DV Journal

When New Mexico Democrat Gov. Michelle Lujan Grisham declared a 30-day “public health emergency” restricting gun rights and overriding state gun laws, some Pennsylvanians wondered: Could her fellow Democrat, Gov. Josh Shapiro, use the Keystone Sate’s emergency powers laws to do the same?

As recently as June, Shapiro was in Delaware County advocating for more restrictive gun laws. And Philadelphia’s soaring violent crime rate is higher than the crime in Albuquerque, which inspired Lujan Grisham to declare an emergency.

Could Shapiro repeat the restrictive, months-long COVID lockdowns put in place by his predecessor, Gov. Tom Wolf (D)?

According to Pennsylvania political observers and analysts, the answer is not likely.

“The governor is subject to the same laws as every other Pennsylvanian and every other elected official,” Matt Brouillette, president & CEO of Commonwealth Partners Chamber of Entrepreneurs, told DVJournal. “He took an oath to uphold the U.S. Constitution and the Pennsylvania Constitution, so any action he takes must be in accordance with the constitution, both state and national, and with all current laws. He has no authority to suspend laws.”

Pennsylvania voters approved stricter limits on the governor’s ability to declare an emergency in 2021. The state constitution sets a 21-day limit on all crisis proclamations. Those declarations cannot be extended except by a concurrent resolution of the General Assembly. The governor is prevented from issuing new disaster emergency declarations on the same topic with General Assembly permission.

House Republican Leader Bryan Cutler said he believes the constitutional limits make Pennsylvania a freer state.

“Before, during, and after the COVID-19 pandemic, Republicans in the General Assembly, and the Pennsylvania House of Representatives in particular, have been stalwart defenders of freedom and liberty and the need to follow the constitution and the rule of law,” he said in a statement to DVJournal. “We will always hold officials accountable by whatever legal means we have when they overstep.”

Maine Policy recently reviewed what states have the most and least powerful emergency powers laws for their governors to wield. It ranked Pennsylvania 10th least powerful, up from 43rd in 2021. South Carolina ranked first in the nation, while Vermont was dead last.

“The restrictions on the timeline are really key,” Commonwealth Foundation Policy Analysis Director Elizabeth Stelle said. “There’s only so much a governor can do in a 21-day period.” She added that putting the limits in the state constitution sets a higher bar “to get around than if it was just in a state statute.”

In New Mexico, Lujan Grisham suspended all open and concealed carry gun laws around Albuquerque for 30 days, with exceptions for law enforcement. The move has been roundly criticized, with multiple lawsuits filed.

“It is extremely clear that Grisham knows she is operating outside of constitutional bounds, especially after last summer’s Bruen ruling, which specifically protected individuals’ rights to carry firearms outside the home,” the National Association for Gun Rights said in a statement.

While both Lujan Grisham and Shapiro are Democrats, he appears to have earned a great deal of trust from friends and critics alike.

“Gov. Shapiro is a ‘thinker,’” says Bruce Castor Jr., former acting Pennsylvania Attorney Generalm who also served ad Montgomery County DA. He’s now in private practice. “By that, I mean he does not do “crazy” things…Our governor, I believe, will have already decided what the limitations are on his authority and would not do anything as obviously contrary to the law as the governor in New Mexico is reported to have done.”

The courts or the legislature would likely get involved should a Pennsylvania governor decide to do their best imitation of Lujan Grisham.

“Absolutely,” declared Castor. “Not just the General Assembly, or individuals within the General Assembly. Also, people aggrieved by any supposed unconstitutional act would go to court to challenge that exercise of authority.”

Stelle is confident in the system currently in place. She warns executive overreach won’t necessarily be immediately tossed. “In the past, those questions have played out through many months of litigation. I would suspect the same thing would happen in Pennsylvania, regardless of the political makeup that there would be pushback from the party that’s not the governor’s party.”

Shapiro’s office did not respond to requests for comment. Shapiro did defend former Cov. Wolf’s COVID orders while serving as state attorney general but said during his gubernatorial campaign that he didn’t agree with them.

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Promises made while on the campaign trail don’t always come full circle.  Nothing is easier for an office seeker to promise government benefits that cannot be delivered. During Joanne Stehr’s rookie campaign last autumn for state representative from Pennsylvania’s 107th District, one request by her ensuing constituents stood out.

“People requested a class on the Constitution,” said the first-term representative. “The Constitution is the foundation on what this country was built upon; a roadmap that protects all of the nation’s people.”

In order to get things done, Stehr enlisted the help of Johnathan McLaughlin, a Central Pennsylvania native who volunteers as a constitutional coach, a title he earned as a graduate of the Patriot Academy in Dripping Springs, Texas.

McLaughlin is a realist who understands his volunteerism and outreach will not change anything overnight but is a solid first step.

“So many people are unfamiliar with what the Constitution says and what it represents,” McLaughlin underscored. He cited the citizenship test all immigrants must pass to obtain citizenship while pointing out Prager University’s video on YouTube that questioned college students’ civic knowledge that was anything but flattering.

A study by the Annenberg Public Policy Center highlighted how Americans are woefully misinformed about basic constitutional provisions.  Three-quarters of Americans can’t name all three branches of government, while nearly one-third can’t name any of the rights guaranteed under the First Amendment.  Such abysmal results do not bode well for public education, which exists to produce a well-informed citizenry.

McLaughlin summarized his mission in one sentence: “People who don’t understand or know what their rights are will certainly lose them.” The erudite McLaughlin is well aware that a proper understanding of the Constitution is critical in preserving our longstanding liberty.

When James Madison authored the Bill of Rights, he understood how our rights do not come from government. The Constitution does not grant rights. Rather, it restricts the government’s power over our God-given natural rights that are extensions of our humanity. That is greatly misunderstood either by design or plain ignorance and is certainly one of the foremost reasons the American republic is teetering.

When one believes their rights are secure and can’t be relinquished, they are taken for granted. Rights quickly nod off when someone gets woke as the diversity, equity, and inclusion phenomenon is diametrically opposed to our Constitution. We could learn a much-needed lesson from ancient Rome, which was doomed when it believed its city and empire were “eternal.”

The course will also be amid Constitution Day, one of the lesser-known federal holidays on Sept. 17, commemorating its signing in 1787. Without this pioneering and historic document, it is doubtful America is still celebrating July 4th in the second decade of the 21st century.

One poison fruit of the Sexual Revolution was desires and rights became interchangeable. To wit, abortion, and gay marriage are not constitutional rights.  Such misinterpretation is a direct link to the metastasizing dysfunctional American family. In addition, unelected, bureaucratic government agencies make decisions that affect all Americans. How can one know if they are acting within the law – or if they are taking advantage by pushing the limits, as those entrusted with power often do – if the Constitution is so unfamiliar?

Both Stehr and McLaughlin stressed the six-week course is strictly apolitical, and all are welcomed regardless of political affiliation. The class commences Thursday, Sept. 7, and will be held each Thursday, concluding Oct. 12. The course is free, with registration required.  The two-hour classes run from 6-8 p.m. at the Northumberland County CareerLink at 2 E. Arch St. in Shamokin.

The Heritage Foundation has a free online guide if you can’t attend class. The interactive booklet provides a clause-by-clause explanation from over 100 legal scholars. Moreover, Hillsdale College, one of only a handful of American colleges and universities still requiring a Constitution class, offers a free online course.

Stehr hinted that a second class may be in the offing in another district. Stehr is certainly on to something, and her colleagues in Harrisburg should follow her lead in trying to enlighten the electorate.

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Montgomery County Rep. Madeleine Dean and Sen. John Fetterman are urging President Joe Biden to invoke the 14th Amendment of the U.S. Constitution and unilaterally raise America’s debt ceiling. It is a move many legal scholars dismiss as both unserious and unconstitutional.

As America’s national debt approached $32 trillion, a 1917 law requires Congress to increase the amount the federal government could borrow if it were to keep issuing debt. As has happened in the past, Congress — the GOP-controlled House in particular — wants to use the debt ceiling vote to leverage a deal on political policies they support. Republicans want spending reductions in future budgets and work requirements for able-bodied adults receiving some welfare benefits.

After weeks of insisting there would be no negotiations and demanding a “clean” debt-ceiling bill, Biden is negotiating with Speaker of the House Kevin McCarthy. progressive Democrats like Dean and Fetterman are outraged. They want Biden to invoke the 14th Amendment and issue new debt without congressional approval.

The 14th Amendment says in part that “the validity of the public debt of the United States, authorized by law … shall not be questioned.” Progressives have occasionally argued, without evidence, that this provision means the president has the power to raise the federal debt limit without consulting Congress.

Fetterman recently publicly urged Biden to utilize this theoretical measure amid stalled debt ceiling talks. It has never been attempted before and would doubtlessly be subject to considerable litigation and a likely rebuke by the U.S. Supreme Court.

“This is the whole reason why the 14th Amendment exists, and we need to be prepared to use it,” Fetterman said. “We cannot let these reckless Republicans hold the economy hostage.”

Seemingly anticipating a negative Supreme Court reaction to the plan, Fetterman added. “And, if our unelected Supreme Court Justices try to block the use of the 14th amendment and blow up our economy, that’s on them.”

Dean, meanwhile, this month signed onto a letter from the Congressional Progressive Caucus urging Biden to “invoke the 14th Amendment of the Constitution” and “refuse to reward Republicans’ reckless refusal to raise the debt ceiling without preconditions.”

Neither Dean nor Fetterman responded to queries regarding their support of the plan. But one key opponent of their approach is Biden’s Treasury Secretary, Janet Yellen.

“What I would say, it’s legally questionable whether or not that’s a viable strategy,” Yellen said.

The issue is so far out on the legal fringe many constitutional scholars queried by DVJournal declined to speculate on the proposal’s feasibility.

“Not my area of Con Law, unfortunately,” one wrote.

“Sorry – beyond my expertise!” said another.

“Sorry, don’t know. Good luck!” wrote a third.

One exception was Michael Dimino, a professor, and expert in constitutional law at the Widener University Commonwealth Law School in Harrisburg, who has very clear views on the matter.

“The Fourteenth Amendment gives the president no authority unilaterally to raise the debt ceiling,” he told DVJournal.

“All the amendment says is that debts (except those incurred by the rebellious states) are valid,” he said. “It says nothing about how they are to be paid, and it certainly gives no authority to the president to override Congress’s decision about when or how to pay debts.”

“I do not know of any particular situation where it’s been used to this effect,” he said. “It seems like an absolutely frivolous argument.”

Other experts have weighed on the matter, with different scholars coming down on different sides of the constitutional question.

Jeffrey Rosen, a law professor at the George Washington University Law School, wrote during the 2011 debt fight that then-President Barack Obama stood a good chance of successfully using the 14th Amendment in such a way.

Rosen argued the Supreme Court would likely decline to hear the case at all, and the White House stood a chance of winning if it did.

“[T]he possibility of a lopsided victory should certainly embolden a constitutionally confident president to … throw down the gauntlet,” Rosen wrote.

On the same day, Rosen wrote those words, Dean of the UC Irvine School of Law Erwin Chemerinsky argued there was “no plausible way to read [the 14th Amendment] as providing the president the ability to increase the debt ceiling without congressional action.”

“The power of the purse — including the authority to tax, spend and borrow — is quintessentially legislative,” Chemerinsky wrote. “Not even a dire financial emergency would allow the president to take this over.”

The U.S. national debt on Tuesday stood at around $31 trillion, or about $250,000 per American taxpayer.

The only time since the nation’s founding when the debt balance was paid off was 1835 when President Andrew Jackson oversaw the successful termination of the national debt.

The government financed that achievement through land sales and tariffs.

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For another point of view see “Counterpoint: What Would Founders Think of Dobbs Decision? Not Much”

When the U.S. Constitution was ratified June 21, 1788, the two men most responsible for its success were Alexander Hamilton and James Madison, who, along with John Jay, wrote “The Federalist Papers.”

Four years later, they had markedly different approaches to interpreting the document they helped create.

Hamilton, perhaps because he wanted a national bank that wasn’t mentioned in the Constitution along with an active central government, came to interpret the Constitution as being open-ended: if something isn’t prohibited by the document, it is allowed — or as he and his Federalist friends might have put it, implied.

By contrast, the Father of the Constitution, James Madison, along with friends like Thomas Jefferson, viewed the Constitution as a limiting document: if something is not expressly stated in the Constitution, it is prohibited.

More than two centuries later, the debate between Hamilton and Madison continues to define the two opposing schools of constitutional interpretation. As of June 24, 2022, when the Dobbs v. Jackson Women’s Health Organization decision was published and Roe v. Wade was overturned, it’s clear Madison won.

One of those schools, and the one that prevailed in the Dobbs decision, is referred to as textualism or, as it is sometimes called, originalism. Madison would have argued for textualism/originalism by describing what we usually do when we look at words and try to figure out their meaning. The textualist/originalist approach first asks judges to apply the text — do what the words say. But it recognizes words can be unclear when applied to varying circumstances. In that event, the originalism part of the approach says to look beyond the words but only to ask what was intended by those who chose — and those who ratified — those words. They can tell you what they meant.

The second school of constitutional interpretation, the Hamilton method, goes beyond limiting rights to what was said and what was intended. This approach, which could be called the Humpty Dumpty school of constitutional interpretation, was best expressed by Humpty himself. You will recall Alice asked him in “Alice in Wonderland” “whether you can make words mean so many different things.” Humpty’s response was that words were not his master. Instead, he said that when he uses a word “it means just what I choose it to mean — neither more nor less.”

Now it was conceded by Justice Harry Blackmun in his majority opinion in Roe v. Wade that there were no constitutional words expressly conveying a right to abortion or even any suggestion of an original intent to convey such a right. But, the words were not going to be his master. Instead, he agreed with Humpty Dumpty that it was permissible to shift meanings and invent a constitutional right to an abortion. The lack of an expressed instructional prohibition on abortions was claimed in Roe to permit the finding of a constitutional right to abortion.

It was the Humpty Dumpty logic of Roe v. Wade that led the majority in Dobbs to decide that the question of abortion in our country had a great fall and could not be put together again. Instead, the Dobbs court, recognizing the lack of a constitutional basis for the Roe decision, returned the issue of abortion to the state for legislative resolution.

The Dobbs majority said legislators have to put this together.  James Madison would have approved.

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