With new figures in this week – some 4.4 million people filed new unemployment claims in the last week alone – the tally of job losses due to the novel coronavirus pandemic (COVID-19) now exceeds 26 million. [1] As we have discussed in recent posts, the country is facing economic devastation unknown since the Great Depression of the 1930s, and as more jobs are liquidated with each passing week the current period may even shatter the records from that period of economic turmoil. Is greater risk of injury or illness a worthwhile tradeoff for this known economic harm?
Why the Rules Focus on Businesses
That is one of the questions at the core of the national debate over when the “re-open” the national economy. With the exception of those who think that COVID-19 is entirely fake or excessively hyped by the media, [2] everyone seems to agree that the only way to slow the spread of this highly contagious virus is to limit in-person contact with individuals outside one’s own home or unavoidable daily orbit. Given that risk, the governors of all but a handful of states have imposed directives – of varying scopes and degrees of enforcement – that non-essential businesses close and that people stay home. There has been much less enforcement of stay-at-home directives than there has been of business‑closing orders. There are several obvious reasons for this.
First, the resources needed to enforce the stay-at-home orders are much greater because there are more people than businesses, people are more widespread in any given community than are businesses, people can travel between jurisdictions with different rules, and finally – but most importantly – there are more “gray areas” with the individual stay-at-home orders. We prize individual liberty in this country, and some question whether stay-at-home orders are valid to any extent. Even if they are valid under certain circumstances, they probably need to have exceptions so people can buy necessary food and medicine and conduct other essential business. The only way to robustly enforce such an order is to have a massive police presence and stop individuals outside their home, question them about their purpose, and then punish those who appear to be violating the order. That all adds up to a massive undertaking for police forces as well as significant exposure to liability for personal injury lawsuits, wrongful arrest claims, and other litigation.
A second reason for focusing enforcement of these directives on businesses is that there is already infrastructure in place for regulation of businesses. The same municipal employees who make sure businesses are operating without a license can make their rounds and see whether businesses are open that should not be. Restaurants, bars, tattoo parlors, and hair salons are among the businesses that have been most universally shut down, and they are also enterprises that are regulated by second- and third-tier authorities beyond those who check for business-license compliance. Businesses have a weaker liberty interest in uninterrupted operation, too. And if authorities can shut down businesses, they can indirectly force individual people to stay at home – if you have nowhere to go and nothing to do, you had might as well stay home anyway.
Finally, businesses have a stronger economic incentive to “play it safe” with COVID-19. A majority of Americans are taking the pandemic seriously, and if they come to associate a business and its owners with heedless activity, poor judgment, or dabbling in conspiracy theories, they may avoid patronizing the business once things get back to normal. In addition to the risk of reputational harm, businesses want to avoid personal injury lawsuits arising from choices to flout COVID-19 rules. Many individual defendants are “judgment-proof” because their only significant assets may be protected by homestead rules, if they have any at all. A large money judgment against someone who cannot pay is small solace to an injured party that wins a personal injury lawsuit. By contrast, a good personal injury lawyer would immediately recognize the “profits over people” narrative to be had in a personal injury lawsuit against a business that sickened people by flouting COVID-19 closure orders.
The Pathway Back to Normal
Throughout the pandemic, the Trump Administration has been issuing conflicting messages. On the one hand, top scientists have been emphasizing the need for caution in the face of this illness and the necessity of economic pain now in order to slow the spread of the virus and buy time to develop more infrastructure and treatment options. But on the other hand, Donald Trump is as focused as ever on winning the November election, and he wants a strong economy behind him as a tailwind. Trump has predicted that the country can begin “re-opening” on May 1, with individual states making the decisions to lift restrictions they have put in place. (Many have pointed out that, legally, this is the case regardless; Trump’s authority to “open” or “close” the states is limited, if he has any at all.)
As stated above, a handful of states still have avoided putting statewide stay-at-home orders in place:
- Arkansas
- Iowa
- Nebraska
- North Dakota
- Oklahoma
- South Dakota
- Utah
- Wyoming [3]
Over the next two weeks – ranging from this past Friday, April 24 to next Friday, May 1 – many states (mainly with Republican governors) will begin phasing-out restrictions on businesses. [4] Most of the national attention this week has been on the state of Georgia, where Gov. Brian Kemp seems to have even gotten out ahead of Trump’s ambitious “re-opening” goals by abruptly allowing many businesses to reopen including barber shops and hair salons. Gov. Kemp was one of the last governors to adopt a statewide stay-at-home order in the first place, and now he is among the earliest to lift one. [5]
Las Vegas Mayor Caroline Goodman also caught her share of national headlines through a colorful interview with CNN’s Anderson Cooper. The tension between Mayor Goodman and her interviewer highlighted the strong feelings on both sides of this issue: the urgency of getting businesses up and running again on the one hand, and the importance of coordination and cooperation to protect public health. As the COVID shutdown drags on, the public’s preferred balance of this priorities may shift.
[3] https://www.latimes.com/politics/story/2020-04-22/states-without-coronavirus-stay-at-home-order
[4] https://www.cnn.com/interactive/2020/us/states-reopen-coronavirus-trnd/
[6] https://www.fox5vegas.com/coronavirus/las-vegas-mayors-cnn-interview-on-covid-19-goes-viral-faces-criticism/article_c8f568ac-84ca-11ea-8356-6794ea0f6d99.html
