Coronavirus and the Fog of War

Earlier this morning my friend Hugh Hewitt interviewed me on his radio program. The primary purpose was to share the message of my Sunday newsletter—that we have sacred obligations to our nation’s seniors. The conversation moved on to discussing the administration’s response, including the delay in large-scale testing for COVID-19. Hugh had just interviewed Dr. Anthony Fauci, and he asked me about Dr. Fauci’s statement that testing delays were due in part to a “technical glitch” that had “nothing to do with anybody’s fault, certainly not the president’s fault.” He asked me what I thought.

Hugh’s question allowed me to briefly discuss a concept I’ve been thinking a lot about—the “fog of war.” It’s a term that describes the difficulty discerning the truth in times of conflict or crisis. In Iraq, in a literal war, it was often maddeningly difficult to discern what was happening in real-time, even when small units were in contact with the enemy. It would take weeks and months to accurately perceive whether a more complex counterinsurgency strategy was paying off. 

If there’s considerable fog of war in one region of one nation at war, then imagine the incredible haze when discerning not just the true facts about the COVID-19 virus worldwide (especially when the virus afflicts authoritarian governments that lie as a matter of course) but also in our nation of almost 330 million people. It’s also difficult, I should add, to discern the truth about key aspects of the response of our own government while that response is unfolding. 

How did I apply this concept to Dr. Fauci’s explanation of the testing delays? First, I stayed in my lane. While I have opinions about the testing delays, I’m far less informed than Dr. Fauci. And even if he’s wrong about the president’s responsibility, I’m not going to critique his choice not to attack his boss when he needs his boss’s confidence to address a national crisis. 

Second, while it’s vital to understand exactly what happened as the administration ramped up its response to COVID-19, we should read initial reports about both its successes and failures with an open mind and a healthy degree of skepticism. What we’re reading isn’t even the rough draft of history—we’re reading the documents and accounts that the rough draft is based upon.

Third, the fog of war isn’t so opaque, however, as to render the obvious rights and wrongs any less obvious. We don’t need the benefit of hindsight to know that the testing delays (regardless of fault) were deeply problematic. Just as it was clearly right for the president to limit travel from China, it was clearly wrong for him to downplay the threat from the virus even as the experiences of nations such as Italy and China made the danger quite plain. 

Moreover, we don’t need the benefit of hindsight to know that conservative media figures who compared the virus to the common cold, who cast media concern as little more than another plot against the president, and who urged people to disregard public health warnings and “just go out” were deeply irresponsible.

Yesterday, however, the president seemed like a changed man. At long last he seemed to fully grasp our nation’s challenge. According to the New York Times, Trump’s serious response was motivated in part by new casualty estimates if the virus spreads, unchecked:

Sweeping new federal recommendations announced on Monday for Americans to sharply limit their activities appeared to draw on a dire scientific report warning that, without action by the government and individuals to slow the spread of coronavirus and suppress new cases, 2.2 million people in the United States could die.

God willing, this crisis will pass. And when it does, there will be increasingly precise accountings of complex events. In the meantime, reporters should and must continue to do their vital work. We can do our best to understand rapidly unfolding events. But the entire time, we should remind ourselves that the fog of war is real, and many things we think we know today may turn out to be wrong tomorrow. 

Can the government really ban church services?

Over on the home page I’ve written an extended piece answering member questions about the legality of quarantines, bans on public gatherings, and the difference between the state and federal governments’ power to confront a public health crisis. While the federal government possesses superior resources to address a pandemic, state governments possess superior power, and that power includes the ability (for now) to close businesses, ban church services, and restrict public movement. Here’s why:

The federal government is a government of enumerated powers—it has only the powers granted it by the Constitution. Therefore, for the president or Congress to act they have to locate the source of their authority within a specific provision of the Constitution. 

The states, by contrast, possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.

In 1824, the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact “quarantine laws” and “health laws of every description.” Think of it like this: Just as the president and the federal government act at the peak of their powers when national security is threatened, America’s governors are often at the peak of their power when public health is at stake.

Thus, as AEI’s Jay Cost noted in an excellent Twitter thread on police power vs. enumerated power, a governor backed by a state legislature has “the sovereign power to make you go home if you are a menace to ‘public health.’” President Trump, he notes, does not have that power. Governors have broad latitude to order curfews, close businesses, and limit public gatherings.

But doesn’t the First Amendment trump state power? It’s complicated:

If a state closure order targeted churches—and churches only—the order would almost certainly be unconstitutional. But the state closures orders in response to COVID-19 represent classic examples of a “neutral law of general applicability” that are presumptively lawful under Employment Division v. Smith. If restaurants and bars and movie theaters are closed at the same time, churches won’t enjoy any special protection under the Free Exercise Clause. 

Setting aside churches for the moment, the state interest in confronting a recognized, deadly pandemic that is breaking out on American shores is so strong that most bans on public gatherings will pass even the most exacting legal scrutiny. Even laws that directly curtail First Amendment freedoms will be upheld if they can pass a legal test called “strict scrutiny,” which requires the government to demonstrate that its actions advance a compelling governmental interest and are enacted through the least restrictive legal means.

At present, that test would be easy to pass. There is unquestionably a compelling governmental interest in protecting the public from COVID-19, a communicable disease far deadlier than the flu. Because it is so easily transmitted through person-to-person contact, it’s easy to argue that even broad bans on public gatherings are among the least restrictive means of advancing the government’s interest.

Under normal circumstances a governor cannot simply invoke public health and sweep aside the First Amendment. There has to be a real evidentiary basis for his or her assertions of an overriding public need, and bans that were lawful when implemented may become unlawful if they linger too long. But for now, bans on public gatherings—especially in states and cities where COVID-19 has been detected—are virtually certain to pass constitutional muster. 

Are Romneybucks better than a payroll tax cut?

Yesterday Mitt Romney proposed an immediate cash infusion into every American household—a payment of $1,000 to every American adult:

Every American adult should immediately receive a one-time check for $1,000 to help ensure families and workers can meet their short-term obligations and increase spending in the economy. Congress took similar action during the 2001 and 2008 recessions. While expansions of paid leave, unemployment insurance, and SNAP benefits are crucial, the check will help fill the gaps for Americans that may not quickly navigate different government options.

Today, the Trump administration appeared to back a version of Romney’s proposal:

Treasury Secretary Steven Mnuchin said that the administration is talking to Congress about sending checks to Americans over the next two weeks to cushion the economic blow of the pandemic. “The president has instructed me we have to do this now,” he said at a briefing.

It was a shift in priority for the administration, which has been advocating a payroll tax cut, and it came as the coronavirus began to grind large swaths of the economy to a halt, cost an increasing number of people their jobs and continued to send the markets reeling. Marriott International, the giant hotel chain, said Tuesday that it is starting to furlough what it expected will be tens of thousands of employees as it closes hotel properties around the world.

I’m still thinking through the various stimulus proposals, but as of now, I lean toward Mitt. Though I’m interested to hear from Dispatch members who may disagree. Here’s my thinking:

First, when the government is exercising its considerable police powers to close businesses and thereby temporarily cripple entire industries, it is shutting down the free market and preventing people who are willing to work (even in the face of real risk) from working. In that context, a direct payment to provide immediate assistance strikes me not only as crucial to families who live paycheck-to-paycheck but also just and fair when the government affirmatively blocks gainful employment.

Second, “targeted” relief is often difficult to precisely target. While it’s true that some impacted industries (airlines, restaurants, hotels) are easy to identify, the economic ripple effects are often less clear in the short term. Also, while poor and working-class families may be more likely to live paycheck-to-paycheck, they’re hardly the only families who scrape to get by, and Romney’s proposal could allow many thousands of even upper-middle-class families to pay their mortgages. 

Third, a payroll tax cut—once implemented—not only provides minimal immediate benefit to those who’ve already lost their jobs, it may prove difficult to repeal and ultimately become far more costly than a one-time payment. It may seem strange that a direct cash payment to every American adult would be more fiscally responsible than a payroll tax cut, but it almost certainly is. 

As I said, however, I’m eager to hear your thoughts. The Dispatch comment dialogues are consistently interesting and often contain a considerable amount of expertise. Are you in favor of Romneybucks? Let me know.

One last thing … 

Tom Brady is leaving the New England Patriots and reportedly signing with the Tampa Bay Buccaneers tomorrow. As he begins the Jordan-to-the-Wizards stage of his career, it’s worth remembering his last pass as a New England Patriot. What a glorious moment … for my Tennessee Titans:

Photograph of Dr. Anthony Fauci speaking at the White House on March 17 by Brendan Smialowski/AFP via Getty Images.