From fracking to transgender rights, I keep bumping into questions of political jurisdiction. Cities, states, the federal government…Who shall rule? It’s a foundational question in political philosophy. America has embraced a federalist approach with power distributed in a variety of ways across jurisdictions. Though often confusing and contentious, this system has many virtues. But it is a recipe for disaster when it comes to the coordinated action required to respond effectively to a pandemic.
Earlier, I wrote about how the coronavirus might rip America apart at the seams. That was four days ago when we had 46,000 confirmed cases of Covid-19. Now we are at 117,000 cases, more than any country in the world. The tension between “flattening the curve” and “getting back to work” is growing, and it is starting to manifest along these contested lines of power and jurisdiction.
As Ezra Klein argues, this is a dangerously wrong way to frame things. The choice we face is not between human life and economic growth – saving lives is saving the economy. Senator Lindsey Graham put it well: “there is no functioning economy unless we control the virus.” Or as Bill Gates put it, we can’t restart the economy and just “ignore that pile of bodies over in the corner.”
And yet Trump is hell bent to fall on this sword of a false dilemma, insisting that we are going to open up the economy soon. He sent a letter to Governors outlining a (one page) plan to ease social distancing guidelines that would entail the use of testing to categorize counties as high, medium, or low risk. Never mind that testing is still being strictly rationed in many places.
On Thursday, he said in a phone interview, “I think we can open up sections, quadrants, and then just keep them going until the whole country’s opened up, but we have to open because people want to get back to work… that’s the way we are engineered.” He then included my home state of Texas as an example where there are places “that aren’t impacted by this.”
Yet everywhere is already impacted. If numbers are low in some places, that’s largely an artifact of inadequate testing. Opening up those areas – or any ‘quadrant’ or ‘section’ – will be a recipe for disaster. It flies in the face of advice from economists and public health experts alike.
And yet, here we go. We are about to witness mass confusion as Trump and the federal government issue their guidelines for easing social distancing even as many states, counties, and municipalities insist on sticking to shelter-in-place rules. The first skirmishes are already flaring up.
A Glimpse of What’s Coming
On March 24, Governor Tate Reeves of Mississippi issued an Executive Order that implemented some social distancing rules, but also gave an extremely wide definition of “essential business.” The rules, in short, were far less strict than some local regulations in the state. Naturally, the Governor invoked his power to preempt local rules, claiming that his Executive Order cancels “any order, rule, regulation or action by any governing body, agency or political subdivision of the state that imposes any additional freedom of movement or social distancing limitations on Essential Business or Operation…”
In north Texas, Collin County Judge Chris Hill issued an order for everyone to stay home except for essential activities; yet he went on to define all businesses all jobs and all workers as essential. This prompted a rebuke from Dallas County Judge Clay Jenkins, who called on everyone in the region to “heed the scientific advice… Every day we wait costs lives.” In response, Hill asked Jenkins to “reconsider his position.”
A resident of McKinney Texas, which is in Collin County, is suing the city. He claims that McKinney’s shelter-in-place order contradicts Judge Hill’s order for the county. McKinney mayor George Fuller said, “I put an order in place that I believe with all my heart is the smart and right thing to do. And now I have a single resident not elected trying to speak for the community that did not put him in office to speak for them.” The resident shot back: “It is arbitrary for the mayor who is and isn’t important to go to work. Don’t basically fire people with an edict from on high which causes them to basically lose their income and their house.”
Things are even messier than this, of course, because many cities overlap county borders. We are primed for a shit show of lawsuits, contradictory orders, and a jurisdictional nightmare. The Russians could hardly wish for more chaos, and we’ll bring it upon ourselves as our leadership vacuum fills with deadly confusion.
Who is empowered to decide? What counts as an ‘arbitrary’ definition of an ‘essential’ activity or business? These are the loose threads in the American federalist system that will be pulled on to unravel whatever collective garment we were weaving to protect us from the virus through social distancing. Trump will be the gleeful ringleader of the ensuing circus. He can’t strictly use the power of the federal government to override state, county, and local shelter-in-place rules. But he can use his bully pulpit, twitter account, and other informal powers to pull on those threads. And he will.
A successful social distancing response to a pandemic requires strict vigilance and extended, cooperative sacrifice and commitment. The American political system is simply not wired for this.
If that McKinney resident thinks that the Mayor’s decision was arbitrary, just wait. We are about to see the Trump administration unveil a host of arbitrary criteria and guidelines about which ‘quadrants’ (?!) are low risk and which are high risk. Given that our failure to test has left us in the dark about the true extent of infections, these rules (which will be rushed for Easter) will be far from evidence-based. Yet they will serve as ammunition for leaders and individual citizens who want to get back to work and sue whatever entity is keeping them from their paycheck.
Trump’s “get back to work” crowd is a ‘faction’ as defined in the Federalist Papers: “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The founding fathers devised a pretty good plan for controlling such factions so that their “improper or wicked project” does not “pervade the whole body of the Union.” The trouble with this, though, is that this faction only has to get a toehold somewhere in the Union. From there, the virus will do the pervading.