Can Eminent Domain by used to Protect Jobs?

           "Private property shall not be taken or damaged for public use
           without just compensation ...." IL. Constitution, Art. 1 §15

On his first day in office, President Biden revoked the permit to finish building the 1700 mile Keystone Pipeline to carry oil from Alberta, Canada to the Texas Gulf Coast. The Laborers’ International Union of North America condemned Mr. Biden's action. The union says Mr. Biden's Executive Order will destroy 1,000 existing and 10,000 new construction jobs. AFL-CIO President Trumka agrees.


Sen. Joe Manchin (D. WV) has asked Mr. Biden to reconsider, and has set out facts to show that pipelines “continue to be the safest mode to transport our oil and natural gas resources, and they support thousands of high-paying, American union jobs.″ If Manchin is correct and the pipeline is the environ-mentally safest way to move oil and gas, it cannot honestly be regulated out of existence in the name of safety concerns.


But what remedy is available to Keystone workers whose jobs have been "taken" or destroyed by President Biden? How about Eminent Domain?

If the government takes your property for a public use. it has to pay you "just compensation." The Fifth Amendment to the U.S. Constitution states "nor shall property be taken for public use without just compensation."


If you own a house, and the government wants to build a new highway across your property, the government can take all or part of your property. This is known as the power of Eminent Domain. The government passes a law finding that it needs to take your property for a public purpose. But then, it must pay you the "fair cash market value" ("FCMV") for the whole, or for whatever portion of your property it takes. You have the right to have a jury trial to determine what the "just compensation" is for your loss.


And if the taking also diminishes the value of your property beyond the "just compensation" for the part actually taken, you are entitled to additional damages "to the remainder." 

Assume that your house and lot had a "FCMV" of $500K before the government takes of thirty feet of your lawn. Assume further that the "FCMV" of the parcel taken is $30K. Finally, assume that competent appraisers determine that the "FCMV" of your home and the remaining portion of your lot after the take is $400K. Therefore, besides being paid $30K for the portion of the land actually taken, you would be entitled to an additional $70K for "damages to the remainder."


And there are even times when a property owner may be entitled to damages when no part of his property has been taken. Assume you own a gas station. You have ingress/egress to an adjacent highway. You lose that access when the government makes it "limited access." Motorist to get to your station, now have to leave the highway 3 miles East of your station, and use winding back roads to get there. This reduces the "FCMV" of your property 75%. You are entitled to compensation.


From the above, it can be seen that the 5th Amendment affords the landowner whose real property has been taken/damaged broad protections.


But what if the property taken isn't "real estate?" The destruction of easements, leaseholds, or the taking/destruction of "personal property," including crops, franchise rights, patent rights, and trade secrets, all require the payment of "just compensation." 

But does a citizen whose job is destroyed by the President's Executive Order have a compensable property right in his employment?


In 1937, FDR's Labor Secretary, Frances Perkins, thought so when she said that striking "workers had a property right to their jobs."


In 1975, the California Supreme Court said that public employees, who have attained regular status, "have a property right to their jobs."


So, assume that the State of Illinois decides it "needs" the John Deere Administrative Center for a new executive office suite for Gov. J. B. Pritzker. Clearly John Deere would be entitled to just compensation for the taking of its lands and building. But what if Deere relocates to China, and 2000 of its employees permanently lose their employment? Would the employees be entitled to "just compensation" for the "taking" of their jobs for "public use?"


In 2005, Justice John Paul Stevens wrote in Kelo v. New London that "expropriation of private holdings as part of urban development is justified for the public purpose of increasing jobs and tax revenues."


I would suggest that when a President destroys thousands of jobs in an industry to "Save the Environment" and to create an unknown number of "High Paying Green Jobs," those "jobs"that are destroyed should be considered "property."


If Eminent Domain can be used for the "public purpose" of "increasing jobs" (as per Kelo), Eminent Domain should also be available to compensate workers when the government intentionally choses to their jobs.


If the government wants create a new group of workers, and destroy an older one, for the"benefit of the larger community," the benefiting community should compensate the workers who are being damaged. The purposes of Eminent Domain is to shift the burden of a public improvement from the person whose property is taken to the entire community for whose benefit the public improvement is allegedly being made.


If the Laborers’ Int'l Union, is worthy of its name, it should bring a "reverse" Eminent Domain class action on behalf of its members whose jobs are being destroyed. It should test whether under the Constitution, "just compensation" must be paid when the Government intentionally destroys those jobs for an alleged "public purpose," designed to benefit the entire community.


I find no precedents for such an action. But it's sure worth a try! There is nothing in the 5th Amendment that says "a man's job is not his property." 

First Published in the Moline Dispatch and Rock Island Argus on February 26, 2021

Copyright 2021

John Donald O'Shea  

"Chicken Little is alive and well, and in Washington D.C.

Who said fairy tales never come true? Remember the story of "Chicken Little?"

       "Once upon a time there was a little chicken. Everybody called him-- 

        'Chicken Little.' One day, while he was out walking, a bird flew over and
        it dropped an acorn that bopped 'Chicken Little' on his head. 'Chicken
        Little' looked up, and didn’t see anything. And when he didn't, he
        panicked and began yelling, “Help, help the sky is falling! The sky is
        falling! I have to tell the King!” And he went running down the road,
        looking for the King."

Chicken Little, it seems, is alive and well. In fact, it appears he has taken employment within the Biden Administration, and is now running the U.S. Department of Homeland Security. Here is the Department's version of "The sky is falling! The sky is falling!

        "Some ideologically-motivated extremists with objections to the exercise of
        governmental authority and presidential transition ... could continue to mobilize
        to incite or commit violence."

But wait, It's not only DHS that's gone bonkers! Our esteemed Governor, J. B. Pritzker (D) is dispatching 500 Illinois National Guardsmen to augment the 7000 National Guardsmen from sister states who are already in the District to insure that the Bogeyman (a/k/a former President Trump) and his minions (who haven't been seen or heard from since President Biden's Inauguration) don't rise out of the Washington Tidal Basin on a fogey night, and drag President Biden from the White House basement, and tow the Capitol building off to Texas with their pickups.

Now if only the Guardsmen can set up a few hundred machine guns in concrete pill boxes on the Capitol grounds, behind the concrete wall, "unscalable fence," and the guardhouses that have already been erected, our fearless Congressional representatives should be safe, from the hordes of "insurrectionists" wearing MAGA hats, their constituents, and time-wasting future elections.

For four years, the Democrats in Washington have been on a non-stop rant against President Trump's "despicable" southern Border Wall with President Biden leading the charge. That wall, designed to keep illegal aliens, drug dealers, and narco-terrorists out of the country, was an unnecessary "abomination." Ordinary Americans have been told they had to take their chances with drug dealers and murders who crossed out border illegally. The pleas of parents of murdered children were ignored in the halls of Congress. But now, the rule is different for Congress. Our esteemed Congressional representatives must protected with concrete walls, unscalable fences, and 7500 armed soldiers. 

But how can the same political hacks who supported the "defunding of police" all last summer as stores were being burned and looted, as people were being shot, and as neighborhoods were being declared "autonomous zones" by mobs of leftists, now demand extraordinary "police protection" by armed National Guardsmen? 

And why, at the same time as the Left demands a re-writing of the Second Amendment to take weapons from ordinary law-abiding Americans, are our elected representatives hunkered down en masse behind National Guardsman with "assault rifles?" 

Don't chose to misunderstand me. I don't in the least approve of a mob bursting into the halls of Congress and stealing or destroying the property of the American people — or causing death or bodily harm. They should be prosecuted. But what about the rioters — euphemistically described by the press as "mostly peaceful protesters" — who sacked Target Stores, burned down neighborhoods, and assaulted and shot people? Do they not deserve equal justice? 

The press labels the miscreants who desecrated the Capitol as "insurrectionists." So why aren't the miscreants who established "autonomous zones" in American cities and set up their own "governments" labeled "insurrections?" Why aren't the rioters who destroyed priceless American statues, and who burned and looted businesses labeled "rioters." If "the book" is to be thrown at the reprobates who trashed the Capitol, why is it not thrown at the reprobates who destroyed cities, businesses and homes? If the police and the FBI are going to "come down with both heels" on rioters at the Capitol, why aren't they coming down with both feet on rioters in the hinterlands? 

Unless there is "equal justice" for all, President Biden is going to have a devil of a time reuniting the country. You can't punish one group for insurrection and/or riot riot, and not the next.

Our First Amendment states, "Congress shall make no law respecting ...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The word "people" includes Republicans, Democrats and even Communists and Fascists. But the the Constitution no where guarantees anybody the right to engage in insurrection or riot, to harm or kill their neighbor, or to destroy public or private property. 

First Published in the Moline Dispatch and Rock Island Argus on February 7, 2021

Copyright 2021

John Donald O'Shea    

They Were Wonderful Days

Hank Aaron has died at age 86. He was the last of the great players of the early 50s. He was an important part of my boyhood. His death is a period to that chapter of my life.

I first became aware of Major League Baseball in the autumn of 1948. My Aunt Nora was listening to the Cleveland Indians - Boston Braves World Series on her radio. As I listened, the announcer made repeated mention of Lou Boudreau and Tommy Holmes. Their names have stuck in my mind all these years.

But my real love of the game began in the early spring of 1949. The Cub game was on, at my grandfather's apartment, and Dutch Leonard was pitching, when the announcer said, "And there's a base hit through the box." A "box" on a baseball field? I asked my dad, "what that meant?" He explained that the pitcher pitched from a "Pitcher's Box" in the early days of baseball. And that in the late 1800s, the "box" was replaced by the "mound." So a "base hit through the box," was a ground ball or line drive that went over the mound and into center field. "Box" was just another term for "mound."

Then, near June 1, 1949, we got our first TV. It had been delivered and the chimney antenna had been hooked up earlier that morning. Dad took the afternoon off work to test it. When he turned it on - without even changing the channel - on came the Cubs' game. The first name I heard was that of Cub outfielder "Peanuts" Lowrey. Then a few days later "Peanuts" was gone - traded to Cincinnati. The Cubs acquired Hank Sauer, in that four-player deal. Sauer went on to hit 27 homers for the Cubs that year, and became my first baseball hero. Of course as a kid I didn't appreciate that "Hammerin' Hank" had the mobility of a printing press in left field.

In 1949, WGN-TV in Chicago broadcast both the Cub and White Sox home games. We watched both, but I preferred the Sox ... until my Dad pointed out that we lived on the north side, and that the Cubs were the northside team. That coupled with the fact that the Sox traded my two favorite Sox players, Guz Zernial and Cass Michaels, caused me to re-prioritize: the Cubs became my favorite; the Sox were relegated to second place! I have to this date remained a "closet-Sox fan!"

In those days there were only eight teams in each league. With all the Cubs and Sox home games on TV, it was easy to learn the names of all the players. At first, the best were two older players: Ted Williams and Stan Musial. But then the post-war stars emerged. Jackie Robinson in 1947; Billy Pierce, Roy Campanella and Robin Roberts in 1948; Whitey Ford, 1950; Willie Mays and Mickey Mantle, 1951; Al Kaline, Ernie Banks and Henry Aaron, 1954; and Roberto Clemente, 1955.

In December 1948, we moved to Lincolnwood, just north of Devon Avenue. At first, there was prairie north of Devon. It was there that we spent our summers. We carved baseball fields on flat ground. We dragged our lawn mowers down to cut the weeds. Our bicycles became the left field wall. We'd play a double header (either baseball or 16" softball), starting at 8 a.m. the day after summer vacation began. We'd take a break for lunch, and then start a second double header around 1:30. Then after dinner, we'd play more ball until dark.

When the summers got too hot to play in the afternoon, we found substituted a table game: "All-Star Baseball." The game contained player disks of the "all-time greats" like Babe Ruth, Hack Wilson, Rogers Hornsby and Ty Cobb, as well as a new set of All- Stars each year. We studied the disks, as well as "Jack Brickhouse's Baseball Record Book," to put the "best possible" teams of hitters on the field. But "ASB" took no account of fielding or pitching. Eventually, we "graduated" to a more sophisticated game called"Big League Manager." Then we discovered"APBA." It was terrific. We spent hours, playing "APBA," while listening either to the Cubs or Sox on TV, or, if they weren't on, to "The Kingston Trio," Johnny Cash, or the "Limeliters."

Dad encouraged us in all this. He believed that "kids who were involved in sports didn't get into trouble." To that end, he supplied balls and bats, footballs, and basketballs, not only for Tom and me, but for the whole neighborhood. I don't think, any other dad, or any other kid ever once supplied a ball over that ten-year period.

And Dad's business had season tickets to the Sox Games. If on a Friday evening, Ford was pitching for the Yankees, and Pierce for the Sox, we'd be at Comiskey Park. The ending was always the same. Around the 8th inning, one of the Yanks would homer to break up the 1-1 tie.

And I can recall being at the 1950 All-Star game at Comiskey Park, when Williams ran into the left field wall and broke his collar bone, and being there again when he returned to the Red Sox lineup late in the season as a pinch hitter. He homered over the corner of the bullpen, to the deepest part of the park.

And I can recall being at Wrigley Field, in the first row of the right field bleachers. My friend "Squid" was taunting Aaron: "Henry, you're a bum!" The very next inning, Aaron belted one over our heads deep into the bleachers. When he returned to his position, "Squid" stood, bowed, and doffed his cap. Aaron smiled. 

First Published in the Moline Dispatch and Rock Island Argus on January 27, 2021

Copyright 2021

John Donald O'Shea 

The power to ration is the power to destroy

How to allocate scarce resources is a problem as old as mankind, and indeed older.

The sinking of the Titanic on April 15, 1912 perfectly illustrates the problem. According to the official British Board of Trade Report, the passengers and crew aboard totaled 2224. That report shows that 710 were saved, and 1,514 perished. There were 20 lifeboats, rated to hold 1,178 people. Rationing of the lifeboats was therefore "necessary." The crew "rationed" the boats on the principle of "women and children first." But other principles could have been chosen: "First Class passengers first!" "Those in steerage (poor emigrants) first!" "Doctors and other 'essential workers' first!"


So in America, who should get the new COVID-19 vaccines first? There will necessarily be "rationing" because there will not initially be sufficient doses of the Covid vaccines for the entire U.S. population.


On December 3, the CDC recommended that initial supplies of COVID-19 vaccines should be allocated to:

• Healthcare personnel and long-term care facility residents (Phase 1a).

On Dec. 22, the CDC recommended the next two allotments. In Phase 1b:

• Frontline essential workers such as fire fighters, police officers, corrections officers, food and agricultural workers, United States Postal Service workers, manufacturing workers, grocery store workers, public transit workers, and those who work in the educational sector (teachers, support staff and daycare workers).

• People aged 75 years and older because they are at high risk of hospitalization, illness, and death from COVID-19. (People aged 75 years and older who are also residents of long-term care facilities should be offered vaccination in Phase 1a).

In Phase 1c:

• People aged 65—74 years because they are at high risk of hospitalization, illness, and death from COVID-19. (People aged 65—74 years who are also residents of long-term care facilities should be offered vaccination in Phase 1a).

• People aged 16—64 years with underlying medical conditions which increase the risk of serious, life-threatening complications from COVID-19.

• Other essential workers, such as people who work in transportation and logistics, food service, housing construction and finance, information technology, communications, energy, law, media, public safety, and public health.

As I look at the CDC's recommendations, I have no quarrels with their reasonableness.


Given the fact that federal officials have estimated that there will be only enough doses to vaccinate 20 million Americans in December, 30 million in January and 50 million in February (with more doses coming thereafter), some rationing plan is at present clearly necessary. The CDC plan, detailed above, seems both necessary and reasonable.


That being said, I am, nevertheless, extremely wary of the government's power to ration. The CDC did well, but just as the "power to tax is the power to destroy," so is the power to ration.


I gave the example of"rationing" aboard the Titanic advisedly. The Titanic's 20 life-boats were built to accommodate 1,178 people. Yet only 710 survived! Passengers and crew numbering 1,514 drowned. The fact that the boats were designed to accommodate 1,178 people and that only 710 survived, brings into question the wisdom of the "women and children first" rationing principle. Couple that with the fact that the ocean was dead calm that night, and that going into the 28 degree water meant death in minutes, I have always wondered why the boats weren't filled beyond their stated capacity?

Should not the principle of rationing have been, "Overfill the boats to almost the point where they would be in danger of taking on water?" Or at least, "Make sure every boat is filled to stated capacity; no half-filled boats!"


The danger in "government rationing" is also clearly illustrated in the proposal of other "experts" whose principle of vaccine distribution would have been to give "priority access" to people of color (Blacks and Hispanic people) because the pandemic has exacted a disproportionately heavy infection and death toll on their communities.

A rationing danger inevitably works its way in, when the government gives priority to"frontline essential workers such as fire fighters, police officers, corrections officers, food and agricultural workers, United States Postal Service workers, etc."

But who else is a "frontline essential worker?" Is a congressman a frontline "essential worker" such as a U.S Postal Service Worker? Or is a congressman even more essential?


Exactly how essential is Sen. Marco Rubio, a Republican? Rep. Alexandria Ocasio-Cortez, a Democrat?
Rep. Larry Buschon, a Republican? Speaker Nancy Pelosi, a Democrat? Sen. Mitch McConnell, a Republican? They all jumped to the front of the vaccine line.


In W.S. Gilbert's, "The Mikado," Ko-ko, the "Lord High Executioner" sings, "I've got a little list of society offenders who might well be underground and who never would be missed!"


I suspect that W. S. Gilbert, rather than deeming Pelosi, Rubio, et al., essential, would have put all five on Ko-ko's little list.


When congressmen and bureaucrats start allotting benefits to those they deem "essential," it is never long before they start allocating them to themselves, their "friends," and their political supporters. Even worse, World War II history shows that rationing can easily morph into death panels. The rations provided those in the concentration camps were insufficient to sustain life. Still doubt? Visit Venezuela.

First Published in the Moline Dispatch and Rock Island Argus on January 1, 2021

Copyright 2021

John Donald O'Shea

Restoring trust in elections

In 2004, the Commission on Federal Election Reform was created by former President Jimmy Carter, a Democrat, and former Secretary of State James Baker III, a Republican, in the aftermath of the 2000 presidential election and the 2004 election in Ohio. The commission was a nongovernmental, private bi-partisan organization. Among its 18 other members were former Senate majority and minority leaders Tom Daschle, a Democrat, and Bob Michel, a Republican.

For those too young to remember, the 2000 Bush v. Gore election was decided only after the U.S. Supreme Court put an end to the Florida election recount. Those old enough will recall the bizarre spectacle of Broward County canvassing board member, Judge Robert Rosenberg, using a magnifying glass to examine a disputed ballot to discover "hanging chads."

The commission was created to recommend measures designed to instill confidence in the integrity of their elections. In presenting its report, Carter and Baker wrote:

"Elections are the heart of democracy. They are the instrument for the people to choose leaders and hold them accountable. At the same time, elections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk.

"Americans are losing confidence in the fairness of elections, and while we do not face a crisis today, we need to address the problems of our electoral system."

In 2016 and in 2020, the feared "crisis" materialized. In the aftermath of the 2016 election, hordes of Democrats believed President Trump had won only by virtue of Russian meddling. That belief could not be overcome even when the Mueller Report found no evidence of collusion. Now in 2020, Trump and millions of his supporters believe the election was stolen by fraudulent ballots manufactured by Democratic operatives, and by voting machines programed to switch Trump votes into Biden votes, or by under-counting Trump votes. And their beliefs, even if untrue, will not be overcome by any "official" report. It is, therefore, time to revisit the bipartisan commission recommendations made to insure fair, honest elections. And even more importantly, to insure election results in which all Americans — Republicans and Democrats — can have confidence.


In the executive summary of the 91-page report, the commission made five main recommendations:

"We propose that the U.S. Election Assistance Commission (EAC) develop a mechanism to connect all state lists. ... Connection will eliminate the vast majority of complaints currently leveled ... A distributed database can remove interstate duplicates and help states to maintain an up-to-date, fully accurate registration list.

 

"1. We propose a universal voter registration system in which the states, not local jurisdictions, are responsible for the accuracy and quality of the voter lists.

"We propose that the U.S. Election Assistance Commission (EAC) develop a mechanism to connect all state lists. ... Connection will eliminate the vast majority of complaints currently leveled ... A distributed database can remove interstate duplicates and help states to maintain an up-to-date, fully accurate registration list.

"People would need to register only once in their lifetime, and it would be easy to update their registration information when they move.

"We also propose that all states establish uniform procedures for counting provisional ballots ...."

"States should play an affirmative role in reaching out to nondrivers by providing more offices ... to register voters and provide photo IDs free of charge.

 "2. To make sure that a person arriving at a polling site is the same one who is named on the list, we propose a uniform system of voter identification based on the 'REAL ID card;' or an equivalent for people without a drivers license. ...

"States should play an affirmative role in reaching out to nondrivers by providing more offices ... to register voters and provide photo IDs free of charge.

"There is likely to be less discrimination against minorities if there is a single, uniform ID, than if poll workers can apply multiple standards. ... We also propose that voters who do not have a photo ID during a transitional period receive a provisional ballot that would be counted if their signature is verified.

"3. We propose measures that will increase voting participation by having the states assume greater responsibility to register citizens, make voting more convenient, and offer more information on registration lists and voting.

"States should allow experimentation with voting centers.

"We propose ways to facilitate voting by overseas military and civilians, and ways to make sure that people with disabilities have full access ...

"States and local jurisdictions should use Web sites, toll-free numbers, and other means to inform citizens about their registration status, and the location of their precinct.

"To improve ballot integrity, we propose that ... prosecutors issue public reports on their investigations of election fraud...

"States should not discourage legal voter registration or get-out-the-vote activities, but they need to do more to prevent voter registration and absentee ballot fraud."

"4. We propose ways to give confidence to voters using electronic voting machines that their votes will be counted accurately.

"We call for an auditable backup on paper at this time... We encourage independent testing of voting systems (to include voting machines and software source code) under EAC supervision.

"5. ... We propose that state election management bodies be reconstituted on a nonpartisan basis to become more independent and effective.

"We cannot build confidence in elections if Secretaries of State responsible for certifying votes are simultaneously chairing political campaigns. ...."

The 2005 commission's recommendations are not infallible. But any Democrat or Republican who wants fair and honest elections should embrace them, at least as a starting point to restore trust in our elections. They deal with honesty, as well as the appearance of honesty.

First Published in the Moline Dispatch and Rock Island Argus on December 11, 2020

Copyright 2020

John Donald O'Shea

Government is not free to disregard the First Amendment in times of crisis.

The argument of the Lincoln administration during the Civil War for trying American citizens before military commissions was "necessity" created by the existence of the Civil War. The argument of the Governors today for closing churches, or severely limiting the number of worshipers allowed to attend, is also "necessity" created by the existence of the Covid pan-demic. 

So does "necessity" or "emergency" allow or justify Governors to suspend the Constitutional Rights of the American people?

In 1866, The U.S. Supreme Court decided the great case of ex parte Milligan. Milligan was tried by a military commission in Indiana and sentenced to death. On appeal, Milligan con-tended that the military commission had no jurisdiction to him. He argued that "it was the birthright of every American citizen, when charged with a crime, to be punished only accord-ing to law, and therefore, that he was entitled under the Constitution (1787) to a trial by jury, all the rights attendant thereto specified by the Fourth, Fifth and Sixth Amendments to the Constitution. 

The Court agreed with Milligan. 

"The Constitution ... is a law for rulers and people, equally in war and in peace. and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provision can be suspended during  any of the great exigencies of government. Such a result leads directly to anarchy of despotism ...."

The court the proceeded to consider which of any of our Constitutional rights could be sus-pended during an emergency. It concluded, that only the right of Habeas Corpus could be suspended. 

"Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus." Indeed, the Founding Fathers "limited the suspension to one great right, and left the rest to remain forever inviolable." The court concluded by holding, "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."

Today, the courts are clearly open, the exercise of their jurisdiction is wholly unobstructed. Yet in May of 2020, Chief Justice John Roberts wrote a concurring opinion in South Bay Penticostal Church v. Newson that flies in the face of everything stated in ex parte Milligan.

Gov. Newson's Covid guidelines limited church attendance to 25% of building capacity or a maximum of 100 attendees. 

The Chief Justice brushed aside the Constitutional Right of Free Exercise of Religion, in his concurring opinion.  

"Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with "Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.

The Chief Justice justified his ruling stating

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” ... When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” ... Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary ...."

Roberts' opinion utterly ignores the fact that while the "free exercise of religion" is expressly guaranteed by the First Amendment, "secular gatherings" enjoy no such express guarantees. 

On November 25, 2020, the issue was again considered by the high court in Roman Catholic Diocese of Brooklyn and Agudath Israel v. Cuomo.

In New York, Gov. Cuomo issued an executive order, creating "color zones." In "red zones" house of worship were limited to 10 people; in "orange zones" to 25. In "red zones," business the Governor deemed "essential" - such as liquor stores  and acupuncture centers - may ad-mit as many people as they wish. 

The Church and the synagogue contend that these restrictions violate the Free Exercise of Religion Clause of the First Amendment, by treating houses of worship much more harshly than comparable secular facilities. Both argue, without contradiction, they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak. 

In striking down Gov. Cuomo executive order, the court echoed ex parte Milligan. 

"Members of this Court are not public health experts, and we should respect the judg-ment of those with special expertise and responsibility in this area. But even in a pan-demic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure."

In his concurring opinion, Mr. Justice Gorsuch writes, 

"Government is not free to disregard the First Amendment in times of crisis. At a mini-mum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available ..." 

Like Roberts, the majority recognizes that governors have a "compelling interest" in protect-ing public health. But when First Amendment rights are also being curtailed, the majority sees a duty to conduct a serious examination of the need for such a drastic measure." Justice Gor-such would require that the remedy be the "least restrictive alternative."

Compare the concurrences of the so-called "Conservatives. "Roberts comes heavily down on the side of executive power. Gorsuch sees the "compelling interest," but refuses to ignore the First Amendment. 

First Published in the Moline Dispatch and Rock Island Argus on December 5, 2020

Copyright 2020

John Donald O'Shea

 

 

On this Thanksgiving Day, We Can Be Thankful for America's Great Pharmaceutical Companies

As I write this on the Sunday before Thanksgiving, politics aside, I think we have a lot to be thankful for. This is true, even though as of today the death count attributed to the coronavirus here in the U.S. is 256,000. Is this bad? Yes. Could it be worse? Yes. Is it likely to be the worst pandemic ever to strike the U.S.? No.


In 1918, the "Spanish Flu" struck the United States. The Centers for Disease Control and Prevention (CDC) tells us, "The 1918 influenza pandemic was the most severe pandemic in recent history. It was caused by an H1N1 virus with genes of avian origin. Although there is not universal consensus regarding where the virus originated, it spread worldwide during 1918-1919. In the United States, it was first identified in military personnel in spring 1918.

"It is estimated that about 500 million people or one-third of the world’s [then] population became infected with this virus. The number of deaths was estimated to be at least 50 million worldwide with about 675,000 occurring in the United States. Mortality was high in people younger than 5 years old, 20-40 years olds, and 65 years and older. The high mortality in healthy people, including those in the 20-40 year age group, was a unique feature of this pandemic. 

 

"While the 1918 H1N1 virus has been synthesized and evaluated, the properties that made it so devastating are not well understood. With no vaccine to protect against influenza infection and no antibiotics to treat secondary bacterial infections that can be associated with influenza infections, control efforts worldwide were limited to non-pharmaceutical interventions such as isolation, quarantine, good personal hygiene, use of disinfectants, and limitations of public gatherings, which were applied unevenly."

Undoubtedly, more U.S. residents will die from COVID-19. But up until recently, our country has had little more to control the pandemic than it had in 1918-19. Since March, our president and governors have dealt with the pandemic very much like their predecessors dealt with the Spanish Flu: through non-pharmaceutical interventions, such as isolation, quarantine, good personal hygiene, use of disinfectants, and limitations of public gatherings, which have been applied unevenly.

With the exception of antibiotics to deal with secondary infections, the doctors have not had much else. While results have significantly improved, the initial use of mechanical ventilators did not come close to producing the desired survival rates.


But now, after only nine months, vaccines are expected to be available for use in the U.S. within a matter of weeks. Pfizer and BioNTech, working together, have applied for emergency use authorization from the U.S. Food and Drug Administration (FDA) for their vaccine. Moderna's application is expected to follow in early December. And AstraZeneca and the University of Oxford hope to have their two-dose shot available around year's end. General Gustave Perna, President Trump's head of Operation Warp Speed, has said repeatedly that vaccine distribution will begin within 24 hours after an authorization is issued by FDA.

Perna has also advised that by Dec. 31, 2020, Operation Warp Speed expects to have about 40 million doses of the two vaccines available for distribution. Both vaccines each require two doses, given 21 and 28 days apart. Forty million doses, therefore, would be sufficient to vaccinate about 20 million people. People at high risk will be prioritized.

As more vaccine become available in the new year, it will be distributed. Dr. Anthony Fauci, expects the vaccine to become available for use by the general public in April 2021.


At the same, treatments are becoming available. On October 22, the FDA approved the antiviral drug Veklury (Remdesivir) for COVID-19 treatment in adult and pediatric patients, ages 12 and older, weighing at least 88 pounds, and requiring hospitalization. It is an antiviral given intravenously.

Other pharmaceutical companies are developing monoclonal antibody therapies. GoodRx explains that antibodies are proteins made by the immune system to help fight infections. They bind to foreign pathogens, such as viruses; they help destroy them. Monoclonal antibodies are antibodies made in a lab. It can take weeks for the body to develop natural antibodies. Using MABs can thus potentially fight off infections sooner.


Even if Americans can't agree politically, this Thanksgiving we should all be thankful for the work of America's great pharmaceutical companies.

First Published in the Moline Dispatch and Rock Island Argus on November 26, 2020

Copyright 2020

John Donald O'Shea