States Should Be Careful with Restrictions on Their Citizens

New Jersey Governor Phil Murphy takes part in a summit in New York City, October 17, 2019. (Lucas Jackson/Reuters)

Happy Saint Patrick’s Day . . . for once, it’s okay to be drinking alone.

A confusing primary election day begins in three states, but not Ohio; some thoughts on just how we should manage the primaries for the rest of spring; wondering whether some of the restrictions announced by cities and states are starting to approach an overreaction; and Three Martini Lunch listener and former HHS official Tevi Troy was an oracle all along, and sadly we didn’t listen to him.

Ohio Is Not Voting Today. Arizona, Florida, and Illinois Are.

Who decides whether Ohio holds its primary election as scheduled? The answer ultimately rested with the Ohio Supreme Court, which issued its decision early this morning. If you went to bed thinking that the state would be holding its primary today, it’s okay to be confused:

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There is no Ohio primary Tuesday.

Early Tuesday, the Ohio Supreme Court denied a legal challenge to the state delaying the primary. A candidate in Wood County filed the action alleging the delay of the primary violated election laws.

Only four justices participated in the ruling, which was issued without an opinion.

The ruling capped a chaotic 12 hours in which it appeared the election was off, back on, and then off again.

I’ve seen some people I respect characterize DeWine’s decision as “totalitarian,” and the Facebook comments I’ve seen are highly critical of the governor. Is postponing a primary election a totalitarian move?

Or is this a concession to the fact that we simply can’t do “social distancing” at the same time that people are congregating in one place such as polling places — many of them elderly! — and interacting with a lot of strangers? A lot of poll workers are getting up there in years, and that’s precisely the demographic that health officials want to keep self-quarantined or away from large groups of strangers.

Note that DeWine filed suit to postpone and reschedule the primary election; he did not and could not cancel the election by himself. The checks and balances of constitutional government are still being honored. This is not paving the way for President Trump to cancel the November elections, as many ill-informed individuals are contending. The president doesn’t have the power to reschedule a federal election. Congress would have to change federal law setting the date for the election “on the Tuesday next after the first Monday in November.” The Constitution sets the president’s term at four years. Theoretically, Congress could move Election Day back a few weeks (or ahead!) but it cannot change the term of a U.S. president. One way or another, on January 20, someone’s getting sworn in.

Maybe it’s easy for those of us outside the state to recommend a delay because we have nothing at stake. The Democratic presidential primary is effectively over. There are a pair of potentially competitive Democratic primaries for Congress.

But is holding the primary on March 17 so sacrosanct that it makes the risk to elderly poll workers and voters worth it?

Quite a few states have separate dates for their presidential primary and other state office primaries. For example, New York state has its presidential primary April 28. It has its state primary June 23. Would it make that much of a difference to postpone it two months?

But this won’t work for every state. Wyoming is scheduled to hold its Democratic Caucus April 4. Their primary is August 18. The Democratic National Convention is scheduled for July 13. (How long until it becomes time to contemplate rescheduling that, or the August 14 Republican National Convention?)

Dan McLaughlin argues that it’s time for Bernie Sanders to end his campaign. I doubt Sanders will do that. In 2016, Hillary Clinton reached the needed number of delegates to win the nomination on June 6; Sanders didn’t concede or congratulate her on her victory until June 16, and he didn’t endorse her until July 12. The Democratic National Convention began July 25.

It’s One Thing to Ask More of Citizens. It’s Another to Threaten to Punish Them.

I am on board with a lot of the state and local government efforts to prevent the spread of the coronavirus; as mentioned yesterday, just about every state has broad and far-reaching powers and authorities to enforce quarantines and

But it does feel like some governors and mayors have entered a game of “can you top this?” when it comes to restrictions upon their citizens.

The reports of a “curfew” in New Jersey are not quite accurate; Governor Phil “Murphy stopped short of actually ordering a curfew in the state, but he told residents they should not leave their homes between 8 p.m. and 5 a.m. unless it is an emergency or essential travel.” I think it is good and wise for the government to strongly recommend actions to protect against the coronavirus, including restrictions on moving around. Once you start enforcing those restrictions with police powers, we enter different and potentially dangerous territory.

It’s not clear why state and local authorities would want people off the streets in the evening. The coronavirus is as contagious in daylight as it is at night. If people were using the darkness as cover for looting or other crimes, that would be a different story.

Hoboken mayor Ravi S. Bhalla is attempting a curfew, but he’s at least for now indicating that enforcement will consist of the police telling you to go home.

Ferrante said his officers “will be very diplomatic” with the curfew.

“It is not about arrests at all,” he said. “It is not to stop the individual walking their dog, or going to or coming from work. It is done to try to prevent those who are careless and not taking this seriously.”

But out in San Francisco, they are discussing enforcement of their “shelter in place” order:

The orders for county and city sheriffs and police chiefs to “ensure compliance,” and local authorities said they would not “rush to enforce” the directives as residents adjusted to understand what activities are no longer allowed. Violation of the orders is considered a misdemeanor punishable by a fine or jail time.

Who’s going to be the first American arrested for violating a “shelter in place” order?

Meanwhile, Champlain, Ill., insists it is not planning to ban the sale of firearms or seize property. When a locality enacts an emergency declaration that allows such far-reaching powers, it probably ought to emphasize what it is not going to do when it announces their invocation. And maybe city officials and voters ought to reevaluate those emergency powers once this particular crisis passes.

Tevi Troy in 2016: ‘One Specific Area that Could Stand Improvement Is the Development of Coronavirus Countermeasures.’

A Public Service Announcement: Tevi Troy is a farshtunken oracle and everyone should read everything he writes. This on page 25 of Troy’s book, Shall We Wake the President? Two Centuries of Disaster Management from the Oval Office, written in 2016:

Government can harm, as well as help, technological development. At the same time that the government is working to develop new technologies, the president needs to keep careful watch to ensure that other arms of the government are not getting in the way of technological progress. The president should have an office under his own purview tasked with removing bureaucratic barriers and identifying liability concerns that threaten effective preparation, and designed to leverage our federal system to pull the best ideas from every part of the nation to ensure our government is equipped and equipping every part of society to anticipate and respond to potential health issues. This office could be in the White House, or in the Office of Management and Budget, but should be within the domain of the executive office of the president. It does our nation little good to have BARDA work with industry to create a new cure, only to have the FDA unnecessarily delay its approval. Too often, different arms of the government work at cross-purposes with one another, creating what could be termed the “pushmi-pullyu” effect, after the Dr. Doolittle creature with two heads going off in different directions.

Once government bureaucracies are at war with each other, it’s very hard to stop them from feuding. In circumstances where thousands of lives could be on the line, the president cannot just shrug his shoulders and grumble about bureaucratic infighting. Presidential leadership is required to make sure that internal policy disagreements do not get in the way of life-saving technological advancements.

One specific area that could stand improvement is the development of coronavirus countermeasures. Both MERS and SARS were worrisome pathogens, and the world lacked the countermeasures to combat them. Fortunately, science has advanced to the point where effective vaccine platforms will typically allow us to develop vaccines for new strains of an existing disease. With respect to flu, for example, we have the ability to develop new vaccines to inoculate against rapidly evolving new strains. With coronaviruses, we do not yet have those platforms. National Institutes of Health (NIH) has started down this path, but we also need HHS’s BARDA to spur private-sector development of a MERS countermeasure. The next president should put this effort on his or her to-do list.

Developing countermeasures is important, but so is taking care of them. A recent Department of Homeland Security Inspector General’s report was headlined, “DHS Has Not Effectively Managed Pandemic Personal Protective Equipment and Antiviral Medical Countermeasures.” Somewhat disturbingly, the report found that even though Congress had appropriated finds for DHS to “plan, train, and prepare for a potential pandemic,” the department was not ready to respond appropriately if a pandemic took place. According to the report, DHS had not sufficiently assessed its needs or managed the countermeasures in its own stockpile. The report included eleven specific recommendations that DHS needed to follow. DHS agreed with all eleven recommendations, which indicated there was internal knowledge of the agency’s failings on this front.

The proposed solution to slow-moving, contradictory, and red-tape-laden federal bureaucracy almost always turns out to be more slow-moving, contradictory, and red-tape-laden federal bureaucracy.

ADDENDUM: Thanks to Charlie Cooke for his kind words at the end of the latest episode of The Editors. I’m tempted to make “I always think how sensible he is and how well he sees the world,” the new ringtone on my phone.

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