Two significant things happened today. Alameda Country appeared to back down and allow Tesla to reopen its plant after Elon Musk threatened to move his business out of state. Good for him and good for Tesla. Hopefully it will all work out, worker health-wise.

Second, the Wisconsin Supreme Court has just overturned the extension of the Governor’s stay-at-home order. I haven’t read the opinion yet, but it does cite (or a justice said) with disapproval, the U.S. Supreme Court’s Korematsu decision, which rounded-up and interned Japanese Americans because the possible threat they posed to national security, even though there was not a shred of evidence or a single case of spying from that community. I often cited that decision as an example of how far the government can go when it perceives a threat, even in the absence of evidence.

This is very good news for the people who oppose the continuation of the lock-down edicts around the country. Many people have been wondering how the authorities can get away with what is in effect house arrest. For sure, the states do have very broad police powers to protect the public, but many have argued that the states have gone too far and that the lock-down has gone on long enough.

When the shelter-in place started, I thought it was a reasonable thing to do, in order to protect the public and have some time to amass more data points about the virus. But it has now been two months, and while there are more data points, there is still much confusion about some of the key medical issues. But what is painfully clear is the increasing catastrophic economic damage that is occurring to lower and middle-class people, despite the bail outs which as usual, go mostly to corporations and the rich.

The lock-downs imposed by the Governors raise an important question about the relationship between the government and the governed:

Who decides how much economic ruin is tolerable to mitigate sickness and death?

Before this Wisconsin decision, it was assumed that the Governors have the right to call the shots and make the final decisions. Witness Georgia’s Governor last month overruling some beach communities’ decisions to continue the lock-down. However, recently some cities or counties have decided not to follow state mandates, both ways. Meaning, countries have opened in the face of a state lock-downs (California), and countries have and are attempting to continue lock-downs despite a state order to open up (Texas).

It is a chaotic situation for sure. We are engaged in a massive experiment, which is going to have serious and life altering consequences for many, and specifically death for some, and financial ruin for others.

That raises the fundamental question: who should make the call in deciding whether to open things up and cause more illness and death, (regardless of how cautious or measured the reopening is) or keep people locked-up in their homes, thereby increasing extreme financial harm and collateral health damage to probably many more. (But of course, death is death and there is nothing worse, as Governor Cuomo often says.)

And we have to consider that the federal government does not appear to be able to give meaningful financial help to most people and small businesses.

One final factor which needs to be considered. None of the government officials who are calling for or supporting the lock-down are suffering adverse financial consequences from the lock-down. They all keep receiving their pay checks while they implore others to stay at home for the good of the people, and passionately cajole their constituents to bravely face the financial consequences from which they are immune. But I suppose that is nothing new.

So, what’s the answer: Who should make the decision?

Polls consistently show that most people are concerned about opening up too soon. But on the other hand, recent data shows that in the past week, people are starting to go out more. Putting these two data points together may suggest that people are proceeding cautiously despite the technical lock-down status. Maybe the media is getting the message wrong. It’s not that people want the lock-downs to continue. Rather they want to make their own decisions about how much risk they are willing to take.

So, why not open everything up, at least in places that have not been ravished by the disease, like most parts of California, and let people make their own choices. Might this lead to a dramatic increase in cases and deaths? Very possibly. There are some data points, like Sweden which cast some doubt about that. But in fairness and in reality, most of the data points about reopening, both here and abroad suggest that reopening is going to increase cases and deaths, perhaps dramatically and tragically so. Can not a country decide to make that decision?

Some seemingly hard decisions are not really that hard

A disproportionately high number of deaths are in nursing homes and otherwise with older people with co-morbidities. Opening up completely surely puts those people in much greater risk. However, our species has institutionalized the slaughter of hundreds of thousands or millions of young men in their prime every century via the most lasting of human rituals, war. People and governments regret it, but it does not stop them from taking actions which can and has decimated a large part of a generation.

On the other hand, unlike young men who go off to war, the old with co-morbidities can voluntarily shelter-in-place or just not go out unless absolutely required, like what most people have been doing for the past two months. The government can require more testing at these facilities and other health measures to deal specifically with the nursing home problem, without imprisoning the rest of society.

A harder issue is the disproportionate effect the disease is having on minorities

It is a well publicized facts that black and brown minorities are disproportionately getting sick and dying. I understand that there are two main reasons for this: Poor minority people have to go to work because they work in essential services and come into contact with more people than white middle class people who are sheltering in place. I don’t mean to be cavalier, but ending the lock-down for everyone should even things about a bit, disease wise. Why shouldn’t white middle class people face the same risks as essential service folk, especially if it is their choice to do so. The second reason I hear about is inadequate medical care. I take that to mean that minorities have more co-morbidities due to worse health care. I do not think there is a solution to that in the short term.

Herd Immunity

And let’s not forget herd immunity. Most of you who read this blog do not believe there is such a thing as herd immunity from vaccines, but even if you are wrong, and even if a vaccine is developed in the next year or two, the country is not going to be closed down until every person willing to take the vaccine gets it. Similarly, who knows when there is going to be an effective treatment. So, my view is let people make their own decision about how much risk they are willing to take, knowing that there will be a large increase in cases and deaths, but if that happens, that will at least speed-up the natural herd immunity process.

The Next Battle
I don’t think we’ll see many lawsuits in New York about this, certainly not calls for opening up in New York City, and upstate New York is starting to open up.

I think the next big battle will be in California and it is taking/will take three forms. I have heard about some lawsuits challenging the Governor’s actions. Will the courts follow the Wisconsin Supreme Court’s lead? Frankly, I don’t even have a guess. The longer California continues to have relatively few cases per capita, the more likely a challenge could succeed.

The second part of the battle are the counties who decide not to follow the Governor’s lock-down orders. Here again, the more counties which disobey and or sue, the more pressure the Governor will be under to retract his order.

Los Angeles is a special situation because 1. it has by far the most cases and deaths, and 2. it has just announced the continuation of the lock-down until the end of June or so (albeit with a very recent modification opening stores for pickup).

Third, the people and their protests. Will the protests grow exponentially and become a force which the Governor will have to accommodate? The protests seemed to have already moved the Governor, and if the protests get bigger and more frequent, I would expect him to give up more ground.

What about the big corporations and Silicon Valley?

Elon Musk is a cowboy and a wild man. I don’t expect many of his tech billionaire friends to follow him, if for no other reasons because of worker liability issues relating to workers who are forced to return and get sick and die. At some point if this thing keeps up, there will have to be some liability protection for employers who open up in compliance with government mandates.

Two Legislative Suggestions:

If the Wisconsin Supreme Court is saying (and like I said, I have not read the decision yet) that a Governor/one of his chief health official in his administration should not have to power to shut down all businesses and order every citizen into a lock-down/shelter-in-place, then good for those judges. After observing things for two months, I now think the kind of decision these Governors are making should only be made with the consent of at least one legislative house (or perhaps even both). It is just too much power in one person. (I know some or most of you want no one or group or government telling you to stay at home, but that might be a bridge too far.)

Second, the decision to shut down a state and force people not to work arguably creates a taking of property without due process (which is usually considered to be a violation of the 5th Amendment, made applicable to the states via the 14th Amendment). Even if not, the people who make these decisions to stop people from working need to have some skin in the game. So, the same law which requires the assent of the legislature should also provide that no state government employee (save state police) can get paid for the duration of the lock-down). If they keep working, then maybe they can get all or some portion of back pay (unlike most citizens who will not make up their lost wages). That might not matter to millionaire heirs like California’s Governor, but it might make some legislators think long and hard about what they are being asked to approve.

Rick Jaffe, Esq.