Of Interest

It Should Be Game Over For Fear Based Covid-19 Policies

As 2019 drew to a close, not many had predicted the Covid pandemic that would emerge a few months later. Fewer still had imagined a world where "flatten-the-curve" would emerge into a draconian “new-normal” of travel restrictions, mandatory wearing of face masks, and government-enforced business closures.

Wright Law Firm Update

One result of Covid-19 has been unprecedented challenges to personal freedoms. These inalienable rights that soldiers and patriots died to give us were quickly set aside. Governors, mayors, and our elected officials shut businesses, canceled schools and imposed numerous restrictions on the populace, all in the name of our health. It was all very new and exciting. Whether they had constitutional authority to act unilaterally is itself doubtful. But act they did.

A corresponding campaign of fear in the media and social networks followed. Divergent opinions were quickly shamed by those who unquestioningly trusted government and health officials to provide accurate and scientific information. The shaming has had a lasting impact. It persists today. One cannot enter a restaurant, a grocery store, or attend school without a face mask. On Tuesday a video went viral on social media of a man shouting at a Hasidic Jewish man for not wearing a mask on an empty New York City street. A driver passing by berated him from his car window, yelling at him to, “Put your f***ing mask on! Put your mask on! There's Covid cases! Hurry-up! Put it on!” The man was walking alone on the street talking on his phone.

Most of us would have never dreamed that we would see this, or that we would witness the tactics used to defend the government’s health policies. The policies being pursued throughout the United States are the most heavy-handed possible, some call it “a sledgehammer to kill a swarm of files.”

Recently we commented about Michigan’s Governor Whitmer. You can read our articles below. If you’ve followed that saga you may have noticed that the Supreme Court of Michigan invalidated the pandemic executive orders of Gov. Gretchen Whitmer and too the statute on which she based them.

Whitmer's orders had been among some of the worst in the nation. In that sense she represented an easy target. But the point could just have easily been made of any number of governors, county board of supervisors, or local municipal leaders.

Whitmer manufactured herself as a one-woman government. During the early days of the pandemic she both wrote the laws and used her executive powers to enforce them. Her executive orders were not "pandemic-light" either, but aggressive. For example, Whitmer required residents to stay home unless their travel was immediately necessary to preserve human life. She told residents to wear face masks in all indoor and outdoor public places and to stay six feet away from all other people outside the home.

Restaurants, food courts, cafes, coffeehouses, bars, taverns, brewpubs, breweries, distilleries, wineries, tasting rooms, clubs, hookah bars, cigar bars, vaping lounges, barbershops, hair salons, nail salons, tanning salons, tattoo parlors, schools, churches, theaters, cinemas, libraries, museums, gymnasiums, fitness centers, public swimming pools, recreation centers, indoor sports facilities, indoor exercise facilities, spas, casinos and racetracks were ordered closed.

Whitmer shuttered arcades, bingo halls, bowling alleys, indoor climbing facilities, skating rinks and trampoline parks. She closed all places of employment not immediately necessary to sustain human life. Advertisements for non-essential goods and services were banned. She prohibited visitors at hospitals, nursing facilities and jails. She closed down all veterinary facilities.

In short, the governor of Michigan manufactured her own rules and then expected everybody to live by them. Afterall, she was doing it for them. In the process Governor Whitmer reordered human life, displaced nearly all livelihoods, and trampled on civil liberties on a scale not seen in America since the Civil War.

What can be learned? Once government officials abuse their power, it is not an easy task to restrain them. In fact, numerous efforts to dislodge Whitmer’s executive orders in state courts had failed. Months passed. Nothing changed. But finally, just this month, one of the lawsuits that three primary care physicians had filed against the governor got traction. The case found itself before the Michigan Supreme Court. In a unanimous decision, the justices of that Court ruled that the statute on which the governor relied was unconstitutional. The Court also ruled that the governor's executive orders were void. Once that domino fell the Michigan Attorney General announced that she would not longer prosecute violations of the executive orders. Was it over? No. Governor Whitmer persisted by trying to end-run the Michigan Supreme Court.

Constitutional Law 101

Under the U.S. Constitution’s Guarantee Clause, states must have and employ a republican form of government. In all state governments there must be three separate branches of government — a legislature that writes the laws, an executive that enforces them, and a judiciary that interprets them. This is known as the separation of powers.

When any governmental executive — a mayor, governor or president — takes, receives or exercises legislative power, that violates the separation of powers.

A violation of the separation of powers ordinarily renders the violating governmental behavior null and void. Or in other words, if the courts acted as a legislature or if the governor acted as a court or the legislature took command of the police, all acts done in those scenarios would be void. Otherwise, nothing would prevent any one branch from relinquishing its powers to another or from seizing the powers of another branch. The result would be a catastrophic loss of personal liberties.

This was the argument the physicians presented to the Michigan Supreme Court. This argument the governor called "novel." It is not novel. It is the very bedrock of American constitutional law, just as James Madison intended.

The Effect of Government Responses to Covid

Why does this matter? Well, tempted though we may be, we should resist the urge to set aside the constitution because it is inconvenient. The need for a good policy process does not disappear just because we face a public health crisis. In fact, it gets even more urgent. Besides, we must recognize that it is not possible for governments to provide a completely risk-free society, or to prevent every possible event that might cause harm. Risk regulation that is poorly targeted or costly will divert resources from other priorities.

"If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned."

— Justice George Sutherland (1862 to 1942)

In addition, we would do well to calculate the impact. Government responses in Arizona, the United States, and throughout the world have had hugely adverse economic, social, and health effects with the poorer sections of our communities who can’t work from home, suffering the most.

Here at home these policies have signaled to the world not only that the United States is largely closed for business, but worse that we no longer protect the inalienable freedoms that we advertise as our greatest virtue. Responses from elected officials dampened business investments and destroyed numerous businesses that were cast-off as “not-essential.”

The whole thing hinged on the scare created by politicians and health professionals. Covid-19 was presented as the greatest public health challenge since the Spanish Flu, and possibly worse. But now it is all beginning to unravel, as it must. It had to happen. Covid-19 is no Spanish Flu. We can verify that easily. The Spanish Flu killed at least 50 million people worldwide in 1918 when the global population was 1.8 billion. Proportionately, to be as lethal as the Spanish Flu, a virus would have to kill at least 210 million people today. Instead, only about 0.9 million have died so far. Compare this figure with the 60 million who ordinarily die each year.


Even if the pandemic had been as big as the Spanish Flu, lockdowns could never have been justified. The World Health Organization has now warned governments against relying on COVID-19 lockdowns to tackle outbreaks — after previously saying countries should be careful how quickly they reopen. WHO envoy Dr. David Nabarro said such restrictive measures should only be treated as a last resort:

"We in the World Health Organization do not advocate lockdowns as the primary means of control of this virus.”

"The only time we believe a lockdown is justified is to buy you time to reorganize, regroup, rebalance your resources, protect your health workers who are exhausted, but by and large, we’d rather not do it.”

Nabarro said tight restrictions cause significant harm, particularly on the economy:

So what should the government have done?

The data were clear from February itself, that the elderly were many times more vulnerable to a serious outcome than the young. It was necessary, therefore, to work out a targeted age-based strategy and start aggressively protecting and isolating the elderly, even as the rest of the population was advised on relevant precautions. But that wasn’t done.

Governments back in February needed to commission a cost-benefit analysis of alternative policy options that took into account different scenarios such as with and without a vaccine. Thereafter, the best option had to be picked, given the uncertainty, but consistent with the need to intrude minimally into inalienable freedoms. This cost-benefit analysis and policies needed then to be updated as new information emerged. Such as the fact that epidemiological models badly exaggerated the risk. The government should have listened to other voices as well. And not tried to rebuff or ignore them. Instead, the bureaucracy has clamped down on frank and fearless, impartial advice in a misplaced determination to support whatever the government decides, instead of performing its taxpayer-funded duty of providing forthright analysis of alternatives.

While there is a scientific argument against lockdowns, there are divergent views on matters such as the effectiveness of masks. You need not be a mask fanatic to realize that there was never any reason to mandate these debatable requirements. Voluntary, performance-based rules would allow the private sector to innovate, leaving people to determine their own fate. This is what many have been saying, we can look after our own health, thereby minimizing economic harm and harm to mental health and general well-being.

Where to Go From Here

So what happens now? Billions of dollars of income and wealth have been wiped out in the name of a virus that is no worse than the Asian flu, and which can even now, be managed by isolating the elderly and taking a range of voluntary, innovative measures. All the border closures, all the lockdowns, all the curfews in the various states and municipalities, will not eradicate the virus from planet Earth. Politicians can’t eliminate the virus. We need to understand and accept this.

The problem for politicians now is to reverse course while saving face politically, and without losing their jobs. How they may achieve that outcome is a mystery. But if they don’t do it sooner rather than later, the damage to our future will become so great that it will undo the good work of decades of progress.

The point is simple, it should be game over on Covid-19.

We need to recognize the scope, that government leaders and health officials not only misled the public (knowingly or otherwise), they also failed to protect our constitutional freedoms. The political leaders who are the architects of this response should not escape the private criticism that has begun to find its way into the public space. In fact, it is worse than this, we should adopt a national advertising campaign to tell the public the truth about the fact that this virus is not a Spanish Flu level pandemic, not even close.

Do these failed strategies stay in place? Time will tell. But first we need to get the public to understand that there has never been a “pandemic” of the kind that required these draconian measures in the first place.

What about us? Do we share any blame? Probably. If we placed too much trust in the integrity of those advising and acting for us we should learn that lesson too. If we assumed that they would act in our interests and that they would base their decisions on good science we should adopt better policies to hear divergent voices, and to not act in knee-jerk reaction from fear. That was our mistake.

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