Q&A

A reader sent me filings from Smart v. Kemp, a state case filed in Georgia in February 2021, challenging Governor Brian Kemp’s executive orders issued under the Covid-19 pretext as violations of the Georgia and US constitutions.

I’m working on a short post about the case, and hope to have it up later this afternoon, because it includes many of the weird things that have been happening in other state courts and in federal courts, in response to constitutional challenges to government acts.

Among other things, the Georgia judge’s September 2021 order dismissing the plaintiffs’ case against Governor Kemp reads like a ransom note written by a captive under duress.

In the meantime, I’ve put together a short question-and-answer series.

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Does the US Constitution of 1787 empower Congress to enact statutes that suspend the Constitution and the governing functions of Congress, the President and the federal courts, by suspending legislative oversight, judicial review and other checks and balances?

No.

Has Congress enacted statutes that purport to do those things anyway?

Yes. See public health emergency laws passed 1983 to present, as amendments to 1944 Public Health Service Act, 1938 Federal Food Drug and Cosmetics Act, 1935 Social Security Act, 1946 Administrative Procedures Act, and through multiple National Defense Authorization Acts (NDAAs).

Have those constitutionally-invalid statutes been enacted by the executive branch?

Yes. See Covid-19.

Could the federal courts — using their authority under the 1787 US Constitution as if Congress had not attempted to suspend it, as if their judicial authority is legislatively-irrevocable — find the enabling statutes constitutionally invalid, and thereby render null and void the statutes themselves and all the federal programs subsequently enacted under them?

Yes.

Has the same model been put in place at the state level, by state legislatures, state governors and state courts, to suspend the state constitutions and the normal operations of the three branches of state governments, under the public health emergency framework?

Yes.

Could the state courts assert their constitutionally-derived, legislatively-irrevocable authority to find the acts of state governments constitutionally-invalid, and render null and void the state government acts and the state programs carrying them out?

Yes.

Would such acts of courageous judicial rebellion against legislative and executive usurpation of judicial and constitutional power be politically and socially messy?

Yes.

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St. Paulinus of Nola