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.