An interview with Clackamas County Commissioner Mark Shull concerning Executive Powers, vaccine passports, the Patriot Act and the growth of bureaucratic overreach that now threaten individual rights granted by our U.S. and Oregon State Constitutions.
The Covid-19 breakout reached worldwide attention by January 2020. The number of cases grew rapidly worldwide over a short period of time. President Trump, on March 16, 2020, called for voluntary guidelines for social distancing that was to last 15 days. The guidelines were extended for another 15 days on March 29, 2020.
Governors across our Country issued their own guidelines. In March 2020 Oregon Governor Kate Brown declared a Covid-19 state of emergency executive order under the title “Stay Home, Save Lives.” In June, 2021 her emergency powers were then extended to December 31, 2021. What started as a 15-day shutdown has morphed into various levels of restrictions with no end in sight.
Social distancing for individuals became defined as face mask mandates, bans or limits on indoor and outdoor gatherings, and distance in steps from another individual, and stay at home orders.
The effect of mandates on private business to some, such as big box stores, Big Pharma, and on line ordering was to prosper financially beyond anything one could have imagined. For the rest, such as restaurants, small retail stores, dentists, travel, and rental property owners, it has been devastating. Hospitals became understaffed and medical staff overworked with increased patients.
The impact on individuals and their families has been overwhelming. Loss of jobs, inability to pay mortgages and other bills, health worries, and children stuck at home became common. Even the ability to go to a house of worship to gather among fellow believers for solace was denied. The long-term effect on loss of income, deferred health checkups and medical procedures, marital harmony, and children’s mental well-being are only now starting to be tallied and analyzed.
To get some clarity on how the Constitutions protect us from government overreach I interviewed Clackamas County Commissioner Mark Shull. Here are my questions and responses by him:
Bill: Emergency powers have been granted by the legislature to Governor Kate Brown that will expire in December 2021. Do you believe this violated the Constitutional rights of Oregon citizens, specifically Clackamas County residents?
Mark: The Oregon Constitution provides for a 30-day emergency powers authorization to enable the Governor to take immediate action in response to a natural disaster. The authorization to extend that 30-day period is within the authority of the legislature only (article x-a Oregon Constitution section 1).
We are now at nineteen months into an unprecedented period that the Governor has had that “temporary” emergency power. That kind was not the intention of those who wrote the Oregon Constitution. The founding fathers of the US Constitution, I would be willing to bet, would be appalled and surprised at a Governor being given that kind of concentrated power, almost completely devoid of the effects of separation of powers.
The emergency clause makes sense when applied to an earthquake or a flood. Those disasters happen and then they are over. They are temporary. COVID and viruses are not temporary. They survive and morph and they will part of life in the future.
Bill: If these Executive Powers are renewed, do you believe that would be a violation of the Constitutions and why?
Mark: Many people have called “foul” on the extension of emergency power, but the Governor’s “yes men” staff attorneys have indicated all is constitutional.
No one citizen should have the kind of consolidated power that Governor Kate Brown has wielded for the 18 months. Look at history. Tyrant with that kind of power always cause pain and suffering.
Brown is causing pain and suffering, and she has been empowered to become a tyrant by this excessive extension of emergency powers. I suspect that when 31 December 2021 arrives the folks in Salem will think of another reason to extend the emergency powers, which would further abuse the residents of Oregon and deprive them of their liberty.
Bill: Why do you oppose vaccine passports?
Mark: A vaccine passport would require an invasion of privacy and a violation of the HIPPA, and will cause consumer backlash at businesses that enforce them.
Although in the past U.S. Supreme Court rulings have upheld compulsory vaccination laws, it is better to allow employers and public institutions to require vaccinations on a case-by-case basis, subject to certain limits detailed in the 1964 Civil Rights Act, and the Americans with Disabilities Act of 1990, instead of a blanket civil rights restriction as would occur with a universal statewide COVID passport requirement.
Under the Civil Rights Act, employers must provide a ‘reasonable accommodation’ to an employee who expresses a sincere religious belief that would prevent them from getting vaccinated, but the employer could still require vaccinations for such employees if it imposes an undue hardship on the company’s operations. This is already in place.
Some people do not trust the vaccines. The FDA sanctioned the vaccines under an Emergency Use Authorization (EUA)—essentially, an acknowledgement that the vaccines were fast-tracked and not subjected to the standard regulatory process; technically, they are not federally approved, nor are they licensed. Under the EUA, the Secretary of Health and Human Services allowed the use of the vaccines, but taking them remains a matter of personal choice.
More controversially, vaccine passport has come to mean a policy in which the government and businesses exempt vaccinated people from certain restrictions. Beneficiaries are allowed to travel, avoid quarantine, attend sporting/political/arts events, eat in restaurants, and/or patronize other businesses, with few or no restrictions. Those without this credential may face ongoing significant restrictions. We have reached herd immunity. That was supposed to be the point at which all mandates and restrictions were to end, but here we are, still restricted.
Finally, passports may coerce people into accepting a vaccine in exchange for recovering their basic liberties.
Let government give recommendations, not mandates. Let the people use their own knowledge of their health and common sense to make decisions for themselves, their families and their business.
Bill: On September 11th, 2001, the 9/11 hijackers orchestrated the deadliest terror attack to take place on American soil. 45 days later, President George Bush signed the USA Patriot Act into law, which expanded law enforcement’s power to both surveil and investigate persons suspected of terrorism. Although some provisions have sunsetted, others are permanent.
The Act has been considered a huge threat to privacy and individual liberties by digital rights groups ever since. Our country just observed the 20th anniversary of the terror attack on 9/11 on American soil.
Do you believe the Patriot Act violates the 1st and 4th Amendments of the Constitution? Or is the Act a necessary accommodation for national security?
Mark: The terror that followed the attacks on 9/11 caused a condition in which most Americans were willing to accept a reduction in liberty in exchange for what they thought was greater security, thus the Patriot Act was passed without much resistance.
The Act violated the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime. It also violates the Fourth Amendment by failing to provide notice—even after the fact—to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment, but stripped away by the Patriot Act.
The Patriot Act also violated the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy. It further violated the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
The result of the Act was unchecked government power to rifle through individuals’ financial records, medical histories, Internet usage, bookstore purchases, library usage, travel patterns, or any other activity that leaves a record.
The Patriot Act was fast tracked and signed into law in October 2001. At that time I objected to the Act, and felt that it was opening the door to future erosion of the Constitution. Government throughout history, given the chance to abuse power will do just that. The Patriot Act was an example of that kind of abuse.
Bill: We are in a time where unelected bureaucrats impose regulations and mandates that have severe impact on citizens’ rights. As an example, during the last several months the Centers for Disease Control and Prevention (CDC) imposed a moratorium on residential evictions for non-payment of rent. This caused financial hardship for many property owners in Clackamas County and Oregon in general. Just recently the Supreme Court ruled against the CDC extension of the rent moratorium.
Do you agree that government departments making mandates that infringe on property owners right is Unconstitutional? Is the continuous expansion of government control by unelected bureaus a threat to individual liberties?
Mark: Today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rule making,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence.
We the people never gave these bureaucrats that much power. They just took it and over time it has slowly metastasize into the norm of extraordinary and illegitimate power that administrative agencies have assumed in American life; even though the United States Constitution was drafted specifically to prevent just such abuses.
Administrative power also evades many of the Constitution’s procedures, including both its legislative and judicial processes. Administrative power thereby sidesteps most of the Constitution’s procedural freedoms. Administrative power is thus all about the evasion of governance through law, including an evasion of constitutional processes and procedural rights.
How did a system designed to provide government of, by, and for the people devolve into a system in which bureaucrats unaccountable to voters produce masses of law that was never voted on by an elected official? Simple: on purpose. They have gradually moved legislative power out of Congress and into administrative agencies while a weak and sluggish Congress looked on.
How bad is it? For an example: there were 88,899 federal rules and regulations created from 1995 through December 2016, while “only” 4,312 laws were passed during that time. These applied to property rights and every other right.
It all must stop. Individual liberties are threatened by this runaway train, as there are no Constitutional protections applied to the process. America must return to three branches of government, all doing their jobs as the Constitution intended.
The CDC’s ban on evictions is an unconstitutional overreach. The CDC claims its authority comes from the 80 year-old Public Health Services Act that they claim gives the federal government tools to stop the spread of communicable disease. So Fauci just stepped up and took the power unto himself. This public health act does not give the CDC the power to effect property rights and evictions, but it was convenient for the CDC to grab the power, and a quiet public went along with it. I don’t believe the CDC has the statutory and regulatory power for an eviction moratorium.
Bill: Why is the US Constitution important as a framework for you as an elected official?
Mark: The basis for a person’s value system will drive behavior and decision-making. For me Judea/Christian values and the US Constitution guide how I view problems and formulate solutions. The Constitution provides the legal framework for the government, designates the powers and duties of the branches of government or governmental agencies, and establishes the relationship between the people and the government. It enunciates the basic rights and obligations of citizens, and establishes the basis for the country’s electoral system. The constitution guarantees the basic political freedoms needed for competitive elections, such as freedom of speech, association, assembly, movement and expression. The Constitution is still the foundation that a strong America can be built upon.
If we take away the positive effects of Judea/Christian values and the Constitution they will be replaced with something else, and that something else in history has not worked out well. As a Commissioner I cannot serve my constituents without these guides. Other elected officials who do not respect these values always deliver poor decisions. See Portland as an example.
Bill: One last question. Was there a time in the military when you had to rely on the Constitution for guidance?
Mark: The US Constitution acts like a giant merger, uniting a group of states with different interests and cultures into a unified Nation, binding its citizens into an aggregate whole. In the US Military the Constitution is still that force that binds us together. All military personnel, 100% of them, swear an oath to defend that Constitution, which puts us all on the same sheet of music.
So in daily military life, we find ourselves relying on the US Constitution to guide conduct and decision making. It is the basis of the Uniform Code of Military Justice (UCMJ). As a young Lieutenant assigned as a Summary Court Martial Officer, the UCMJ outlined the details of the Courts Martial, but the US Constitution and its amendments were the real foundational guidance, ensuring the rights of all military personnel, regardless of race or creed, and the equal application of regulations.
In Iraq having to deal with the conflict between Muslim sects, I used the US Constitution as a teaching tool to instill the concepts of human rights and equality that were absent in Iraq, providing the seed of understanding that would hopefully lead to a new civil order in that country.
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Show comments Hide commentsThank you Mark.