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Disciplinary Self-Help Litigation Manual

Don’t Allow Government to Abuse Emergency Powers After COVID-19 Threat Subsides

During this COVID-19 crisis, state and local authorities are ordering people to shelter in place, banning large gatherings, and closing businesses. These restrictions are implemented under traditional police powers that allow designated officials to take emergency actions to protect the public’s health, safety, and welfare during a crisis. But from history, we see that some of those officials who exercise extraordinary powers during times of crisis abuse this authority long after the crisis has abated.

During World War I, President Woodrow Wilson urged Congress to pass the Espionage Act of 1917 in response to the perceived threat of enemies within the U.S. The Espionage Act criminalized anti-war speech. And presidential candidate Eugene Debs was convicted under the Espionage Act in 1918 for a mild anti-war speech he gave at an afternoon picnic. Even though the U.S. was no longer at war with Germany, the U.S. Supreme Court upheld Debs’ conviction in 1919. He remained in prison for speaking out against the war until President Warren G. Harding pardoned him. Astonishingly, the Espionage Act, though amended several times, continues to be current law to this day.

During that same war, state governments passed laws infringing upon the rights of German immigrants. In Nebraska, it became illegal for both public and private schoolteachers to instruct in any language other than English.

This law targeted the many Lutheran parochial schools where the students and teachers commonly spoke German. Robert Meyer, a Bible teacher who taught in German, filed suit. The Nebraska Supreme Court ruled against Meyer, saying the state legislature “had seen the baleful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.” It wasn’t until 1923 — long after the war’s end — that the U.S. Supreme Court reversed the Nebraska ruling.

Having witnessed the “baleful effects” of authorities abusing power in the past, let us all demand that the COVID-19 restrictions disappear as soon as the crisis is gone. 

 

 

 

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