A Thought Experiment: What If The Government Deemed A Business "Essential" Based on Its Economic Impact

The U.K. Exempted From Its Travel Restrictions people whose activity "creates or preserves 50+ UK jobs"

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I have long argued that during the pandemic, "essential" services is a synonym for "important" services. Some governors think houses of worship are important/essential. Other governors think abortion services are important/essential. The right/left divide here is patent. (I spoke about this issue on the Lawfare podcast). But governors of all stripes agree that retail is essential. The argument goes, people need to buy stuff to survive, and people need to work in retail establishments to remain employed. Governors are never crass enough to come out and say that businesses are deemed "essential" because of their favorable economic impact. But what if they did? What if the government simply said, "We cannot shut down business X because too many people would lose their jobs; we'll flatten the curve somewhere else."

Well, the United Kingdom has stated this issue bluntly. Generally, the nation requires inbound travelers to quarantine after arrival. But not all travelers. Only unimportant people. The government has announced a series of exemptions for important people:

From 4am on Saturday 5 December, individuals undertaking specific business activity which would deliver a significant benefit to the UK economy – including activity that creates or preserves 50+ UK jobs – will no longer need to self-isolate when travelling or returning from non-exempt countries.

Individuals will only be exempt when undertaking the specific business activity and will only be able to meet with others as required by that specific activity. Further information will be available on gov.uk when these exemptions come into force.

Exemptions will also come into force at the same time for domestic and international performing arts professionals, TV production staff, journalists, and recently signed elite sportspersons, ensuring that industries which require specific, high talent individuals who rely on international connections can continue to complete their work.

PHE do not anticipate these changes will raise the risk of domestic transmission, due to the protocols being put in place around these exemptions, however all exemptions will remain under review.

I appreciate the candor. The country is willing to accept the risk of transmission from very, very important people. Elite athlete? Welcome aboard. Recreational tennis player? Stay in quarantine.

Would this measure be constitutional in the United States? I think so. Classifications based on economic status are (thankfully) non-suspect. And the government certainly has a rational basis to treat people differently based on their economic impact. Kelo reached this holding explicitly. Still, this sort of policy would be very unpopular in the U.S. It would make clear that "essential" workers is merely a synonym for "profitable" workers.

In time, the entire "essential" edifice needs to be dismantled once this pandemic subsidies. Governor should not be vested with such absolute authority to decide who and what is important based on arbitrary whim.

NEXT: De Facto Denials on the Shadow Docket: When the Circuit Justice Slow-Walks The Call For Response

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  1. Or they could just not play at being piss poor tinpot dictators, and only quarantine infected people instead of putting all healthy people under house arrest. You know, liberty and all that old-fashioned quaint stuff.

    1. Pandemic management tips from disaffected clingers are always a treat.

      When our society’s adults want your advice, they’ll be deranged.

      1. Of all the fellows, you are surely the cleverest.

        1. Now that’s funny right there, I don’t care who you are.

          1. Lethal recklessness
            afflicts obsolete bigots.
            Replacement cures all.

            1. Study the Wiemar Republic — please….

    2. You’ve been told for literally months now why your idea is unworkable with this disease.

      What’s your excuse for failing to receive such a simple message, and what part of asymptomatic spread do you not comprehend?

      1. “I’ve been told”. By who? A bunch of lifetime government employees who’ll do anything to justify their own existence?

        1. And scientists. And people from other countries.

          But of course you eagerly to discard any and all views you don’t like simply by declaring they are lying to you.

          1. Scientists like Dr Fauci, who wants everyone to wear goggles to protect their eyes?

            CDC scientists, who can’t make up their minds about anything and keep waffling with the wind?

            FDA scientists, who didn’t follow the simple UK process of monitoring trials data as it came in and so fell behind in approving the vaccines?

            Yes, please, tell me which scientists and how I can tell when they are just funning me.

            1. There’s a pretty strong worldwide public health consensus on the broad strokes of what to do.

              But feel free to dwell on negativity and follow your gut!

              1. Consensus is not science.

                Science is not consunsus.

                1. If a nonscientists wants to figure out facts about the natural universe, looking at the consensus of science is a much better technique than letting your feelz about freedom tell you what to listen to and what not to.

                  Science is a process. It is about doing your best to make factual statements about the natural universe.

                  No one here is doing science. This is about a bad argument being made.

                  Alphabet attacked the science on COVID with a bunch of anecdotes scattered over a 9 month period, some of which were factually incorrect.
                  I responded by pointing out that taken as a whole, the science of COVID disagrees with his narrative.

                  1. looking at the consensus of science

                    The irony of you self-deluded “I fucking love science” types proving that you’re fundamentally ignorant of the very nature of science by making clueless comments like the above is always amusing.

                    1. If you have an issue with my comment, please engage with it.

                      I’d be interested; thinking about what makes for good science science and how to treat research outcomes is part of my job; grappling with new perspectives is both one of my favorite things and kinda professional development for me.

                    2. If you have an issue with my comment, please engage with it.

                      I did.

                  2. And arguing from scientific “consensus” is itself necessarily a bad argument.

                    1. It’s a fine counterargument to Alphabet’s anecdotal nonsense.

                    2. It’s a fine counterargument to Alphabet’s anecdotal nonsense.

                      “My argument isn’t any shittier than their argument” is….well…a shitty argument.

          2. “Scientists” gave us DDT and nearly exterminated the Bald Eagle.
            “Scientists” gave us Asbestos.
            “Scientists” gave us Thalidomide.

            Need I continue?

            1. Please, continue to post on the Internet about how science is bad.

            2. Dr. Ed 2, asbestos is not in any way a product of science. Asbestos is God-given—like your natural rights.

              1. It was the scientists who came up with the bright idea of putting asbestos in toothpaste (seriously) and building shoe-fitting fluoroscopes. And it was Napalm that did in Dow Chemical’s slogan of “Better Things for Better Living…Through Chemistry.

                Scientists can be wrong — and often have been.

                1. “Better Living Through Chemistry” was a longtime DuPont advertising slogan; Dow Chemical neither coined nor used it.

                2. And yet we progress.

                  No thanks to Ed and his indefatigable, incandescent wrongness.

            3. ““Scientists” gave us DDT and nearly exterminated the Bald Eagle.
              “Scientists” gave us Asbestos.
              “Scientists” gave us Thalidomide.

              Need I continue?”

              Sure! Don’t forget penicillin, anesthetics, bacteriology, transistors, LEDs, radio, computers, goretex, …, Gawd, the list just goes on and on!

      2. If that’s so, then you should be able to summarize those opinions here. Please do so. Bet you can’t, and if you try, it will just be selected links to one of a hundred different opinions, as if I should have zeroed in on that one opinion out of all the differing and changing opinions available from scientists around the country and the world.

        1. You’re so clearly not worth anyone’s time. Since I have a moment to spare, try this:

          https://www.google.com/search?q=can+asymptomatic+people+spread+covid&oq=can+asymptomatic+people+spread+COVID&aqs=chrome.0.0i455i457.4647j0j7&sourceid=chrome&ie=UTF-8

          There is no scientific dispute about asymptomatic spread with COVID, so shut the fuck up about how you disagree with the world’s leading epidemiologists. You aren’t qualified to dispute them, as evidenced by your clear and unchanging ignorance on the subject.

          America was better when people like you were afraid to expose yourself as the country’s biggest fools.

          1. Don’t be late to your rally in Nuremberg….

          2. Well, if by “asymptomatic” you mean symptoms so mild that they go unnoticed, then OK. But let us agree that technically there is no such thing as a viral “infection” with literally no symptoms, that’s a Charley Horse between the ears.

            But sure, let’s use this imprecise term for the sake of argument. “Asymptomatic”, then, is another way of saying “unharmed”. If the argument is that the vast majority of the infected are unharmed by it, then does that not imply that it would be better to focus our efforts on people /with/ visible symptoms rather than those without?

            1. Your attempted pedantry about the definition of asymptomatic betrays a profound ignorance of clinical medicine. I don’t know much about the area, but even I know that there’s plenty of disorder and infection that occurs in the body that’s not in the slightest evident to the person.

              And the issue is contagiousness to others who might be harmed. But you knew that.

              1. Because, as Sarcastr0 knows, rich people aren’t contagious.

              2. There is no proof that asymptomatic spread is even an issue.

                It’s all just “might” this, “maybe” that, “could” this.

                1. Pretty sure general virology can peak to that, ML.

          3. There is no scientific dispute about asymptomatic spread with COVID

            Actually, there’s a great deal of scientific dispute about both the nature and significance of asymptomatic spread of Covid-19.

            https://www.nature.com/articles/d41586-020-03141-3

            Now, evidence suggests that about one in five infected people will experience no symptoms, and they will transmit the virus to significantly fewer people than someone with symptoms. But researchers are divided about whether asymptomatic infections are acting as a ‘silent driver’ of the pandemic.

            Research early in the pandemic suggested that the rate of asymptomatic infections could be as high as 81%. But a meta-analysis published last month1, which included 13 studies involving 21,708 people, calculated the rate of asymptomatic presentation to be 17%.

            And things are still changing.

            If you’re going to obnoxiously berate others for their topical ignorance you should first tend to your own.

            1. Read your own fucking headline:

              “People without symptoms can pass on the virus, but estimating their contribution to outbreaks is challenging.”

              COVID-INFECTED PEOPLE WITHOUT SYMPTOMS ARE STILL CONTAGIOUS.

              There is no dispute that asymptomatic spread exists with COVID except among the Magatards. You people are idiots to claim otherwise, and I’m going to continue to berate you for your willful ignorance whenever I feel like it, until COVID is gone or you are.

              More than a quarter-million of our citizens are dead, partially because of people such as yourself who think you’re suddenly an epidemiologist and have the authority to dispute scientific fact.

              In reality, you’re delusional fools attempting to soothe your conscience so that you can continue to walk around proclaiming your freedom to endanger the health of your community because you’re too arrogant and selfish to wear a goddamn mask.

              1. And thus with your smug little rant you aptly demonstrate the core of this debacle.

                You read “can” in a headline. “Can” means a non-zero probability. No more, no less. And the actual descriptive words in the article (did you try those?) suggest that probability is not particularly large.

                But based solely on the word “can” in the headline you pivot to “is such a big fucking problem that we need to shut the world down OMG WE’RE ALL GONNA DIEEE!!!1!”

                Life is a continuum. There’s no such thing as zero risk. This is one of those things.

                Grow up.

                1. It is the reason why simply quarantining the sick was dismissed by the world’s leading experts on infectious diseases, and has been clearly communicated as a problem with COVID from the beginning.

                  That you continue to miss the messaging is no longer a surprise. It’s tiresome and aggravating that you refuse to deal with reality.

              2. Read your own fucking headline

                I did. But unlike you, I not only understood the fucking headline, I actually took the time and trouble to read past the fucking headline. I’m sorry, but I can only provide you with the evidence, I can’t alleviate your simple-mindedness and inability to grasp it.

      3. There is no proof of meaningful asymptomatic spread.

        The flu has been studied for 100 years, and scientists are still debating whether asymptomatic spread is a meaningful vector.

        1. 1) This isn’t the flu.
          2) You aren’t qualified to dispute the scientists who’ve spent their entire lives studying infectious diseases.

          1. I am telling you what the science is according to scientists so that you can be less ignorant. This issue of not knowing the degree of asymptomatic spread for the flu after 100 years is very pertinent.

            1. You are clearly cherry picking your scientists to go with what you want to be true.

              Letting your preconceptions and hopes tell you what to believe is actually the opposite of science.

            2. Again, no it is not. Influenza is not COVID-19. They have different mutation rates, different protein action, and many other dissimilar qualities.

              https://asm.org/Articles/2020/July/COVID-19-and-the-Flu

              Learn. Imagine how less wrong you could be and visualize that fantasy coming true.

    3. Or purport to believe in the concept of “equal justice under law.”

      England is still a monarchy, and this is establishing different categories of civil rights on the category of social status, i.e. “titles of nobility.

      I seem to remember that being explicitly excluded in our Constitution.

  2. I appreciate the candor.

    That wasn’t candor, it was candour.

  3. Reasonableness and economic rationality are not the same thing. See this paper:

    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6131

  4. City of LA exempted entertainment industry from its most recent shut down order.

    You can’t walk around the block legally in LA but you can shoot a TV show inside.

  5. Rather than kickback potential, you mean?

  6. Sure Roman. What time works for you?

  7. Here’s a thought experiment:

    What if government were not granted the power to invent arbitrary definitions of what constitutes “essential”?

    1. Policymakers being able to grant exceptions to their policies is not really a granted power.
      And we’ve been over the justifications here many times. You can say they are wrong, or pretextual, but you cannot say they’re arbitrary.

  8. So it has been rank hypocrisy all along?
    Damn, whodathunkit?

  9. “It would make clear that “essential” workers is merely a synonym for “profitable” workers.”

    This does not seem accurate. Janitors in assisted living facilities and hospitals (and other low-level aides, etc) are deemed essential, even though they earn very little and create very little profit. But I would agree that it makes it clear that hugely profitable workers will be shoehorned into a rather generous definition of “essential.”

  10. Governor should not be vested with such absolute authority to decide who and what is important based on arbitrary whim.

    Governors are incentivized politically to make the right call. In a public health emergency, political accountability—however fraught or fallible—remains the best accountability available. A governor’s accountability is at least unitary, reducing opportunity to blame others for bad decisions. No better accountability is in sight, and emergency powers are, in rare instances, indispensable.

    Letting courts decide is notably worse. They are less accountable, or not accountable at all. Bad judicial decisions risk doing lasting damage to the judiciary’s legitimacy and prestige.

    Even principled judicial decisions, made during conditions of emergency, come at the risk of disregarding long-recognized emergency powers of the political branches. Courts which do that cannot escape the objection that by contradicting those powers as a matter of legal principle, they create a doctrine of presumed unconstitutionality that may extend logically to the abolition of emergency powers altogether.

    The existence of those powers has long been recognized as constitutionally legitimate, even when they temporarily or indefinitely suspend individual rights, so long as such suspensions serve the needs of redressing an emergency, and occur during the duration of an emergency and not longer. That leaves to the courts only one safe choice, which is to defer to the emergency powers of the executive, even in cases where exercise of those powers may temporarily suspend or violate constitutional rights.

    That was the under-appreciated burden of Justice Robert Jackson’s celebrated dissent in Korematsu. In effect, Jackson said yes, Korematsu’s rights were violated, and that a decision of the Court based on those rights ought to result in his release. But no such decision was possible without putting an unsupportable burden on executive emergency powers, which would likely prevail in any case—at the expense of the Court’s prestige and legitimacy if it were ignored.

    Fans of Korematsu’s eventual repudiation as bad law should note that it was based on a finding concerning the facts of the case—subsequent discovery of documents showing that the military had found that Japanese Americans were not in fact the threat supposed. The case was not reconsidered on the basis of a legal doctrine that the Court should have overturned permanently military emergency powers to free Korematsu.

    1. Letting courts decide is notably worse. They are less accountable, or not accountable at all.

      Besides which it seems doubtful that the adversarial nature, and the structure, of the processes courts use lend themselves to sound decisions in this sort of issue.

    2. Governors are incentivized politically to make the right call.

      A governor’s accountability is at least unitary, reducing opportunity to blame others for bad decisions.

      *cough* *cough* Cuomo *cough* *cough*

      1. Maybe the voters of NY will disagree with you in the next election.

        Maybe they won’t.

        1. Maybe the voters of NY will disagree with you in the next election.

          Which is utterly irrelevant to the question of whether or not politicians like Cuomo having the powers in question is/isn’t a good thing. What matters is not the intelligence/stupidity of the voters who might/might not put him back into office, but the impact of his actions, like ordering Covid-infected patients moved to retirement centers.

  11. I think it shows the extent to which all of this is unmitigated bullbleep.

  12. In the spring state officials considering lockdowns cited cisa.gov as as a source of guidance for what was “critical”. According to the federal government “critical infrastructure” includes casinos and amusement parks. The Massachusetts governor, allegedly following the latest science but actually following the money, proposed to allow casinos to open while prohibiting less risky businesses and activities.

  13. Deeming a group of people important and giving them rights that others lack.

    That doesn’t sound like an economic distinction, that sounds like a title of nobility.

    And THAT is unconstitutional.

  14. Yes, bigger more globalist-aligned business is cleaning up while small businesses are destroyed.

  15. One law for the rich one for the poor? Seeing as how the poor predominated in winning both the Revolution AND the Civil War (and all other wars) that seems unjust, and a violation of the equal protection clause:

    When Senator Jacob Howard introduced the 14th Amendment final version, he said:
    “It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Ought not the time to be now passed when one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste, both castes being alike citizens of the United States, both bound to obey the same laws, to sustain the burdens of the same Government, and both equally responsible to justice and to God for the deeds done in the body?”

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