State Legislatures Have Reined in Public Health Bureaucracies

Oh my God, checks and balances. 

In “Economic Lessons From COVID-19,” Reason, June 2021, I ended my article with the following:

Just as even paranoids can have real enemies, even optimists can have real grounds for hope.

I think almost all of us were surprised at how quickly most governors and many mayors moved to close down major sectors of the economy. This was a really large attack on economic freedom, the largest in my lifetime, and it happened within days. In most cases, executives did it with zero consent from legislatures. They used existing law to the limit and, some legal scholars say, beyond the limit. I doubt those officials typically thought in March 2020 that we would still be locked down in January 2021. But the lockdowns took on a life of their own.

Recall, though, an earlier anti-liberty episode that was not nearly as shocking as the lockdowns. In 2005’s Kelo v. New London, the U.S. Supreme Court gave its blessing to a city government’s use of eminent domain to expropriate property from homeowners and transfer it to a private entity, the New London Development Corporation. This sent shockwaves through the country. The Institute for Justice, which represented the losing side before the Supreme Court, has noted that the decision “sparked a nation-wide backlash against eminent domain abuse, leading eight state supreme courts and 43 state legislatures to strengthen protections for property rights.”

Could we see a similar response to the lockdowns? Already there have been some moves at the state level to limit governors’ lockdown powers. A bill that passed both the House and the Senate in Ohio would have limited the Ohio Department of Health’s power to quarantine and isolate people, restricting it to only those who were directly exposed to COVID-19 or diagnosed with the disease. Similarly, in Michigan, the Senate and House passed a bill to repeal a 1945 law that Gov. Gretchen Whitmer had used to impose the state’s rather extreme lockdowns. Both bills were vetoed, but I doubt that will be the end of the story.

Even if it doesn’t happen until this particular pandemic is over, there’s good reason to believe that some state legislatures will want a say in future decisions. Whatever the case for letting governors move so quickly early last year, that case gets weaker and weaker the longer the lockdowns last. At some point, legislators just might roll back those powers. Or so we can hope.

When I wrote, “Could we see a similar response to the lockdowns?” in January 2021 (there was a long lag before publication), I proceeded to make a hopeful prediction.

According to the Washington Post, what I hoped for has come about in many states. The WaPo, as is its wont, makes it sound scary. And Tyler Cowen repeats the WaPo’s fear-mongering without comment.

In “Covid backlash hobbles public health and future pandemic response,” Washington Post, March 8, 2023, Lauren Weber and Joel Achenbach write:

When the next pandemic sweeps the United States, health officials in Ohio won’t be able to shutter businesses or schools, even if they become epicenters of outbreaks. Nor will they be empowered to force Ohioans who have been exposed to go into quarantine. State officials in North Dakota are barred from directing people to wear masks to slow the spread. Not even the president can force federal agencies to issue vaccination or testing mandates to thwart its march.

But when it gets to details, it becomes more understandable. A few paragraphs down, Weber and Achenbach write:

Health officials and governors in more than half the country are now restricted from issuing mask mandates, ordering school closures and imposing other protective measures or must seek permission from their state legislatures before renewing emergency orders, the analysis showed.

The conjunction “or” is doing a lot of work in the above paragraph.

Many people of various persuasions have thought that during the pandemic the public health bureaucracies exercised too much power with too little oversight and, moreover, focused on one variable rather than admitting tough tradeoffs. Disappointingly, Tyler Cowen was never clearly in this group of critics.

So it’s refreshing to see legislatures taking back their power. That’s what checks and balances are all about.

Near the end of the article, Weber and Achenback write:

“One day we’re going to have a really bad global crisis and a pandemic far worse than covid, and we’ll look to the government to protect us, but it’ll have its hands behind its back and a blindfold on,” said Lawrence Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law. “We’ll die with our rights on — we want liberty but we don’t want protection.”

That brought back memories. About 15 years ago, Lawrence Gostin and I shared a limo from Topeka to Kansas City, Missouri. We had both spoken earlier that day at a conference of cardiologists. I mainly questioned and listened and got to know a lot about how he thought. By the end, although I found him likable, I also found myself hoping he would never get much power over people’s lives. My sense then, and my sense from this quote, is that he would almost always trade away liberty for protection without thinking about tradeoffs the way economists trained since the marginal revolution have done.