NJ Supreme Court Just Sanctioned Draconian Government “Emergency” Restrictions
Court Rules That By The Time You Can Legally Challenge Them, The Damage Is Done
NJ Courts Effectively Gut Constitutional Due Process Rights
Don’t think that emergency rules can’t kill you too
I am shocked and appalled by the cavalier attitude and response to the DEP’s “emergency rules” to authorize a bear hunt by the NJ Courts, the press, the NJ Bar Association, the law schools and professors, the business community, and so called “progressive” defenders of Constitutional rights and rule of law (liberal groups like the ACLU on one end of the spectrum and Federalist Society libertarians on the other).
So, I just went on a Twitter rant to illustrate the kinds of “emergencies” that could occur and the government regulatory mandates that could follow.
Does anyone think that government won’t exaggerate – or even manufacture – an emergency that makes it easier for them to impose requirements unilaterally and quickly if the Courts, media, and the public don’t strenuously object?
Based on the NJ Supreme Court’s decision today, it would be highly unlikely to secure injunctive relief to block these absurd government restrictions and you wouldn’t have recourse to the Courts until after the damage was already done (the NJ Administrative Procedure Act law sets a 60 day period where emergency rules are allowed to be in effect by government fiat, without your review or participation (i.e no due process). The Supreme Court just made that worse by erecting barriers to injunctive relief.)
Recall that DEP was backed off politically – not legally – from adopting flood rules as emergency rules this summer. But once a Governor and DEP realize that the Courts will not take a hard look and they can slap dash some “science” and scary PR rhetoric as pretext, they will adopt emergency rule across a broad spectrum – I lay out some not infeasible scenarios here.
I can’t believe the right wingers who seek to “dismantle the administrative state” aren’t going crazy over this:
Given the stakes, how is it possible that this issue is being virtually ignored?
1. Another Superstorm Sandy hits. Far worse devastation. Over 2 million people homeless. DEP, Pinelands, and Highlands issue emergency rules suspending all land use and environmental regulations to promote recovery and reconstruction. Get real, some of this at DEP already happened after Sandy.
2. Catastrophic wildfire in the Pinelands kills 5 emergency responders and 15 residents. DEP Commissioner suspends all environmental regulations and orders that 500,000 acres of forests be immediately logged (“thinned”) to prevent future wildfire. This is almost happening now.
3. The second amendment gun rights people should fear what State government could do via emergency regulations. It is not unrealistic to fear a State government emergency ban on sale of guns & ammo under a civil “emergency” (riot, insurrection, rebellion, protests. etc). Wake up
4. BLM, anti-war, free speech, and civil rights advocates should fear what State government could do under emergency rules: Curfews, protest zones, permit and insurance requirements for demonstrations, or outright bans on parades, protests, events. No joke.
5. If anyone thinks COVID restrictions were bad, just look at what China lock down did to people & the economy. NJ State government could impose all that and more under emergency rules. Again, by the time you go to court to legally challenge it – no injunction allowed! – the damage is done. Like bears.
6. Recreational and commercial fishermen don’t like quotas and catch limits set by Mid Atlantic Fisheries Council? How about a summer ban on flounder & scallops imposed by DEP emergency rules? It could happen and you know it RFA!
7. Golf courses, farmers, water parks, and homeowners don’t like those pesky irrigation restrictions and odd/even lawn watering days and bans on car washing set by DEP during a drought? Think of that and worse under DEP emergency rules for an entire summer. The NJ Courts will allow that and you will be screwed.
8. Anyone think that rolling blackouts are limited to war zones in places like Ukraine? Or energy crisis in Europe? How about DEP & BPU rolling blackouts & shutdown of large commercial energy users during a “climate” or “extreme heat emergency”. It’s coming. You will have no say.
9. DEP has already shut down lakes and beaches due to toxic algae blooms & high fecal coliform. But they were temporary. Just think of a DEP “emergency rule” to 90 day “temporarily” ban swimming and boating in lakes, bays and ocean beaches. Shut down the shore. It can happen now.
10. Air quality emergency? High ozone levels? Smoke from western fires? Thousands of emergency room visits in Newark? DEP issues an emergency rule to ban travel and major commercial/industrial pollution sources from 9 am to 5 pm, June 1 to Sept. 1. It will happen. You are screwed.
11. Excessive heat emergency. Temperatures exceed 115 degrees. Hundreds die in Newark, Camden and North jersey. Gov. declares “climate emergency”. DEP issues emergency rules banning any pollution source operating from 9 am to 5 pm, closes NJ Turnpike and Garden State parkway and tunnel to NYC, and mandates that Malls and businesses provide air conditioned shelter, water, and food for stressed urban residents with no AC. No compensation for costs incurred.
12. Terrorists threatens to blow up US refineries and chemical plants. US Dept. Homeland Security issues terror alerts. NJ Dept. Homeland Security issues emergency rules to shut down refineries and chemical plants. Gas lines form circa 1973. Prices skyrocket. Immediate energy crisis forces government rationing and travel restrictions. Live with it.
13. War in Ukraine expands. Europe suffers energy crisis, with thousands of people dying of cold with no heat. Biden issues national directive to supply Europe with US energy supplies. Gov.Murphy issues emergency rules mandating that NJ export natural gas & oil. Prices skyrocket. You have to pay, with no say.
14. European war triggers global energy crisis. Biden orders maximization of US production. DEP issues an emergency rule to suspend all air quality, safety , fuel, waste, and other regulations on refineries and pipelines to maximize fossil production. It’s already happened on an incremental basis.
15. Newark cop shoots a black kid. City erupts in protest. Proud Boys & Oath Keepers hold White Supremacy rallies in Camden & Newark. Antifa responds. Riots ensue. Gov. Murphy issue emergency rule curfew and total shutdown. Bans sale of guns and ammo. No relief from NJ courts.
16. Foreign off shore wind corporations threaten to walk away from construction contracts unless they get paid more. Gov. Murphy’s BPU issues a 90 day emergency rule increasing electric bills by 50% to pay off the wind vendors. You have no say in that and no relief from NJ Courts. Just pay your PSE&G bills and shut up.
17. Avian bird flu strikes in Warren County. Viral infected bats linked to exposure from eating NJ fruits & vegetables. Mutant fungus infects crops. NJ Dept. of Agriculture issues emergency rules mandating slaughter of all chickens & pigs, & burning all fruit & vegetable crops. Yup.
18. New deadly variant of COVID emerges. NJ Dept. of Health issues mandatory lockdown and vaccine ID cards, with facial and digital recognition, required to enter any public building, bus, train, plane, or public place. Penalty is jail and isolation. You have no opportunity to object.
19. Ten kids die of mysterious unknown virus. NJ Department of health issues an emergency rule (Order) shutting down all school, daycares, and commercial enterprises where kids are present. NJDOH cites no science to support their Order, instead relies on mere projections of risks. DEP did just that for bear hunt, and the Court was OK with it.
20. Newark port workers go on strike. Followed by railroad, trucking, airline, Amazon, UPS, Fed Ex, NJ Transit, and postal workers. Gov. declares emergency and mandates that all able bodied men 18 or older report for labor duties. It happened in Germany. It could happen here.
21. The homelessness crisis escalates. A suburban commuter at Princeton Junction station is thrown under a train by a mentally ill homeless man. Public outrage. Gov. declares emergency and issues emergency rules that mandate that homeless people be rounded up, subject to mental evaluation, and involuntarily committed and housed in concentration camps (something similar already is already happening on the West Coast and Trump called for a much broader program of concentration camps for homeless.) Courts don’t block this by injunction and the camps are built and populated. Too late now, eh?
22. The NJ business community went ballistic this summer when Murphy DEP Commissioner threatened to adopt emergency flood rules that restricted new development. Flood rules? Can’t they imagine the power DEP would have to impose severe restrictions on existing operations under the “emergency rule” standards allow by the NJ Courts in the bear hunt case?
23. Due to current and projected sea level rise and daily high tide flooding, the DEP declares an “imminent peril” to existing residents of the barrier islands and adopts emergency regulations mandating evacuation and abandonment of property, with condemnation and compensation to follow. Strategic retreat, baby!
This is the kind of stuff that can happen when the NJ Supreme Court abandons its sacred duty to defend Constitutional rights & block State government abuses of power.
The Court just did that to allow DEP to kill bears.
But don’t think that emergency rules can’t kill you too.
