COVID-19 has taught us that laws are needed to prevent governors from abusing their “State of Emergency” powers. Mandatory lockdowns and dividing the workforce into “essential” and “non-essential” workers is too much power for a governor or mayor to have – regardless of circumstances.

The novel (new) coronavirus disease of 2019 (COVID-19) was declared a public health emergency on January 31, 2020 by the Secretary of Health and Human Services Alex Azar.  The State of Washington was the first state to declare a state of emergency in response to the COVID-19 outbreak.  On February 29, 2020 Washington State Governor Jay Inslee issued his COVID-19 Emergency Proclamation directing all state agencies to deploy all necessary resources to prepare for and respond to the this rapidly spreading virus.  On March 13, 2020 President Trump issued a national State of Emergency proclamation in response to the global COVID-19 pandemic.

Today over 90% of the U.S. population remains under some form of a stay-at-home or shelter-in-place order.  President Trump has indicated that most states should be able to re-open businesses on May 1, 2020.  Governors, particularly democrat governors, have affirmed that they will decide when businesses in their states reopen and in what fashion.  Governors from neighboring states such as California, Oregon, and Washington are developing their own plans as to how and when they restart their economies.  Meanwhile, millions upon millions of workers across the nation have been without a paycheck for a month or longer.  The $1200 relief money that workers began receiving last week, while surely appreciated by most recipients, doesn’t come close to making up for all their lost wages. 

Governors have divided their state’s workforce into two categories: ‘essential’ and ‘non-essential’.  In all 50 states, law enforcement and emergency medical personnel, firefighters, doctors, nurses, along with other hospital workers are all deemed essential.  Pharmacists and pharmacist assistants are also essential.  Grocery stores are considered an essential business.  Food distributors, truck drivers, store managers, stock personnel, and clerks all are considered essential workers too. 

How and why certain workers are classified as ‘essential’ is easily understood by most people.  Healthcare, law enforcement, and food providers are necessary regardless of the calamity.  So are the people that work in the energy and utility sector.  The trouble arises when it appears to people that their governor is showing favoritism towards a certain industry or enterprise.  Golf is a great example. 

Across the United States approximately 40% of golf courses have remained open under stay-at-home orders – this according to the National Golf Foundation.  In some states, the governor has determined that golf is essential, while a mayor of a city within the state has determined it is not essential.  This is the case in Florida, California, and other states as well.  For many, golf is a welcome escape and great opportunity for exercise while enjoying the great outdoors – perhaps even more so during this COVID-19 state of emergency. 

Few people seriously believe that golfing puts people at a high risk of contracting the COVID-19 virus.  It does not.  In fact, keeping a safe distance from one another on the golf course is a relatively easy task.  However, it’s hard to make the case for golf being anymore essential than tennis, baseball, or swimming.  It is not.  Consequently, people that would like to get out of the house to play tennis with a friend, cannot because of the threat of being fined or arrested.  Meanwhile they see their neighbors out enjoying golf regularly.  People get resentful whenever they believe that they are being treated unfairly, are being discriminated against, or not being treated equally.  If enough people feel violated, they will push back.  The recent protests at the state capitols in Lansing, Michigan and Harrisburg, Pennsylvania illustrate what happens when enough Americans believe they are being stepped on by their government. 

Golf is just one example of an activity that any governor can allow or not allow during a declared state of emergency.  As mentioned, and for good reason, every state governor has determined that grocery stores are an essential business and the grocery store employees are essential workers.  However, retailers like Walmart and Target have grocery stores and retail stores under one roof.  So, while stores like Kohl’s, Old Navy, Gap, and Belk’s have been closed down for nearly two-months, people have been allowed to purchase shirts, pants, and socks at Walmart and Target simply because bread and milk is under the same roof.  The financial toll on non-food selling retailers is yet to be determined but it is safe to say that some will not emerge from the loss.  Retailers that were failing before COVID-19 such as JC Penny, will most likely be forced to seek bankruptcy protects in the coming months.  If enough retailers are forced to do the same, the write-off of billions of dollars will have a ripple effect across the global economy. 

The question on many people’s minds right now is if governors should get to pick winners and losers with what amounts to a coin toss.  In my home state of South Carolina, Governor Henry McMaster did what the majority of governor’s did; Kohl’s and Belk’s were closed – Walmart and Target were open.  Is this fair?  How was purchasing a pair of jeans at Walmart safer than had those same jeans been purchased at Kohl’s?  How was golfing at Patriot’s Point safer than walking out on the Mt. Pleasant Pier?   (The Mt. Pleasant Pier has been closed by Mt. Pleasant Mayor Will Haynie).  Macy’s, Kohl’s, and the Gap have furloughed tens of thousands of workers across the country while Walmart and Target are hiring.  Is this fair? 

Some states, whether to head off any appearance of impropriety, or to reduce foot traffic in grocery stores like Walmart and Target, added ‘essential items’ to the governor’s list of essentials.  Governors like Gretchen Whitmer of Michigan has picked which businesses are essential businesses, and which employees are essential employees, and which items are essential items.  If you are at Walmart or Target in Michigan, don’t you dare try to purchase a Boston fern or a gallon of paint along with your fresh Mackinac Island fudge ice cream.  Don’t forget to purchase your lottery tickets on the way out, and drive safely and directly back home! 

Even if you believe that all these draconian restrictions have been enacted with the purest of intentions, when you take a step back from all the fear-mongering you have to admit that they make little sense.  If golf is allowed, why not tennis?  If you can walk on a sidewalk while ‘exercising’, why not the Mt. Pleasant Pier?  (Mayor Haynie claims that due to the pier being linear [his word], it needs to remain closed).  And if you can purchase a pack of white t-shirts at Target, why not Kohl’s? 

It is anticipated that after this virus has ran its course and life returns somewhat back to normal, state lawmakers in many states will attempt to develop some legislation that better defines what constitutes a state of emergency in their state.  They’ll also want to rein in the governor’s power to essentially bankrupt businesses – particularly small businesses.  Better yet, hopefully states will pass laws that prohibit the blanket closing of any retailers.  In the event of another pandemic, restrictions like requiring masks to be worn by customers, and limiting the number of customers in the store at any given time hopefully will emerge as the best practice to keep businesses afloat while slowing the spread of the disease.

And now we’re learning this:  The overwhelming majority of people have very little risk of dying from the COVID-19 virus.  A recent antibody study by Stanford University estimates the COVID-19 fatality rate to now be at 0.1 – 0.2 percent.  The failed World Health Organization (WHO), which encouraged draconian isolation rules, predicted a fatality rate 25 times higher than what it is today.  Had we simply protected our vulnerable population, the elderly and people identified as at-risk, we could have saved thousands of lives. 

The isolation policies adopted by most every state have stunted the growth of population immunity.  Our body’s natural ability to produce anti-bodies to fight off COVID-19 is the ultimate solution to ending this pandemic.  In cities like New York City, forcing people to stay at home in large apartment buildings most likely forced people to be confined with other people that had the virus.  Sharing the elevator, talking in the hallways, along with common HVAC duct systems spread the disease in much the same way as it has spread in numerous nursing homes around the country.  In some instances, New York unwittingly quarantined its residents in buildings that were basically incubators for the COVID-19 virus. 

Hindsight is always 20/20.  There is much to learn from this COVID-19 experience.  It’s time for state legislators to rein in state of emergency powers in all 50 states to protect our liberties and livelihoods during all future events that might warrant a state of emergency proclamation.