Our ordinary lives are being upended at great cost by the extraordinary actions of local, state, and federal governments, desperate to control the spread of the novel coronavirus originating in Wuhan, China. Understandably, as businesses are padlocked by state order and our normal freedoms to move about and assemble are radically curtailed, many have raised the civil liberty alarm. They worry that in its haste to fend off the “invisible enemy,” government is chipping away at our fundamental rights.
But two centuries’ experience with pandemics in the United States demonstrate that while the threat of quarantine and other extreme measures to long-term civil liberties is low, the real threat of government expansion lies instead with the introduction of well-intentioned, but dangerously-designed emergency relief programs.
The United States has, in more recent times, been able to isolate its citizens from the more frequent pandemics of human history through a combination of scientific advancement and fantastic wealth and power. When the framers designed our Constitution, however, mass illness outbreaks were very much still a reality of everyday life, and our system is well-equipped to deal with them without endangering liberty beyond the emergency timeframe.
A History of Emergency Powers in the United States
Local and state quarantine laws predate the founding of America, stretching back to our legal system’s British common law roots. The earliest pandemic statutes were enacted in Boston and New York as far back as the mid-17th century. Shortly after the Constitution was ratified, for example, Philadelphia (then the capital) experienced the first of several terrible outbreaks of Yellow Fever. These spates led to state- and city-imposed quarantines, including evacuation of entire neighborhoods and the destruction of property suspected of carrying the disease.
These powers are necessarily incredibly invasive and broad. But, ever-wary of the protection of natural rights, the Constitution ensures they are both limited in important ways, and localized rather than national. Both these restrictions attempt to balance the immediate need with long-term protection of rights and liberties.
In 1905, the Supreme Court reaffirmed broad state power regarding public health, but warned state and local governments that their exceptional powers must be tied to medical necessity, and cannot proceed beyond what is “reasonably required for the safety of the public.” By imposing this restriction courts, have given great latitude to state and local governments in crisis, but reserve a right to review those restrictions and compare them to medical recommendations.
Lower courts have additionally imposed a three-part test on harsh containment as part of quarantine measures, such as forcing a person to remain entirely in his house: (1) individualized assessment of the risk a person presents based on scientific evidence, (2) use of the least restrictive means to advance the state interest of public health, and, (3) some form of due process.
Second, contra those media outlets complaining of leadership vacuum when President Trump says some aspect of the response to coronavirus will be handled by governors and mayors, this is a key feature of our “partly national, partly federal” system of governance. The United States covers an enormous landmass with radically different conditions that matter greatly for disease spread.
Geography, climate, hospital supplies, and population density all alter the risk-benefit calculation between slowing disease spread and keeping the economy going. What is necessary to contain disease in high-density New York City is overkill that could cause more harm than good in West Virginia, just a few hundred miles away.
Our federal system lets U.S. officials respond differently to the coronavirus in Jud, North Dakota than in San Francisco, allowing more Americans to spend the coming months in less restrictive environments than would be necessary if our response to the virus were federalized. While the Public Health Service Act of 1944 gave increased quarantine powers to the federal government, and certain aspects, such as cross-state transmission and closing borders or ports of entry are inherently federalized, state and local officials leading the way on coronavirus response is as American as it gets.
Emergency powers to implement invasive but short-term restrictions on liberties we normally take for granted, such as operating businesses and moving freely, have long been recognized in our system. Courts have doctrines to check governments attempting to decouple them from scientific need, and ultimately, there is little incentive for governors and local officials to implement them for longer than absolutely necessary.
Don’t forget, while businesses remain shuttered and Americans stay home from all but essential work, states’ coffers are draining quickly. While there is a ferocious debate breaking out over the balance between economic livelihoods and projections of lives lost to the virus, no one wants to see such intensive measures continue in perpetuity. Not even California’s Gov. Gavin “whether you like it or not” Newsom wants to keep the largest economy in the world on ice for longer than he has to.
‘Never Let a Serious Crisis Go to Waste’
While harsh lockdowns are unlikely to leave a permanent mark on citizens’ rights, long-term programs are a different story. Already, politicians have linked their pet issues and projects to coronavirus response, from Bernie Sanders’ push for Medicare for All to the pork stuffed in relief bills.
The third coronavirus relief package stalled in Congress because Democrats inserted unrelated policies like higher environmental fuel standards for airlines. Even the re-negotiated package still included a bailout for Washington DC’s Kennedy Center, which promptly laid off its workforce after receiving its $25 million bailout.
This is not a wonky libertarian objection on principle: the government has a duty to offset the harm it has been forced to cause American families in this crisis by closing commerce. But how it provides that relief, and whether it comes in short-term injection of capital with a natural terminus point, or as mandates, long-term programs, and special-interest giveaways, will determine the ultimate damage to our rights and liberties.
Mandates that sound good, such as forcing companies to provide paid sick leave, will leave small businesses without options but to close. To state the obvious: you can’t get sick leave from a job that no longer exists.
As a contrasting example, the reforms implemented by the Department of Education are exactly of the type that is needed and won’t pose long-term risks to liberty or future prosperity. Since the vast majority of student loans are now held by the government (a problem, but not one immediately solvable in this crisis), the department is implementing a two-month period of zero interest and waiving penalties. This will allow those who cannot make payments because of the effects of the virus not to be penalized or stack up interest they will later have to pay off.
Obviously, the problems stemming from this once-in-a-century pandemic will not be solved by a single loan-waiving program, but the example demonstrates the kind of innovative ideas for short-term relief that are needed to help families now without making poor decisions for tomorrow based on the unique needs of the day. By contrast, Democrats in Congress floated permanent taxpayer student loan bailouts as part of the coronavirus response.
Beware of those shopping the same solutions they advocated for before the crisis began. While a few old hobbyhorses may become more relevant, be cautious about long-term legislative changes with no clear end date.
Don’t Forget the Disaster of the New Deal
It was the long-term New Deal programs enacted in response to economic depression that shifted the very constitutional fabric of the country. By contrast, the government’s more drastic, but short-term rationing and price controls during World War II turned out to have few future ramifications in peacetime. President Truman was smacked down by the Supreme Court for attempting to requisition factories during a labor strike just a few years later.
Already, in our own time of crisis, various liberty-curtailing ideas have been floated in congressional negotiations, from giving the Department of Justice the power to indefinitely detain citizens without trial, to mandates that force private companies to report “diversity levels” by race, sex, and ethnicity for themselves and their suppliers to the federal government.
One iteration of the House Democrat coronavirus package included mandatory “pay equity” reports to the government for any business that accepts aid, and demands that they create “diversity and inclusion” offices. These demands were thankfully left on the cutting room floor, but will likely resurface in the next relief bill.
The quarantines, shelter in place orders, and lockdowns that are having such a terrible economic and personal impact on millions will end. We don’t know if it will be on April 30 or June 10; several weeks or several months. Different states and localities will and should make different tradeoffs about harm to vulnerable populations and harm to economic livelihoods. But ultimately, it’s in no one’s interest to keep them after the danger has passed, and they will likely pose little risk to the rights of citizens a year or 18 months from now.
Instead of the authoritarian fist of quarantine, beware the handout. Demand immediate, adequate, but above all, temporary relief. Extraordinary times call for extraordinary measures, but it’s extraordinary measures that extend into ordinary times that lead to real tyranny.