Dhillon/Yoo: Statewide Lockdowns And The Law

The authors make an extremely good and important point.  The lock down, house arrest, “shelter in place” is mandated not by the Federal government but by the State and local governments.  Trump can request, but it takes the Governors to make the decision.  So the question comes, is this legal and is it appropriate?

“Here is a quick, back-of-the-envelope calculation for a single state, California. The U.S. economy generates approximately $24 trillion a year in GDP, or $2 trillion a month.  California is about 15 percent of that total, for about $300 billion per month.  Suppose that the lockdown causes economic activity to drop by 75 percent in California (it may well be worse).  Is it worth immediate losses of $225 billion per month, in just one state, with potentially longer-lasting recessionary effects, to reduce (but not eliminate) the lives lost to the coronavirus?

It depends on how we estimate the number of lives saved from the lockdowns.  Take California as an example.  At last count, California has 4,643 confirmed cases and 101 deaths from the virus.  We have to balance the lockdowns not against those lives, but against the reduction in the expected harms of an outbreak (which is the probability of an outbreak times the estimated number of deaths).  Some experts, such as doctors at Stanford Medical School, argue that current estimates are inflated, due to the lack of good data from China and Italy and the propensity to test those already infected. Instead, they calculate that the U.S. population may suffer an infection rate of about 2.2 percent, which translates into about 7.7 million infected Americans, or 924,000 Californians.”

At what point do we look at the economic consequences of the lock down, vs. the value of the lockdown.  Are we within two weeks, four weeks, or months?  Difficult decision.

Statewide Lockdowns And The Law

by John Yoo, Harmeet K. Dhillon, Hoover Institution,  3/31/20    

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.

Here is a quick, back-of-the-envelope calculation for a single state, California. The U.S. economy generates approximately $24 trillion a year in GDP, or $2 trillion a month.  California is about 15 percent of that total, for about $300 billion per month.  Suppose that the lockdown causes economic activity to drop by 75 percent in California (it may well be worse).  Is it worth immediate losses of $225 billion per month, in just one state, with potentially longer-lasting recessionary effects, to reduce (but not eliminate) the lives lost to the coronavirus?

It depends on how we estimate the number of lives saved from the lockdowns.  Take California as an example.  At last count, California has 4,643 confirmed cases and 101 deaths from the virus.  We have to balance the lockdowns not against those lives, but against the reduction in the expected harms of an outbreak (which is the probability of an outbreak times the estimated number of deaths).  Some experts, such as doctors at Stanford Medical School, argue that current estimates are inflated, due to the lack of good data from China and Italy and the propensity to test those already infected. Instead, they calculate that the U.S. population may suffer an infection rate of about 2.2 percent, which translates into about 7.7 million infected Americans, or 924,000 Californians.

If the mortality rate from the coronavirus ranges from 1-2 percent, as doctors estimate, then the number of lives that would be lost in an epidemic in California would be 18,500. Suppose that there were a 50 percent chance of that happening without any aggressive government measures, and that the lockdown instead dropped the chances of an outbreak to 10 percent.  By shutting down most economic activity within its borders, California would be spending millions to save a single life, without taking into account less intrusive alternative measures, such as protecting the elderly and placing quarantine orders on those with high probability of testing positive for the disease.

That same money would otherwise allow millions of families – many of them in the lowest income brackets – to pay the rent, put food on the table, and afford health care.  Our states do not shut down their economies every winter to stop the flu, which can kill 60,000 a year nationwide.  Even if the deaths from the coronavirus extend to a higher estimate of 200,000 deaths nationwide, or 24,000 deaths in California, we are still forgoing millions in economic activity to save each life.  While each life is precious, our society chooses not to stop all economic activity to stop other illnesses, such as the flu, or to forgo certain valuable freedoms such as driving to reduce auto accidents.  As the Great Recession showed, massive economic losses can cost lives too by reducing incomes, decreasing longevity, and increases in death by suicide and drug overdoses.

Our state officials should explain whether they could have implemented other policies that could have reduced the spread of the disease without incurring such massive economic destruction.  Did state officials consider less intrusive measures, such as quarantining the identified infected and safeguarding the elderly, who are most vulnerable to the illness, instead of imposing a shutdown of the state’s economy? Was any consideration given to the human health effects of the mandatory stay-at-home order, including exacerbation of mental health issues such as depression and anxiety; a predicted increase in domestic violence; suicides by business owners facing debt and ruin? We simply don’t know.

These are tough decisions. California cannot spend whatever it takes to save every life.  In the 2017-18 flu season, the CDC estimates that 61,000 Americans died of influenza; but we do not impose the types of economic lockdowns and social distancing we see today to stop the flu.  We elect officials to state government to make these policy decisions for us, in a responsible and informed manner.  If they do not explain how and why they arrived at their decision, they risk popular discontent.  If the lockdown continues for weeks on end, and it appears that our leaders imposed statewide quarantines without sufficient proof that the numbers of lives saved would justify the heavy, widespread cost, they even risk civil disobedience where Americans will simply ignore the bans on social and economic activity.  No state has enough manpower to control an unwilling American population.

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.  

In this crisis, property and business owners could claim that the state cannot force them to bear alone the costs for achieving a social goal.  And at the very least, such lawsuits would force state government to explain why the benefits shutdowns exceed their costs, when compared to less intrusive approaches such as quarantines, monitoring, and testing. Our Declaration of Independence recognized the natural law principle that the consent of the governed is needed for that government to have enduring legitimacy – and hasty infringements on  individual rights will soon test that consent.

John Yoo is Heller professor of law at the UC Berkeley School of Law, a visiting fellow at the American Enterprise Institute, and a visiting scholar at Stanford University’s Hoover Institution. Harmeet K. Dhillon is a trial lawyer and a partner in the Dhillon Law Group in San Francisco. She is the founder of the Center for American Liberty, a civil rights nonprofit organization.

About Stephen Frank

Stephen Frank is the publisher and editor of California Political News and Views. He speaks all over California and appears as a guest on several radio shows each week. He has also served as a guest host on radio talk shows. He is a fulltime political consultant.

Comments

  1. Otis Needleman says

    The statewide lockdown is unwarranted. We know where the hot spots are now. Lock those down and let everyone else go back to work, if they can.

    Since we are allegedly “all in this together”, why don’t all the public officials, from the governor on down, who have shoved these draconian measures down our throats, accept no more in salary during this crisis than the average hourly worker gets on unemployment? THEY never miss a paycheck.

    No, we are NOT all in this together. As usual, there’s the “them” who impose their will upon “us”, the peons.

  2. Eddie Byrn says

    How different in numbers sick, getting sick, died, etc is coronavirus caused compared to any other virus or flus that have occurred in say the last 40 years? Is there any statistical difference? If so, how much? I think the whole coronavirus hype is blown way out of proportion. We as a nation are being set up. Along with much of the so-called civilized world.

    • Disgusted in LA says

      My take is they’re trying to pressure us into their One World Agenda – the government will make our decisions for us, most us will do jobs not requiring responsibility or education – meaning WalMart greeters or enforcers. All businesses will be controlled totally by the state. Reminds me of “Atlas Shrugged” – Ayn Rand must be shaking her head in dismay – she WARNED US!!!!!!

  3. This does not add up. Trump is caught between the CDC and the FDA docs. He is not a doc and it is hard for him to override their plan and thinking.
    However, WE HAVE HAD A CURE FOR THIS VIRUS FOR TWO WEEKS NOW, and it is being used by doctors nation and world-wide.
    Sad but true, many people are not being given this medication early on to negate the full-blown virus. There is talk that Healthcare workers are taking it as a prophylactic. And it is being used throughout the world successfully, as well. Fauci already admitted his trial studies for Hydroxychloroquine are not feasible since no one wants to chance taking the placebo and dying!!

    Well, if and when the FDA comes around, we can all acquire this medication and Z-pak at the sign of two more more symptoms early in the progression process, which would cut the illness in the bud. This is what you want to do with medical problems in general.

    So, the question is when will President Trump realize he must override the rules and regulations of his medical “TEAM” and do what needs to be done: Make these medications widely available to the public and the doctors to use on all those with virus symptoms at the first sign of it manifesting in the body.

    • You should really do some research . There is no cure for any virus. The only thing that come close is a vaccination and that only maybe stops you from catching what ever it is for MAYBE.

  4. Michael Markovitch says

    I add this. If the powers that be here in CA thought they could get by with it they would make people, when outside, crawl on their hands and knees instead of walking. “If you cough, the virus will just go on the ground instead of the air!” They would likely also make us bark, quietly, when outside. “Talking spreads the virus! Bark quietly and it won’t spread!” Then the powers that be will have truly reduced us to the animals they believe we are anyway.

    Far-fetched? Are you kidding? This is California!

  5. Cycleman says

    The Democrats want this to go on as long as possible, this isn’t even over and Nancy Pelosi launched a new congressional investigation against the President this morning. Gavin Newsom and his Democrat buddies have people scared. Democrats are a disgrace to this country.

    People need to wake up and realize the California politicians are not our friend, they are our enemy. How can we trust somebody like Gavin Newsom who cheated on his wife with his best friend‘s wife. What do you think he has in store for us?

    Unfortunately, this man comes from a very powerful family (Getty) that wants to see, and will do anything to get their little boy into power. He personally never achieved anything on his own his whole life, but now this crisis gives him unlimited power to take our rights away.

    I saw an article today with him saying “This is a perfect time to push the progressive agenda”, but before he does that, he needs to take away our Second Amendment rights. I believe there is a virus out there that needs to be addressed, but the Democrat party is taking full of vantage of this to strip us of our rights, and the way it looks, it worked. https://youtu.be/TikoVnUqid4

  6. The Captive says

    Accountable —-Dempcraps are not accountable and their imposing all this LOCK-DOWN is doing nothing except make people realize that this is their total control of our lives. They do not make us healthier or safer or anything! I do not buy into all their LIES AND CONTINUED ignorant excuses. It is what is in it (the money) for them and not about how can the people of CA. deal with this stuff intelligently. One more thing – I hate to listen to gruesome-newsome as he goes on and on and on in his totally lack-luster voice.Is he the only one who loves to hear himself talk?
    No ,I do not believe all the false facts and figures they dish out over the air-waves either!Thumbs DOWN to gruesome-newsome!!

  7. JLSeagull says

    Our county is “locked down” like all others. Fortunately being a rural county, restrictions on shelter-in-place are loosely enforced, if at all. Sadly the state shut down all of our state parks. Presumably they were “attractive nuisances” drawing people in from other counties carrying the COVID-19 virus. So we can’t even go for a walk in the park or on the beach. It’s a good thing we have plenty of other forests to stroll in.

    Went shopping at the Safeway this morning and was surprised at the number of people wearing masks. Not sure why. Must be excitable Democrats. Given all the masks, they can’t be the ones that are sick. We only have four, possibly eight, people in the entire county of 88,000 people that have tested positive for COVID-19; one in every 11,000 or 22,000 people and one of those has recovered. Government overkill.

    Once production of Chloroquine is ramped up it should be widely distributed to the people as a preventative (prophylactic is an okay word but generally associated with other uses.) Hell, I know it’s safe, I took it for a year in Vietnam where we called it the “Orange Pill” about the size of a nickel in the 60’s. I guess some people might say that the only lasting side effect was that it made me a conservative Republican. Anyway, as I am now classed as an elderly at-risk with underlying medical issues (I’m still breathing), I wouldn’t mind being among the first in line to receive it.

    Keep well, stay safe, wash your hands frequently and practice social distancing.

  8. CA4Trump says

    We should support our president, support his team, and support his ability to return our great nation to the glory it once was, and always destined to be. This president has the well-established skills to know good business sense and data analysis. Our nation has many threats it needs to be prepared to face: biological warfare is real and ignored by previous administrations. Trump will be the president who will go down in history who transformed our nation and installed new modern infrastructure to handle this (and other) threats. We have learned so much: one of which is the need to properly process any border entry, and to make pharmaceuticals and medical staples here in the USA. The numbers saved with this pandemic 2020 may well be nothing compared to potential future risks we proved vulnerable too. We have learned to question everything: the source of our food, potential contaminants from questionable global sources, and our readiness abroad as well as domestically. We are on our own– just as the Trump Mandate declared: “Made in the USA” and “MAGA.”

    Like the farmers uniting behind our president during the Tariff Wars, it is time for Americans to do the same.

    Multiple models track this Coronavirus death trend and risk analysis based on hospitalized and in ICU. It does not take much beyond basic algebra to see the positive slope which rises proportionally. Some see a stagnant figure and compare it with annual totals of other risks and diseases. Not one model would do that…these are slopes with the percentage increasing daily (CA may have reached its peak as of this writing); If the risk of loss was indeed in the millions (instead of potentially below the 100,000 as mitigated: aka “flatten the curve”) then you would bet we would not have a Republican president in 2020. This is the right thing to do, we are going to be better because of it, and may the fallen never be forgotten. America is mighty and will prevail. If we allowed a democrat president- thus returning to globalism and mismanagement: today’s short economic hiccup would be nothing in comparison. We have an enemy in our midst: and it is not the president or his Task Force. We know who mocked the travel band, ignored the National Health Advisory (the day after WHO), and refused social distancing advisories: we also know it was the same who want to see Trump destroyed. Be fortunate we are not like NY who ignored Trump’s warnings.

    • Disgusted in LA says

      And Pelosi iwll go down as one of the biggest frauds of a human being. Add to that Gov Nuisance and Mayor Garshitty. Funny – little ole Maxie hasn’t been heard from lately. Bet she’s hiding out in her mansion with the walls outside her electroal district!

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