In 2022, let the free market and elected legislatures take the lead in addressing the pandemic

We must reject the rampant exercise of never before used authority in the name of public safety.  The executive doesn’t have the power to mandate whatever it wants, much less arrest and imprison people for failing to comply with their latest whims.  It’s time to demand legislatures return to voting on any new executive authority and letting the people vote with their feet. 

Earlier this month, I spoke at length about the pandemic to a progressive at a holiday party in my neighborhood.  Knowing I was vaccinated and no pandemic denier, he seemed legitimately shocked that I didn’t support the endless stream of emergency orders from local, state, and federal officials, along with the looming vaccine mandates.  If I acknowledged the pandemic was real and coronavirus was killing people, how could I be against valuable safety measures to protect the populace?  My answer was both simple and complex at the same time:  I trust the market and elected legislatures following the normal democratic process of passing a bill into law.  I do not believe our system of government allows mayors, governors, even Presidents, and their army of unelected bureaucrats to enact major changes to the social contract on their own without a vote, even in the name of public safety.  In other words, they don’t get to decide on their own what risks me and my fellow citizens are willing to take.  No one has that power in the United States in my opinion, nor should they.  The answer is the millions of individual decisions people make and the actions of their elected representatives.

At first, my progressive friend appeared to be dumbfounded by this assertion:  What if coronavirus had a mortality rate more like Ebola or smallpox?  What then?  Would I believe this even if the death rate was 90%?  Surely, the government would need these powers to confront such a dreadful scourge?  The answer to these questions, however, is precisely why we should put our faith in the market and the democratic process.  People are motivated by self-interest and their assessment of risk.  Generally speaking, we are hardwired to be risk averse, not the other way around, and therefore people are capable of assessing risk across a wide variety of situations.  Certainly, we are smart enough to know when something is more likely than not to result in our own death, otherwise we’d all be playing Russian roulette for cash or some other ridiculously risky behavior.  The truth is that people constantly calculate a wide variety of complex health, financial, and other risks all the time, and up until now the free market and the democratic process have always been sufficient to chart the reasonable course, balancing risk and reward.

Consider two aspects of highway safety, seatbelts and speed limits, where the public reached opposite conclusions in the desire for safety and convenience.  First, seatbelts.  These life saving devices are exclusively in place to prevent death or injury in a serious accident.  Studies show they reduce the risk of death by 45% and serious injury by 50%, saving some 225,000 lives since 1975.  At the same time, the chance of a serious accident itself is very low.  The US averages around 38,000 traffic fatalities per year, or 12.4 per 100,000 people.  If we apply the 45% figure, that increases to 17.98 per 100,000.  The odds of you dying in a traffic accident in any given year remain .01798%, incredibly miniscule even without seatbelts, and yet we wear them anyway on the off chance something truly terrible happens.

It is true that seatbelts are required by law in 49 out of 50 states, but that is also the point.  These laws were all passed following the normal democratic process; a public health expert at the Institute for Highway Safety didn’t wake up one morning, declare everyone must wear seatbelts, and start issuing never before seen fines.  The process took time, debate, and the support of legislators, executives, and judges.  The first seatbelt law was passed in 1966 at the federal level, requiring manufacturers to equip new vehicles with the restraints.  The first state to mandate their use was New York in 1984 and every other state except New Hampshire followed suit over the next 11 years.  This is the way things are supposed to work:  The experts inform lawmakers and the public about risks, the risks are debated, and laws are enacted that define the broadly agreed upon acceptable level of risk.

The same story is true of our maximum speed limits, only with the opposite outcome.  The Emergency Highway Energy Conservation Act was signed into law by President Richard M. Nixon on January 2, 1974, including a new national maximum speed limit of 55 miles per hour.  Unfortunately for proponents of this maximum speed limit, it was a tradition often honored in the breach.  People voted to defy it with a heavy right foot. In New York for example, they observed an 83% non-compliance rate between April and June 1982.  It was the same in Texas in 1985 with 82.2% of motorists speeding on rural interstates, 67.2% on urban interstates, and 61.6% on all roads.  In Connecticut, 85% of drivers were violating the limit in the 4th quarter of 1988.  As early as 1980, Republicans were lobbying to repeal the law.  The party platform that year included the plank, “We believe the federal 55 miles per hour speed limit is counterproductive, and contributes to the high costs of goods and services to all communities, particularly in rural America. The most effective, no-cost federal assistance program available would be for each state to set its own speed limit.”  By 1986, Nevada was challenging the law by posting its own speed limits.  That same year the law was partially repealed on a federal level and then fully repealed in 1995.

This repeal process occurred even as the National Research Council was claiming that thousands of lives had been saved by the lower speed limits.  They estimated that between 2,000 and 4,000 lives per year through 1983.  Likewise, the Insurance Institute for Highway Safety produced multiple papers arguing the increase from 55 to 65 mph on rural roads increased deaths by 25% to 30% and the full repeal in 1995 added another 15%.  Putting this another way, legislatures actively voted to pass laws that the experts argued ultimately killed people, thousands of them every year, close to as many that have been saved with seat belts.  Today, however, almost no one is pushing to reduce speed limits because it will save lies.  The people have spoken, first by collectively failing to comply and then by passing new laws, deciding that the increase in risk isn’t worth the associated increase in time required for highway driving.  This was true even as the public, through our elected representatives, reached the opposite conclusion regarding seat belts.

This disconnect should not be surprising given that risk is always balanced via reward.  In the case of seatbelts, they are a no cost safety measure that requires merely an instant to buckle up.  In the case of speed limits, it’s an intrusion that adds time to every trip and we’ve decided time is a more valuable commodity.  In both cases, if the sole criteria was saving lives, we’d be buckled up and driving 25 miles per hour, perhaps not even driving at all.  Given all this, why would anyone believe people’s assessment of risk wouldn’t be radically different if coronavirus was a killer on par with small pox or Ebola?  If people are capable of considering small differences in risk caused by changing speed limits or wearing a seatbelt, surely they can understand that kind of massive differential.  An “expert” isn’t required to conclude that a risk of death approaching 30% or even 90% requires a completely different response than one well under 1%, and this greatly increased risk would certainly impact behavior.

Imagine if your odds of surviving a trip to the grocery store were only 50-50 for whatever reason. The average person would take the appropriate precautions without mandates or other government intervention.  At the same time, the goods on sale at a grocery store are necessities for our survival.  We’ve all seen the zombie apocalypse movies where a brave group of survivors makes the trip out for supplies.  Whatever the risk, people need to eat.  Therefore, some minimal level of economic activity and exposure to risk is required no matter the threat, lest we starve in our own homes or hidden bunkers.  Even in the event of an actual world-ending apocalypse you cannot survive forever under lockdown.  Risks must be balanced by needs and rewards in all cases.  The question remains:  Who is best suited to make these decisions?  If you allow me to rephrase the question, we might ask:  Why is coronavirus so unique that the mechanisms we have built up over centuries are no longer sufficient, and only unchecked executive power can save us from ourselves?

Before we answer that question, it’s worth taking a step back.  I’m not suggesting that coronavirus requires no response at all, or no changes in behavior.  I’m asking why the raft of regulations, many of which are far more onerous than seatbelts and speed limits, has almost universally been driven by mayors, governors, and Presidents rather than the legislature?  To my knowledge, none of the masking, distancing, occupancy, lockdowns, vaccine mandates, or other strategies have actually been voted on and signed into law through the normal process.  Instead, local, state, and federal executives have completely bypassed those norms and instituted these mechanisms via executive order.  In fact, in the few cases where laws have actually been passed, they have been to thwart the various mandates.  The Florida legislature, for example, called a special session to pass a ban on private employers issuing vaccine mandates in the state.  The bill was then signed into law by Florida governor Ron DeSantis following the normal democratic process.

Comparing the two approaches, which outcome should we consider more legitimate and credible?  In one case, no one voted.  The executive simply signed an order completely on their own.  In the other, a majority of the legislature, all of whom are elected by their constituents, debated and voted in favor of the bill, and then the governor, also an elected representative, signed it into law.  It’s also important to note that governors generally have veto power, meaning bills are only signed into law when two out of three branches of the government agree, or the legislative branch has a super majority, enough to overcome a veto.  We used to refer to these safeguards as the separation of powers and up until coronavirus they were imperative in ensuring the government operates with the consent of the people.  Why has that changed, suddenly and without any real debate?

Therefore, we should closely consider why executives at all levels have refused to bring these mandates and other regulations before the legislature.  Presumably, if they were popular with deep wells of support, it wouldn’t be a problem to actually hold a vote and follow the normal process.  This is a distinction with a tremendous difference.  The legislature is under no obligation to act according to the executive’s wishes whatever the circumstances.  Their decision not to vote to pass a new law is their prerogative and can be just as meaningful as casting an actual yes or no vote.  Most executives, including Presidents, propose new legislation all the time, only a small percentage of which is ever actually voted on by the legislature.  In those cases, the status quo prevails and the executive doesn’t get to institute whatever he or she desires by fiat.  Choosing not to act is as relevant as choosing to act.

Regarding vaccine mandates in particular, many proponents have cited the Supreme Court’s 1905 ruling in Jacobson v. Massachusetts as proof that the government has the necessary power to compel the populace, but what they often fail to mention:  The case in question centered around a law, not an executive order.  At the time, Massachusetts was one of 11 states with compulsory vaccinations, and the duly passed law empowered local cities and towns to enforce them.  Mr. Jacobson challenged the law and the Supreme Court ultimately decided that states and local jurisdictions can mandate vaccines under their police powers, but what might have happened were this simply an executive order?  We cannot say for sure, but there are two things to consider.  First, the ruling itself was relatively narrow and clearly noted that the police power was not unlimited.  Second, the recognition of this power didn’t suddenly create new laws across the United States.  The other state legislatures and governors had to act on their own in order to pass mandates in their jurisdictions, and each of those mandates was also subject to judicial review.  In fact, the 1905 ruling was challenged in 1922, when the city of San Antonio, Texas enacted an ordinance requiring smallpox vaccinations for attendance at both public and private schools.  Once again, the Supreme Court upheld the ordinance, which was duly passed by the city government, under the police power.

Fast forward to 2021, heading into 2022, and the same process has clearly not been followed.  We should expect the Supreme Court to consider the difference between a law and an executive order, the one being far more legitimate than the other, and ask why in this case legislatures have chosen not to act when they certainly had ample time to do so.  In other words, most everyone agrees that states and local jurisdictions at least possess these powers, but those powers still need to be properly exercised.  Otherwise, the Supreme Court’s 1905 ruling would have essentially mandated vaccinations across all fifty states.  Nor does possession of a power preclude other states from restricting it.  Remember, New Hampshire does not have a seat belt law in place to this day, though they surely could.  Surely, the Court will consider the never before enacted federal mandate, which cannot be instituted under police power and has instead been found only in regulations regarding workplace safety.  For starters, the law creating OSHA, another piece of legislation passed in the Nixon era, has never been used in this manner, nor was any debate at the time of the bill’s passage centered around vaccine powers.

A key question in my mind is clearly:  Congress could easily update the law to grant this new power.  Why haven’t they?  Ultimately, if we assume that executives have the right to act when legislatures choose not to, we are granting one branch of government previously unimaginable power.  Sadly, this is precisely what we have seen throughout the pandemic:  The rampant exercise of never before used authority in the name of public safety to the point where the executive believes they have the power to arrest and imprison people for failing to comply with their latest whims.  The American system is designed to limit the use of power by any single branch of government, and therefore we should demand legislatures return to voting on any new executive authority.  Hopefully, the supposedly conservative Supreme Court will be wise enough to demand the same.  2022 will be off to a great start if that’s the case.


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