Great Minds Think Alike 🧐

This week's "One First" looks at Justice Gorsuch's new criticism of executive COVID mitigation decrees—and its blurring of the distinction between claims based upon inherent executive emergency power and claims based upon delegated statutory authorities:https://t.co/QQyxwLKjs2 pic.twitter.com/1nLFceyEKD

— Steve Vladeck (@steve_vladeck) May 22, 2023

Professor Vladeck is on a book tour, so he didn’t respond to Justice Gorsuch’s “statement” (yes, he put the word in quotes, too) until now. But we seem to share an analysis of it:

Leaving aside the ridiculousness of that historical claim (I don’t think it is remotely controversial that, among numerous other examples, slavery represented a greater intrusion on civil liberties), I wanted to reflect a bit on the broader thesis Gorsuch’s statement advances—that this was almost entirely a function of abuses of power by state and federal executive officials, and all while legislatures (and courts) sat idly by. To me, this view blurs a critical distinction in discussions of emergency powers—one that meaningfully differentiates the behavior of (most) state and federal officials in response to the COVID pandemic from prior examples of more serious (to me, anyway) abuses.

Professor Vladeck focuses on federal law (and provides excellent examples), but I know the Texas Lege gave the Texas Governor the powers he used during Covid to control the pandemic. Gorsuch’s argument is that executives arrogated power to themselves in violation of basic constitutional principles. But if their actions were authorized by state (or federal) law, then Gorsuch is just engaging in a Twitter-level rant.

At a minimum, Justice Gorsuch never mentions the statutes cited by Professor Vladeck. Maybe that’s why Gorsuch called it a “statement,” instead of a court opinion. It’s a statement, alright; but I think, not the kind he intended.