Oregon Governor Kate Brown put every Oregonian on house arrest today with the stroke of a pen. She also threatens to pursue criminal charges against anyone that violates her order. She allows people to leave their homes for a limited set of activities such as grocery shopping and seeking health care, but if they do that they must stay at least six feet away from anyone else if they can. Pretty much every business that is not in the grocery, home delivery, or health care industries has been ordered to close.
Governor Brown is threatening everyone with up to 30 days of jail time if caught doing anything they would otherwise have a legal right to do. Where does she get this authority? She certainly did not get it from the Constitution of the United States which clearly reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
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Notice the part that says, "nor be deprived of life, liberty, or property, without due process of law." That process prohibits the government from depriving any citizen of liberty without due process of law. Where does Kate Brown get the right to deprive the entire state of liberty by putting every citizen on house arrest?
Obviously there have been no initiatives placed on the ballot or passed in the legislature specifically stating that all Oregonians must stay home. Governor Brown's order cites Oregon Revised Statute 433.441 which gives the Governor the authority to declare a public health emergency. The orders themselves are rooted in ORS 433.441(3) which states:
3)During a public health emergency, the Governor may:
(a)Close, order the evacuation of or the decontamination of any facility the Governor has reasonable cause to believe may endanger the public health.
(b)Regulate or restrict by any means necessary the use, sale or distribution of food, fuel, medical supplies, medicines or other goods and services.
(c)Prescribe modes of transportation, routes and destinations required for the evacuation of individuals or the provision of emergency services.
(d)Control or limit entry into, exit from, movement within and the occupancy of premises in any public area subject to or threatened by a public health emergency if such actions are reasonable and necessary to respond to the public health emergency.
(e)Authorize pharmacists licensed under ORS chapter 689 to administer vaccines to persons who are three years of age or older.
(f)Take any other action that may be necessary for the management of resources, or to protect the public during a public health emergency, including any actions authorized under ORS 401.168 (Governors powers during state of emergency), 401.185 (Providing temporary housing during emergency), 401.188 (Management of resources during emergency) and 401.192 (Effect of rules and orders during emergency).
------End of Statute----
The coronavirus outbreak just exposes what convicted felons have known all along, that the government has laws allowing them exceptions to all the other laws. In this case Governor Brown has a legal right to put every Oregonian on house arrest without due process of law because the legislature said she could. Brown can then argue that due process of law was served when the legislature voted to empower the Governor with the ability not to honor the Federal Constitution under certain circumstances. Every American is always just a state of emergency away from losing all their rights. During a state of emergency the government is the law. They have all the power and can set aside pre-existing laws as they wish. That is why America is not a free country because the second a state of emergency is declared the Constitution is null and void.
Example of House Arrest
This author was under house arrest pursuant to terms of federal supervised release. Federal judges have the legal authority to order that someone convicted of a felony be confined to their home unless they are going to work or a probation officer gives them permission to leave for some other reason. Usually this is enforced by electronic monitoring which requires the supervisee to wear an ankle bracelet with a GPS monitor that tells probation where the bracelet is at all times. That authority comes from Section 18 of the United States Code Section 3563(b)(19) which reads: "(19)remain at his place of residence during nonworking hours and, if the court finds it appropriate, that compliance with this condition be monitored by telephonic or electronic signaling devices, except that a condition under this paragraph may be imposed only as an alternative to incarceration;"
What is the Difference?
Governor Brown's order has limited circumstances under which people are free to leave their homes without permission during non-business hours. Other than that her order is the same as that a judge gives a criminal on house arrest except that the offender has the freedom to work a job and go to that job during the day. If you work at any place closed by Governor Brown you are really no better off than a criminal on house arrest except that the criminal can go anywhere if given permission in advance by probation while you can only go to some places. Make sense? If you are an offender on supervision a federal judge has the authority to ban you from leaving a specific place. Governor Brown has the authority to ban you from any specific type of place outside of your home. All Governor Brown has to do to place everyone on house arrest is list every type of public place someone might want to go to as a place people cannot go to.
Will Jail Be a Deterrent?
Mass incarceration is perhaps the biggest threat to public health that exists today due to the coronavirus. Jails are everything the coronavirus needs to procreate. During WWI the Spanish Flu spread like wildfire through military housing. Jails and prisons are strikingly similar to military barracks' where people live in close quarters with inadequate healthcare. If the coronavirus hits the Multnomah County jails the Sheriff's Office will not be able to stop it. Jail should be a bigger deterrent than ever, but does it make sense to send people to jail to reduce the risk of coronavirus? Of course not, sending people to jail just adds more ways that the virus could enter the jail, increases overcrowding, and makes the medical staff even less capable of trying to stop any outbreak. The jails need to be emptied not filled.