COVID-19 and the Limits of Law

By Andrew McCarthy

Saturday, March 21, 2020

Earlier this week, Jim Geraghty posted about the decision by Dare County, N.C., to close its borders to non-residents. Is it merely a reaction, or an overreaction, to the coronavirus pandemic creeping across the nation?

The county’s move raises all sorts of constitutional questions about federalism. At what level of government do we properly resolve such questions — federal, state, county, municipal? Do Americans have a settled right of travel — intrastate, interstate, international — that applies at all times, or is the law flexible in this regard (as it can be regarding the imposition of martial law in times of war, invasion, and insurrection)? If a county can ban the entry of non-residents from its territory, can it ban the exit of residents, or at least of their property?

We could bat these questions around for some time. The bottom line, however, is that there are probably no settled legal answers. We miss that in normal times of peace and prosperity, when the rule of law governs. But in crisis, we see the limits of law. In essence, these questions call for political determinations. They turn on the perception of peril at a given time, which is a function of fluid circumstances that cannot be forecast with precision.

The law also works best when we are confident we know enough about a topic to regulate for all future conditions. The law works well for bank transactions, and especially for bank robbery. For infectious-disease outbreaks . . . maybe not so much.

Of course, the books overflow with laws. Last weekend, for example, President Trump issued a formal emergency declaration under the 1988 Stafford Act (formally, the Robert T. Stafford Disaster Relief and Emergency Assistance Act). It endows the president with unilateral powers to support states and localities when their capacities are overwhelmed by a catastrophe affecting public health or safety — including by making federal emergency relief funds (currently, about $50 billion) available.

The president has floated the notion of triggering the act’s more potent declaration of a “major disaster.” Legally, that seems unlikely: The Stafford Act says such a declaration must be requested by the affected state(s), and its terms are confined to physical infrastructure damaged by natural catastrophes (e.g., hurricanes and earthquakes), not by pathogens that infect people but do not destroy structures. Yet, if states hard hit by COVID-19 were to make the request, and the president responded with additional tranches of federal assistance, how punctilious do we really think Americans would be about statutory construction?

Meanwhile, on Wednesday the president invoked the Defense Production Act of 1950 (as most recently amended in 2009). He had been urged to do so by Washington hands, particularly Democrats — everyone from putative presidential nominee Joe Biden and Senate minority leader Chuck Schumer to a growing chorus in the House.

The DPA seems ominous from the perspective of a free-market society committed to the protection of property rights. Under it, private industry may be mandated to accept and prioritize government orders and contracts to meet what the president unilaterally determines to be national-defense needs. As of this writing, Trump’s triggering of the DPA is mere exhortation. He is encouraging private corporations to produce the medical testing and treatment components that are urgently needed; but so far, he has not presumed to order them to do anything.

Still, were he to do so, it would not be extraordinary. (At least the fact of such a directive’s issuance would not be unusual; the substance might be.) In DPA’s 70 years on the books, executive administrations have invoked it dozens of times. These have been fairly uncontroversial. For the most part, the act has simply facilitated the production of security-related goods and services through loan guarantees and the waiver of legal restrictions that otherwise inhibit private corporations.

Indeed, the Truman administration explicitly forswore reliance on the DPA in 1952, when the president directed his commerce secretary to seize and operate steel mills. A labor strike during the Korean War had halted production and threatened to leave the armed forces without vital supplies. The Justice Department relied mainly on what it posited was Truman’s constitutional authority, arguing that the DPA’s seizure provisions were “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”

That last bit is a quote from the famous ruling in which the Supreme Court invalidated Truman’s seizure (Youngstown Sheet & Tube Co. v. Sawyer). It’s a part of the history that is very much worth noting.

In the aftermath of World War II, there was a massive downsizing of the armed forces and defense production — not just because the war ended but because our development of nuclear weapons fed an assumption that conventional military capabilities were no longer as essential. The Soviet tyranny in Eastern Europe, the Communist triumph in China’s civil war, and the Korean Conflict burst that assumption — just as, 40 years later, the rise of jihadist terrorism would explode the rose-tinted assumption that the Soviet collapse had ushered in a “peace dividend” of waning military power, of security assured by global legal processes.

In the early 1950s, things seemed suddenly dire. Such emergency measures as the DPA and the seizure of the steel mills may have appeared reasonable. Over time, though, threats — or at least our comprehension of them — become clearer. Gradually, DPA powers were tapered back. By 1952, the Supreme Court was willing to strike down wartime executive actions as excessive, something the justices had been notoriously unwilling to do during World War II. The Korean War was serious, but it was not a potentially existential peril. It warranted significant deference to national-security needs; it did not warrant upending our fundamental conceits about economic liberty and the relationship between citizens (the sovereign) and the state (the servant).

We have to be mindful of this dynamic.

Heather Mac Donald caused something of a stir last week when she argued that the governmental reaction to the coronavirus pandemic was dangerous overkill. For any individual, the chance of death by COVID-19 is vanishingly small, but the governmental reaction — federal, state, county, municipal — has inexorably evolved into a shutdown of the U.S. economy. The cure, Heather contended, was worse than the disease. She pointed out that there were 34,200 deaths from influenza in our country last year, yet we did not grind society to a halt. The same chord has been struck by the editors of the Wall Street Journal, Victor Davis Hanson, and Steven Malanga, among others.

Our estimable John McCormack ably countered that Heather’s flu comparison substantially understates the matter. The most reliable information indicates that the fatality rate of coronavirus is about 1 percent, which is ten times the 0.1 percent rate for flu. As John points out, that means, assuming an identical number of total cases, 34,200 flu deaths would translate to 342,000 COVID-19 deaths. Obviously, the loss of over 300,000 Americans (and, in addition, hundreds of thousands more worldwide) would be a tragedy of epic proportions.

That said, I think Heather’s main point is well taken. Her New Criterion essay was entitled “Compared to What?” Her objective was not to compare the fatality rates of coronavirus versus flu. Even in the absence of a vaccine, vastly more people will not contract COVID-19 than will be infected; and vastly more people who get it will recover (most without a severe bout) than will die. She first calculated the percentage of Americans who had died from COVID-19, which she put at .000012 percent (that was based on 41 deaths a week ago; as this is written, the total stands at 217, which computes to .000066 percent — still statistically negligible). The essay’s “compared to what” question addressed whether this minuscule chance that any random one of us could die from coronavirus justifies locking down the economy. If the lockdown goes on much longer, it could put millions of people out of work, destroy additional trillions of dollars in wealth, and lead to surges of suicides, drug addiction, divorce, broken families, crime, and other societal disasters.

It is not sustainable for government to combat the disease by ordering communal and commercial activity to cease, then trying to compensate increasingly destitute citizens by borrowing and printing money to throw at them.

This is, and has to be, the pattern of political determinations: Err on the side of safety, but abate if, with the context of better information, living more realistically with the threat begins to appear less dire than the alternatives. Here, the coronavirus shutdown may have been an understandable first reaction, even a justifiable one. But it has to be weighed against the catastrophic consequences. And it has to factor in our improving understanding of the threats and the behaviors that mitigate it — hand washing, other rudimentary hygiene, social distancing, avoiding large crowds for now, extra safeguards for the elderly and people with preexisting health problems, and so on. If we do these things, many fewer people (especially vulnerable people) will be exposed.

Even with all that, and even if we can minimize the number infected and eventually reduce the fatality rate, it is entirely conceivable that thousands more people will die from COVID-19 than die from flu. But tragic as that outcome would be, it would pale in comparison to the ruin that looms if we do not resume a semblance of normal life.

No matter what happens, the law — i.e., the Trump administration’s conclusions about its DPA, Stafford Act, and constitutional authorities — will have little to say about it. The history of this country is one of ceding authority to the chief executive, to an extent commensurate with the public’s sense of real threat, particularly lethal threat on a mass scale. Later, Congress and the courts push back, but only once the perception of peril ebbs. They push back with law. Yet, the extent to which law is a real barrier to future presidential muscle-flexing, for good or ill, depends not on what the statutes and opinions say, but on how scared we are.

Politics, not law.