A "Hodgepodge" of State-Based COVID-19 Rules May be Just What the Doctor Ordered
By Richard B. McKenzie
As I write this in early May, most states have begun loosening in varying ways and to varying degrees their COVID-19 containment controls. Only three states—California, New York, and Washington seem likely to keep their lockdown orders in place into June. Critics, again, took to their media bullhorns and to the streets in protests with posters condemning the loosening of controls for their disregard for human life over the economy. The critics argue that the loosening of controls will cause another surge in virus infections and deaths
These critics argue that the states without full lockdown policies and the far larger number of states allowing for businesses to reopen can be incubators for the virus, which can spread nationwide through porous borders and cause a second surge in virus infections and deaths. Consequently, the states loosening their containment policies are endangering Americans in the lockdown states who are dutifully sacrificing their jobs and opportunities to socialize with friends. State-based policymaking has created a “hodgepodge” of widely varying state and local containment (and loosening) rules1—for example, on where and when to wear face masks, the size of allowable social gatherings, the definition of “essential businesses,” and when and where businesses can reopen—all with different levels of enforcement that complicates doing business nationally.
The critics have strongly insisted that national rules that are uniform across all counties are necessary to suppress the deadly virus that is overtaxing the country’s healthcare system. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a prominent member of President Trump’s COVID-19 task force, confesses that he simply “can’t understand” why all states are not on the “same [regulatory] page.”
Resisting the pressure to nationalize the “coronavirus war” has a straightforward reason: States and local communities differ, most prominently in population density. But there is a much stronger reason to defer to state and local governments: When so much is unknown about a highly contagious disease, the country needs opportunities to try a variety of policy remedies, just as it needs to test medical remedies (vaccines and antibody therapies) for nonvictims, especially those in frontline healthcare jobs.
As intended by the American Founders, devolution of major swaths of policy making—including devising containment policies—to states allows the needed, and totally unavoidable, policy experimentation, based on varying local health and economic conditions best understood by state policymakers. Future research is then possible to discover which state policies are most effective in achieving the intertwined goals of minimizing infections and deaths and maximizing economic activity.
The Case Against National Containment Policies
Medical experts at high offices in the nation’s capital may know more about COVID-19 and its effects than all others, but there’s a whole lot they yet don’t know and can’t know. Not the least of these unknowns are the widely varying local circumstances across the nation’s 3,007 counties and what combinations of rules and regulations will have the best public health and economic outcomes for communities far from national political arenas. Experts at the national level also can’t know the tradeoffs between safety and economic losses that different groups of Americans may be willing to accept. And the reality of containment is stark: Progressively greater safety can come at escalating economic costs, measured in lost production, jobs, and income. Trade-offs are unavoidable.
Experts’ Limited Knowledge
One example of a knowledge problem is the experts’ insistence a few weeks ago that only infected people need to wear face masks. Now, everyone is urged at least to wear makeshift facial “coverings”—including bandanas—when going out, even if only to take a walk on a deserted beach as asymptomatic victims may transmit the disease. Obviously, the pandemic response is an ongoing project based on experience, with varying policy experimentation included. New York officials, for instance, have concluded based on the state’s escalating deaths that they probably should have instituted stringent containment policies when California did, if not before.
The experts have insisted that all people maintain a “social distance” of at least six feet, as if that specific distance emerged strictly from science. But in democracies, public policies are necessarily influenced not only by the available science but by the public’s willingness to accept them. The six-feet social-distance rule was devised by COVID-19 experts who concluded that, according to COVID-19 task force member, Deborah Birx, “it is clear that exposure occurs” when people are within six feet for fifteen minutes of an infected person. The distance is based on findings that the virus could be spread indoors up to six feet through water droplets expelled through coughs, sneezes, and even exhaled breaths.
But under different conditions, not all virus-laden droplets may not behave in the same way. For instance, based on a small-sample Chinese study in a Wuhan hospital ward,2 the Center for Disease Control (CDC) concluded that the droplets may travel through the air indoors as far as 13 feet and even farther on shoes of healthcare workers. Outdoors, some droplets may be shot as far as 10 yards or more and may linger for several minutes, depending on atmospheric conditions and on the force behind the coughs and sneezes. Thirty Finnish researchers simulated the potential spread of a “cloud” of virus-laden water droplets from a single cough or sneeze a dramatic YouTube video hosted by the University of Helsinki.3 As laboratory simulations of coughs have shown, even N-95 face masks are far from complete barriers to the spread of virus-laden droplets. Homemade face masks, made of thin bandana and t-shirt materials, can be porous, if not all but ineffective.
The six-foot rule likely emerged as a compromise that experts and policy makers believed struck an appropriate balanced between a social distance the public would likely follow, and the number of infections and deaths people would accept. (German policymakers, on the other hand, struck a different compromise based on an assessment of different studies, and set the social-distance rule at 1.5 meters, or about five feet, maybe because the populace would accept more infections to avoid tighter social distancing.)
Obviously, the science behind the social-distancing rule depends on the particular studies available, the interpretation of the findings, and unavoidably, the subjective judgements of the tradeoffs involved. Perhaps, to match scientific findings with transparency, the six-foot rule could be presented as “you should stay at least six feet from all other people to lower the probability of infection to what we find to be acceptable levels, given the additional deaths that will result from not choosing a greater social distance.” I grant that the message is complicated, but that only validates a point easily overlooked in media reports: The experts say they are simply following the science, whereas in fact, policymaking is not so simple. Policies are beset with nonscientific considerations, for example, the pithiness of the policy measures.
Policymaking Under Uncertainty
As experts have said from the start, the current COVID-19 is a new strain to epidemiology, which means humans’ immune systems are vulnerable because they have not yet developed antibodies and FDA-approved vaccines are unavailable. Moreover, the pandemic has been, and remains, enshrouded in uncertainties about the contagiousness and virulence of the virus, although it should be obvious to everyone by now that COVID-19 is deadly. At the same time, more than 95 percent of victims recover with no lasting health effects, and maybe a quarter (or even half, depending on the study) of infected people are asymptomatic, but still can be transmitters.
The effect of various containment rules—whether social distancing or stringent lockdowns—on the economy remains largely a guestimate; however, many economists—including those at the St. Louis Fed4 and Moody’s speculate that the economic destruction from the array of state lockdowns could supersede that of the Great Depression in peak unemployment rate (25 percent in the Great Depression versus 32 percent projected for May 2020) and decreased GDP (26 percent in the Depression versus 29 percent between the start of March and April 2020, with a far more dramatic drop possible by year’s end).
In these uncertain times, we need experimentation not only in labs to find vaccines and disease treatments, but also in political venues to devise effective policies. If federal mandates cut off all opportunities to try various containment policies on the part of state and local governments, a lot of potentially valuable information will be forever lost. Virus experts and the public badly need more empirical evidence regarding the relative public health and economic consequences of different policies, if for no other reason than that there is a very good chance that the virus may retreat in the summer only to re-emerge more virulent than ever in the fall or next year.
Containment Policy “Hodgepodge” as a Research Goldmine
With states calling their own policy shots, researchers will soon be able to assess how these various policies affect COVID-19 infections and deaths and the state economies. Such research findings could then inform future policymakers’ discussions of the inherent, unavoidable tradeoffs between reduced public health and economic damage.
Researchers will have a field day with such data, knowing that their findings will not only help shape future pandemic policies, but also boost substantially their professional reputations and incomes. Here are just a few of the benefits:
- • Researchers will be able to estimate the lives saved and economic damage averted by different levels of social distancing policies and lockdowns, and well as different levels of enforcement. They will be able to assess the extent to which, say, California averted (or aggravated) virus deaths and increased (or decreased) economic damage with its early statewide lockdown. Surprise findings may arise, too, if studies show that Texas and Georgia, by delaying their lockdown policies, were able to devise more effective measures than California. Researchers will be able to assess whether and to what extent North Dakota’s and Arkansas’ refusals to institute lockdowns cost lives and lowered their states’ unemployment and real income losses compared to lockdown states.5 By being among the first to reopen their economies, Texas and Georgia will allow researchers to assess the value (or lack of value) of their early, limited, and gradual decontrol policies, especially since California and New York seem intent on lagging all other states in reopening their economies.
- • Might researchers not learn that the health/economic cost tradeoffs of lockdowns are more favorable in urban areas (Manhattan) than in rural communities (Fargo)?
- • Might they also learn how those states with partial lockdowns or lax enforcement fared relative to those that with strict enforcement (such as required and not just recommende use of face masks in public)?
- • With the retreat of the pandemic (or after the infections and death-rate curves begin to “flatten”), researchers might also estimate how various shortages of personal protective equipment (from N95 face masks to ventilators) in different states affected death rates among victims, their family members, and frontline caregivers and worked to extend or deepen the economic downturn.
The research questions from the pandemic are virtually endless, especially when tangential topics are considered. For instance, consider questions surrounding state minimum-wage, price gouging, and environmental policies:
- • Economists have long studied the employment and income effects of minimum wage policies, but almost always under “normal” economic circumstances. State minimum wages have varied widely over the last decades, but now researchers may be able to assess how states with relatively high minimums (California, Washington, and New York) fared in job and income losses during the lockdowns, as compared with states that have held to the $7.25 an hour federal minimum since 2009 (Texas and North Carolina).
- • Similarly, economists have long argued against price-gouging laws (such as a California law that makes it illegal for sellers to raise prices “too much”), most frequently on the grounds that such laws invariably lead to “panic buying” and empty store shelves. From the beginning of the pandemic, supplies of important personal protection equipment, most notably, face masks and hand sanitizer, have been short, and shortages have extended to toilet paper and even rice, dried beans and flour. Such shortages can be partially, if not totally alleviated, through price increases, which discourage panic buying and hording and induce suppliers to increase production.
- An overlooked potential consequence of price-control laws is that they can be deadly during pandemics. By preventing substantial price increases in face of a pandemic-caused spike in demand, critically needed protections such as face masks and sanitation supplies are hoarded, and their production is tempered. Thus, fewer protections are available, resulting in more infections and, very likely, more deaths. Future research on the effects of various states’ differing price controls will allow for assessments of the extent to which the controls added to the severity of the pandemic.
- • Environmental researchers could be the big winners from the pandemic, which has drastically caused a reduction in greenhouse gas emissions (with easily observable effects in Wuhan and Los Angeles).
The research on cross-state outcomes can be fortified with research on the effects of cross-country containment policies. Several countries, most notably Sweden, have not to date instituted lockdowns, and those that have locked down have done so at different times and at different levels of stringency and enforcement. Countries also are relaxing their rules at different times.
Containment Policies Versus Herd Immunity Spreading
Faced with a new virus, the body’s immune system develops antibodies to fight disease, and these newly created antibodies may remain an active defense against any new invasion of COVID-19. As COVID-19 infections spread and people recover or die, the susceptible population will shrink and spread of the disease can slow. Through so-called “herd immunity,” diseases can be self-correcting, at least partially. And at this writing, preliminary evidence has emerged that suggests that a flattening of the infection and death-rate curves is underway at least in parts of the United States, as well as in China and Italy and other European countries, including Sweden. Already, Sweden’s experience with its strategy of deliberately allowing for herd immunity to contain the virus’ spread, at least partially, has begun to gain respect and adherents (as well as critics) among experts and pundits.
Medical and policy experts have been quick to attribute the flattening to effective policies. In an NBC News interview, Mr. Fauci lowered the forecasted total COVID-19 deaths in the United States from a range of 100,000 to 240,000 to 60,000 (a drop of as much as 75 percent).6 He concluded, “The real data are telling us it is highly likely we are having a definite positive effect by the mitigation things that we’re doing, this physical separation.” New York Governor Andrew Cuomo also pointed to the possible leveling of the state’s hospitalizations as a sign that mitigation policies were working.
Not so fast. The open question is not whether containment policies have had a positive effect, but how much of the flattening of infection rate and any future downturn can be attributed to the policies. Other things must be considered. For example, the drop in forecasted deaths might be partially attributable to earlier forecasts being founded on models based on worst-case-scenarios assumptions and limited data designed to trigger broad public support for containment policies. Neither Fauci nor Cuomo have mentioned (to date) that their “good news” on the pandemic peak could also be at least partially attributable to herd immunity. Such immunity could be substantial, if the virus is indeed highly contagiousness of the virus, spread by asymptomatic victims, and thus, could have begun to spread as far back as November 2019. Focused research on herd immunity will surely inform policymakers’ future decisions on the breadth and stringency of containment and enforcement policies, as well as the tie between the percentage of the population with immunity and the suppression of the spread of infections.
Critics of the “hodgepodge” of state and local COVID-19 containment policies seem to remain confident that a single set of strict federal containment rules—especially if passed earlier this year—would have slowed the spread of the virus and reduced infections and deaths, primarily because all Americans would have been effected, not just about 90 percent. But that may be wishful thinking because the President and Congress had the power to impose a federal mandate but chose not to, or perhaps believed the required legislation would not pass.
When President Trump claimed “total” authority over states’ reopening policies, many argued persuasively that such a claim was unconstitutional. But if the President does not have the power to reopen state economies, then how does he have the constitutional authority to lockdown the economy in the first place?
Democracy often works slowly at all levels, but especially at the federal level because of various competing and conflicting political interests, as well as differences in how people assess threats, especially new and “historic” ones. Virus experts give the appearance that they follow “science” and use underlying “data” for guidance, a position that the California and New York governors have endorsed. The problem is that science does not always offer clear, indisputable policy directives.
Some may presume that a federal policy, if ever adopted, would be stricter than the collective impact of the hodgepodge” of state regulations. Not necessarily so. Politics would still be at play in Washington, D.C., and private-sector and state lobbyists would work hard and with greater focus to ensure federal policies minimized damage to their interests. With a localized approach to containment policy, lobbyists have had to divide their time among all 50 states and numerous legislators, not just the 535 members of Congress accessible in a few large buildings in the Capitol.
The restaurant and retail interests would likely have pressed to be identified as “essential” for the country and, thereby, not subject to closure. By relying on state-based policies, some states—say, California and Washington State—might have been forced to accept less stringent containment policies, just to achieve the required majorities in the House and Senate. Members of Congress from states with delayed, lax, and no containment policies would likely have worked just as diligently to delay a federal mandate and to pass less stringent regulations than some other states, such as California and Washington, might have preferred.
Critics who leap to object, “Lives should be saved at all economic costs,” must keep in mind that massive unemployment and income losses also can kill. For example, Oxford University researchers have estimated that during the Great Recession, European and North American suicides went up by 10,000. This time the increase could be far greater because the economic damage could be far greater. With families in lockdown and with growing financial stresses, news reports have surfaced that domestic violence calls to 18 police departments hotlines surged by as much as 35 percent during March alone, and these calls may have been fueled by the substantial surge in March alcohol sales (and moderated by a surge in prescriptions for depression and insomnia).
Policy makers need to know more about the impact of lockdowns on lives saved from virus containment and lives lost because the economic damage done. The balance could catch some policy makers and experts by surprise.
My point is simple: With state-based policymaking, opportunities can emerge to test policies. But with an all-inclusive federal mandate policy, we could potentially lose a lot of scientific guidance on how better to deal with the COVID-19 pandemic and all future pandemics. Lives and the economy could hang in the balance on future research findings.
 See here for more: 2020 State and Local Government Responses to COVID-19. Stateside.com, May 28, 2020.
 See this CDC dispatch for more: https://wwwnc.cdc.gov/eid/article/26/7/20-0885_article
 To date, one analyst has computed a simple correlation between states’ death per million population and the count of days to lockdown, concluding in the Wall Street Journal that there was “not correlation.” However, the issue of whether lockdowns saved lives needs further study, given that many variables not considered in this study could explain the spread of death rates across states.