Judge Taney and the Wuhan Virus

  • by Pete O'Brien
  • 03-22-2020
"We have nothing to fear but fear itself;” FDR’s first inaugural, March 4th, 1933.
When FDR said that he was, in the modern parlance, blowing smoke. We had every reason to fear. There was little reason to believe government was going to get the nation out of the depression and, in fact, it didn’t. The economy remained essentially flat for another 5 years; it wasn’t until the nation began the buildup for WWII (in late 1939) that the nation’s job market started to expand. 
Then there were his wartime speeches. Time and again FDR said we were beating them back, that we were winning. It wasn’t until a series of defeats in 1942 - suffered by both the Germans and the Japanese - that that became true. And still the Allies weren’t clearly winning until, arguably, late 1944. They could still have lost  the war in 1944. 
What would the modern media say? Was FDR telling lies? Was he getting American’s killed? Lots of American’s died. The US averaged more than 300 dead per day throughout the war, as the President stretched the truth, trying to keep hope alive. Around the world, on average, more than 20,000 died every day of the war. But FDR said we were winning.
Was it a lie when the Secretary of Homeland Security said, of the declaring of a National Emergency, that this was ’standard operating procedure, and was also done for presidential inaugurations and flooding?’ That was Janet Napolitano, in 2009, concerning the outbreak of the H1N1 virus - which in the following 12 months killed more than 12,000 Americans. 
As for the daily brief from the White House, you may not like it, but can you imagine the hue and cry if there was no word from the White House? 
And as for Northern Command and “military takeover,” as one paper put it…
The Pentagon pays a good deal of attention to “Continuity of Operations,” or “COOP;” Northern Command and Strategic Command pay it the most attention. For the record, both commands are stridently aware of and diligent in tracking the civilian chain of command. If something were to go horribly wrong, they’re quite prepared to track down what’s left of the civilian chain of command and obey it; there are no General James Mattoon Scott.
And what about COOP? There are a few things you need to consider when making a COOP plan. Perhaps the most important is to remember the survivors.
Hurricane Katrina wreaked havoc over 90,000 square miles and involved more than 10 million people. That also meant that 3.5 million square miles of the US was untouched, and 270 million Americans were unaffected.
In a truly major crisis that encompasses the entire country, you have to develop scenarios for the specifics of the crisis. In doing so (nuclear attack for example), the scenario has to be fleshed out so that we can determine a host of things, within certain boundaries. Even in the worst case nuclear war, tens of millions of Americans would survive. The government needs a plan for them, a long-term plan.
Which leads around to the Wuhan Virus.
We have no damage to our infrastructure and while, sadly, several hundred citizens have died, and several thousand are currently at risk, 325 million Americans are still alive and likely to remain so. Even in the very worst case prognostications, in which half the population contracts the virus, and 1% are fatalities, we’re talking about 1.6 million dead. That is a horrible number, but the nation, the states, our cities and towns, will remain. 323 million will live. Our schools remain, our factories and power stations, runways and roads and bridges and railroads, ports and farms and oil fields - all will remain. The nation will live. We need to prepare for that. And draw hope from that.
The White House is walking a razor’s edge, trying to both get people to act responsibly vis-a-vis the virus and simultaneously trying to accurately frame the threat.
But as we think about what’s next, there is one thing we need to consider this: What’s happening in the state capitals.
Several governors have declared “states of emergency” and invoked various state laws. In virtually every case these laws give the governors near dictatorial power, the power to close businesses and order people into their homes, and confiscate virtually anything: weapons, vehicles, homes. Governor Cuomo - under the state of New York’s emergency powers laws - can suspend any law, and virtually any right. He can shut down printing presses, close churches, hold people without charging them.
Which leads to Judge Taney. As you recall, in May 1861 President Lincoln suspended Habeas Corpus and ordered the arrest of John Merryman, a secessionist. Judge Taney, the Chief Justice of the Supreme Court (acting as a district judge), issued a writ of Habeas Corpus, demanding that the Army, who had arrested Merryman and was holding him, bring him to the court. Lincoln and the Army ignored the Court Order. (Congress later passed a law suspending habeas corpus, per Article I of the Constitution).
Judge Taney may not have liked it, but he had no actual ability to enforce his writ. 
What has that got to do with the virus?
Well, as various governors declare states of emergency, they’re acting on laws drafted by their state legislatures to give them various authorities during emergencies. Like Lincoln’s actions, some of these powers may be un-Constitutional, but until the crisis ends and you can reach a federal court, would that matter?
And when the virus goes away - and it will - how quickly do the governors give up their powers? That, too bears watching. (Remember, they work for us, not the other way around.) The virus is an awful thing. And so would be living in a dictatorship.
So, we need to be ready - after this is over - to go back and make certain that our emergency laws are written so that they are both effective and constitutional, that they clearly define limits to the power of the governors. And then ride herd on our governments - particularly on state legislative bodies - to ensure the states are ready to do as they say: prepare, prevent, respond, and recover. And do it within the Constitution…