Of Masks And Men

This post is the first in a series about COVID-19. It’s about masks, social distancing, quarantine rules, and shut-downs going on in America.

People are upset. Obviously. And they’re wondering why this could happen. This post is here to help.

  • First, it explains the history of the authority of these laws.
  • Second, it moves on to explain the Catch-22 of how sticky the situation is and how “politics,” and not “law,” is going to decide what happens (and why that’s a good thing).
  • Finally, it explains how even broad authority can go too far.

History of Public Health Laws

What most people do not know is that before the days of antibiotics, quarantines were common. Before radar guns were invented, but during the days of polio, tuberculosis, cholera, and measles, I bet quarantines were more common than speeding tickets. The justification is obvious: Before antibiotics allow people to easily kill infection, ALL contagious diseases are deadly.

Therefore, laws like the following one in Virginia exist in all states:

Emergency rules and regulations

The Board of Health may promulgate regulations and orders to meet any emergency or to prevent a potential emergency caused by a disease dangerous to public health, including, but not limited to, procedures specifically responding to any disease listed pursuant to § 32.1-35 that is determined to be caused by an agent or substance used as a weapon or any communicable disease of public health threat that is involved in an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of this chapter. Va. Code § 32.1-42

Essentially, that’s a law that says “When there is an emergency, the Board of Health can make up a bunch of rules that you must follow.” If you ask, “Isn’t that a ridiculously broad rule?” The answer is: “Yes. That is true.”

But the only reason this rule seems strange is that we have no memory of times without really awesome drugs that kill disease. As someone who grew up in humid and wet Louisiana, the regulations around open flame in the western states are also strange to me. That is because the countryside going up in literal flames is something I have a hard time picturing. That’s what is at work now.

The Government Authority for Broad Rules

And if you’re a staunch conservative wondering where the power comes from to make such a broad law, this is where things get awkward. Does the federal government have power to make such a law about your small town? No. The federal government has “enumerated” powers which only exist when the Constitution grants those powers — such as the power to “regulate interstate commerce.” The general rule is that unless the power is “granted,” it does not exist.

But what most staunch conservatives do NOT know is that States — by their very nature and by the 10th Amendment — have “inherent” powers. The general rule is that unless the power is “restricted,” either by the state or federal constitution, the power DOES exist.

That’s why such broad rules can be made. But that’s probably not a satisfactory answer. Nobody cares about plenary power or health codes before antibiotics. People now want to know about the questions that ACTUALLY them: WHY is my church, school, large gathering, my job, your job, your business, your vacation, or even a PRIVATE GATHERING AMONG FRIENDS the target of a health regulation?

The Power of Government

Sadly, the answer to those questions is “I really don’t know. But the power still exists.” Let me explain about the power, rights, and politics of times like these in our system.

When we elect governors, mayors, and presidents — who themselves can appoint officers and officials, we give them POWER. As a citizen in this country, you aren’t like a customer at a restaurant who can ask for extra napkins or to move to a different seat when you want. Citizens do not get to order officials around just because they pay their taxes.

Instead, the analogy should be something like a captain of a cruise ship or a passenger in a plane. When things are going fine, nobody notices that someone is “in charge.” But when an emergency hits, those “officers” aren’t your servants. They exercise POWER. They can order you around because we CHOSE them to do so. This might be a good time to remind people that the word “election” means “choosing.” It does not mean “job interview.”

You may not have known it, but this is the system we’ve had for the entire history of our country.

To make matters worse, we’re being governed by PEOPLE, and they sometimes stink at their job. But unfortunately, SOMEBODY has to make these decisions. If the decision ends up being “wrong” or based on bad information, then OF COURSE we should of correct it later. But here’s the kicker: the fact that a decision was “wrong” or even “foolish” does not make the order “illegitimate.”

The fact of the matter is, elected officials have POWER, and that power is not illegitimate. We elected them. We get what we deserve.

The Rights of Citizens

But of course, that’s not the end of the matter, and this is America, after all. We have rights. But those rights are not absolute, and we need to talk about when our rights begin and when they end. This pandemic is testing those limits, and so we need to talk about these rights again.

Even with the MOST PROTECTED rights, such as “Speech” or “the Press” or “the right to petition the government for a redress of grievances,” there are always borders. The general guide for the border on these rights is a test called “strict scrutiny”:

To curtail some right, the government must have:

  • A “compelling governmental interest.” (Think “save lives” or “fight a war” or “protect the nuclear codes” or “prevent crimes,” etc.)
  • It’s plan to achieve that interest must be “narrowly tailored to achieve that interest.”

Here’s the bad news if you do not like mask or quarantine laws. There definitely is a “compelling governmental interest” to stop the spread of a disease. Regardless of how “deadly” the disease is or isn’t, a court is going to leave that decision to the political branches. You can’t sue your way out of that decision. It’s a question of “politics,” not law.

Also, the question of whether a policy is “narrowly tailored” is difficult to establish. It’s difficult because the information about HOW and HOW MUCH COVID-19 spreads is up in the air (no pun intended). If the Court doesn’t know if something is narrowly tailored due to a lack of information, then it IS narrowly tailored BECAUSE of the lack of information.

The Difficulty of Challenging Pandemic Rules

The fact of the matter is, the authority to make these rules exists, and the legitimacy is hard to challenge. This is why the quarantine, mask, and social distancing regulations are likely here to stay. They might not stay the same, and they might change, but they will probably be with us for the remainder of the pandemic.

The fact of the matter is, governments are not limited in their authority to the “right” policy decision. Instead, the government is empowered by its authority to do what is “reasonable,” based on the facts at hand, even if it ends up being wrong in hindsight. No Court will call a policy “wrong” unless it violates a right and is CLEARLY wrong. That is a very high bar for someone to meet, especially when the science of this disease is literally changing by the day.

Not only that, but even when science comes into existence about the pandemic, any case will be local and fact-specific. There is no nation-wide general rule about whether something is “reasonable.” The population density of New York City and your home town could make something reasonable here and unreasonable there. A declining case rate here and an increasing case rate there could make something reasonable here and unreasonable there. The lack of information about these facts can make actions “legitimate” even if — in hindsight — they are not “reasonable.” It’s a big mess, and we’re stuck with it.

The Catch-22 of COVID-19

We should also recognize that often, there are no “correct” answers to these policy decisions. Will people die if we re-open the economy? Yes. Will people suffer and possibly die of non-COVID-19 things if we hamstring the economy? Yes.

Here is the Catch-22: No matter what, people WILL suffer and die. Therefore, the decisions about WHO suffers and dies, WHAT they suffer from, HOW they die, WHEN they suffer, and WHY they die are the choices that our elected officials MUST make. If that’s scary to you, I unfortunately don’t have any good news to make that any better. That’s just how it is.

Who makes these decisions? Our elected officials. And yes, that means President Donald Trump. For all of you laughing, that also includes Governor Gavin Newsom and Mayor Bill Deblasio. These are the people, whether we like it or not, who hold POWER to make these decisions. That’s the way it works.

But why are THEY the ones who make these decisions, when they have no EXPERTISE? The answer is simple: Because we chose them.

Donald Trump has no expertise in public health, but he does have expertise in tapping into how non-influential people (who still vote) feel about a situation. That IS expertise in a country whose power derives from the people. Is Mayor Bill Deblasio crazy? I’m sure he is. But New York City is crazy, and so democracy worked, and he is the one empowered to make decisions.

That’s how our system works. The worst news about politics in 2020 might be the fact that some things aren’t “going wrong.” They’re going EXACTLY HOW THEY ARE SUPPOSED TO GO. If that fact scares you, then perhaps COVID-19 was the wake-up call for you to recognize the stakes of EVERY election that has EVER happened: At the end of the day, which party, leader, and administration would you TRUST to make a good decision and protect you and the country when the decision time comes?

The thing that we citizens need to man-up to face is that even if the person we don’t trust was chosen, they still have the power which is defined by the law. If you rebel against that fact, you’re not rebelling against your political opponents. You’re rebelling against your country. Our country is our law. Our laws are enforced by our elected officials. The advisors and actors are under the control of those elected officials. THAT’S HOW IT WORKS, for better or worse.

Therefore: don’t get caught up in the back-and-forth nonsense. Remember what’s going on. Do not fall prey to click-bait:

  • If the Public Health advisor Anthony Fauci says we should keep the economy hamstrung because of the virus, is that “wrong”? Maybe, but probably not. He is a PUBLIC health doctor (which is not the same as your personal physician). His job is to think about the SPREAD of diseases. It is not his job to treat YOU or think about the economy. He is only an advisor. His job is to tell the truth and give his advice based on what they see and understand.
  • If the economic advisors Steve Mnuchin or Peter Navarro say that we should open the economy up because it is too costly to keep it hamstrung, is that “wrong”? Maybe, but probably not. These people are ECONOMIC advisors. It is their job to think about the economic well-being of the government and the country. It is NOT their job to think about the spread of diseases. They are only advisors. Their job is to tell the truth and give their advice based on what they see and understand.

The same is true for people like Gavin Newsom or Bill Deblasio or Meg Whitmer or whoever. Whether we like their decisions or not, authority is authority. That authority is granted by law.

Who chose these ding-bats to do what they’re doing? We did. That’s the Catch-22 of COVID-19 and the Constitution.

Might Does Not Make Right: When Laws And Rules Are Not Correct

As we’ve said, few courts are going to second-guess rules on the Pandemic. The rules are the rules. Additionally, elected officials are given room to make mistakes based on uncertainties. Their mistakes are not “illegitimate.” They still have authority if they do not break the law. So let’s commiserate together.

Unvarnished Sympathy and Encouragement

For this reason, I have a great deal of sympathy for people who were shut down and quarantined when the virus was mainly clustered in New York, Seattle, and San Francisco. They sat in their homes when nothing was happening. They’re opening back up now that the virus has spread to general America. They can’t shut down because the costs of forever-quarantines are too high. If that isn’t a 2020 moment, I don’t know what is.

Seriously guys, I’m sorry about that.

I also have some sympathy and suspicion that some of us are not the victims of “hapless” leaders merely missing information. It is a good question as to whether some of the things we were told were merely “wrong” or were some form of a lie.

For example, masks for a respiratory disease are common-sense, and I for one am highly suspicious if the early recommendation AGAINST the widespread use of masks by the surgeon general and the WHO. In February, he tweeted the following:

Seriously people- STOP BUYING MASKS! They are NOT effective in preventing general public from catching #Coronavirus, but if healthcare providers can’t get them to care for sick patients, it puts them and our communities at risk!

The best way to protect yourself and your community is with everyday preventive actions, like staying home when you are sick and washing hands with soap and water, to help slow the spread of respiratory illness. Get your #FluShot– fewer flu patients = more resources for #COVID19

It’s not rocket science that a respiratory disease spreading among the general public can be slowed by the general public wearing masks. It would be unreasonable to demand perfection from our leaders, but it is absolutely necessary to demand honesty from them.

If our public duty requires us to buy masks, not buy masks, wear masks, make masks, save masks for our health care providers, or whatever, then SO BE IT. We’re a country, and we’re all in this together. But we as responsible citizens must demand our leaders TELL US what the facts are. This includes facts that powerful people disagree with or claim “violates community standards.” If government officials can make mistakes, so can private citizens. We’re responsible and not stupid. And it’s citizens, not government officials or titans of industry who decide what is true. That’s been the case since 1776. Click here if you don’t know what I’m talking about.

On the flip side, we as responsible citizens should not be opportunistic and selfish and try to take advantage of situations — like price-gouging or monopolistic buying. We’re a nation of PEOPLE, you know, not an economy of numbers. Bigger profits is not the same thing as a healthier country.

We’re all in this together, and we should act like it.

When The Rules Break The Law

However, despite the broad authority and despite being in it together, that doesn’t excuse all actions. I’m going to save some of this sentiment for the final post, but I’ll keep it legal here.

One of the most obvious examples of the pandemic rules breaking the law is when they value some gatherings over others, not because of the risk of infection, but because some VIEWS are valued over others. That is basic-level unconstitutional stuff.

For example, it was rather shocking to see the Mayor of New York city say that Black Lives Matter protests could go unhindered, despite their violation of pandemic rules. Meanwhile, singing in church is not allowed by those rules. I’m no public health expert, but I am a lawyer. If you’re going to make a rule, the rule has to apply EQUALLY. No church gatherings over X number of people AND no BLM gatherings over X number of people is EQUAL. Letting one but not the other — based on the “importance” of BLM and the “unimportance” of church is the OPPOSITE of equality under the law. Unequal application of good laws is just as unconstitutional as equal application of bad laws.

For another example, the governor of California has a lot on his plate with huge population centers, and he deserves some sympathy in this regard. But strangely, his rules have somehow — in revisions and adjustments — turned into a ban of “singing and chanting” in places of worship.

Strangely enough, a complete ban on in-person services CAN be legitimate, due to the reasons we’ve already discussed. Therefore, allowing an in-person service but banning singing indoors CAN also be legitimate (regardless of whether it is a good policy).

But here’s the kicker that raises the warning of being unconstitutional: it seems this ban ONLY applies to places of worship. That’s not “equal” treatment under the law at all. Read a Complaint filed in Federal Court on the issue at this link.

As a rule, these will be complicated cases, because the facts are complicated. Additionally, there may be other examples of things being illegitimate due to stupidity rather than malice. Those are just as bad, in effect.

Conclusion

So, yes, we’ve got a quarantine. We need to take it on the chin and deal with it. That authority isn’t limitless, but it is broad. If you don’t like what’s happening, elect leaders who take the risks — whether economic or medical — that you would like them to take. Regardless of who’s in power, they are in power, and we must respect that. But also, regardless of who’s in power, our rights still exist, so stay vigilant.

The next post will offer some first-hand experience on social distancing, masks, contagion, and not losing your mind. As many readers of this blog already know, I have a respiratory disease that gives me about 30 years of a head-start dealing with rules lovingly designed to save your life, which unfortunately have the effect of making you want to jump off a bridge.

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