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The ‘new norm’ — permanent or temporary? — a reality check

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The “new norm” implies both that it is here (and indeed it is) and that it is permanent. However, let us examine what it is, its consequences and what should not be, the “new norm.”

We all know the COVID-19 virus “pandemic” by the growth of illness and deaths attributed to it in the U.S. and other countries. Reportedly, it occurs more likely among individuals and “senior citizens” with preexisting medical conditions. Effects of the illness have been reported as asymptomatic, mild among most healthy individuals, serious among others, and sometimes confused with the common cold or other strains of influenza. Tragically, death “has happened” (to quote the warnings for many prescription drugs advertised in the media today) to an alarming extent.

Medical data about the virus and growth projections have been cited to justify the classification of COVID-19 related illnesses and deaths as a “pandemic” in the U.S. and other countries, requiring effective preventive measures to control and limit its spread and accelerated medical research to develop a vaccine.

Reality check: Do we know with a reasonable degree of certainty whether the growth projections are credible and accurate? Do we know with a reasonable degree of certainty that the cases identified as COVID-19 are in fact COVID-19?

Enter the “new norm.”

Under the U.S . Constitution, governmental power is separated between the federal government and the states. Among the powers reserved to the federal government is the exclusive power to regulate interstate commerce between the states and with foreign nations. Article I Section 8.

The U.S. Supreme Court has held that the federal government’s power to regulate interstate commerce extends to state economic action regulating intrastate commerce if that state action significantly affects or impacts interstate commerce. Gibbons v. Ogden 22 U.S. (9 Wheat) 1, 16 L.Ed. 23

There is not much in the U.S. Constitution expressly defining the powers and role of state government. The 10th Amendment provides that the powers “ …not delegated to the United States by the Constitution, nor prohibited by it to the States, are  reserved to the States  respectively,  or the people…” Tradition recognizes that the States possess “police powers” to regulate public safety, health, welfare, and morals (the latter evidenced, for example, by State Statutes prohibiting discrimination on the workplace).

President Trump made it clear that the States will determine preventive measures and when and to what extent those preventive measures will be abandoned based on data concerning the extent of the spread of the COVID-19 virus. Many States were and remain economically and logistically unprepared to undertake such an effort due to the failure of, or inadequate, planning. The federal government provided significant economic and logistical assistance to the states in implementing preventive, testing, and treatment measures.

What is, and has been, the consequence of the exercise of State police power in establishing preventive measures to mitigate the spread of the COVID-19 virus?

Enter the first 10 Amendments to the US. Constitution, the Bill of Rights.

State exercise of its police power to regulate safety, health, welfare, and morals, in implementing preventive measures to mitigate and stop the spread of the COVID-19 virus, results in the significant abridgement of individual and business entity fundamental constitutional rights.

These rights include the right to assembly, travel, the unrestricted practice of religion, personal choice concerning the exercise of health maintenance practices, without procedural due process of law. It has significantly affected interstate commerce.

How far should the exercise of State police power go? The governor of Connecticut has banned evictions while providing remedial funding to landlords. Although the rationale is to protect lessees amid the COVID-19 virus, it demonstrates the extent to which Constitutional rights are being abridged without due process. The State of Connecticut’s economy is among the worst in the nation. The burden of such funding falls on the taxpayer.

An analogy to ethics and the dilemma caused by the exercise of State police power. The exercise of State police power in response to the COVID-19 virus represents the Utilitarianism philosophy of ethics: i.e. the greater good. However, under the philosophical reasoning of Deontology: i.e. duty-based ethics, the means do not justify the end. The dilemma: the abridgement of Constitutional rights v. protecting the public health and welfare.

Restrictions on assembly and travel have had a devastating effect on our economy as a whole and small businesses, the backbone of the U.S. economy. The unparalleled economic success and strength up to the exercise of State police power has been destroyed.

Reality check: The destruction of the U.S. economy directly benefits the enemies of the U.S. and presents a threat to national security. An impaired U.S. economy benefits the U.S. political opposition coming into the November 2020 Presidential election. The impairment of economic growth through the manipulation of COVID-19 virus actual and projected growth and the continued exercise of State police power must not be politically motivated.

Such a political strategy may foster the psychology of dependence on government justifying the impairment of individual and private enterprise’s Constitutional rights and planting the seeds of acceptance of a change in our free enterprise capitalistic economy and Constitutional-based system of government.

The exercise of State police power has significantly affected interstate commerce. The question is whether the federal government will and at what point, exercise its Article I Section 8 exclusive power to regulate interstate commerce, and preempt State action that continues to significantly affect and impair interstate commerce.

Reality check: The effects of the State exercise of its police power on individual and business entity rights is in some corners viewed as the new norm, citing “spikes” in new cases notwithstanding declines in former “hot spots.” Is the cycle of new cases any different than other strains of virus-based influenza?

The new norm should not and cannot be accepted as indefinite. It reflects a dangerous adjustment in our thinking that the impairment of Constitutional rights is “acceptable” rather than a temporary forgoing of those rights by adjusting health maintenance conduct in light of a health risk that warrants it based on credible peer reviewed medical data.

If anything should the “new norm,” it must be State economic and logistical preparedness to act with quick and effective measures to limit the growth of health threats of this magnitude while mitigating the abridgement of individual and business entity constitutional rights caused by the exercise of State police power, and the destruction of the U.S. economy.

Joseph S. Kendy, Jr.

Managing member, Kendy Law LLC

7 comments

Ct. V July 5, 2020 at 9:20 am

This is a mess of legal gobbledygook. There are some misleading medical statements (“do we know that COVID cases are COVID?” Of course we don’t know everything but we do know more than 100k Americans have died of it in ~3 months). Then he makes some random pronouncements about freedom and liberty, cites some first year constitutional law cases and then yells “reality check!” His final view is that we should deal with things better going forward with no useful ideas for doing so. Not sure I would put my business name on this thing.

John ONeill July 5, 2020 at 9:22 am

I’m not sure if I totally follow this piece, BUT it sounds good. Thanks for the piece.
Today’s great American came to mind as I watched the lunacy play out this month in some of our cities. Today’s shout out goes to C.S. Bishop. The one thing many protesters haven’t figured out yet is how to march without littering the streets. Is that too much too ask? Anyway, today’s Great American invented and patented the first Street sweeper. Many of us take clean strwets for granted. Thanks to CS that’s possible. While we are on the subject of clean streets, I drove thru the Cove section of Stamford. It’s a much denser version of our own East Norwalk. The streets are filthy and the congestion a disgrace. Let’s not ruin East Norwalk to appease a few misguided politicians. .

John Miller July 6, 2020 at 2:27 pm

A great piece by Joe Kendy. Putting what is going on into context as it relates to the law of the land (a/k/a the Constitution) is hardly “legal gobbledygook.”

Justataxpayer July 7, 2020 at 10:10 pm

Thank god this site isn’t Facebook. At least some dissenting views can be heard. Now, folks on the left are targets for the far left. You reap what you sow

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