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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"

|The Volokh Conspiracy |

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 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.