When the government orders everyday businesses to close as a way of combating the spread of a pandemic, does the Takings Clause require compensation? If not, what about rough justice? [Ilya Somin]
More: now much expanded into a full-length Cato at Liberty post.
The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well-meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.
I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:
“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’
“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….
“… Once the virus subsides, limited??government champions should watch whether all the regulations in effect during the threat go away, too.
“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”
For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)
Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short-term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.
Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short-term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.
True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun-Times column from Friday:
If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.
Watch out for this kind of thinking. We’re going to hear a lot more of it.
[cross-posted from Cato at Liberty]
Omnibus legislation laying out a federal response to the economic crisis brought on by the COVID-19 pandemic has been stalled because of demands to add a variety of provisions including pro-union revisions to labor law, relief for owners of cruise lines, clean energy subsidies, and much more. Ted Frank has screenshots on “pay equity” and corporate board quotas provisions and also discusses the anti-stock-buyback campaign, while Rachel Bovard has screenshots on provisions on same-day voter registration, airline greenhouse gases, wider use of minority-owned banks and credit unions, a Post Office bailout, and requirements that beneficiary companies incorporate diversity offices into their management. David Boaz of Cato writes: “This is emergency legislation to deal with an extraordinary and unprecedented situation. …Congress should insist on a bill narrowly tailored to address the current crisis, not another sprawling lobbyists’ spectacular.”
Also related to the COVID-19 pandemic and its economic impacts, here is a very fine new piece by Arnold Kling, an economist who understands both cost-benefit analysis and exponential contagious spread. And Alex Tabarrok argues that despite demands that the President invoke the Defense Production Act, the best course is to work with markets to meet medical supply needs rather than attempt a switch to command and control.
“Between early February and mid-March, the U.S. lost six crucial weeks because regulators stuck to rigid regulations instead of adapting as new information came in. While these rules might have made sense in normal times, they proved disastrous in a pandemic.” [Alec Stapp/The Dispatch] When it’s all over, the CDC/FDA testing fiasco is going to go down in the history books, and not in a good way. “We only need to take a look at South Korea to see how we could have been in a better position if we’d let private industry play a larger role in testing.” [Jeffrey Singer/NBC News] “People have talked about ‘drug lag’ but here is a highly quantifiable measure of ‘diagnostic lag’: the excess deaths and hospitalizations the US will suffer thanks to CDRH [the FDA’s Center for Devices and Radiological Health] blocking a standard test. The sheer cost of what the FDA has done is now universally perceptible, undeniable.” [Balaji Srinivasan; earlier here, and this at Cato]
In an emergency that has made trucking, logistics, and home delivery uniquely important, fractured the schedules of countless parents and caregivers, and sent the services sector reeling, it would be nice if California and other states were not making war on the work arrangements needed for the situation. That’s why California’s AB5 fiasco (earlier here, here) along with similar moves in New Jersey and elsewhere, come at the worst time.
P.S. Related Cato post now up. Truckers especially have many more problems than this right this moment responding to the COVID-19 pandemic outbreak, read about some of them here (and help if you can!) They have begun getting direly needed removals of regulations. But don’t let this one slip off the list.
So as to deploy medical services more effectively during the COVID-19 emergency, the Department of Health and Human Services has announced that it will forgo enforcement of rules restricting telemedicine, both by waiving HIPAA prohibitions on the use of everyday communications technologies like Skype and FaceTime, and by removing a requirement that reimburseable services be provided by the holder of an in-state license. At the same time, as I noted last week, many states have been relaxing rules prohibiting practice by out-of-state medical professionals (partial list here).
That’s part of a pattern in which governments are slashing many old regulations that they realize get in the way of crisis response and complicate the lives of ordinary citizens trying to work and shop under difficult conditions. My Cato colleague Chris Edwards links some of them in this post, including compilations by the Competitive Enterprise Institute and Americans for Tax Reform. (More: R Street Institute; Katherine Timpf, National Review. Hospitals and medical professionals aside, suspended rules include hours of service rules for truckers driving emergency medical supplies, requirements that Florida insurance agents keep public offices, rules forbidding the combined transport of food and liquor in Texas trucks, and federal standards restricting universities’ use of online classes. How many of these rules were unnecessary or unwise in the first place?
While movement of persons between communities may pose a danger during epidemics, movement of goods remains vital to prosperity and mutual exchange. Simon Lester points out in a Cato podcast that easing trade restrictions is a direct way to address difficult bottlenecks in emergency medical supplies. Relatedly, recent tariffs on medical supplies haven’t been helpful, encouraging large factories overseas to prioritize customers outside the U.S. (earlier).
In a reaction to the financial strains caused by the outbreak, the feds have been flooding the banking system with liquidity, both by relaxing regulations and through central bank operations. Cato’s Diego Zuluaga in a podcast distinguishes between liquidity objectives and (what is rightly more controversial) bailout objectives.
Doctors need legal assurance today that they won’t get sued if they send low-risk non-virus cases home rather than keep them in scarce beds getting marginally valuable tests — even if it is only a temporary step for the duration of the emergency. [Jeremy Samuel Faust, Washington Post; Faust is an emergency physician at Brigham & Women’s in Boston, and an instructor at Harvard Medical School]
In two emergency declarations Thursday, governors eased the burdens of licensing for the duration of the coronavirus emergency: Massachusetts Gov. Charlie Baker announced that persons holding valid out-of-state medical licenses could get them recognized on one-day approval, while Maryland Gov. Larry Hogan extended the expiration dates of all licenses, permits, registrations, and the like until 30 days after the end of the emergency. I put it in context in a new Cato post.