BEYOND ■ - ■ Blueprint for Restoring Liberty, Rebuilding the Economy, Safeguarding Public Health and Responding to Crises by: David A. Ridenour, H□race C□□per, Banner C□hen and Drew J□hns□n Beyond COVID-19: Blueprint for Restoring Liberty, Rebuilding the Economy, Safeguarding Public Health and Responding to Crises May 2020 David A. Ridenour Horace Cooper Bonner Cohen Drew Johnson 20 F Street NW, Suite 700 Washington, D.C. 20001 NationalCenter.org EXECUTIVE SUMMARY Unfortunately, the precautionary principle does not typically take into account real world Never again. trade-offs, including unintended harm caused by efforts to limit risk. Over 30 million Americans have been forced out of work. Thirty-nine states have The nation’s response to COVID-19 was the imposed quasi-martial law, ordering people to precautionary principle on steroids. stay indoors for all but essential activities. The federal government has added trillions of dollars Certain, measurable harm was imposed on to our national debt to keep the economy from our civil liberties, on our economy and on our imminent collapse. And our Constitution has health so we could reduce the less-certain public been left on the ground in tatters. health risk of COVID-19. Perhaps worst of all, the United States In practice, “better safe than sorry” turned revealed its weaknesses for all the world to see – out to be “sorry we made you unsafe.” including to those who would mean us harm. Many mistakes were made, but they provide And it all happened due to fear of the lessons that may help us pursue better policies in unknown. the future. Among the lessons, we must: As of this writing, the dangers of COVID-19 Protect fundamental rights to the fullest are still not fully known. Epidemiologists agree extent possible, even during a crisis; that it is a highly contagious virus that poses serious public health risk, but differ widely over Permit states to chart their own course, its true mortality rate. but make it clear they must bear primary responsibility for their mistakes; We’ve now witnessed first-hand the Eliminate costly carbon regulations that irrationality of the Precautionary Principle — COVID-19 response has brought into which undergirds many of the regulations we question; have on the books today, when taken to its Change the U.S. relationship with China; extreme. Change the U.S. relationship with the The precautionary principle is the idea that World Health Organization (WHO); government should regulate potentially harmful Improve the science on pandemic response; activity even when there is scientific uncertainty Stay focused on the Big Picture; over the level of risk. It might be summed up by Get FDA/CDC out of the testing business; the old idiom, “better safe than sorry.” Reopen universities; But it is this very principle that left the United Reverse health care central planning; States woefully unprepared for the COVID-19 Put pandemic experts in the back seat; pandemic. We did not have adequate numbers Roll back regulations that helped spread of virus testing kits because reputable American companies were incapable of producing them. the virus or impeded our ability to slow it; We lacked the tests because they required Food Focus pandemic relief on addressing and Drug Administration (FDA) approval which COVID-19 and restoring America’s status delayed their availability… as a precaution that as an economic powerhouse, not advancing they MIGHT give inaccurate results. redistributive agendas. 1 or her religion.” Several states have ordered gun and ammunition shops closed while permitting liquor stores to remain open. In taking such steps, these governments made value judgements that essential liberties are non-essential but non-essential goods are essential. Government infringements on civil liberties during the COVID-19 pandemic will undoubtedly trigger significant litigation. In the meantime, Washington should take steps to rein-in the Further explanation of each of these worst abuses. It can do so by: 1. Establishing a recommendations follow. dedicated U.S. Department of Justice (DOJ) team to investigate COVID-19-related state and local Protecting fundamental rights. Many state and regulations that may violate constitutional rights. local governments have taken a meat cleaver Attorney General William Barr has already rather than a scalpel to fundamental rights in directed Assistant Attorney General for Civil the name of preventing the spread of COVID-19 Rights Eric Dreiband and U.S. Attorney General and, consequently, they will leave a much greater for the Eastern District of Michigan Matthew scar than necessary. The 10th Amendment to Schneider to oversee the efforts of the 93 U.S. the U.S. Constitution gives states considerable Attorneys to monitor and take action to correct police powers to address threats to public safety unreasonable infringements of constitutional and health, but those powers are not unlimited. rights by state and local governments. “If a The 14th Amendment, backed by considerable state or local ordinance crosses the line from U.S. Supreme Court case law, establishes that the an appropriate exercise of authority to stop Bill of Rights not only governs the relationship the spread of COVID-19 into an overbearing between the governed and the federal infringement of constitutional and statutory government, but also between the governed protections, the Department of Justice may have and their local and state governments. Federal, an obligation to address that overreach in federal state and local governments may infringe upon court,” Attorney General Barr wrote in an April fundamental rights to achieve compelling state 27, 2020 memorandum. This is a good step, but interests, but they must generally do so by the given the competing DOJ priorities and relatively least restrictive means necessary to achieve greater importance of constitutional protections, state interests. Their regulations must also be a dedicated team of investigators is necessary. 2. applied neutrally, meaning they must apply to Requiring state and local governments to narrowly everyone – not just select groups. Yet, many tailor COVID-19 restrictions as a condition of states and localities have not observed these any direct aid. The 10th Amendment of the U.S. limitations. The cities of Greenville, Mississippi Constitution specifies: “The powers not delegated and Louisville, Kentucky, for example, tried to to the United States by the Constitution, nor bar drive-in Easter Sunday services ostensibly prohibited by it to the states, are reserved to the to prevent the spread of COVID-19 while states respectively, or to the people.” This gives permitting drive-in fast food restaurants to the states direct authority over their response continue to operate. U.S. District Court Judge to the pandemic, but through its funding, the Justin Walker issued a temporary restraining federal government has enormous leverage. The order against Louisville, saying, “Among the 1984 National Minimum Drinking Age Act, reasons the United States is so open, so tolerant for example, established a national minimum and so free is that no person may be restricted drinking age of 21 by leveraging federal or demeaned by government in exercising his highway funds. In South Dakota v. Dole, the U.S. 2 Supreme Court found that Congress may apply Protection Program (PPP), created under the reasonable conditions to funding in the interest “Coronavirus Aid, Relief and Economic Security of “promoting the general welfare.” Federal Act,” or CARES Act, provides forgivable loans funding should be withheld from states whose to small businesses to enable them to keep infringements of fundamental rights are not the employees on payroll during government- least restrictive in addressing the pandemic. mandated shutdowns. The program was designed to help small companies survive temporary Making sure states bear the responsibility for economic lockdowns and it has already been their policies. President Donald Trump’s plan funded to the tune of $649 billion, equal to for a phased re-opening of the U.S. economy nearly 14% of total federal outlays in 2019. A relies on the governors to decide how quickly significant portion of the loans were granted to reboot based on the facts on the ground. But to large companies better equipped to weather some states will undoubtedly maintain stringent the storm – including the Los Angeles Lakers, restrictions on economic activity long after Ruth’s Chris Steak House, Potbelly and Shake they’ve met the criteria for phased re-opening Shack. The exact number of such loans is not outlined in “Guidelines for Opening Up America known as the Small Business Administration Again,” confident they’ll receive bail-outs for lost (SBA), which oversees the program, has not tax revenues. Mayor Bill de Blasio, for example, disclosed the recipient list. There will be less told Fox News that New York City needs at least urgency to open up the economy so long as $7 billion in federal relief to make up for its tax programs such as the PPP continue to subsidize revenue shortfall to continue providing essential an economic shutdown. The PPP should not only services. He also said he didn’t expect to start re- be closed down, but the SBA should publish a opening the city until July or August. Governors list of loan recipients to ensure accountability should open their states at their own pace, but to taxpayers. 2. Consider a much more modest it must be made clear to them that their own forgivable loan program to protect the jobs of states and city residents – rather than the U.S. those most at risk from COVID-19. President taxpayer – will bear the full costs of re-opening Trump’s plan for the phased reopening of the at a slower pace than necessary. To encourage economy strongly encourages employers to offer states and localities to open up expeditiously special accommodations for those personnel and responsibly, Washington should: 1.