Crises, Regulation, and How the Government Takes Control of Your Life

Apart from wondering out loud whether the team of government functionaries who are presuming to deal a massive blow to their cities’ businesses should make some attempt to present themselves as professionals, I was struck by the following line in Dan McGowan’s Boston Globe story about Mayor Jorge Elorza’s crisis-driven power grab (emphasis added):

Elorza’s revocation on entertainment licenses includes venues of any size, but he said establishments that also have a liquor license can remain open during that prohibition period. Echoing Raimondo, he said this is the city’s best chance to contain an outbreak of Covid-19, the deadly disease that has infected five Rhode Island residents to date.

Of course, McGowan could reasonably have added “none of whom have died” to that sentence, but even without that important bit of information, the contrast is stark.  Five people in a state of one million, and bars and restaurants are having to lay off half of their staffs and assign somebody to count customers as they enter so as not to hit the 100 number.

For policy wonks like me, the first question that might come to mind is:  How does the mayor have this sort of power?  Is there some state-of-emergency provision in city law?  A quick search of the city’s ordinances confirms that there is, although at the very least Elorza appears to be pushing the boundaries for the duration and breadth of his order, even if you agree that COVID-19 is worthy of such a declaration.  Notably absent from the list of powers the mayor gains through such a declaration, however, is the revocation of entertainment licenses and restrictive maximum-capacity regulations.

Sure, one could argue that the language granting him authority is in fact broader than the list suggests, but it isn’t clear that’s what’s being invoked, here.  Elorza is simply revoking and modifying city permits.  As we all sit around unable to do anything outside the house for some unknown weeks, let’s contemplate the point:  We cede authority to the government to do things like issue entertainment permits mostly in order to help us get along with each other and not create hazards that will affect others.

At some point, leveraging that authority can become abusive, and the cracks in our liberty that we’ve opened for government become entry points for unjustified control.  Have you thought through where those limits are for you?  If you haven’t, you should, because otherwise they’re sure to be crossed before you know it’s happened.

As I prepared to post this, news came through that Massachusetts Governor Charlie Baker has banned “gatherings of more than 250 people in Massachusetts”:

He said the ban included, but was not limited to, “community, civic, public and leisure gatherings, faith-based events, sporting events with spectators, concerts, conventions, fundraisers, parades, fairs, festivals, and any similar event or activity that brings together 250 or more persons.”

Conspicuously, the restriction does not apply to everybody:

He said the order did not apply to the normal operations of airports, bus and train stations, medical facilities, libraries, shopping malls and centers, polling locations, and grocery or retail stores.

It also does not apply to restaurants, provided that they should, wherever possible, encourage social distancing, he said. He said it also did not apply to offices, government buildings or factories where it is unusual for people to be within arm’s length of one another.

As the banning of “faith-based events,” but not other things makes clear, this is almost certainly not constitutional.  If people want to avoid contact with others, they should; if churches want to suspend services or make some other provision, then they should do that.  But unless government officials have some information about COVID-19 that they aren’t telling the public, we are now a step too far.

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