Media says Trump doesn’t have the power to do what he’s doing...

Discussion in '24/7 Politics' started by SUPERPOKES, May 22, 2020.

  1. SUPERPOKES

    SUPERPOKES Heisman Candidate
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    ... when it comes to telling states that they can’t keep churches from opening.

    Wolf Blitzer literally just now said “Trump is threatening to override Governors who don’t comply, even though he doesn’t have the power to do that.”

    Blitzer, his producers, and the rest of the lib media need to go back and check their U.S. History:

    * Many said that in the 1950s, Eisenhower didn’t have the power to tell Arkansas Governor Orval Faubus to open up Little Rock Central High School to blacks in 1957. Eisenhower said that the US Constitution must be enforced.

    * Many said that in the 1960s, Kennedy didn’t have the right to tell Alabama’s nor Mississippi’s Governors that they had to let blacks enter their major universities, but Kennedy said that he did have the power and that the Constitution must be enforced.

    * Many people said that in the 1860s, Lincoln did not have the right to tell Governors of the entire South that they couldn’t have slavery if the states wanted to, but Lincoln said that he did have the power and that the Constitution must be enforced.

    Now, correct me if I’m wrong, but last I checked, the First Amendment said that the government cannot take away freedom of religion and a person’s right to worship. And, correct me if I’m wrong, Trump is telling Governors that they cannot take away that right and that the Constitution must be enforced.

    But yet, the MSM is defending these governors.
     
    1 SUPERPOKES, May 22, 2020
    Last edited: May 22, 2020
  2. MegaPoke

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    [​IMG]
     
  3. launch

    launch All-American
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  4. SUPERPOKES

    SUPERPOKES Heisman Candidate
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  5. poke2001

    poke2001 MegaPoke is insane
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    Seems to me he is just reiterating the First Amendment stating that government cannot infringe on religion.
     
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  6. Tulsaaggieson

    Tulsaaggieson All-Big12
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    "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Art II, Section 1

    ...he shall take Care that the Laws be faithfully executed....Art II, Section 3
     
  7. launch

    launch All-American
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    Well that’s really the problem.


    The left holds that the constitution only applies to certain people in the world today.
     
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  8. JimmyBob

    JimmyBob Heisman Winner
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    Let's try PNC - preferential narrative constitutionality.
     
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  9. imprimis

    imprimis MegaPoke is insane
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    Here's another interesting scenario.

    What if most of the states open up, partially or fully, and those Dem controlled states like NY, NJ, CA, IL, MI, PA, CT, MA, RI and any others refuse to open up and continue these delay tactics. Can Trump invoke the Interstate Commerce Clause to force states to reopen their businesses?

    https://www.armstrongeconomics.com/...iolated-the-constitution-imposing-a-lockdown/

    This chap thinks Trump can.

    It is unconstitutional for any state to block interstate commerce. Consequently, the President has the executive power to issue a binding order to open up commerce and the states cannot legally resist that order for keeping the economy locked-down violates the Commerce Clause.

    --

    Also, 18 USC 921, states: (2)  The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State.  The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).

    https://definitions.uslegal.com/i/interstate-commerce/

    Seems to me the President took an oath to uphold the laws and Constitution of the US. That could also include invoking the ICC to force states to reopen businesses and participate in interstate commerce.
     
  10. CowboyJD

    CowboyJD MegaPoke is insane
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    Interesting question....but the Interstate Commerce Clause Grants Congress authority “to regulate commerce with foreign nations, and among the several states.....”.
     
    10 CowboyJD, May 23, 2020
    Last edited: May 23, 2020
  11. Ostatedchi

    Ostatedchi MegaPoke is insane
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    I've said all along he doesn't have the authority to require the states. And if they tried to justify it with the interstate commerce clause then that would be a gross overreach of what I think the intent of that clause was meant to convey.
     
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  12. CowboyJD

    CowboyJD MegaPoke is insane
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    Two of those involved resort to the courts.

    The other one, a civil war and was effective only in Confederate states that had left the Union. It was also issued under Lincoln’s authority as Commander In Chief of The Army and the Navy as a fit and necessary war measure for suppressing said states that were in open, armed rebellion.

    I don’t think Governors should shutting down churches. Might even be unconstitutional. But the analogy is pretty silly and inept.
     
  13. Tulsaaggieson

    Tulsaaggieson All-Big12
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    Under escort from the U.S. Army's 101st Airborne Division, nine black students enter the all-white Central High School in Little Rock, Arkansas in 1957. ... Eisenhower federalised the Arkansas National Guard and sent 1,000 army paratroopers to Little Rock to enforce the court order.

    The case they were enforcing Brown vs the Board of Education declaring separate but equal Unconsitutional. In the Arkasas 9 the governor defied the Constitution and the President enforced the law through the military.

    There are more cases throughout history but this is recent and taught in every US history class and government class in high school.
     
  14. imprimis

    imprimis MegaPoke is insane
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    Maybe. We may get to see if the dem run states continue to restrict some of their businesses from opening. You can't have 40 states conducting business and 10 states restricting their citizens from working. But, they will say, Amazon, Target and Walmart and others are able to conduct business within these states yet prohibit local small businesses since they "only cut hair of locals and not across state lines". Seems like an equal protection situation. Of course, a simple solution for the salons and others would be to have a web site and offer for sale products to people in other states. Then they might be infringing on interstate commerce.
     
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  15. hollywood

    hollywood MegaPoke is insane
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    There's a massive difference between what Ike did in Little Rock and the CONSTITUTIONALLY granted powers (10th Amendment) of what the states are doing by enacting and enforcing "police powers" provisions to protect the health, safety and welfare of its citizens.

    Reminder, I'll let Cornell Law School explain: "In the United States, state police power comes from the Tenth Amendment to the Constitution, which gives states the rights and powers "not delegated to the United States." States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public."

    You can make an argument that the rules/laws passed by the states are inadequate, tiresome, oppressive, etc., but you can't deny that the states have the power to make the rules and they are basically exempt from Federal Interference. The way to challenge them is seek relief in court or mount a challenge to the status quo in the next election.

    But no, Trump DOES NOT have the legal authority to intervene and the Supreme Court has ruled on this topic numerous times. There's a score of Constitutional scholars out there who have pushed back against Trump's claims, including the Professor Trump offered to the Senate to testify against his impeachment, Johnathon Turley.
    "Our constitutional system was forged during a period of grave unease over executive authority. After all, the nation had just broken away from the control of a tyrant. And if there is "one overriding principle" in the Constitution, it is to avoid the concentration of power, and it does so "in myriad ways... The 10th Amendment was one instrument written to help ensure that the federal government would not be able to impose the kind of absolute authority the framers feared."

    So long as the rules/laws enacted by the states, in restricting the movements or practice of preventing the gathering of either healthy or infected people, then the State's powers (at least temporarily) overrule the individual's people's rights in order to promote the health, safety and/or welfare of the people. This passes Constitutional scrutiny and is sufficient to comply with procedural or substantive due process under the 14th Amendment.

    Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380(1902) https://www.law.cornell.edu/supremecourt/text/186/380

    Friends of Danny Devito v Wolf (Gov) (Reviewed by SCOTUS and Appeal Denied.) https://law.justia.com/cases/pennsylvania/supreme-court/2020/68-mm-2020.html

    Even in the case originating from Wisconsin, which went against the Gov., you need to bear in mind that the State Supreme Court there, found that it was entirely within the Gov's authority to issue such rules/laws, only that the State Legislature had "time limited" the effectiveness of those rules/laws and the time had expired. Secondly, they concentrated on the fact that the "stay at home" order had originated (in whole or part) by someone other than the governor. But in no way did they deny that the Governor/State had the original authority to generate the order.

    So yes, Trump does NOT possess the power or authority to overcome laws/rules (made on a temporary basis to protect the health, safety and welfare) as that grant of power was made specifically to the States under the 10th Amendment. Most of you guys know this as "state's rights" although that's a bit of a misnomer.
     
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  16. Marshal Jim Duncan

    Marshal Jim Duncan MegaPoke is insane
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    Courts all over the land seem to disagree with you.
     
  17. SUPERPOKES

    SUPERPOKES Heisman Candidate
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    If you’re saying that the states have the final say because they’re acting “on a temporary basis to protect the health, safety, and welfare” of the people, than you’re saying that you’re agreeing with former Arkansas governor Orval Faubus. Faubus said that he was not allowing the Little Rock Nine into Central High “to keep the peace” because he feared violence (never mind that the violence was from racist whites who wanted the keep the black kids out). That’s when Ike federalized the Arkansas National Guardiola and used them to protect the students.
     
  18. MegaPoke

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    I think I’m done pretending these are legal police actions. Even if they were initially, there’s no way they are open ended indefinitely - especially when they clearly subvert the First Amendment for MONTHS at a time with no end in sight.

    Wasn’t there a recent state level injunction in WI for these overreaches because they didn’t use the state legislature to vote on extension?

    Guess we will find out who blinks and who was right.
     
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  19. hollywood

    hollywood MegaPoke is insane
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    Really? They are? Can you cite to these "Courts" that are disagreeing with my assessment?

    In particular, do you have a court case which says that what happened in Little Rock is the equivalent of what is happening with the "quarantine" provisions enacted under the State's "police power" authority?

    Or are you just making sh*t up? Come on now, I really want to read these court's decisions!
     
  20. MegaPoke

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  21. hollywood

    hollywood MegaPoke is insane
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    https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149

    This is what so many of you are reminding me of. You don't have clue one, but want to argue that you know more about this topic than the Supreme Court, myself and/or virtually any other legal authority.

    FYI, not only do I hold a Juris Doctorate degree (1987 - Univ of Tulsa, School of Law), but I also have an advanced legal Degree (LLM) in the field of Law & Government from American Univ, Washington College of Law (2000.) But hey, I'm sure your training and education in this area is surely better than mine.
     
  22. MegaPoke

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    Here’s the thing though. Plenty of other lawyers say it’s unconstitutional. Are they over biased or undereducated?
     
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  23. hollywood

    hollywood MegaPoke is insane
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    Did the court say that the original order was Unconstitutional? Or, was the question on appeal, the issue as to whether the underlying Legislative grant had run its course and was now "time limited."

    (I had addressed this issue in my earlier post.) If you what you are taking away from the Wisconsin decision was that this was "illegal" or in any way similar to what Gov Forbus was doing in Arkansas, you are really missing the point of the ruling and the underlying legal principles.

    https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868
     
  24. hollywood

    hollywood MegaPoke is insane
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    Plenty of people say lots of things. Provide me with a court decision, precisely on this topic (particularly a US Supreme Court case.)

    I have backed up what I have written, not resorting to the BS of "people are saying" that you are spouting.

    If you would care to point out in the decisions which I have provided where I am wrong, I would love to see it. Can you point (for example) to the specific element in the Wisconsin Supreme Court decision, that says the Governor/Legislature does NOT have such powers, or that he/she is violating the "rights" of the people or the due process clause of the 14th Amendment? Come on now, you are making the claim, back it up!
     
  25. Marshal Jim Duncan

    Marshal Jim Duncan MegaPoke is insane
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    Geez. This is embarrassing.
     
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  26. hollywood

    hollywood MegaPoke is insane
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    Now, if the argument is that the State's should NOT do these things in your opinion, that is one thing. But to claim that they are violating the Constitution or otherwise engaging in illegal activity, that is quite another (and which is the ONLY area I am addressing.)

    Unless the States are specifically taking away the "rights" of individuals (or churches) then that would likely be an unlawful exercise of power. But, just because churches (and other religious facilities) are impacted by a law which applies to everyone, then that does not in any way violate Constitutional principles.

    Let's look at Justice Scalia's opinion on the topic, when he wrote for the majority of the court in Employment Division v. Smith, 494 U.S. 872 (1990.) “...the government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.”

    Churches are NOT being singled out and they not being granted any special privileges. If they were, then that could certainly form a proper basis for challenge. Absent that showing, the general rules that were first announced over 100 years ago still apply, as outlined in Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902.)
     
  27. MegaPoke

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    Sorry. I don’t think there’s an SC case that deals with the Constitutionality of endless, arbitrary extensions of sketchy emergency police powers regarding enforcement of stay at home orders for a “pandemic” with a sub1/1000 infection/lethality ratio. I could be wrong though.

    Maybe you can render an opinion on at what point this baseless bullshit exceeds its mandate?

    Settle down Beavis. Not challenging your education. I’m challenging your bias vs other educated lawyers who say it’s unconstitutional.
     
  28. hollywood

    hollywood MegaPoke is insane
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    Superpokes,

    Can you explain to me how the State's enacting and enforcing their "police powers" grant of power under the 10th Amendment is in any way analogous to a State violating a Supreme Court order?

    Because that is what happened in Arkansas and why Eisenhower acted, to enforce a specific court order. (The State of Arkansas refused to acknowledge or follow the SCOTUS ruling in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954.) On the other hand, we just had a challenge to the "stay at home" order in PA and the SCOTUS refused to even take the case up. https://law.justia.com/cases/pennsylvania/supreme-court/2020/68-mm-2020.html,

    Can you please explain how these two things/situations are similar in nature?
     
  29. hollywood

    hollywood MegaPoke is insane
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    Again, give me a citation to these Lawyers who are claiming that such acts are "unconstitutional." Kind of hard to argue against "air." Without seeing for myself what their argument actually is, or the legal authorities to which they cite, it's all just BS to me. Give me a citation, or stop making the claim.
     
  30. MegaPoke

    MegaPoke Moderator
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    1A freedoms.

    1. Speech
    2. Press
    3. Religion
    4. Assembly
    5. Right to petition the imperial government.

    Hmmm...
     
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  31. MegaPoke

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    How about this, I enjoy my Memorial Day weekend and what’s left of my 1A rights to say whatever the fück I want, and you cite the legal authority to extend executive orders indefinitely for emergencies that are no longer particularly emergent.
     
  32. Marshal Jim Duncan

    Marshal Jim Duncan MegaPoke is insane
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    What was your ACT score?
     
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  33. hollywood

    hollywood MegaPoke is insane
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    Please provide me with my post in this thread which comes anywhere close to me saying that these state laws can be extended indefinitely. Stop putting words in my mouth, as I have never made such a claim.

    BTW, I know you threw it out there, but did you even bother to READ the Wisconsin Supreme Court case? Because, if you would you would have seen that the Court did NOT in any way accept the arguments before it as challenging the Constitutional power, held by the Governor. FTO: "This case is not about Governor Tony Evers' Emergency Order or the powers of the Governor." (Page 2)

    The ruling basically dealt with the State's Administrative Procedures Act and whether the "rule" followed the State's guidelines. It in no way dealt with the issue of whether a Governor's order would be valid.

    In fact, the Wisconsin Supreme Court found just the opposite: "Constitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval. "With no time for ex ante deliberation, and no metric for ex post assessments, the executive's capacities for swift, vigorous, and secretive action are at a premium." Deborah N. Pearlstein, Form and Function in the National Security Constitution, 41 Conn. L. Rev. 1549, 1565 (2009)." (Page 23)

    Bottom line, the case you tossed out there as somehow authoritatively overcoming my legal arguments, in fact BACKS what I have been saying throughout this thread. That is, that such emergency orders and rules are Constitutional on their face and DO NOT otherwise violate the Constitution and/or substantive or procedural due process.

    It certainly cannot in any way be conflated with the legal/factual basis of Pres Eisenhower moving to enforce a Supreme Court ruling in Little Rock. Two entirely different fact patterns.
     
  34. CowboyJD

    CowboyJD MegaPoke is insane
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    Yes, that’s what, I said....

    For the record....I’m not going as far as Wood in saying they are clearly constitutional, but they are presumed constitutional until judicial review determines they aren’t.

    Like Eisenhower before him, however, Trump doesn’t have the authority to unilaterally declare state actiona unconstitutional and simply force them to do what he wants.
     
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  35. Ostatedchi

    Ostatedchi MegaPoke is insane
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    Hey, I've been consistent throughout. I said similar things when Obama was in office. The Pres doesn't have the power to do what's being proposed. AND, I for one, don't want any president with that power.
     
  36. Syskatine

    Syskatine Heisman Candidate
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    SQUIRREL!!!

    If the Msm had a pro dem agenda it wouldn't be teeing this dumb shit up.
     
  37. MegaPoke

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    Probably just explaining the Constitution

     
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  38. hollywood

    hollywood MegaPoke is insane
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    Again, not defending the people involved, the State rules/laws, etc. I'm only addressing the notion that these acts are Unconstitutional. Clearly, they are not.

    In NOT A SINGLE case (now heard before the Supreme Courts in at least OR, WA, PA, MI, and WI) NO COURT has ruled that these stay in place (quarantine) orders were violative of the remaining elements of the Constitution! The SCOTUS has reviewed the PA Supreme Court finding and failed to convince the Justices to take the case up. That means that the US Supreme Court has consistently upheld this legal principle for well over 100 years now.

    So how could anyone present a valid argument that these rules/laws violate the Constitution (attorneys included) when this issue has not been successfully argued? It seems to me to be pretty well settled point of law at this point.
     
  39. MegaPoke

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    I can’t help but think maybe we haven’t seen all the inevitable lawsuits or court rulings from this historically unprecedented power grab. Seems pretty damn far from settled case law to me.

    For the sake of this post - let’s say it is.

    I am thankfully not a lawyer - but as a layperson, I was under the impression that when emergency suspension of Constitutional liberties had to occur:

    1. Leadership must follow the least restrictive course of action

    2. The duration of suspended liberties should be as minimal as possible.

    3. There really should be a predicate emergency- and the numbers clearly justify neither the original shutdown nor the extension of it.

    Crucially... Can you explain exactly how long we must continue to pretend this is “clearly” Constitutional before we can collectively declare enough is enough? The arbitrary continuation of these shutdowns is far less clear by the day. It’s been months. Months.

    In your considered opinion, at what point does the clarity of shutting down churches and small businesses (while allowing crowds to roam grocery stores and Walmarts all over the country) become a bit more murky?
     
    39 MegaPoke, May 23, 2020
    Last edited: May 23, 2020
  40. hollywood

    hollywood MegaPoke is insane
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    WWII was year, YEARS! (Yet, many civil liberties were curtailed for the duration.) What do you think the draft amounts to, if not an imposition upon your civil liberties.

    Again, the 10th Amendment grant of authority to the State's is fairly broad. So far, there has not been a single successful challenge to a properly executed stay at home, shelter in place or quarantine order. Even the SCOTUS has declined to review these orders or has chosen to find them in violation of the remainder of the Bill of Rights or Due Process Provisions of the 14th Amendment.

    Now, if churches were being singled out and say places like movie theaters were exempted then I could see a court sustain a complaint. But under current legal and factual circumstances, I just don't see how a church could sue and win given the broad discretion granted to the states and it's use of "police powers" under our "Federalism" (Dual Sovereignty) system.

    I know you cited to the Wisconsin case, but as I pointed out - in the actual decision (which you clearly had not read) the issues raised were NOT concerning the Constitutionality of the Governor's Order (rule/law) but rather the length of time a non-elected official could sustain an order.

    I honestly have no idea how long a court would sustain the state's rights to do so, but I suspect that a few mere months does NOT come close to meeting their breaking point.

    But one thing is quite clear and that is that Trump cannot overcome such orders legally, as the Constitution gives him no authority to override the State's grant of power inculcated in the 10th Amendment. (The closest thing would be the inter-state commerce clause, but that power belongs to Congress, through Article I, NOT to the Executive.)
     

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