples from throughout the United States (in just the past few months alone) of governments acting in direct defiance of their own laws (and of justice as well).  Nonetheless, I suspect that a fair number of those people will have reservations about the plan to hold substitute primary elections in June, in contravention of the very laws to which the primary elections owe the entirety of their existence and effect.  Such people will not necessarily have any personal objection to holding an election on the wrong date, even though the "right" date is set by state law; they personally may consider that a mere technicality.  Their discomfort with the plan would rather be with the thought of conducting our primary elections with a legal defect that we already know about and that the General Assembly (in a special session prior to the elections) can remove.  They are aware that once these elections have been held, the candidates who will have lost will have an enhanced incentive to contest the elections' legitimacy.  These candidates would not even have to prevail in their challenges in order to produce some amount of uncertainty as to the outcomes of these primaries, and they would easily make themselves an unwelcome new source of confusion, distraction, division, and chaos this year.  Is that not an outcome that we would like to avoid?

Governor, having a special session of the General Assembly right now may be a little inconvenient, but this is what its members were elected to do.  (They asked voters to elect them for this.)  The General Assembly alone possesses the legislative power of our state, and if you give the General Assembly the opportunity to exercise that power as intended, it will be able to many things that a governor lawfully cannot.  It is the right way to do this, and it is the right thing to do.

Renewing and preserving a government of laws for the State of Indiana will be worth the effort it requires.  Governor, please call the special session with no avoidable delay.

Friday, May 1, 2020

Live music is not permitted

Today, as expected, Governor Holcomb issued Executive Order 20-26.  As much could be said about this new executive order as about its predecessors (the executive orders to which it is meant to be an update), but for tonight, I will only write: What is Paragraph 10(d) supposed to be?

Later this month (though precisely when that will be depends on the location), this new executive order will finally permit restaurants in Indiana to reopen ... under certain restrictions.  Paragraph 10 of the order identifies those requirements.  It is easy enough to see what the purposes of most of the requirements are, but I do not yet understand what Paragraph 10(d) is supposed to accomplish.  It reads, "Live music is not permitted."  This, keep in mind, is one of the COVID-19 suppressing measures that is to be imposed on restaurants in Indiana once they have been suffered to reopen.  Though restaurants will be open, live music there will not be permitted, so as to better restrain the spread of the virus.

Perhaps someone has discovered that COVID-19 thrives in the presence of live music.  It is a novel virus, after all.  Maybe I should not find it so surprising to consider that it might have such an unusual characteristic.

I will allow my imagination to continue searching for answers.

After all, that may in fact be the true purpose of Paragraph 10(d): to offer the people of Indiana a mystery -- a challenge, just to keep things interesting.

I think I would respect that.

An Additional Thought (May 2, 2020): As strange as 10(d) may appear, and as much fun as it was to let the state of intensely amused curiosity (in which the experience of reading 10(d) left me) "take the wheel" in writing this post, I still will admit that it is possible that there is a reasonable explanation for 10(d), though I do not know what it could be.  That explanation could involve someone having made a reasonable mistake.  It could also involve someone having been forced to make some sort of editorial judgment call and ultimately chose the option that avoided the necessity of restructuring (and largely rewriting) the entire document, even though that choice ultimately did produce a document in which Paragraph 10(d) would make no sense to anyone reading it.  (In writing about all of that in the abstract, I had in mind the theory that the restriction imposed by Paragraph 10(d), "Live music is not permitted," was in fact meant to refer to live music in a venue having no connection whatsoever to a restaurant, but that the subject of live music was a late addition to the document, and it just would have been a big headache for some staffer to alter the document properly to create a more fitting place to insert the "live music" prohibition, if enough time remained before the deadline to accomplish that at all.  Consequently, the person who was responsible for inserting the "live music" language, who may well have been in a state of panic at the time, placed it in the paragraph covering the subject of restaurants, where its apparent meaning is not what was either expected or intended.  If true, I expect to see this bug fixed in the next update.)

Another Additional Thought (May 2, 2020): Though I expressed amusement and a certain measure of bewilderment at what I found in Paragraph 10(d), I ask readers not to interpret it as "ridicule", as I did not write it with the intention of it being in that spirit.  I further ask that readers make it a goal to either avoid or abandon (whichever would fit the reader in question) altogether the practice of taking pleasure in ridicule.  Everything will just be better that way.

Is It Really A Crime To Defy Indiana's Stay-At-Home Order?

Governor Holcomb (of Indiana) is expected this afternoon to release a modified version of the "Stay-At-Home" order for Indiana.  I hope that the new version (apart from any other objections which might be made to it, or to "Stay-At-Home" orders in general, or to the idea of governors of states issuing them without the consent either of "the governed" ourselves or of our elected representatives in our state legislatures) omits a defect that previous versions have contained.

Previous versions have claimed that IC 10-14-3-34 makes it a Class B misdemeanor to knowingly violate an order issued by the Governor under IC 10-14-3.  That claim would not hold up under any real scrutiny.  That is not the Governor's fault, of course, as he is not the author of IC 10-14-3-34.

IC 10-14-3-34 must be among the most lazily written statutory provisions ever enacted for the purpose of defining a criminal offense, though it is outdone by an older version that did not even include a mens rea requirement (which the General Assembly at some point realized ought to be included in it).