Court Enjoins Enforcement of "Stay Safe Ohio" Order Against Gyms

A local judge has concluded the State Health Director likely exceeded her powers under the Ohio Constitution

Earlier today a judge on the Lake County Court of Common Pleas issued a preliminary injunction against the Ohio department of Health and Lake County General Health District barring enforcement of the state's shutdown order as applied to gyms and health clubs, insofar as such businesses comply with all applicable safety regulations. The decision is here. The complaint, filed by the 1851 Center for Constitutional Law, is here.

The court's decision is wholly based on state law grounds, specifically the Ohio Constitution and other provisions of Ohio law. Among other things, the court concluded that Ohio Health Director Amy Acton exceeded her statutory authority in imposing a de facto quarantine for longer than the incubation period for the coronavirus that causes Covid-19. Under the Ohio Administrative Code, the length of a quarantine is supposed to be equivalent to the incubation period of the contagion (not the period of communicability, which appears to be a problem with the way the Ohio Administrative Code is drafted). As the Ohio Health Department has noted the incubation period is up to 14 days, the judge found that the Department lacks the authority to impose a more lengthy "quarantine" on Ohioans.

One potential vulnerability in the court's order is the treatment of the relevant state orders as de facto quarantines, subject to the time limitation in the Ohio Administrative Code, as opposed to other orders authorized under Ohio law for the prevention of spread of contagious or infectious diseases. The judge writes that the Health Director "has quarantined the entire people of the state of Ohio" and that the director "has no statutory authority to close all businesses, including the plaintiffs' gyms, which she deems non-essential for a period of two months." Yet as the judge notes, in addition to authorizing quarantines and isolation orders, the Ohio Revised Code expressly gives the director authority to "make special or standing orders or rules . . . for preventing the spread of contagious or infectious diseases." While the plaintiffs in this case also raised constitutional challenges to the breadth of delegation contemplated by these provisions, the court's decision did not reach a conclusion on the validity of those arguments.

While I am skeptical of this suit on the merits, I don't begrudge the plaintiffs for filing these claims. The assertion of extraordinary government power requires extraordinary justifications, and it is a feature, not a bug, that citizens and activist groups have the ability to challenge the exercise of government power, even when public health is at stake. This is how I felt about those lawyers and others who challenged national security measures adopted in the wake of 9/11, and it's how I also feel about those challenging the various Covid-19 measures adopted by state and local governments. If the government is going to exercise broad emergency powers, it is good to have those powers challenged in court and the lawfulness of government actions evaluated by judges.

Comments

[Dr. Ed]

And then this: https://www.masslive.com/coronavirus/2020/05/im-not-stepping-down-prime-fitness-in-oxford-opens-for-third-day-issued-written-warning-for-reopening-in-violation-of-massachusetts-order.html

People are already rebelling....

[Rev. Arthur L. Kirkland]

I was driving home early Sunday morning through Bakersfield
Listening to gospel music on the colored radio station
And the preacher said, you know you always have the Lord by your side
And I was so pleased to be informed of this that I ran
Twenty red lights in his honor
Thank you Jesus, thank you Lord

. . . masks, red lights, health department orders, stop signs, center lines, no-passing zones, science, mathematics . . . where will the tyranny stop?

[rsteinmetz]

One troubling aspect of these mostly local ordered is their overbreadth and in some cases lack of relationship to their purported purpose. The other issue is the unwillingness of risk adverse bureaucrats to withdrawing these orders with they a re no longer necessary, if they ever were.

I recall years ago swimming was banned in a local lake long used for that purpose. The reason was that testing for some bacteria was over the allowable limit. After a time and some remediation the bacteria levels returned to safe levels, but the order was never rescinded. The officials involved were able to act to deal with a safety hazard, but unwilling to take a chance when the hazard was passed.

[Dilan Esper]

"The other issue is the unwillingness of risk adverse bureaucrats to withdrawing these orders with they a re no longer necessary, if they ever were."

Risk aversion seems to me to be the perfect area to defer to local officials on.

If a decision is going to be made that might end up killing a bunch of people from a contagion, who do you want making it:

1. The public, demanding their elected officials take the risk and re-open; or

2. An unelected judge, overruling risk aversion the public might approve of?

[Armchair Lawyer]

3. The legally passed law, agreed to by the people via their elected officials, that the judge is ruling on.

There will always be a risk, in any given activity. It falls to the people, in their laws and system of government to judge the degree of risk versus the activity. But a life where all risk is "prevented" ceases to be really be "living"

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety"
-Ben Franklin.

[Josh R]

"Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety. It's all about what's "essential" and what's "a little"
-Eugene Volokh

[Armchair Lawyer]

Seems an odd position for a libertarian to take... But the ACLU is arguing for taking away people's civil liberties these days, so it's a strange new world.

[Dr. Ed]

It's also a balancing of risks.

Forget liberty and quality of life, there is something like a 1% increase in suicide and 3% in opiate addiction for *every* 1% increase in the unemployment rate. Domestic violence is way up.

And then people aren't getting routine medical care for other stuff, and the so-called "elective" surgeries aren't always optional.

We don't see all these deaths....

[Sarcastr0]

I'm often coming on here and championing sociology as a legit science.

But the unemployment-death correlation you're putting out there is not good science. Leave that kind of causal predictability to the physicists.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Science is a process of testing hypotheses. What do you call a science that doesn't make testable predictions? -- a pseudo-science.

[Sarcastr0]

We've gone over this.

As zoologists, entomologists, etc. from centuries past can tell you, examination, description, and classification have always been an accepted part of science.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Even they make testable predictions. Sociology, not so much, or rather, unrepeatable.

[Sarcastr0]

Scientists saying this creature is related or not to that creature predicts what?

Scientists describing that this bug is distinguishable from that bug due to the additional spur on it's wing predicts what, exactly?

Scientists discovering some new species of burrowing fish or something predicts what, exactly?

Also, even as your biologies and phsyicses strive to make predictions, they don't do a phenominal job. Partially because of the incentive system they're in, partially because of the limitations of the human mind and faculties. Both of which are described and thus potentially compensated for by...sociology.

[Brett Bellmore]

If sociology weren't worse situated on pretty much every metric.

[Armchair Lawyer]

I predict that during the next major spike in unemployment (defined as an increase as >3% of more within a 1 year period), you will also see a spike in the suicide rate of >20%, in high income countries.

Testable hypothesis.

[Sarcastr0]

Nice.

[TwelveInchPianist]

"But the unemployment-death correlation you’re putting out there is not good science. Leave that kind of causal predictability to the physicists."

You can't. Quibbling over definitions of science aside, if you're going to predict that staying at home saves lives, you have to count additional deaths as well as fewer cases of the disease.

[Sarcastr0]

Not disputing that bare fact. I do not believe nor do I argue that economic costs are not real human costs, both in lives and quality of life (which should not be neglected).

But Ed's setting of a somewhat direct proportion? That's just poppycock.

[David Nieporent]

But the unemployment-death correlation you’re putting out there is not good science.

Dude, it's Dr. Ed. I mean, it's not right, but it's probably the least made up thing he has posted all month.

[Sarcastr0]

Ed's comments are useful as a goofus-esque instruction for others.

[rsteinmetz]

The result however is no action to withdraw no longer needed, unnecessary or overreaching precautions. I suspect some of the "temporary" regulations will be kept in place indefinitely due to overly cautious officials.

[Rossami]

Giving the decision to people who only have an incentive to make the decision one way is the same as saying that there's no actual decision - just an arbitrary rule. If a decision is going to be made that might end up killing a bunch of people, I want that decision made primarily by the people who might end up killed. Because those same people who value whatever it is that you want to lock down and can decide for themselves whether to take the risk.

We trust people to decide whether the risks of driving in a car are worth the conveniences. We trust people to decide whether living in a known earthquake zone is worth it for the nice weather. We trust people to decide whether the risks of bankruptcy (and all its attendant sociological and medical consequences) are worth it for a nice house in a really good neighborhood. You wouldn't let some faceless bureaucrat arbitrarily and permanently prohibit those activities. Why do you want to so gleefully give up your autonomy just because someone waves around a quasi-medical justification?

[David Nieporent]

If you make a bad decision wrt your house, your neighbor isn't the one who gets foreclosed on.

[Stephen Lathrop]

Rossami — Because the medical justification being waved around is exponential contagion—which is not a factor in those non-comparables you cite.

[Joe_dallas]

"One troubling aspect of these mostly local ordered is their overbreadth and in some cases lack of relationship to their purported purpose. The other issue is the unwillingness of risk adverse bureaucrats to withdrawing these orders with they a re no longer necessary, if they ever were."

Concur -
When Covid first hit, we the public, the experts and the politicians know very little about the virus. At this point we know who is vunerable, why they are vunerable, who isnt vunerable and how the virus kills.

Yet the lockdowns, shelter in place orders, etc are targeting the least vunerable as much as the very vunerable. Most of which are based on continuing paranoia

We know that the young are by far the least affected, yet we continue to close schools depriving the young of easily developing immunity. The lockdowns will only delay the spread of the virus, it will not eliminate the virus which is why deveopling immunity is by far the best approach.

Far worse is delaying the development of immunity in the general population so that the when the second wave hits in the fall, there will be too few in the general population to keep the second wave from being nasty. Much better to develop immunity in the summer time when viruses are typically weaker.

[David Bremer]

We know that the young are by far the least affected, yet we continue to close schools depriving the young of easily developing immunity.

If "the young," however you define it, never interacted with the old, then that would be a lot easier. The problem is that by allowing the young to catch it, you ensure the old will as well.

Far worse is delaying the development of immunity in the general population so that the when the second wave hits in the fall, there will be too few in the general population to keep the second wave from being nasty.

In order to get to those numbers, you need something like 70%-80% of the population to get it. Having those numbers by this fall means we'll overrun the healthcare system, plus have millions of fatalities.

[WoodChipperBob]

The parents and grandparents of "the young" can figure out ways to prevent interactions between "the young" and "the old". They don't have to do so forever, just until "the young" have caught and recovered from it and are no longer contagious.

Prior to this outbreak, my kids saw my wife's parents a couple times a week. Since February, all of their contact has been over the phone.

Certainly, we all realize that there are situations in which "the old" are taking care of "the young". And for those situations, "the old" are going to have to come up with solutions - just like everybody is currently finding solutions to substitute for regular school attendance, child care, and every other function of daily life.

[Stephen Lathrop]

Much better to develop immunity in the summer time when viruses are typically weaker.

Another comment which misconstrues contagion. Assuming a seasonal effect, with virus spreading less rapidly in warmer weather, there still will be less summer virus, or more summer virus, depending on social policies, or their lack.

When seasonal protective effects end, the residual quantity of summer virus will be a key variable determining the intensity and ultimate extent of winter contagion. More summer virus left over when warm weather ends translates directly, mathematically, and alas, exponentially, into more winter cases and more lives lost.

I would be interested to hear expert opinion address the question of whether it might even be especially advantageous to use social policies to crush the curve during periods when warm weather and resulting lesser contagion may act as force multipliers.

[Joe_dallas]

Rsteinmetz - "I recall years ago swimming was banned in a local lake long used for that purpose."

numerous municipalities have closed there pools out fear - yet, the risk of transmitting covid at the local pool is extremely close to zero
Between the chlorine, and the sun, any viral load being transmitted will be minimal. The kids bodies will still be have chlorine residue for several hours unless they wash off -

As noted elsewhere, the lockdowns are not designed to stop the activities with high risk of transmission. The lockdowns are for the most part are designed to stop activities with low risk of transmission.

[Stephen Lathrop]

Distinctions between activities are category errors. Slight virus transmission during low-risk activity nevertheless becomes multiplied whenever the transmitted virus is later carried into higher-risk environments, where exponential increase becomes more likely. The virus is the virus, and takes its contagious properties alike to all the venues it encounters. Every massive outbreak begins with only a few cases, or maybe even with a single case.

That means no case is trivial. Indeed, the most effective virus suppression strategy currently available is to use social methods to reduce cases to slight levels first, as a precondition. That in turn enables efficient use of high-intensity methods to find and eliminate larger fractions of potential contagion, by isolating cases one-by-one.

Also, to the extent that in warm weather people travel more widely, especially for recreation, even low-probability transmissions may become especially effectual, by creating new long-range vectors to help the virus reach previously unaffected concentrations of people. When that happens, it in effect puts into reverse the isolate-and-contain strategy mentioned above.

There is nothing benign about low-probability summer transmission of coronavirus.

[David Welker]

This decision hardly makes any sense. From the Ohio code:

---
"Quarantine" means the restriction of the movements or activities of a well individual or animal who has been exposed to a communicable disease during the period of communicability of that disease and in such a manner that transmission of the disease may have occurred. The duration of the quarantine ordered shall be equivalent to the usual incubation period of the disease to which the susceptible person or animal was exposed.
---

As can be seen, this definition of quarantine is based on individuals, not groups. If you have a 14-day lockdown, sure most individuals who got the disease before the lockdown will be showing symptoms by the end of it. But what about people who get the disease DURING the lockdown? They won't be showing symptoms until afterwards. A lockdown slows new infections, it doesn't eliminate them.

Don't these new infections, with their new 14-day incubation periods, justify new orders? If not, how could the old infections have justified the original lockdown? If the old infections could justify the old 14-day lockdown, then surely, the new infections could justify a new 14-day lockdown. So, is the real impact here simply to require the issuance of new orders, based on the new infections? Or is there some magic by which old infections can justify a 14-day lockdown, but new infections cannot?

I think this well-illustrates the problem with judicial philosophies that insist that law should be interpreted completely outside of the context of practical consequences, as though law wasn't intended to govern actual humans. Who cares if the interpretation makes any practical sense or advances any rational purpose at all, right?

[Brett Bellmore]

I think this actually works against you: The statue contemplates specific people being quarantined for cause, not the whole state being quarantined; The scale of the thing is huge compared to what the statute is designed for, and the specificity is totally missing.

It's like saying, you can get a warrant to search a particular house, so why the heck shouldn't you be able to get a warrant to search every house in a state any time you want?

[David Welker]

Brett:

If it works against me, as you say, doesn't it work against the original order to? If the original general order based on old infections is valid, wouldn't a new general order based on new infections also be valid?

That doesn't seem consistent to me. Does it to you?

[Brett Bellmore]

I think the problem is twofold.

The judge focuses on the time limit: The statute explicitly sets a time limit, the original order violated the statute in that regard.

I'm focusing on the general order aspect, which the judge didn't reach because the time limit was sufficient to decide the case.

[David Welker]

The time limit issue may be enough to resolve the "case" in the narrowest sense of one particular order, but it doesn't resolve whether a new order with a new 14-day period may be issued on the same basis as before, does it?

Assuming, for the sake of argument, that the original order WAS valid for 14 days, then a new order that lasted for 14 days would be valid if issued for the same reason. Right?

[Brett Bellmore]

Yeah, I suspect that if you kept issuing 14 day orders every two days, you might eventually have some legal issues doing that, too.

But my real concern is the lack of specificity; Normally specific people are quarantined for individualized reasons.

[rsteinmetz]

If the official had authority to order a quarantine and this isn't a quarantine, where does the official get authority to order a lock down?

The general power to "make special or standing orders or rules . . . for preventing the spread of contagious or infectious diseases." seems overly broad. Does it extend to ordering a lock down of everyone in the state? Where is the limit of this power? For example could the same official be able to order a lock down of the entire state over an out break of measles or the more common annual flu?

[Joe_dallas]

First I acknowlege Covid is worse than the typical flu (proably 2x -3x). The typical flu kills 30k-50k per year in the US in 5 or so months, where as Covid has killed 90k in 3months.

The 1957 flu killed 116k in the US. Adjusting for the population growth/ on a per capita basis, covid has killed approx 40% of what the 1957 flu killed

The 1968 Flu killed 100k in the US. Adjusting for the population growth/ on a per capita basis, covid has killed approx 55% of what the 1957 flu killed.

[Sarcastr0]

First, Covid has killed this many *since February* so your numbers are not really comparable.

Second, even allowing for that, you've made a great case that life isn't as cheap in America (or the world) nowadays compared to 50 years ago.

[Dr. Ed]

You are aware that people are dying of OTHER things BECAUSE OF the lockdown, aren't you?

[Sarcastr0]

And you're aware that even under the most fanciful causal scenarios those numbers dwarf the current death toll of the virus, right?

I'm definitely softening on my confidence that the the right policy is to maintain the lock-down or at this juncture.

But this kind of BS? In your desire to make that argument into a slam-dunk validation of the other side's bad-faith, you've stopped reflecting reality.

[Armchair Lawyer]

Recent estimates of the number of deaths due to overdoses and suicide as a result of the lockdowns could be up to 75,000 Americans....

https://www.cnn.com/2020/05/08/health/coronavirus-deaths-of-despair/index.html

[Josh R]

The 75,000 figure is for the ten-year period, 2020-2029.

[Armchair Lawyer]

And?

[Josh R]

7500 per year is much smaller than the 100,000 in 3 months.

[Jimmy the Dane]

Funny to see liberals pretend to care about human life when it involves Soviet style lockdowns and abuses of power. But if it involves delivering a baby and then jamming a vacuum hose into its skull to suck out the brain, well....

Just be honest for once Sarcastro. You support the lockdowns not because you care about life, but you are drunk on the absolute power that the left has always wanted to wield. Secretly you are yelling "Achtung Baby" and masturbating to "stay at home" order pdfs online.

[Sarcastr0]

Uhh, this got weird.

[Jimmy the Dane]

Yup supporting baby murder....weird.
Getting off on abusing emergency powers....weird.
Doing it after four years of referring to the guy who wants to open things up as a "nazi" but then going full on Hitler when a pandemic comes....weird.
Yup all is very weird.

[TwelveInchPianist]

Hey, what's your favorite "stay at home" order? I'll try anything once.

[santamonica811]

Most of Jimmy posts are full of delusional and weird rants. I am surprised that you're surprise that his post today is perfectly in line with his past posts.

[Sarcastr0]

Oh, Jimmy has demonstrably posted lies. And he's also posted white supremacist shibboleths. He's one of the few actual trolls here and he's awful.

But nevertheless the Nazi masturbation accusation took me off guard.

[Sarcastr0]

Nazi masturbation accusation: good band name. I get a prog-punk vibe.

[Jimmy the Dane]

Oh do tell. What lies and white supremacists stuff?

[Sarcastr0]

RAK getting a ring at his door come the revolution just being about Mormons or something.

And Clown World.

Your MO is then to call me paranoid and deny it. And your willingness to thus lie and attempt to gasslight makes you a troll.

I probably should do a better job of not falling for your bait.

[Jimmy the Dane]

Yes because you being a master of logic equated ring door with "death threat." We all know that is secret white supremacist talk for "death threat" and not just you being a looney reactionist.

And clowns....there is a notorious group of white supremacists there. They do engage in paint their faces white though and maybe the big shoes are a secret racist thing mocking black people who wear shoes. Who knows.

[Brett Bellmore]

Well, no, the numbers are comparable, because you're looking at what the flu does with a vaccine, and comparing it to what Covid-19 does without a vaccine. If no effort at all were made to inhibit the spread of either virus, the flu probably would be about a third as bad as Covid-19, based on preliminary numbers for the deaths as a fraction of those infected. Maybe half as bad, some mistakes have been made in handling Covid-19 that would be unheard of if you were talking influenza. (Imagine a state threatening nursing homes with loss of their licenses if they refused to accept people with active cases of influenza. Just wouldn't happen, but doing exactly that has been responsible for a major fraction of Covid-19 deaths in states like NY or Michigan.)

The pathogens themselves are somewhat comparable, it's just our preparedness that is wildly different. Even a relatively ineffectual flu vaccine does a good job of moderating the flu's spread.

[Sarcastr0]

1) This is not Joe's argument.
2) I'm not sure I can give your argument credence either, as it's a counterfactual and I don't really know the epidemiological theory well enough.

3) I got to speak to an epidemiologist on Monday, and I sorta owe you an apology. I was blowing you up about your 'let the cities lock down and the rest of the country stay open' posts.
That's still wrong, but I was wrong as well - the current consensus is that while creating an urban/rural divide is not good containment, and neither is a hot-zone/not-zone divide. But states is too coarse grained, that a smaller regional policy based on testing and contact tracing and current infection rate is the way to go.
I continue to think that you way over value your own back-of-the-envelope layperson's opinion, but I was championing following the experts without digging into what the latest thinking was. I'll try and be more deliberate in the future.

[Jimmy the Dane]

The so-called experts told us 70% of America was going to be infected by the end of March and there weren't enough body bags to store the dead. That didn't even remotely happen. They were just completely wrong.

[Brett Bellmore]

1) It could be, for all I can tell.
2) Yes, it's a counter-factual. But we are comparing deaths from flu with a vaccine, and Covid-19 without, and that's not apple to apple, which is my point. You've got to know that the flu would be worse if we had no vaccine for it; Not on an individual case basis, but in terms of number of cases.

3) Thanks, I appreciate that. Yes, I really think that, ideally, we should be random testing on an extensive basis, we're flying blind due to the lack of that. But my point was that one size does not fit all. We're treating counties with no known cases the same as counties that are hot spots. That's just stupidly over-strict for most of the country, and probably not strict enough for some isolated areas.

[Josh R]

But we are comparing deaths from flu with a vaccine, and Covid-19 without, and that’s not apple to apple

Given we have to set public policy based on the flu with a vaccine and COVID without, I would say the comparison is appropriate.

[Sarcastr0]

1) Comparing total deaths to current deaths is a bad comparison, no matter how you slice it.

2) Your noting that there are unknown variables going both ways for the flu doesn't make a great case for citing the flu as a point of comparison at all.

3) I can get on board with one size not fitting all, though that does devolve the question to one of granularity of policy. Counties seem to be what we've decided on for the moment.
I'm not sure if no cases in a county yet matters. But that should be an evaluation policymakers can make. Though the public seems extraordinarily risk averse still, which I think is being reflected in the policies both states and counties are mostly following, despite administration pressure.

[Stephen Lathrop]

Sarcastr0, did you ask your epidemiologist whether states are too coarse grained while too-little testing remains the rule? How do you make wise fine-grained decisions without fine-grained testing in very-near real time?

[Sarcastr0]

Not per se. He basically said that the optimal level of granularity wasn't clear, but states were probably too big. And not to base it on anything with a strong correlation to some other demographic classification if you can help it (Fat chance of that, IMO)

He was pretty cool. I'd guess he would be sick of talking about coronavirus but he seemed happy to shoot the breeze with me.

The other thing he mentioned was the back-and-forth on masks. It seems from what he could tell the CDC really did think masks didn't work for civilians, but more from bias than science. Sort of a condescension about the Asian practice that prevented a closer look for a while.

[Joe_dallas]

Brett - "Even a relatively ineffectual flu vaccine does a good job of moderating the flu’s spread."

Concur -
that is why it is best to develop immunity in the general population as quickly as possible instead of hiding from it. The reason the flu only infects 5%-10% of the general population every year is there are enough individuals who have natural immunity or have taken a flu shot which prevents the chain reaction from infecting everyone (Rx value).

Estimates range between 30% to 60% of immunity in the general population of be effective in preventing a nasty second wave.

[Josh R]

Developing herd immunity without a vaccine will kill a lot of people.

[Jimmy the Dane]

Probably not. And the people who die will be mostly do to issues that will probably rob them of life in the short term anyhow. That doesn't cheapen the fact that Grandma with cancer might have another six months to live in an ideal world, but also doesn't mean that we have to kill the economy and the mental health of the entire civilization to give Grandma that six months.

[Joe_dallas]

"Josh R
May.20.2020 at 4:54 pm
Developing herd immunity without a vaccine will kill a lot of people."

No it wont -

[Josh R]

If the case fatality rate is 0.2% and it takes 50% of the population to reach herd immunity, the USA would have almost 330,000 deaths.

[Joe_dallas]

"Josh R
May.20.2020 at 5:44 pm
If the case fatality rate is 0.2% and it takes 50% of the population to reach herd immunity, the USA would have almost 330,000 deaths."

No - as the immunity in the general population increases the infection rate decreases along with the R0 value such that the corresponding fatality rate decreases.

[Josh R]

Of course the number of new infections decrease (*) as you get closer and closer to herd immunity. But, that phenomenon has no effect on the case fatality rate (deaths/infected_people) for the newly infected.

(*) Small point: the basic reproduction number, R0, stays the same. It's the effective reproduction number, Re, that goes down.

[Brett Bellmore]

" But, that phenomenon has no effect on the case fatality rate (deaths/infected_people) for the newly infected"

Actually, the lockdowns were predicated on the opposite idea: That the case fatality rate could be reduced by reducing the number of new infections, because the hospital system wouldn't be overwhelmed.

[Josh R]

Certainly, reducing the case fatality rate was part of the plan. My calculation assumes that part of the plan failed. If I am wrong, then more than 330,000 would die if we adopted Joe_dallas' policy because the case fatality rate under his plan will be higher than what I assumed.

[Brett Bellmore]

Depends on whether you develop it by sending kids back to K-12, or by shipping contagious people to old age homes. I'd suggest we do the former. Democrats seem to prefer the latter.

[Stephen Lathrop]

Joe_dallas, estimates by who, for what disease. I read that protective herd immunity against measles requires > 90%. Do you suppose anyone has an accurate figure yet for Covid-19? Would you need a higher figure in a packing plant, or in a jail, than on a city bus?

Seems like 30% to 60% is wide enough to undermine confidence.

[Stephen Lathrop]

Joe_dallas. Wait a minute. What epidemiology needs to guard against is not what some milder disease did decades ago. Epidemiology has to guard against what this disease can do today, at its worst.

Nothing in the record of the former flu pandemics you cite suggests that those were anywhere near as menacing as the New York experience shows Covid to be. The only relevant comparison is to 1918 Spanish flu.

[Joe_dallas]

"Nothing in the record of the former flu pandemics you cite suggests that those were anywhere near as menacing as the New York experience shows Covid to be"

Subtract out Coumo's stupidity in forcing nursing homes to admit sick covid patients, NY isnt that far out of the norm.

[Stephen Lathrop]

Because in 1957 and 1968 old people did not get sick and die?

Joe, the nation is long past credibility for minimizers. Too many folks have seen what happened. We are to the point now where even in less affected states, panicky state governors resort to doctoring statistics and rigging graphics, to hide how bad it is getting.

If you know anything about Massachusetts geography, go to the state's Covid-19 web site, and check out the town-by-town case rates. What they show is that in smaller, more remote towns, one by one, the case rates are beginning to rise sharply. That is becoming commonplace. Apparently, it will soon be general.

I cannot see why that will not soon be a process experienced around the nation, in every state. Nothing political leaders are doing now seems likely to get in the way. There will not be any minimization to be found in what that would do.

[DWB]

While I am skeptical of this suit on the merits, I don't begrudge the plaintiffs for filing these claims. The assertion of extraordinary government power requires extraordinary justifications, and it is a feature, not a bug, that citizens and activist groups have the ability to challenge the exercise of government power, even when public health is at stake.

So, listen to the complaints, dismiss them, pat them on their heads and send them on their way?

If the government is going to exercise broad emergency powers, it is good to have those powers challenged in court and the lawfulness of government actions evaluated by judges.

Old joke: Q: What do you call a lawyer who was last in his class? A: Your honor.

WE ARE SCREWED!!!!!!

[Stephen Lathrop]

If the government is going to exercise broad emergency powers, it is good to have those powers challenged in court and the lawfulness of government actions evaluated by judges.

It is far from self-evident that putting final say on public health emergencies into the hands of judges is any wiser—or any better on political grounds or legal grounds—than putting it into the hands of administrative officials who are at least more quickly politically accountable (allowing for elected judges) With lifetime judges, there is no accountability at all. No way does it make sense to make completely unaccountable an emergency life-and-death decision which could avoidably kill thousands.

[Michael Ejercito]

Our system gives judges the power to decide cases and controversies, including cases asserting that officials are exceeding their authority.

[Stephen Lathrop]

Michael Ejercito, so ours is a system of judicial supremacy? I reject that. I think it is a system of co-equal branches, in which each branch gets the final say on specific kinds of issues, using powers specifically granted to create a system of checks and balances. That said, whatever supremacy may be built into American constitutionalism is legislative, not judicial.

I see, "cases and controversies," as excluding political policy altogether, at least with regard to legislative policy. Except in specific kinds of instances (rights cases), the constitutional check on political policy of the legislature is politics only, and neither of the other two branches gets a say.

However, the judicial branch does have power to guard and vindicate individual rights, and that power is normally close to absolute. But during exceptional times, when legislative power is at its peak, that judicial power may have to balance competing interests, and in accomplishing the balance may even have to assign all the power to one side of the scales, or to the other. A public health emergency is one such time, and wartime emergencies are another.

Likewise, during emergency situations, executive power may claim deference from the judiciary—and, alike with the legislative branch, do so during public health emergencies, or wartime emergencies. In those instances, the legislative branch gets control of policy, and the executive branch gets control of action. The judiciary gets no say, except perhaps to enforce that allocation of responsibilities, if it can.

Use of power during emergencies becomes objectively hard to control. To husband its own power and effectiveness, the judiciary should not attempt to control what it cannot practically affect.

To the extent that the legislature is empowered to check and balance the executive, there is a role for the judicial branch in enforcing that. Once again, practical considerations may impose limits on what the judiciary can and cannot limit during that sort of contest. The Constitutional scheme has been that an entirely different kind of power, sovereign power, may come to the fore in such situations, and decide such contests either by elections, or by elections' close cousin, impeachment. Impeachment, of course, may also be applied by the legislature to check the judiciary.

There can be little oversight by the executive of either of the other two branches, except insofar as that oversight power is explicitly granted by the Constitution. The appointment power and the pardon power are examples of that. With either of those, the executive checks the judicial branch. The power the executive wields against the legislative branch is largely a power to exclude interference with constitutional prerogatives of the executive. Disputes over issues of that sort may rightly be decided the judiciary.

Other powers explicitly granted to the executive are not for the other two branches to meddle with, except that everything done by the executive branch, and by the judicial branch, is ultimately subordinated by the constitution to the legislature's power of the purse. To that extent, and on that considerable basis, ours is a system of legistive supremacy.

If the executive transgresses control by the legislature's power of the purse, or otherwise flouts the law, ignores legislative policy, or obstructs operations of constitutionally prescribed government functions, then the judiciary has at least nominal power to step in, but doubtful practical ability to make a difference.

As mentioned above, in cases of that sort, the ultimate power is retained by the sovereign People themselves, and exercised by impeachment. The impeachment power works alike with the constitutive power of the sovereign. It is thus unlimited and unchecked by the other branches. Neither government as a whole, nor any of its branches, has power to rule the sovereign. When it acts on impeachment, the legislature uses specially delegated sovereign power—distinguished by the sole power clauses—not limited legislative power.

I take all that to be inherent in the language and logic of the Constitution, supported by the historical record, and further developed by occurrences and precedents from American history. There is no place for unaccountable judicial supremacy in any of it.

But there is a prescribed role for the judiciary: cases and controversies; the power to say what the law is (but not the power to say what the law should be, which belongs to the legislature); the enforcement of individual rights; and in principle, at least, enforcement of the legislature's power to oversee the executive. Those powers—not all powers—are the ones the judicial branch legitimately exercises.

I hope for corrections on the many points I may have overlooked while attempting quickly to summarize such a broad topic.