Public administration may have been vigorous and efficient. But it did not come without a price.
Public administration may have been vigorous and efficient. But it did not come without a price.
W hen news hit in late 2019 that a novel coronavirus was circulating globally, existing trends in our law accelerated and sharpened. Whatever else one might say about what happened, some things stand out: As a nation, we sought answers less from ourselves, our friends, and our neighbors and more from central authorities; we looked less to elected representatives and more to agency officials; we demanded not carefully deliberated solutions but quick action; and along the way, we sometimes enacted rules that privileged the few over the many.
In the early months of 2020, executive officials at every level — national, state, and local — issued emergency edicts. Some but not all of those decrees could trace their legal authority to legislation delegating emergency powers to executive officials under specified circumstances. Initially, many of the decrees ran for short durations (say, 30 days) in conformity with existing legislation. Later, however, various executive officials asserted the authority to renew their temporary edicts repeatedly. Two and a half years after a pandemic was declared, a number of states were still enforcing emergency orders.
The federal government didn’t end its national public-health-emergency declarations until the spring of 2023 — more than three years after their initial adoption. Through it all, legislatures were rarely involved. Agencies did not always bother with providing advance notice of their new rules; nor did they always seek public comment on them. Instead, we lived in a world of intense Wilsonian administrative efficiency. Executive officials simply issued edicts. Huge numbers of them. Extraordinary ones, too.
At the federal level, our representatives in Congress initially enacted a temporary moratorium on certain tenant evictions but later chose not to extend the program. Unsatisfied, officials at the Centers for Disease Control and Prevention (CDC) declared their own moratorium — and then extended it again and again. Meanwhile, the Occupational Safety and Health Administration adopted emergency regulations of its own mandating Covid-19 vaccines for 84 million Americans, even though (once more) Congress had already considered that course and declined to pursue it.
At the state and local levels, governors and other executive officials issued decrees shuttering schools and businesses, restricting travel, and mandating the use of masks. Outdoor playgrounds were closed. Some were fenced off. Still others were encircled with thick yellow tape reminiscent of crime scenes. If the edicts were ignored, more measures were quickly taken. The town of San Clemente, Calif., dumped 37 tons of sand into the local skate park to prevent children from taking a spin. In Malibu, police arrested and handcuffed a lone paddleboarder offshore.
Keeping up with all the shifting executive edicts was no easy feat. Officials modified and revised their rules over and over again, sometimes on a weekly basis. A year into it all, the New Yorker described what it was like to run a restaurant in Manhattan. “For months,” the magazine reported, restaurants “endured a baffling crossfire of changing rules and regulations, from a gantlet of city and state agencies.” State officials banned indoor dining, then allowed it under various restrictions, then banned it again. In response to one such ban, the mayor issued a memo interpreting its terms and advising that guests were, as the magazine put it, “prohibited from going inside to use the rest room, and restaurant workers were effectively not allowed to take their staff meals anywhere but the kitchen.” After “an outcry ensued,” state officials responded that the mayor was wrong and that they hadn’t mandated anything of the sort. At another point, “there was a run on propane patio heaters” after the mayor announced an extension of the city’s outdoor-dining program. Later, though, the city issued rules clarifying that the heaters had to be kept far away from buildings, streets, and even persons — rendering them more or less useless. “The rules change by the hour,” one restaurant owner complained. “You don’t know what tomorrow is going to be.”
In some quarters, even the free exchange of ideas over these shifting measures proved unwelcome. Facebook suspended users for questioning the effectiveness of masks. Various media outlets flagged as misinformation suggestions that Covid-19 had originated in a lab, only to reverse course later when evidence for the “lab hypothesis” could no longer be easily dismissed. LinkedIn, whose self-described mission is to “connect the world’s professionals,” censored views critical of the official Covid-19 response, including a post from a then professor of medicine at Harvard Medical School linking to an interview of his with a comment: “It’s a very strange time we have entered into. . . . Basic principles of public health are thrown out the window while the working class is thrown under the bus.” Doctors, epidemiologists, Nobel Prize winners, even our representatives in Congress: It seemed that no one was exempt. Over a year into the pandemic, YouTube removed a video by a sitting senator that questioned the effectiveness of masks (and suspended his account for a week). That same site removed two videos from a Senate committee hearing on the treatment of Covid-19 — but not before one of them racked up 8 million views. In Florida, the state’s surgeon general saw Twitter block his post about potential side effects of the Covid-19 vaccine.
Can it come as any great surprise that in this environment — where so many laws were made and changed so quickly, where new mandates came more often by way of executive decree than legislative compromise, where open public debate was stifled — those with political clout, popular points of view, or wealth often fared better than others? Take Nevada’s reopening plan in 2020. It permitted breweries, bowling alleys, and other favored secular institutions to reopen at 50 percent capacity, yet limited indoor religious worship services to “no more than fifty persons” regardless of the size of the building. So casinos in Las Vegas could host thousands of patrons, but Calvary Chapel Dayton Valley was left unable to conduct even a brief service with 90 congregants, a number that amounted to about 50 percent of its capacity.
Nevada wasn’t an isolated example. For a period, California forbade all indoor worship in much of the state while allowing most indoor businesses to continue to operate with capacity restrictions. Officials justified the ban by pointing to factors that supposedly distinguished religious worship from secular activities. In particular, California stressed that religious services sometimes involve singing. Yet instead of addressing singing in church, the state flatly banned all indoor religious services. And it did so at the same time it appeared to allow indoor singing at some of the state’s most powerful companies: music, film, and television studios.
In New York, a color-coded executive decree had similar winners and losers. In “red” zones, no more than ten people could attend religious services but businesses deemed “essential” could host unlimited numbers of patrons. Just what businesses were “essential”? Liquor stores, hardware stores, bike stores, acupuncturists, and more. In “orange” zones, the disparity was even starker: Houses of worship were capped at 25 people, while even “nonessential” businesses could go about their affairs without any limits. This despite the fact that some houses of worship were designed to accommodate more than a thousand people.
Early on, one professor recalled walking down a main street in his small town of Amherst, Mass., — one that, like the streets of small towns dotted across the United States, was filled with small businesses. “What will be left of that vibrant downtown,” he wondered, “when we emerge from the coronavirus crisis?” The professor predicted the “reinforc[ement]” and “exacerbat[ion]” of “what were already the two key economic trends of our lifetime: consolidation and inequality,” with the winners being mostly “executives of large corporations, partners at private-equity firms and investors in both — in short, the very rich.” In contrast, he continued, “working-class and lower-skilled workers will experience lasting economic harm,” all of which will “further hollow out what was once known as the American Dream.”
How did those predictions pan out? By April 2021, with many restrictive policies still to unfurl, the Federal Reserve reported that roughly 200,000 more businesses had closed permanently compared with historical levels. About two-thirds were individual businesses, with barbershops, nail salons, and other personal-service providers suffering the most. The Federal Reserve reported that minority-owned businesses had been hit especially hard.
Our response to the pandemic carried with it other disparate impacts as well. Often, risks were transferred rather than eliminated. That dinner you had delivered to your home? Someone had to make it; someone had to deliver it. Social distancing? It’s a lot more manageable from the comfort of a second home in the country than a small city apartment. Online Zoom classes for your six-year-old? No doubt less of a problem for families with funds for home help, tutors, and fast internet connections. (Or better yet, skip the Zoom and go for a $25,000 in-person pod.) Mask mandates? Easier to support when you can work maskless from home in your sweatpants and don’t have to spend ten hours on a factory floor to make ends meet.
Where there were losers, there were winners. In the first year of the pandemic, Amazon, for example, “hired thousands of employees — including lawyers,” perhaps in part to navigate all the rapid rule changes. The company’s stock price soared, and Jeff Bezos’s net worth rose about $80 billion between March 2020 and October 2021. Collectively, the country’s billionaires added about $2.1 trillion to their net worth during the same period, a 70 percent increase from their collective pre-pandemic fortunes. Millionaires didn’t fare poorly, either: Credit Suisse reported that the number of “ultra-high net worth individuals” — those with assets over $50 million — had grown by 24 percent, the highest rate of increase in decades.
Covid-era restrictions distilled to their essence recent trends in our lawmaking practices, providing a glimpse of what happens when laws are made and remade with ever-increasing speed outside the legislative process. They offer a glimpse, too, into the different effects that ever-changing laws can have on “the sagacious, the enterprising, and the moneyed few” as compared with “the industrious mass of the people.” Public administration may have been vigorous and efficient. But it did not come without a price.
Neil Gorsuch is an associate justice of the U.S. Supreme Court. Janie Nitze has served as a member of the Privacy and Civil Liberties Oversight Board, as an attorney with the Office of Legal Counsel in the Department of Justice, and as a clerk for Supreme Court Justices Sonia Sotomayor and Neil Gorsuch.
This article is a slightly adapted excerpt from Over Ruled: The Human Toll of Too Much Law. Its publication date is August 6.