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Justice Gorsuch excoriates pandemic emergency power misuse: 'Breathtaking' intrusion on civil liberties
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Justice Gorsuch excoriates pandemic emergency power misuse: 'Breathtaking' intrusion on civil liberties

Supreme Court Associate Justice Neil Gorsuch slammed the sweeping use of emergency powers during the pandemic as "breathtaking" in scale.

"Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country," Trump appointee Justice Gorsuch wrote, in pertinent part.

The unsigned order to which the statement was attached addressed a case rendered moot by the expiration of Title 42 on May 11, as explained in The Hill. Title 42 was the Trump-era order allowing migrants to be more expeditiously expelled based on the emergency situation created by the pandemic.
The conservative justice spared neither presidents, states, lawmakers, nor colleagues in his pointed remarks.

"The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government," Gorsuch wrote.

"However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process."

Gorsuch took aim at government-imposed vaccine mandates, lockdowns, church and school closures while other businesses like casinos remained open, the eviction moratorium, and federal officials' apparent pressure on social media companies to tamp down speech expressing disagreement with government's approaches to pandemic management.

He chastised Congress and state legislatures' silence in the face of executive officials issuing orders that ought to have gone through the lawmaking process.

He blasted the judiciary in general, including the Supreme Court on which he is seated.

"In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation."

Gorsuch said there are crucial lessons to be learned from this chapter in our nation's history. One involves seizing upon the the power of fear and the desire for safety to achieve ends contrary to our nation's founding principles. Another, he said, involves concentrating power in the hands of too few.

"Even the ancients warned that democracies can degenerate toward autocracy in the face of fear. ... Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate. ... Autocracies have always suffered these defects."

The scathing eight-page rebuke ended with a warning.

"Make no mistake — decisive executive action is sometimes necessary and appropriate."

"But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow."

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