Process and prudence always matter

By John Hood

Raleigh, NC – In the spirit of the exception proving the rule, most lovers of liberty accept that government has a critical role to play in combating communicable disease.

photo by master1305

In a free society, voluntary exchange based on private property and the rule of law is the default. It’s the best way to solve problems, resolve disputes, and make us better off over time. But easily transmittable germs complicate the process of informed consent. As they spread, they subject third parties to potential sickness and death.

As COVID-19 struck the world in early 2020, then, most conservatives and libertarians agreed that government possessed both the legitimate power and the responsibility to respond. What we insisted on, however, were two constraints: process and prudence.

With regard to process, we argued that while state governments have an inherent police power they can use to restrict private businesses or impose safety protocols, neither Congress nor the president possesses such a power. Whatever the wisdom of mask mandates, states can legally enact them. The federal government can’t.

Here in North Carolina, we also argued that Gov. Roy Cooper’s authority during a medical emergency was statutory, not constitutional. We argued the General Assembly had never intended to give unlimited power to any governor to do whatever he thought best, for an unlimited amount of time, without approval by the elected Council of State or lawmakers.

While our critics claimed otherwise, we weren’t simply dressing up ideological or partisan interests in procedural clothes. My friend Jeannette Doran of the North Carolina Institute for Constitutional Law made this point well when she criticized Cooper’s Dec. 21 executive order allowing the sale of mixed drinks-to-go.

Doran thinks North Carolinians should be able to buy a mixed drink at a bar or store and consume it when they get home, as Cooper’s executive order allows. So do I. It’s not hard to grasp how giving bars the option of making money this way might help them survive in difficult circumstances.

But under current state law, mixed drinks must be consumed at the establishment where they are sold. “If the governor gets to ignore the ABC law, which law is up next?” Doran asked. “Will North Carolina let Cooper just wander through the general statutes with a giant executive eraser, taking out the parts he finds inconvenient?”

Just as process still matters during a pandemic, so does prudence. Even if a government mandate is legally imposed and has the potential to reduce COVID’s spread somewhat, it may nevertheless be unwise. It is entirely legitimate during a health crisis — indeed, I would say that it is obligatory — for government officials to weigh the costs and benefits of every regulation.

The cost of COVID restrictions aren’t limited to lost wages, jobs, or social connections. They include medical costs. Two new papers just posted by the National Bureau of Economic Research explore those costs in some detail.

In the first, the University of Chicago’s Casey Mulligan looked at the issue of “excess deaths.” Because medical diagnoses are not always fully or accurately reported, one way to estimate the effect of something like a pandemic is to look at mortality rates from past years and then compare them to deaths during the period in question. When Mulligan did that for 2020 data through early October, he found more excess deaths than there were officially reported deaths from COVID.

About 17,000 of them, Mulligan estimated, were actually deaths from COVID complications that hadn’t been reported. Another 30,000 deaths, though, represented events such as suicides and heart attacks that were probably made more numerous by COVID-era regulations and economic hardships.

Another NBER paper — by researchers from Duke, Harvard, and Johns Hopkins universities — forecasts the excess mortality the COVID-era spike in unemployment will cause in the future. They call their forecast “staggering”: 890,000 additional deaths over the next 15 years.

Yes, our leaders should be taking the pandemic seriously. That includes serious consideration of long-term effects on life, liberty, and the rule of law.

John Hood is chairman of the John Locke Foundation and author of the forthcoming novel Mountain Folk, a historical fantasy set during the American Revolution.