Brittle America vs. Resilient America: on Covid-19 emergency rule and the decentralization of emergency powers

I have had time to reflect, and have reflected, on a great many things while in quarantine.

Being a lawyer is useful for a wide array of life’s little obstacles, whether those obstacles be a recalcitrant landlord or an unreasonable commercial demand.

1) Brief thoughts on life under emergency rule

So too, being a lawyer is useful while under emergency rule. I was in the Deterrence Dispensed Keybase channel the other day when a number of the participants, in response to the mandatory business closure orders being handed down by state governors in New York, New Jersey and Connecticut, began clucking that this – combined with the imminent deployment of the National Guard – meant that the country would soon be under “martial law.”

I chimed in:

“The New York Army National Guard isn’t being brought in to enforce the law and it’s still under civilian authority, chiefly, the governor. This isn’t martial law.”

“Are there troops?” A user replied.

“Yes,” I said. “But unless a general is given primary responsibility for enforcing the law and civilian law hasn’t been suspended, that’s not martial law.”

“That’s martial law,” the user repeated. This went back and forth for a bit until finally I checked out, advised anyone getting too worked up over this to sit back, try to enjoy the extra time they were about to have, and relax, because we aren’t yet living under martial law and the Constitution has not been suspended.

If you need evidence of this, look no further than the Firearms Policy Coalition’s outstanding work over the weekend challenging state bans on gun store closures as impermissible under the Second Amendment, often causing local officials to reverse course:

States that did not reverse course got sued. This is the surest sign that civilian, and not military, rule is still alive and well.

Now, over the next couple of weeks, if mathematical models are any indication, the Covid-19 epidemic in the United States is going to get bad. And by bad I mean very, very bad, ICUs without beds bad, morgues overflowing bad. This will be substantially worse than what we have seen to date, with many thousands of American lives being lost.

Politicians have been advised of this, and we have seen a number of draconian and arguably unconstitutional measures undertaken contrary to, for example, the Privileges and Immunities Clause or the Dormant Commerce Clause and the Due Process Clause of the Fifth Amendment.

The People’s Republic of Rhode Island and Providence Plantations, for example (commonly known as “Rhode Island”) is arbitrarily stopping anyone with New York plates, forcing them to provide personal information, and enforcing a quarantine:

Or see, e.g., Texas Governor Greg Abbott sealing his border with Louisiana, or Florida Governor Ron DeSantis forcing air travelers from New York or Connecticut into mandatory quarantine upon arrival in Florida.

Perhaps realizing that discrimination against New Yorkers definitely offends the Constitution, Rhode Island decided to change it up a bit and apply the rule to anyone entering Rhode Island from out of state, presumably whether they are Rhode Island citizens or not. This is less likely to offend the Constitution:

As the crisis gets worse, however, we may expect the states to behave more and more poorly – the view presumably being that an unconstitutional threat or enforcement action will save lives now, even if the state winds up having to pay damages later.

See, for example, church/synagogue/mosque closures. Closing a house of worship during a quarantine is arguably constitutional provided that the closure satisfies the strict scrutiny standard for judicial review, i.e., the closure relates to a compelling government interest (in English = absolute prerequisite to secure the very existence of a free state) and it must be narrowly tailored, i.e. no wider than necessary, to achieve that interest.

Where First Amendment concerns are implicated, the courts take a very dim view of governments which target particular viewpoints or religions with ostensibly objective but in fact are designed to target religion generally or a religion specifically (see: Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), where a city ordinance outlawing the ritual sacrifice of animals was found to be an impermissible targeting of the Santeria religion, and struck down).

Ordering all buildings in New York closed and banning all gatherings greater than [n] people, as New York has done, is a general ordinance of general application that does not target houses of worship. For the duration of the crisis such mandates are likely constitutional.

There is a limit to state power to legislate in this area. New York, cracking under the pressure of the worst Covid-19 outbreak in the United States, is beginning to exceed it. See, e.g., this from NYC Mayor Bill de Blasio:

Constitutionally this isn’t even close. De Blasio is absolutely, 100% in the wrong. A policy that says houses of worship which violate an ordinance will be closed permanently after the crisis has passed (a) is unconstitutional targeting of religion and (b) is not narrowly tailored.

I think we may expect to see similar behavior where desperate politicians threaten unconstitutional enforcement to frighten people into compliance with quarantine orders. Don’t get me wrong, we should all be sheltering in place, staying out of the way of the public health services and letting them do their jobs. This involves not going to church. If the Pope is cool with it, the rest of us should be also.

We should not tolerate unconstitutional edicts, not even for one second, during this emergency. Nor do we have to. Organizations like the Firearms Policy Coalition are the tip of the spear. They are helping citizens enforce their constitutional rights against the government, even now during this emergency. Lawyers and law firms should be prepared to step up and do the same if we are called to do so.

2) Brief thoughts on life after emergency rule

China, the country where this disaster started, is making a very big deal out of the fact that it appears to have its own Covid-19 outbreak under control.

It is also using its apparent success to advertise its particular system of “socialism with Chinese characteristics” (yes, that is what it is called) and extend its own influence in its great power competition with America.

America can and will beat this disease, as China has. Afterwards there will need to be a reckoning with the way in which the United States dealt with the crisis and in particular, how federal agencies – the FDA and the CDC in particular – struggled to adjust themselves to the speed of the crisis and provide even the most basic approvals or equipment to the States, like approving private sector tests, permitting the repurposing of non-medical-grade, but nonetheless effective, N95 masks for medical use, or permitting private companies to decontaminate large numbers of  very badly needed masks.

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In the absence of federal guidance, individual states like Connecticut, Massachusetts and New York didn’t wait for the slow federal apparatus to save them: undertook quarantine and business closure plans on their own.

Of course, this crisis is not over. It may not be over until a widely available vaccine comes into use in ~18 months. Once it is over, there will be calls to be more like China and centralize power in new or restructured federal agencies.

This would be a mistake. As I was running earlier today (backwoods roads, very social distancing compliant) I recalled a complaint I read in the Washington Post about President Trump’s proposal to draw a cordon sanitaire around the Tri-State area of NY, NJ, and Fairfield County:

Aides spent the day warning the president against it, explaining that it would be impossible to enforce and could create more complications, the officials said, who spoke on the condition of anonymity. (Emphasis added)

Well, of course it would be impossible. As far as I know, there isn’t a single person on the pandemic response team who is from Connecticut. These people don’t know where the roads are, which ones people usually take, or frankly anything else about our state. They’re federal bureaucrats.

As I ran, I wondered whether it would be possible to establish a cordon sanitaire around my town. After considering all possible points of entry and egress and natural and man-made obstacles (rivers, ridges, freeways) I quickly realized that of course it isn’t impossible. It’s actually fairly easy to do, and could be done with perhaps two dozen volunteers, vested with the appropriate legal authority.

Of course, this legal authority is not given to towns or counties, but to the States, and the States look to the federal government for support in times of crisis. As a result, no town could decide to do this on its own, nor would it make sense to develop that local capability.

I don’t say this to suggest that a cordon sanitaire is an effective or prudent strategy for combating disease; I’m an attorney, not an epidemiologist. I say this because the federal government is visibly struggling to get this crisis under control, while town officials are on lockdown and doing virtually nothing.

When this is over and done with, corporate media and politicians in Washington will have endless debates about how to restructure FEMA, Homeland Security and the FDA to deal with the next big crisis.

This would be a mistake. What is needed is a deeply engrained resiliency at all levels of government, starting with individuals, moving up to towns and counties, moving its way up to the States, and then a small, nimble, and flexible federal apparatus that focuses on data collection and procurement assistance rather than as the sole emergency quarterback for the entire country.

The sense I get – and this is a feeling, rather than direct knowledge – is that throughout this crisis, nobody has really had any idea who, exactly, is supposed in charge. The creation of the sprawling federal bureaucracies has led the States and localities to expect that, in the event of a crisis, the sprawling bureaucracy – the cavalry – will always come riding to their rescue.

Where the crisis is everywhere, however, the cavalry is spread too thin. It never comes. Out here in rural towns with small hospitals, we do not expect the cavalry to ever arrive. We’re on our own, and we know it. We hope that our remoteness and low population density, combined with social distancing, will keep us alive.

“The Cavalry Will Never Arrive” should be the basic operating assumption of all disaster planning everywhere from now on. The result would be a more resilient America.

In a more resilient America, the City of New York would have been able to convert the Javits Center and several downtown hotels without the assistance of the State of New York, let alone requiring input from the Feds and the Army Corps of Engineers.

In a more resilient America, each town would have a dedicated volunteer team of disaster operations managers with a well-rehearsed playbook on how to secure their local area and roll out testing to their friends and neighbors.

In a more resilient America, a governor could draw a line on a map and local emergency management teams, properly equipped and empowered and possessing local knowledge, would be able to carry out those orders. The “impossible” would become possible, because we pushed down responsibility from Washington-based bureaucracies – which, for many parts of America including my own, are farther away than the nearest international boundary – to the localities that know their own terrain backwards and forwards.

In a more resilient America, without the federal bottlenecks around testing and supply shortages created by overstretched offshore supply chains for critical gear, this disaster might have played out very differently.

I should greatly prefer to live in a resilient America.