“Essential” Businesses Are Adjusting Quite Well To the Pandemic. Why Not Let Others Do So Too?

I’ve got a piece up today at Real Clear Markets that responds to RCM editor John Tamny’s Wednesday piece at the site, which used my earlier writings to go after Wally Olson’s op‐​ed in Tuesday’s Wall Street Journal. Wally had argued there, correctly, that President Trump had no power to “order the nation back to work.” Granting that he was not arguing on the basis of any constitutional expertise, John thought Wally’s argument seemed to imply that state governors had something akin to absolute power to order the lockdowns and economic closures that so many have recently ordered. Since John had cited my work toward that end, I thought it useful to sort the issues out a little more fully.

In essence, as Wally had argued, the governors are acting under their general police power, their power to protect the rights, health, and safety of their citizens. That enables them, in extraordinary circumstances like a pandemic, to issue orders that otherwise would be unconstitutional; and judges, lacking expertise, are generally reluctant to second‐​guess such actions. Presidents, by contrast, have no such power; in domestic affairs, their power comes mainly from statutes Congress has enacted pursuant to its enumerated powers.

In the present context, have governors over‐​reacted, as John’s piece more than suggests? As I wrote toward the end:

… the tendency of government officials is to err on the side of safety, as we’re seeing. That’s why leaving more decisions about handling risk to individuals, as John suggests, has merit. After all, the “essential” businesses that have been left to run have generally adjusted to the risk at hand without the heavy hand of government coming down upon them. There’s doubtless much more room for expanding that category of businesses than we see now. (emphasis added)

This shutdown cannot go on much longer, because it too costs lives. Let’s think about bringing more businesses back to life.