As losses mount throughout the economy due to the coronavirus quarantines, President Trump suggested that he wants the nation “to be opened up and just raring to go by Easter.” He has since stepped away from that proposal and issued guidelines that lockdowns stay in place until the end of April. But Trump still seems to be more optimistic than many state governors in his hope that the U.S. will return to normal economic activity sooner rather than later.
But even if Trump were to issue a declaration re-opening American businesses, a nationwide compliance would remain beyond his power. The Constitution’s system of federalism reserves the authority to lift the quarantine orders in the same people who issued them in the first place: the state governors.
Because state government sits closer to the people, we can and should demand more immediate transparency and accountability of our officials for these draconian, potentially devastating policies. They may impede the spread of the disease, but we cannot tell if this comes at an acceptable cost because neither governors Gavin Newsom nor Andrew Cuomo have explained how they made the cost-benefit trade-off involved. They risk judicial intervention or, ultimately, popular rejection, should they continue to keep shutting down their economies without justified benefits.
Richard Epstein, a Hoover scholar and friend, has come under fire for his claim that public health officials have overestimated the rate of infection and the lethality of the coronavirus. Regardless of Epstein’s theory of why the spread of the virus will slow, the underlying truth of his argument remains: stopping the spread of disease balances lives potentially saved against the economic losses from the lockdowns.
...Lockdown critics might also point to the fact that the states imposing the most draconian suspensions of civil liberties – the rights to travel, congregate, or use property, enjoy due process before the loss of your business or livelihood – have a mixed record when it comes to public safety. California has the highest homeless population in the nation, with over 100,000 living on the streets in squalid conditions that lend themselves to disease outbreaks, including hepatitis, typhus, and others. A lack of public trust as to the consistency of the government’s public health intervention may undermine confidence in the current orders.
This is a good area where the law can step in. Lawsuits could challenge the government to explain itself and to even compensate business losses for panicked decisions. The Takings Clause of the Constitution, for example, requires just compensation when the state takes private property for public purposes. If Newsom or Cuomo commandeer hotel rooms to convert into makeshift hospital rooms, the states would have to pay the market rate. On the other hand, if the state has to close restaurants that fail health and safety codes, they do not.
Statewide lockdowns test these principles and would demand that state governors explain themselves. A restaurant or nail salon shut down by the lockdown orders is not inherently a threat to public health or safety. It is as if the governors commandeered all of these private spaces because people might congregate there and – they believe – spread the virus. If the state forbids private property owners from using their land for a reasonable, lawful purpose, it must compensate the owners for sacrificing for the public good.
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