4/17/20 Jacob Sullum on the Political Response to Coronavirus

Scott Horton 0:10
All right, shall Welcome to the Scott Horton show. I am the director of the libertarian Institute editorial director of anti war.com, author of the book fool’s errand, time to end the war in Afghanistan. And I’ve recorded more than 5000 interviews going back to 2003, all of which are available at scotthorton.org dot org. You can also sign up to the podcast feed full archive is also available@youtube.com. Slash Scott Horton show. All right, you guys introducing Jacob solem. He is senior editor over at reason magazine. Welcome back to the show. Jacob How are you doing?

Jacob Sullum 0:48
I’m doing all right. Thanks for having me.

Scott Horton 0:50
It’s almost a stretch to say back to the show because it’s been so long but I really appreciate you joining us here today. And boy, we have a bunch of important stuff. To talk about but I think if it’s all right, I’d like to start with this article that you wrote. And Trump can encourage states to lift their COVID-19 lockdowns, but he can’t decree that outcome. And this is the story of how Donald Trump made 10 thurs out of the liberal media for a day earlier this week by declaring that he has some kind of total power. What is up with that?

Jacob Sullum 1:26
Well, Trump frequently asserts powers he does not actually Have I mentioned a few in that post things he said in the past, where he clearly does not have the power that he’s claiming. This is another example of that. I mean, historically, it’s clear that the primary responsibility for responding to epidemics through quarantines in particular but other measures as well rests with the states that is a power that was reserved to the States under the Constitution. The federal government has inserted some power in that area, but having to do with Interstate and international transmission of diseases. So the federal government, through the Secretary of Health and Human Services has the authority to impose quarantines that are aimed at curtailing the spread between states or between, you know, into the into this country from other countries. But what he’s talking about is the, the lockdowns and the stay at home orders that were ordered either by local governments or by state governments. And they are very much operating within the parameters of their own authority under the Constitution. And he does not, on his own have the authority to tell governors for example, you must now lift that order. He was asserting otherwise. More recently, he has backtracked from that. I think the way He’s still portraying it as that it’s by his own grace that he’s letting the states go their own way. But he does not really have the authority to dictate to them in this area, he can say, gee, I’d like you to reopen the economy. Maybe it’s about time to do that. You can certainly say things like that. He also arguably can use some of his powers in allocating epidemic relief funds or epidemic, you know, fund funds aimed at fighting the epidemic, to encourage states to open up sooner rather than later. Congress could definitely could pass a bill saying, if you want to have more of this particular kind of money from us, we want you to start opening up your economy. I don’t think Congress is going to do that. But I think they could certainly do that. I mean, based on Supreme Court precedents, dealing with the issue of spending power. The classic example was the federal government decided that every state should have a minimum alcohol purchase age of 21. It could not directly order them to do that. But what they did instead is they said, if you want to get highway funding, you need to make this change. And that went to the Supreme Court, the Supreme Court said, That’s okay. Congress could not establish a national drinking age, it does not have the authority to do that. But it can say, we’re not going to give you this money unless you do this. So they could do something similar. Congress could definitely do something similar if they were if Congress was so inclined. And possibly, I mean, they could definitely try to pass a law explicitly and directly addressing lockdowns and claim that under the interstate commerce clause, they have that power. You know, say saying when California shuts down its economy when New York shuts down its economy. That has an impact on interstate commerce. Therefore, under the Constitution, we have some say in that. But of course Congress hasn’t hasn’t done that. So it’s very hard to see how Trump on his own can claim that power when he doesn’t have it under the Constitution. He has not even extensively been given any authority over lockdowns through a new Act of Congress. So basically, he was just sort of, I don’t know, what’s the kind of wave but I guess he’s claiming claiming power he doesn’t have. He wants to look like he’s in control. He has a tendency to assert that because he’s president he can do whatever he wants, but that’s not true. Yeah.

Scott Horton 5:42
I think it’s just amazing that in your article here, you’re citing john you the guy that says that George Bush has the power to torture somebody’s child into forcing him to give up a ticking time bomb or something like this. And he comes out and says, I’m sorry, Trump, you’re way overstepping your bounds here.

Jacob Sullum 5:59
Now, john, you his credit, you know, he has a very expansive view of presidential power, especially when it comes to national security issues and foreign policy. He is famous for pushing those powers to their limit, and some including they would argue beyond. But to his credit, he has criticized both Obama and Trump previously, long before the epidemic for overstepping the proper realm of presidential authority. So he is saying, basically what I just said that that this is traditionally an area where states have primary authority, there is some authority as it pertains to interstate commerce for Congress. But that doesn’t mean the President has that authority. Right. The President has to be able to cite either a congressional act that that ostensibly gives him authority to the intervene in this area, or some independent source of authority under the Constitution and there Not when he was. Trump was asked specifically about that at a briefing the other day. That reporter said, Well, what constitutional provision gives you this authority to tell states when when they can close down businesses when they have to let them open? And he said, they’re plenty. He didn’t actually name any. And he said, I can give you a Legal Brief. And you can imagine all of the lawyers in the Justice Department scrambling to try to come up with some sort of rationale. And then later on, he came back to the subject and said something like, Well, the President has a lot of authority. He’s very powerful, and I get to call the shots. And it’s not true as a general matter, you have to be able to source to cite a specific source of authority. Yeah,

Scott Horton 7:46
well, you know, it’s funny here he is claiming the powers of a dictator and I found myself sort of defending him in a way. When I wrote up my old blog entry about it at the Institute was he’s clearly bluffing and has No idea what he’s talking about and doesn’t even really mean it in terms of, is there any reason to expect that tomorrow or the next day or sometime soon that he’s truly going to claim this authority over the governors and make this decision for them? No, he’s not. And then that’s exactly what happened a couple of days later, I guess it was yesterday, he was on a conference call with the governors and said, You guys are in charge, you do what you’re gonna do. But he’s just up there Bs and because he’s probably never read the Constitution in his life. He has no idea what it says, other than he can be the president. And then that job is defined by his imagination only pretty much.

Jacob Sullum 8:37
Yes. And I, you know, look, politically, it doesn’t make sense for him to own this. Let you know, there was a smart move politically, is to let the governor’s go their own way as well as legally, you know, legally required to do but politically. Imagine he did have that power. He tried to assert that power. And he said, everybody’s got to open up now. And it doesn’t go out. It doesn’t turn out so well. Right. This way, he’s not responsible for possible bad outcomes due to lifting the orders. And he’s also not responsible for the bad outweighs the ongoing bad outcomes from having these orders to begin with, you know, there’s a tremendous amount of economic dislocation and damage that’s being done every day by these orders. He doesn’t have to take responsibility for that either. So if I were him, and I was trying to avoid responsibility, I would not want to be asserting the power, because then well, if he really thinks he has the power, people can say, Well, why didn’t you open up the economy sooner? You said you had that power? And and we’re all out of work, and we’ve we’ve lost our businesses, and we’re struggling to pay our bills. That’s on you now, because you said you had the authority to open the economy. Why didn’t you do that? You

Scott Horton 9:48
know, and, you know, it’s funny in that press briefing, where he’s saying this stuff. And the reporters, the one reporter says, Well, that’s just not true. She just contradicts him and says, Who told you that that You have that power. Where did you hear that from? And he refused to answer that, because of course, the answer was he made it up himself. And then pence gets up there is like, yeah, you know. Yeah, there’s a thing. We’ll we’ll get back to you on some kind of, you know, also bluffing trying to cover for the President. And then one of the other reporters who I can only assume, as a liberal Democrat, start saying, but what about the 10th amendment? The 10th Amendment says that all powers are reserved to the states and that they and I saw on Twitter where everybody was laughing about that, Oh, no, you’re a NEO Confederate. How dare you bring up the 10th amendment in any context or LLC are the devil but all of a sudden when it comes to Trump declaring this authority that Bill of Rights does count after all, huh?

Jacob Sullum 10:45
Yeah, and look, to be fair, both progressives and conservatives are inconsistent when it comes to federalism. Conservatives are more usually identified with that position, but they don’t like federalism when it gets in the way of the federal government achieving their policy goals, right? So when they try to try to do things like ban assisted suicide, or prohibit, you know, certain kinds of abortion, and you might ask, well, where does Congress get the authority to do that? Right? And they end up making these arguments that are very similar to what the arguments that progressives make when they’re pushing their policies. Right. So you do see especially you know, when you have a Republican in the White House, and when you have republican control of Congress, you see progressives making noises about states rights when they win, because they think the states are going to pursue the policies they like, hmm. So I think people’s allegiance to federalism is highly situational. Yeah. And but we’ve seen this before we’ve seen progressives, when they when they have republicans in charge of the national government suddenly discovering the 10th amendment and the virtues of state autonomy.

Scott Horton 11:58
Yeah, well, of course. You know, I admit I tried to quit Twitter, but it keeps pulling me back. And this virus thing has got me trolling Twitter again. And I saw so many conservatives saying, Oh, you liberal hypocrites, and now you favor limits on executive power. But I didn’t see you saying that during Obama, which is True enough. But what are they saying? They’re not attacking Trump for claiming too much power. Now. They’re simply hiding behind the hypocrisy of the liberals, but rather demonstrating their own hypocrisy in the very same way that no, of course we wouldn’t want Trump to claim any more power than we would want Hillary Clinton to be able to claim or any other Democrat in his same position. But no, yes, you say, highly situational for both sides.

Jacob Sullum 12:40
I mean, I think you and I would like to think that we were consistent about this. And I think, you know, I certainly strive to be I certainly criticized both Democrats and Republicans when they were presidents for overstepping their bounds. And Obama, you know, did some really egregious things, especially when it comes to warmaking, where he committed himself To position before he was elected that you need a congressional authorization unless basically unless you’re invaded, or there’s some kind of imminent threat to national security where you don’t have time to get a declaration. Otherwise, you have to get congressional approval, which is right. But once he took office, he was involved in several wars that were undeclared. On his own say so. And Trump, same thing. Trump, before he was elected, made noises about, I don’t know so much congressional permission, but he wanted to get the US less involved militarily around the world. It hasn’t quite panned out that way. So you see that kind of inconsistency, you know, in both parties?

Scott Horton 13:40
Yeah, absolutely. Hey, man, you guys are gonna love No dev no Ops, no ID by Hussein, Barack Johnny. It’s a fun and interesting read all about how to run your high tech company, like a good libertarian should forget all the junk. Read no Dev, no ops. No, it Hussain bodek Chani find it in the margin. It’s Scott horton.org. Hey y’all, here’s the thing, donate $100 to the Scott Horton show, and you can get a QR code commodity disc as my gift to you. It’s a one ounce silver disc with a QR code on the back you take a picture of with your phone, and it gives you the instant spot price. And lets you know what that silver that ounces silver is worth on the market and Federal Reserve Notes in real time. It’s the future of currency in the past to commodity discs.com or just go to Scott Horton. org slash donate. Hey guys, Scott Horton here for expand designs calm. Harley Abbott and his crew do an outstanding job designing building and maintaining my sites and they’ll do great work for you need a new website, go to expand designs comm slash Scott and say 500 bucks. Alright, so now I want to get into this article that you wrote here about the false debate about reopening the economy. And, again, with the left and the right, as Boulevard says swinging and missing, like drunks in a bar here. We’re on the right you have. I’m not I don’t want to say exactly, you know, make this a paraphrase because I forget, I didn’t jot it down. But I’m pretty sure I saw some guys from the Heritage Foundation, where they’re saying, Well, you know, by our calculations, the human life is worth this many hundred thousand dollars. And so you got to exchange this for that and this kind of thing, which is just bananas and then the left side. You know, the liberals are saying that anyone on the right, or anyone who wants to loosen up the clamp down, you’re trying to sacrifice precious, priceless human lives, just for the sake tannic god of the almighty dollar and the Dow Jones Industrial Average. Maybe the stock market will go up a 10th of a point. And how many people are you willing to kill for that and Well, again, only the libertarians in the middle seem to be saying, Well, actually, we’re talking about trading lies for lives here. That’s the question. It’s not a question of lives for dollars, or question of, you know, only millionaire republican business owners want to reopen the economy while everyone else would prefer to be locked down just like, you know, all the liberal blue checks on Twitter who, after all, don’t have real jobs, right? They’re either media people or they’re government employees, university employees and so forth. And they’re not really sacrificing anything, and probably don’t know anybody who’s been thrown out of work, even as 20 million people have been thrown out of work just in the last month. But you’ve got your eye on the ball here, in terms of, you know, what the costs are for humanity not just hearing around or not just here but around the world. I don’t know if you saw the thing. It’s a top headline on anti war calm today is that you is predicting that hundreds of thousands of children are going to die because of the economic consequences of the lockdowns from the virus. And that’s, you know, a lot of people in the last 1020 years have been brought up out of poverty, but they’re still right on the line and can be pushed right back into hunger and starvation here.

Jacob Sullum 17:21
Yes, I mean, I, the important thing to recognize that is that there are human costs on both sides of this equation. And when it comes to sweeping measures, like business closures and stay at home orders, very clearly, there are tremendous economic costs involved immediately. We see it right now. Right with all the people unemployed. Yeah, as you mentioned, even it’s even worse in less developed countries. I mean, in India, you had all these migrant workers and suddenly couldn’t work and had to go back but they weren’t allowed to go back because maybe they’re spreading the buck. I mean, they’re screwed. They don’t they they’re really and that’s a situation where you really start to talk about lies for lives because people don’t have the money to feed themselves. So their cost of both sides. I won’t defend. I’m not going to defend any particular dollar figure. But what I will say is that when governments impose regulations that are aimed at protecting health and safety, they routinely take into account not just how many lives do we think this might save, but how much will it cost? And they shut? You have to because resources are finite. There has been almost no consideration of that among politicians when they decide to impose these orders. Now, there’s tremendous uncertainty on both sides of this, right. There’s there’s uncertainty about the epidemic itself, how lethal The disease is, how many people have it, how many have recovered I mean, there’s just basic facts. We’re You have no idea. And when you talk, just pick one example, about a fatality rate that might be somewhere around the flu, probably somewhat larger, right? on up to 10 times as lethal as the flu. And you don’t know where in that range it is. That’s it’s impossible to make rational policy decisions when you know so little about the threat. And I think there is a tendency to feel like we really need to do something, and we need to do something serious. Because it could be really bad, but we don’t know. But the problem there is that you are not, you’re giving very little weight, if anyway, to the other side of it, which is that you know, you’re going to to cause a tremendous amount of suffering by imposing these policies. So I think it is legitimate, I guess I’m going to defend the heritage foundation to say that, that we need to think about how much this is costing. And if it turns out that The number of deaths is not it’s not it was never going to be in the millions. I mean, these projections were not realistic, the ones where they talked about, you know, 2 million people or so in the US dying was that was based on the assumption that nothing was done literally nothing. In other words, people don’t change their behavior at all. Not just that there aren’t any government policies, but that everything just stays as it is. So that was never going to be the case. There was there was also going to be always going to be social distancing various kinds of precautions, face masks and so on avoiding, you know, large groups of people and all that. The question is, what’s the difference between that those kinds of precautions which are largely voluntary, and closing down huge segments of the economy? What’s the payoff from that? Right? We don’t really know. And we may, we may never know. Because after the fact, they will say, Well, look, the deaths are far fewer than we feared. It shows the policies work. Well, we don’t know that because we never ran the experiment, right? We didn’t we didn’t have an alternate universe where we’d never impose these rules. And then we saw how many deaths there were in that case. So we don’t really know. But you’re trying to choose between a sweeping measure, and a less sweeping measure in an environment where, you know, almost nothing. And so it’s not just that you don’t know about the disease, you also don’t know about the long term economic consequences. So we do know, but the immediate ones immediate ones are, should be obvious by now. people out of work struggling to pay their bills in poorer countries possibly starving.

But the long term consequences, you know, is this going to be just a really, really bad recession? Is it going to be a depression? We don’t know. That depends on a whole series of future events that are that are very difficult to predict. So you have tremendous amount of uncertainty of both sides. But what I will say is that I don’t think there’s been sufficient weight given to the economic cost of these policies, because their politicians have a very strong incentive. To act, to act to do something, to be seen to be doing something. And in the face of the, you know, hospitals possibly being overwhelmed by these cases and the death toll going up and up, it is natural for them to want to do something, even if they don’t have adequate information to make these decisions. So my fear is that the economic costs will turn out to be much greater than people anticipated, then then, you know, the governors were thinking when they impose these orders, and that the benefit in terms of death prevented, there will be some benefit, I’m willing to concede that there’s got to be some benefit, right. But it will be much more modest than what they were imagining. Because if especially if they were driven by these worse, completely implausible worst case scenarios, which does seem to be the case with Trump, by the way, when he sort of turned around on this issue, he was swayed by these projections of, you know, 2 million destiny us right if we do nothing, which was totally unrealistic. So if they were if they were making decisions based on those implausible worst case scenarios, figuring whatever the cost of this, it has to be done, that may turn out to have been a huge mistake. All right, so we’re now we have a situation we’re in now is that the governor’s, local governments as well felt constrained to impose these sweeping restrictions to avoid a hospital crisis. And that the reason that they felt constrained to do that is because like I said, they had almost no information. And one of the main reasons I had no information is that we had virtually no testing early on that was a huge fiasco, engineered by the CDC and the FDA, that we didn’t even know how many cases there were early on. We didn’t know if there was community transmission. In fact, there was right so you had the first case identified January 20. In Washington State. By that time, there are already lots of other people who have this We didn’t know. And not only did the CDC not get a better handle on it, but they actively together with the FDA prevented universities, private companies from trying to get a handle on this. So in that sense, you can blame them for the fact that the economy has been has been wrecked, because the politicians felt like they had no other choice, right? Because they didn’t they didn’t have adequate information. Now, if you had been able to back in January, find out who actually was infected, you had wide testing, and you could do what what a bunch of other countries have done, which is identify who’s sick, who they’ve been in contact with trace those contacts, isolate the patients, quarantine the people who’ve been exposed to now or carriers. You could have had a much more targeted and tempered approach that would not have ruined the economy. But that’s kind of a foregone. You know, we were not able to do that because we did not have Mass test and we still don’t have mass testing. Look at the latest numbers of people tested in the US for the virus, it’s still only about 1%. And it’s not a representative sample. They’re overwhelmingly testing people who have severe symptoms, right? Because they still don’t have enough tests. And that’s how they decide to allocate them. Somebody needs hospitalization, they will get tested, right? But people, even people who clearly have symptoms, they recover at home, they may never be tested. Another complication, my own daughter had symptoms that were my oldest daughter that we’re very much consistent with COVID-19. She got tested came up negative, and she’s like, Oh, I had all these symptoms. I didn’t even get immunity out of it. But it turns out that may not even have been an accurate result. Because the error rate for negative tests, maybe maybe like 30% of the time, they tell you you don’t have it and you actually did have it for various reasons, right? Yeah. So you have that group of people. Then you have the people, so people recovering at home. You have people who with symptoms so mild, they don’t even think they have COVID-19. They think, Oh, I got the flu, I have a cold, then you’ve got an unknown number, but substantial number of people who have no symptoms. So they’re carriers. But they don’t realize it. So we don’t know the size of the epidemic in the sense of how many carriers are we having? When I said, we don’t know, we have no clue. We don’t, we don’t even we don’t know it is. The true number of infections is twice the reported number three times four times five times 10 times 20 times, right. And there’s

Scott Horton 26:42
all kinds of criticism saying that they’re over counting because there have perverse incentives to overestimate. While at the same time, they’re definitely under counting and a lot of ways my sister’s a nurse at a hospital here in Austin, where she says that, you know, they got there’s hundreds of people infected. They know these people have it, they all have the same symptoms at the same time. They’re all COVID patients, but only a small percentage of them are being tested the rest, right? They know that they have it, but and they’ll probably be counted as COVID deaths if they do die, but maybe their corpse will be tested later, maybe not if they ever get them.

Jacob Sullum 27:19
Yeah, look, there’s errors in on both parts of this, right. So there’s some errors in terms of debts. And that can go two ways. You may have people who die at home. And, and they have other underlying conditions, which is very common, and it’s not attributed to COVID-19. But in fact, COVID-19 was the thing they really did them in right so you missed those. But on the other hand, you have people who test positive for COVID-19 and who die but it would have died anyway. And because everybody’s worried about this particular disease is attributed to that disease even though that death would have happened regardless. So you have errors both ways to the death but but but but any errors pertaining to the number of deaths are going to pale in comparison to the errors in terms of the number of total infections, the number of cases, just simply because the typical course of this is either you have mild symptoms or no symptoms at all. So those people are never going to come to anyone’s attention unless you have some kind of wide testing, wide testing for the virus. Why testing for the antibodies? A representative sample take a representative sample of the country how many people have the antibodies, meaning that they were exposed and have since recovered and are presumably immune, although we don’t know exactly how our immune or For how long? We haven’t done any of that yet. Now, the CDC is talking about that. I assume at some point, they will do that. And then we will have a better handle on the situation. But these decisions have already been made. So the economy has already been wrecked exactly how wreck we don’t know. We won’t know for sure, you know, for years possibly. But it’s talking about a loss that’s on the order somewhere between the great risks Another great depression. Right? Right.

Scott Horton 29:02
Well, we know how ugly the great recession was in terms of the number of I don’t know the exact numbers, but the bankruptcies, the divorces, the suicides, the, you know, it was absolute catastrophe for the bottom 95% of the economic ladder here, while the very top got to buy up everything for pennies on the dollar. And yeah, I mean, looking at that charts and david stockman ‘s article and give you a heart attack itself, you know,

Jacob Sullum 29:29
right. So there’s an estimate out there for what it’s worth, that that the Great Recession cost Americans This is just within America $22 trillion. Okay. So if you’re talking about a loss in that neighborhood, probably more right. In order to justify that kind of loss, you really have to be able to show that these policies are going to say, not just some lives but a huge number of lives. And honestly, it’s hard to imagine That is going to have a big enough impact to justify that loss.

Scott Horton 30:04
You know, what’s the difference here too is, you know, all those people who lost their job last time around is one thing, but this time they’re losing their job and their health insurance in the middle of a pandemic. And I wonder, you know, what’s the reason magazine take on 20 million people getting kicked off their health insurance roll in one month? You know, what’s to happen to them?

Jacob Sullum 30:27
Well, look, I mean, everybody is gonna get some kind of a while you may have gotten a check already. I don’t know about your wife. I don’t know what your adjusted gross income is. But you may, you may have, you know, money that suddenly appeared in your bank account. But of course, that’s just money, you know, that we’re borrowing from ultimately our, you know, grandchildren and great grandchildren. You’re gonna have a deficit this year of $4 trillion. If we’re lucky, probably more than that.

Scott Horton 30:57
Just check my balance is the same and it ain’t very high.

Jacob Sullum 31:02
So, so But my point is, is, and I think, you know, I don’t dismiss that, I think the government does have a responsibility to try to make it up in some way to people who were forcibly deprived of their livelihoods. That’s not their fault that that happened. The politicians said this was necessary, we’re gonna have to do this. And so they do some kind of compensation, but the money can’t come out of thin air. So they’ve already spent trillions of dollars on various forms of relief, they’re probably going to spend trillions more. And that’s, you know, that’s not even taking into account the broader economic effects of this, which is many trillions of dollars 10s of trillions of dollars, we assume if it’s something like the Great Recession. So those are enormous costs, and and I feel like they have not been given sufficient weight.

Scott Horton 31:50
Yeah. All right. Now, listen, there’s so many great articles you’ve written here lately. We’re not going to be able to go back over all but I will encourage everybody to go check out your archive there at reason. There’s so much good stuff. But I was wondering if we could talk real quick about the guns in Los Angeles County. And the sheriff’s attempt there to assert that gun stores are not essential businesses, and everybody’s just going to have to wait if they want to buy a gun. Because, first of all, it’s a great example of the way that these guys think in the first place. But secondly, not to ruin the whole Moral of the story here. But it’s a great example of civil disobedience. This order just did not fly at all with the people of LA. And rather than go to war against them, the sheriff ended up having to back down, right.

Jacob Sullum 33:40
Well, what’s interesting about that is that this happened in a bunch of states, not just California. They Governor’s issued orders saying non essential businesses, non life sustaining businesses, they use different terminology in the different states. But essentially, the idea was if you are important enough, you can stay up And in some cases, they anticipated that gun stores would be included in those businesses that were deemed essential. In other places, they didn’t address it. And they weren’t on the list of essential businesses. And the case of of LA County. The governor, Governor of California didn’t address whether they would they didn’t put gun dealers specifically on the list. The sheriff in LA County said, I’m deciding they’re not a central and they must close. And the governor said, Okay. The governor said, I gotta let local sheriff’s decide whether gun dealers are essential. But then the crucial thing that happened was the Department of Homeland Security issued guidelines, saying By the way, we decided gun dealers are part of the critical infrastructure. Now, what that meant in California, for example, was that they had to be deemed essential because under Governor Newsom’s order, he said Workers in it that are part of the critical infrastructure are exempt from this order. So that men that they you have to let gun dealers stay open. And it was all absurd In any case, because if the real concern were transmission of viruses, there are solutions to that, right. And in fact, this is the solution that came up with in New Jersey and Pennsylvania was, you have to make an appointment to buy the gun. You have to observe, you know, social distancing rules. Well, they could have done that from the outset. And the case of Pennsylvania was interesting because there was a lawsuit in front of the state Supreme Court, where they said this is a second amendment violation. And the Supreme Court in general said, Matt, but like we’re not gonna intervene, but there were three I believe, is three justices who wrote a very vigorous dissent saying, look, this is not optional. You know, this is a constitutional right You can’t just say you You can’t exercise this right? for the duration of this emergency, which is going to last indefinitely, you have to accommodate people’s constitutional rights. And the governor, even though this wasn’t the official decision, this was just a, this was a comment by three dissenters. The governor responded to that by creating this, these rules where you can do this by appointment, as long as you stay six feet away, and you sanitize services or whatever. Well, they could have done that from the beginning. Right. So it’s just interesting to see how little value some politicians attach to certain constitutional rights. The ones they don’t really care for that, that you even have to go through that you have to file a lawsuit, you have to, you know, get the department of homeland, Homeland Security, to officially declare that these are essential businesses. Ideally, you wouldn’t have to do any of that because they would recognize the importance of the Second Amendment to begin with.

Scott Horton 35:54
Although in LA, I mean, wasn’t really the DHS order or it was just the fact that the gun store owners were fused clothes and their customers refuse to stay home.

Jacob Sullum 36:46
Well, it’s probably a combination of things but but the sheriff actually cited that new guidance, the new federal guidance in backing down. So maybe that was just cut cover for him. Maybe he recognized there was no way that he was going to enforce his his unilateral ban on gun sales. And he’s like, well, and he cited that memo as cover. It’s possible. But I think that that was influential because that made a difference in other states as well, because all of these governors are essentially following federal guidelines about what’s considered to be critical infrastructure. And that’s incorporated into their order. So they can’t very well ignore. Ignore it when when the federal government clarifies what critical critical infrastructure means.

Scott Horton 36:48
Now, last topic here real quick before I let you go would be the the rulings and the the different actions taken against the churches and I guess there have been plenty of news stories. Have some pastor saying, Oh, don’t worry, you know, Jesus’s magic and the virus can’t get us here. So everybody crammed in your pews. And just don’t worry about it. And then, you know, that’s completely irrational and, and irresponsible to do. But then some of these governors, especially I guess, in Kentucky, decided that they’re going to clamp down, not on completely, you know, irresponsible behavior like that, which I don’t know if they even have that authority at all anyway. But even you can’t go to church and sit in your car in the parking lot and listen to your pastor over a loudspeaker and this kind of thing. And as serving levels of control over you know, religious life that haven’t been seen since. I don’t know when. So where are we at with all of that is that still all kind of up in the air about how far I think they can go with that stuff.

Jacob Sullum 38:31
This church in Louisville, won a temporary restraining order. So their plan, which they ultimately went through with was to have a driving service. separated in the parking lot everybody stays in their cars. You have the pastor who’s the only one standing outside at a distance from the cars, and he leaves the service. And that did happen on Easter. But the church had to file a lawsuit. Because the the governor of Louisville said nobody’s going to church doesn’t matter how you doing it, not just you can’t be in person close together, you know, inside the church, but you can’t do drive drive in services either than a federal judge said, No, we still have, you know, a First Amendment and it still means something even in the face of a pandemic. They are following various precautions, it really should be adequate. This order that you’ve issued, specifically singles out church services. So it’s not a neutral law of general applicability, which is what the Supreme Court talks about when they say, you know, just because your religion you think your religion requires you to do something, it doesn’t necessarily mean you can violate a law because if you have a job Federal law. I mean, the classic example would be well, there’s a law against murder. If your religion requires human sacrifice, you know, you’re out of luck. Yeah. You still have to follow that law, right? Or in this case, if you’ve got a general rule against in person gatherings where people are close together, it’s okay to say under this is under the Constitution, it’s okay to say that applies to churches still. But what happened in Louisville is that it wasn’t a general role. It was a rule that applied specifically to church services. And even though for example, you have drive throughs at liquor stores, you have a people can still go buy groceries, there aren’t any general rules about cars and parking lots and how far away they have to be or how many you can you know, how many you can have a parking lot of time, nothing like that. So it was not a general rule. It was a religion specific rule that did not have a rational basis. It certainly did not have a strong enough basis to pass muster under the Constitution. So that’s they want they basically won that case. I mean, they had their their Easter service, the case will still continue because it was just a tr o. But if you look the language the judges, it’s very clear there’s no way he’s going to uphold that sort of restriction. So you have to you have to balance. I mean, it’s the same thing with the Second Amendment. You can say we can’t have people crammed together, you know, inside a gun shop that because that we think that’s hazardous. But you can’t just say there are no gun sales at all, you have to do some kind of weighing of the constitutional right, against legitimate concerns about virus transmission, and come up with a solution. that’s reasonable.

Scott Horton 40:35
All right, one more thing. Sorry. I can’t help it. But is it a crime to wear a mask or a crime to not wear a mask and American 2020?

Jacob Sullum 41:11
Yeah, well, I noted early on that there are a bunch of states that have anti mask laws, which on their face would seem to make it a crime to wear a mask in public that obscures your face. Now, a lot of these laws Especially the ones in the south were responses to the KKK. They didn’t want to people people to go around with hoods and go around with mass, they would be up to no good. And then penalties vary but but in Virginia, it’s actually a felony. To wear a mask in public with the intent of concealing your identity. In New York, it’s it’s not treated as seriously. But you might recall the occupy wall street protests where a lot of people were a mass, one of the charges that was brought against them as they were mass while congregating together, that’s still illegal in New York State. It’s a form considered to be a form of loitering there. So yes, I don’t think I haven’t seen the actual case where somebody is arrested because they were masked is that they either were afraid of transmitting COVID-19 or afraid of catching it. I doubt Well, I don’t want to say for sure we’re not gonna see that but I doubt we will see it, but it on the face of it, it’s illegal. And generally speaking, there is not a medical exemption and In Virginia, there was a medical exemption, but it required you to have a letter from your doctor saying you have to wear a mask. And here’s why. And here’s how long you can wear a mask for. So if you didn’t have that affidavit from your doctor, you were committing a felony, or the governor could if he when he declares a public health emergency say it’s okay to wear a mask, but he didn’t say that. So people in Virginia, we’re still technically committing felonies, technically committing felonies, if the were mass, and

Scott Horton 42:29
although checks on Twitter were saying, Oh, look, they’re trying to re legalize Klan hoods. That was a guess in Georgia.

Jacob Sullum 42:37
Uh, yeah. I don’t know. Is that a joke? That people on Twitter? I didn’t see that.

Scott Horton 42:40
But yeah, no, I saw a couple like that. And it was because while the law was passed in order to prevent Klansmen from wearing hoods, and so that’s the law they have to repeal and so people just take it at face value as though we’re not talking about pandemic and medical masks here, which is obviously what they were going for with.

Jacob Sullum 42:58
Yeah, you can I mean, look, you can just say that There’s a medical even though the legislature can say there’s a medical exemption, or the governor as part of his public health emergency, declaring a public health emergency can say that you can wear a mask for this purpose. There are ways around that you don’t have to. I mean, if you’re worried about the class, you don’t have to legalize class, you can you could just create an exemption for this situation where you don’t you know, you don’t need an affidavit from your doctor, you don’t have to worry about that. So yes, and you’re right now it’s going to become at least in New York, New York State, it’s mandatory right to where I’m at. So I guess they must have created the exception to their law because if you have several people wearing masks together, they would seem to be congregating which is a kind of loitering and and you can be arrested for that.

Scott Horton 43:45
So I got a message from a friend this morning says master now mandatory in Dallas County.

Jacob Sullum 43:50
Really? Yeah, I’m actually in Collin County, so I’m not sure what they’ve said. But my wife has been creating mass Using HIPAA filters and cloth for for healthcare workers at also, in order to fund the project, she’s been selling them to some people who just want to, you know, want to be able to wear them in public.

Scott Horton 44:15
But yeah, this is amazing how quickly we went from the government saying don’t wear a mask a mask will get you sick. To now you have to wear one or else you’ll get sick.

Jacob Sullum 44:55
Yeah, I mean, I mean, the the CDC is completely full of it on this because initially they were saying they had very restrictive things about if you’re a healthcare worker, it’s okay or if you have somebody who’s you know, severely ill and your houses, okay? If they can’t wear one, you should wear one, whatever. But otherwise, there’s no benefit or why they didn’t have the Surgeon General said there’s no benefit. The CDC says CDC says something like there’s no need, right. And they were confusing two things. On the one hand, they were saying which was true, there’s a shortage of medical grade mass and you should, you know, they should be prioritized when they go to the people who are you know, Doctors and nurses are working on the front lines that made sense. But they confuse that issue with the issue of whether mat master have any value. And they implied the Surgeon General certainly implied that there was no value to members of the general public to wear them. And that was wrong in two counts. First of all, there is some value, if you’re worried about catching it, it’s not you know, a clock mask is not as good as the surgical mask, which in turn is not as good as you know, and then 95 mask, but there is some pride some level of protection, even if it’s only to prevent spittle, you know, from landing on you. But the other thing about it, which they knew long ago, months ago, is that people when they’re when they have no symptoms can still transmit the virus. So you’re not just protecting yourself, you’re protecting other people because you might be carrying it and not realize it. So that and they knew that early on, and they’ve acted as if it didn’t matter. And now all of a sudden they’re like, oh, it turns out that people can be asymptomatic and still transmit the virus. Well, we already knew that, you know, we knew that months ago, but they they’re suddenly acknowledging that and saying it’s you know, it’s Good idea. And in some cases, there’s gonna be mandatory to wear a mask in public.

Scott Horton 46:03
Yeah, yeah. And you know, there was this piece the other day about how in Hong Kong, they’re saying this is the key. And this is exactly how we prevented the thing from breaking out. And in fact, they said that the only places where they continue to have outbreaks in Hong Kong are in places where it’s this one Buddhist shrine where people are taking off their masks for whatever reason it is one Buddhist shrine, and then there’s a certain ceremony or ceremonial dinner that they have where they all eat out of one pot together or something like that. Nowhere else Have there been any outbreaks and they attribute it to the fact that everybody’s wearing a mask.

Jacob Sullum 47:49
Yeah, I mean, it’s it’s risky to, you know, reach firm conclusions based on anecdotal evidence, but there are a number of countries where it was. It was, it was common for people to wear masks long before this epidemic. In China, at least in major cities, it was common, you know, Taiwan, Hong Kong, Japan. And it was, what was good about that is that there was no stigma attached to it. Whereas in the US, at least until recently, if you were a bass people like, Oh, you must be sick, I guess, yes, stay away from you, or either that or you’re a hypochondriac and you know, you’re crazy when whatever. So I think that does, you know, the US it needs to be D stigmatized, so that it’s not like, people don’t look askance at it, and it can’t hurt, you know, for sure it can’t hurt. And, and it may very well, especially if you’re a carrier, helped prevent you from passing it along to somebody else. Even if you stay six feet away, you know, there is is there estimates about how far these the virus can travel in you know, in saliva or glucose or whatever it comes out of you. through the air. And so even if you’re staying six feet, this gives an extra level of protection for other people in case you are a carrier. And then they also protect you. And it’s certainly a good idea if you’re if you’re elderly or if you have, you know, if you’re immunocompromised or have other serious underlying conditions, if you’re going to be going out in public, even with the social distancing roles is a good idea to wear one. And, and even if he have no none of those issues, just to try to protect other people, since you never really know, right? If you’re actually if you’re carrying the virus, it’s a good idea.

Scott Horton 48:36
Yep. All right. Well, listen, I’ve kept you way too long this morning. But thank you so much for coming on the show, Jacob. It’s been really great. And I love reading your stuff over there at reason.

Jacob Sullum 48:44
Oh, thank you. Thanks for having me.

Scott Horton 48:46
All right, you guys. That is Jacob Selim, senior editor over at reason magazine, go read the last 20 things he wrote. The Scott Horton show, Antiwar Radio can be heard on kpfk 90.7 FM in LA, APSradio.com antiwar.com ScottHorton.org and libertarianinstitute.org