In my June 2021 article for Reason, “Economic Lessons from COVID-19,” I ended with this:
Recall, though, an earlier anti-liberty episode that was not nearly as shocking as the lockdowns. In 2005’s Kelo v. New London, the U.S. Supreme Court gave its blessing to a city government’s use of eminent domain to expropriate property from homeowners and transfer it to a private entity, the New London Development Corporation. This sent shockwaves through the country. The Institute for Justice, which represented the losing side before the Supreme Court, has noted that the decision “sparked a nation-wide backlash against eminent domain abuse, leading eight state supreme courts and 43 state legislatures to strengthen protections for property rights.”
Could we see a similar response to the lockdowns? Already there have been some moves at the state level to limit governors’ lockdown powers. A bill that passed both the House and the Senate in Ohio would have limited the Ohio Department of Health’s power to quarantine and isolate people, restricting it to only those who were directly exposed to COVID-19 or diagnosed with the disease. Similarly, in Michigan, the Senate and House passed a bill to repeal a 1945 law that Gov. Gretchen Whitmer had used to impose the state’s rather extreme lockdowns. Both bills were vetoed, but I doubt that will be the end of the story.
Even if it doesn’t happen until this particular pandemic is over, there’s good reason to believe that some state legislatures will want a say in future decisions. Whatever the case for letting governors move so quickly early last year, that case gets weaker and weaker the longer the lockdowns last. At some point, legislators just might roll back those powers. Or so we can hope.
Coming in June, my prediction might sound less impressive than it was: I wrote those paragraphs in January 2021 and there was a longer lag to publication than usual.
Since then, some of the things I predicted and hoped for have come, and are coming, about. Here’s Reason writer Eric Boehm in “The Lockdown Showdown,” Reason, February 2022.
Many state legislatures grappled with that issue in 2021, as more than 300 measures to limit governors’ unilateral emergency powers were proposed in 45 states. Such measures have been approved in at least a dozen states—including Pennsylvania, where lawmakers and the state’s voters approved a pair of constitutional amendments restricting emergency powers. Those laws, in turn, have sparked opposition from governors’ offices and from the public health community, which overwhelmingly backed 2020’s harsh lockdowns.
Later in the piece, Boehm writes:
According to a Kaiser Health News report published in mid-September, legislators in at least 26 states had passed laws to limit public health decrees since the start of the pandemic. That count includes rules limiting governors’ executive power, but it also includes states where lawmakers have exercised arguably excessive powers themselves by banning private businesses from imposing mask or vaccine mandates on employees and customers.
Boehm also reports good news on Kentucky:
To restore balance, state lawmakers in Kentucky passed what is so far the most aggressive limitation on gubernatorial emergency powers since the pandemic began. A three-bill package initially passed in January 2021 caps emergency declarations at 30 days and requires legislative consent—which can subsequently be revoked at any time—for an extension. The bills also prohibit the governor and attorney general from suspending state laws during an emergency and forbid emergency declarations that impinge on the right to worship or protest. Once an emergency declaration expires or is ended, a “substantially similar” one cannot be issued for 90 days.
[Governor] Beshear vetoed the bills, but the state legislature overrode his veto in mid-February. A state district court issued an injunction against the new laws after Beshear argued that they would undermine Kentucky’s response to the pandemic and cause avoidable deaths. But the Kentucky Supreme Court overturned that injunction in September and told the district court to rehear the case on the merits. While that legal back-and-forth was playing out, the state legislature agreed to extend Beshear’s emergency pandemic powers until June 21, after which they were terminated.
“The Supreme Court has confirmed what the General Assembly has asserted throughout this case—the legislature is the only body with the constitutional authority to enact laws,” House Speaker David Osborne and Senate President Robert Stivers, both Republicans, said in a joint statement on August 21, shortly after the state Supreme Court blocked the injunction against the law.
Read Boehm’s whole article, though. Besides the issue I highlighted, it’s incredibly illuminating about how many governors and public health bureaucrats hate to have their powers reined in. And the governor of Washington state takes the prize for having what Friedrich Hayek called the “fatal conceit.” Boehm writes:
During an October interview with a local TV station, Washington’s Democratic governor, Jay Inslee, provided a perfect example of the problems with the top-down approach that public health authorities have championed. More than a year and a half after the pandemic began, people have figured out their own strategies for managing risk and coping with the disease. But Inslee sees it differently: “There is only one person in the state of Washington who has the capability to save those lives right now, and it happens to be the governor of the state of Washington,” he said.
READER COMMENTS
nobody.really
Jan 10 2022 at 1:58pm
Sure enough, for more than a year and a half, people have figured out their own strategies for managing risk and coping with Covid. And in that period, the disease has spread everywhere, undergone various mutations, and killed 5.5 million people.
I’d like to see the citation where Hayek says that government regulation of externalities represents a “fatal conceit.”
MikeP
Jan 10 2022 at 2:48pm
Sure enough, for more than a year and a half, people have figured out their own strategies for managing risk and coping with Covid.
Uh, no.
At least here in California, I was not allowed to figure out my own strategy for managing risk and coping with Covid.
So unless your 5.5 million is limited to places such as Sweden, Florida, and South Dakota, you are actually telling me how many people were killed with government regulations and mandates to address Covid present rather than absent.
The Bayesian conclusion here can be left as an exercise for the reader.
nobody.really
Jan 10 2022 at 4:27pm
Fair enough; I was merely accepting Boehm’s assertion arguendo. But you can also reject his argument by concluding that the premise if false. Works for me, either way.
Philo
Jan 10 2022 at 8:18pm
I think you were allowed to figure out your own strategy for coping with COVID-19; you just were not allowed to act on it. I would object to nobody.really’s suggestion that the actual death toll has come from people’s acting on their own strategies, rather than from their being forced to operate under governmental ukases.
David Henderson
Jan 11 2022 at 11:52am
You wrote:
Well put. An important distinction.
Dylan
Jan 12 2022 at 6:42am
I don’t know that I buy that covid laws have had that big of impact on people’s behavior. On the margin, sure, there are some people that wear masks because of the law. But, my observations are that it is much more about the social conformity aspect of it. People wear masks in the places where that is the social norm and don’t, or wear them improperly, in places where it isn’t. Regardless of the fact that the law says you have to wear them everywhere.
And, I realize that mask laws are just a tiny, if particularly visible, subset of covid-era restrictions. Many of which don’t have a choice of whether an individual can choose to comply or not. But, things like school and work closures are not going to be made by an individual anyway. And the fact that private schools and businesses were going remote only weeks before public schools did suggests that regulations weren’t the driving factor.
I’m not a fan of most of these laws. I think it sets a bad precedent and also makes it harder for people to adjust to the changing acts of the situation. But, I think some tend to give more credit to the laws changing behavior than they deserve.
Ryan M
Jan 11 2022 at 10:28pm
I live in Washington State. Hayek says in the Fatal Conceit (that the curious task of economics is to) “demonstrate to men how little they know about what they imagine they can design.” If Hayek were alive today and looking for examples, he could not do much better than the governor of my state.
I’m not sure you understand the implications of that throwaway line regarding “the regulation of externalities,” but what exactly do you propose as a limiting principle? Inslee’s vanity is that he knows anything about anything at all, and what the State of Washington has done is attempt to shoot itself in the foot. As Seattle burns (which is ignored for political reasons), the State is downright vindictive in going after anyone who dares to oppose its vaccine mandates – for the first year, it went after businesses who opposed shutdowns and mask mandates. I-90 has been shut down (as have several passes across the state that I have never seen shut down) more in one year than in decades prior, as the state has fired unprecedented numbers of its own employees. This state is a mess, caused entirely by our governor, and he has the arrogance to state that he alone is the only “power to save lives.”
In reality, the only thing saving anyone is the fact that a solid chunk of those of us who live East of the I-5 corridor recognize Inslee as the clown that he is, and have been ignoring him for the past year.
nobody.really
Jan 13 2022 at 5:50pm
Dunno–democratic institutions?
Anyway, the issue isn’t what I think; the issue is what Hayek thought. Did he argue for no regulation of externalities? And if he acknowledged the need to regulate them, what limits did he propose?
Ryan M
Jan 18 2022 at 5:38pm
Having not read the Hayek recently, I can only suspect that he would have the same problem with regulating externalities as he has with government action in general. Namely, that it is probably the least efficient and least effective way to do so. Keep in mind that virtually all regulation can be justified as “regulating externalities.”
Alan Goldhammer
Jan 11 2022 at 8:12am
Small pox and polio vaccination were/are mandatory. Is this an overreach on the part of public health authorities?
robc
Jan 11 2022 at 8:44am
Yes.
Is this the opposite of Betteridge’s Law of Headlines?
Jon Murphy
Jan 11 2022 at 9:10am
That’s not really a relevant comparison, except at the most superficial level of “they’re both shots.” Smallpox and polio are true vaccines and universal vaccination had the real likelihood of eradicating the diseases. Covid shot is not a vaccine as it doesn’t confer immunity. It’s more like the flu shot. Plus, given the nature of coronavirus in general, eradication through shots is not a real likelihood.
In short, the case for mandatory vaccines in the smallpox/polio case is significantly stronger from a liberal perspective than mandatory for covid
Mark Z
Jan 11 2022 at 2:57pm
Both flu shots and the covid shots are in fact vaccines. That they’re not as effective as polio vaccines were. That doesn’t make them not vaccines though. Conferring total immunity isn’t part of the definition of ‘vaccine.’
Jon Murphy
Jan 11 2022 at 7:04pm
They don’t confer any immunity. They’re more therapeutic. They lessen symptoms
steve
Jan 12 2022 at 10:37pm
Your definitions are all wrong. The covid vaccines are truly vaccines they just dont give sterilizing immunity. A vaccine provides the body an antigen against which it develops an immune response. With better modern detection methods it is not clear that we have vaccines at all that are truly sterilizing.
Steve
Ryan M
Jan 11 2022 at 11:56pm
Furthermore, given the wide discrepancy in risk of negative outcome from covid, the risk/reward consideration is extremely different for different groups of people. A one-size-fits-all approach makes absolutely zero sense. I would argue that it would be objectionable even if the risk from covid was the same for everyone (and very high); the only possible argument in favor of a mandate would require that a) the risk/reward is such that it would be unreasonable for anyone to not get the vaccine, and b) that person’s decision had an extremely high likelihood of directly placing others in danger.
We are nowhere close to that situation with covid. To be honest, these factors probably aren’t met with respect to any disease and vaccine currently out there, and if somehow they were to apply, it would be highly unlikely that a mandate would ever be necessary, as the voluntary uptake would be extremely high.
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