As a follow-up to my article of yesterday on acceptable risk this article addresses the phases laid out by the President yesterday. He said his new guidelines “will allow governors to take a phased and deliberate approach to reopening their individual states.” This article does not support giving all decision making to the governors or basing all unlocking of the economy upon medical data.
Let me posit that the medical modeling that drove the shutdown was extremely inaccurate—it predicted 2.2 million deaths. To depend upon further medical models entirely is therefore somewhat wanting.
The deference to state governors comes days after Trump claimed that his “authority is total” on the question of reopening the country. But the president also made clear that he wanted a quick return to normal life. The governors pushed back on his claim of authority. His authority is not total as he claims, but it is much larger than probably the democrat governors want to understand.
The issue is not federalism as the governors used the concept to claim that the president’s authority in matters of state commerce is concerned. What was not mentioned is the inter-state commerce clause of the constitution. Article I, Section 8, Clause 3 of the constitution states: “(The Congress shall have Power) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
This article is one of the most litigated parts of the constitution. It has been used to greatly expand the reach of the federal government into the activities of many business activities. In today’s highly inter-related economy it applies to almost every business activity of any significance. The Congress has created laws to limit everything from marijuana growth to civil rights and has justified such laws under the inter-state commerce clause of the constitution. The President is charged with upholding the laws of the nation. In this role he has great power over the companies involved in interstate commerce.
Additionally the President’s role as commander in chief gives him authority over the military that might be located in different states and one would expect certain critical defense industries.
The President unfortunately in his three phases of recovery announced yesterday did not relate either his role as commander-in-chief or the presiding officer over interstate commerce to the phases. The phases were all driven by medical data.
The President did say that: “A national shutdown is not a sustainable long-term solution,” “To preserve the health of our citizens, we must also preserve the health and functioning of our economy. Over the long haul, you can’t do one without the other.”
At first glance, the three-phase guidelines seem unlikely to alter the “new-normal” routine for many Americans. He said his new guidelines “will allow governors to take a phased and deliberate approach to reopening their individual states.”
The reopening will be staggered and that states and counties would have to go through “gated criteria of 14 days of decreasing evidence of illness,”
- “Phase one begins with all vulnerable individuals, including those with comorbidity continuing to shelter in place, and insuring that those that first go out in public are not those that are the most vulnerable to bad outcomes in this disease,” In order to move on to phase two, a state should demonstrate no evidence of a rebound in cases.
- The phase two guidelines continue to recommend that citizens avoid gatherings of 50 people or more, as well as the sheltering of vulnerable individuals, but allow for the resumption of non-essential travel.
- The phase three guidelines allow vulnerable individuals to resume limited public interactions, but advises that all citizens “minimize time spent in crowded environments.” Workplace restrictions would also be lifted in phase three, and gyms and bars can be reopened.
There is a key word above – counties. This would suggest that counties could be treated by governors the same way that states are at the federal level. In my example of yesterday this could allow Governor Kelly of Kansas to unlock the western counties of the state and allow them to progress to phase 3 almost immediately.
Applying the commander in chief and interstate commerce powers the President could also exempt certain activities and organizations from the control of a governor if it impeded the pursuit of national objectives.
In conclusion the Presidents 3 phases give him political cover from charges of being slow on opening the country’s economy back up. The blame has been passed to the governors. Certain governors, as demonstrated by recent and future planned demonstrations, are bearing the brunt of their misguided, draconian limitations on their citizens. One article I read today talked about an “American uprising.”
However the restart of the economy occurs it needs to be done in an expeditious manner.
On 24 March I wrote an article discussing whether the cure for the virus was worse than the virus itself. It is now time to revisit the message of that article. We see selected governors extending their blanket closing into May, at the minimum. This is absurd except for the politics that underlies it.
Part of the thinking that underlies the extended shutdowns is that it would be terrible for there to be one death from the China virus on an individual’s watch after the lockdown is lifted, while there is no guilt associated with all of the deaths each year from the flu. The media has created a psychological monster out of the China virus. This monster it is hoped will bring down the president.
The political/media game somehow made the China virus more dangerous than the annual flu. At worst the numbers may end up being about the same and most likely the annual 60,000 deaths from the flu will exceed the China virus. But of course the democrats need to remove Trump’s economic success. The way to do that is to keep the country locked down.
The question then is when and how will the country get back to work?
In spite of all of the government stimulus money many small businesses may find it impossible to reopen:
- Market has been usurped by a company that avoided the shutdown—it was essential
- Employees have found work elsewhere or are not yet ready to go back to work because government unemployment benefits are too good to be true, but they are
- Government regulations will be so restrictive so as to prevent a small restaurant, for example, to be profitable. (Table spacing an example.)
The handful of states that do not have sweeping lock down orders — Arkansas, Iowa, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming — counted fewer than 300 mortalities between them as of Wednesday afternoon, according to their websites, and roughly 11,000 cases. In these examples lockdowns were not necessary and yet infections did not explode. They each are governed by Republicans.
Continuing lockdowns may be undercut with the governors now having been acknowledged to have the authority to loosen their lock downs. If demonstrations such as occurred in Michigan this week continue this attempt to paint the economy failure as Trump’s fault may fail. Expect more bombastic press briefings in the White House. In short the governors could be blamed for local economic problems. Having fought the White House for the power to unlock they may still try to shift the blame for economic problems onto Trump.
The other message from the left is that the President’s handling of the virus has been incompetent. Of course Adam Schiif will attempt to make this message get traction, but the experts will most likely make his attempts to be shown to be empty.
In some states with Democrat governors it is likely that they are trying to get the attention of the Biden staff so as to be considered for vice-presidential candidacy. This may backfire on want-to-be Vice President governors such as Kelly in Kansas and Whitmer in Michigan. Both of these governors have portions of their states where the lockdowns could be relaxed. (Similar to the 8 states noted above.) Case in point. Western Kansas hardly has any virus cases. The same is true of the rural portions of most states, as noted above.
In the coming days we should expect to see recommendations on industries and geographic areas that can be unlocked early in the unlock process. In looking at the unlock process there will be multiple considerations in what / where to unlock. The amount of infection in a geographic area will be critical. Demand for the product of a small business (or any business) will also be a critical consideration. Certain industries where large groups gathered may be late in the unlock process.
The Washington Post reported that the White House draft plan gave four criteria for a state to reopen. According to the Post: a low number of infections, a monitoring system to detect new infections, a medical system that can accommodate a surge of new infections, and enough hospital beds to handle that surge. These criteria are insufficient. Consideration also needs to be taken to the considerations listed above.
As we watch the coming debate we need to keep the above thoughts in mind. Politics will become more and more dominant as this goes forward.