World War I not only resulted in blatant assaults on the First Amendment (including the jailing of war critics), it led to statutes and executive orders that haunt us to this day. Various administrations have trotted out the Espionage Act of 1917 to punish whistleblowers and intimidate investigative journalists. Subsequent presidents used other laws passed during the war in ways never contemplated by the legislators who enacted them. For example, in August 1971, Richard Nixon declared a national emergency under the Trading with the Enemy Act of 1917 to impose import tariffs, close the gold window for international payments, and establish wage and price controls.
World War II produced additional abuses and alarming precedents. The most egregious was President Franklin D. Roosevelt’s executive order putting Japanese Americans in “relocation centers” (concentration camps) for the crime of being Japanese Americans. In an especially shameful ruling, the Supreme Court upheld the legality of his action, which made it an ongoing policy option. During the Korean War, President Harry Truman attempted to seize control of the nation’s steel mills as a wartime measure.
More recently, the policy responses to the 9/11 terrorist attacks included the so‐called Patriot Act and its legendary erosions of the Fourth Amendment’s protections against unreasonable searches and seizures, as well as the weakening of other rights guaranteed in the Constitution. The result has been an intrusive surveillance state that no one can seem to control.
Americans need to assess soberly the governmental response to the coronavirus crisis and guard against another casual expansion of arbitrary power that could set dangerous precedents. We are already witnessing edicts in other countries that amount to the regimentation of entire populations. Such measures have shuttered virtually all businesses, barred “nonessential” travel, prohibited most gatherings, imposed curfews, and established martial law in all but name. This has taken place not only in dictatorial China and North Korea, but in democratic countries such as Italy, Spain, and France. In some cases, additional restrictions have been imposed on those considered especially vulnerable to contracting the virus, such as people over the age of 70.
The federal government has not followed suit with such draconian restrictions—at least not yet. President Trump reiterated at his March 16 press conference that he had no intention of imposing a national lockdown or curfew. The pressure on him to do so, though, may rise. In an especially alarming development, however, the Justice Department is now seeking the authority to petition a federal judge for authority to detain a person indefinitely in this or any other “emergency.”
A number of states and localities have already taken harsh measures. Early on, authorities ordered the closures of schools and prohibited an array of large‐scale public events, such as concerts and athletic contests. Some states have gone even further. Louisiana and Georgia canceled primary elections, and Ohio and Maryland have since followed suit. Illinois, Ohio, California, New York, New Jersey, Connecticut, and other states (plus a soaring number of local governments) have ordered restaurants, bars, gyms, casinos, and other private businesses to close. San Francisco ordered a “shelter in place” system, barring residents from engaging in any “nonessential” activities outside their own homes.
Proposals to instruct all people over 70 years old to “self‐quarantine” and not leave their homes are openly discussed. Currently, such measures are voluntary, but how long will they stay that way? The repressive systems that China, Italy, Spain, and other foreign countries have adopted to deal with the outbreak are beginning to appear in at least some parts of America.
Matters are escalating rapidly. North Carolina has gone well beyond shutting down individual enterprises; authorities have placed most of the Outer Banks off limits to tourists and other outsiders. Checkpoints will be established to examine identifications, and permits will be required for access. There is more than a whiff of the ubiquitous checkpoints and “show your papers” mentality of countries in the old Soviet bloc. It is not an image that Americans who value liberty should embrace.
The raw emotions underlying the arguments in favor of comprehensive lockdowns, such as those that Newsom and Cuomo have ordered, are understandable, but the economic costs are enormous and the damage to basic civil liberties may ultimately prove great. Officials have imposed restrictions without any provisions for appeal. Worse, it does not appear that they recognize any limits to their power. It should be noted that the steps taken go far beyond the longstanding authority to impose quarantines. Individuals diagnosed with certain contagious diseases (and anyone else in their households) have long been subjected to quarantines. But now, entire cities and states are falling under similar restrictions, even though the overwhelming majority of residents are not victims of coronavirus
We need to ask questions, including how long such measures will last and what numerical targets must be reached regarding the disease’s decline before they’re lifted. These are extremely important steps, especially if this is not a crisis of short duration. Originally, there appeared to be a pervasive assumption that the emergency would last only a few weeks and then life would return to normal. But there is a growing sense now that the crisis environment might continue until mid‐summer or even beyond. In Trump’s March 16 press conference, both the president and his health policy advisers indicated that the outbreak could last until July or August.
That raises some very serious dilemmas. There is no realistic way of running a complex, interconnected economy for an extended period of time when a country—or even major portions of it—are on lockdown. A similar problem arises if the coronavirus does not prove to be a one‐time visitor, but resembles influenza outbreaks that ebb and flow each year but never entirely go away. In addition to the economic obstacles, forcibly cocooned populations will (and should) become deeply resentful if their lives are repeatedly upended by bureaucratic edicts.
We should also be concerned about the precedents being set. We don’t want either overcautious or egotistical public officials to be tempted to impose drastic measures in response to lesser health or other emergencies. The postponement of elections should be a special cause for unease, if not alarm. Giving incumbent officials such authority creates an obvious potential for abuse—especially if the incumbents face the prospect of electoral defeat. A short postponement can easily turn into an extended one.
Given the historical record of how the policies of previous emergencies continued to menace basic freedoms years and even decades later, it is neither inappropriate nor premature to ask probing questions about the responses to the current crisis. Indeed, legal limitations on governments’ health emergency powers should be sought in the near future, either through new laws or court decisions. We must take care not be stampeded into endorsing whatever policies self‐interested officials insist are necessary.