Stephen Medvic

Stephen Medvic, Franklin & Marshall College

In a column in last Sunday’s LNP | LancasterOnline, I argued that liberty demands certain obligations to the common good.

During times of national crisis, such obligations are paramount. A collective threat requires a collective response and that means the temporary curtailment of some, though certainly not all, liberty.

Of course, one could agree with this general conclusion but disagree that we are currently in a time of national crisis. Similarly, one might believe that there is little risk in ignoring government mandates to stay at home and recommendations to wear masks in public. Consequently, some may conclude that such mandates and recommendations are illegitimate exercises of governmental power.

A central question, then, when considering our obligations during the COVID-19 pandemic is who gets to determine whether we’re facing an emergency and who decides what the response to the crisis will be?

Because a declaration of emergency is subject to abuse, we are right to scrutinize such declarations. To help us do so, political theorists have identified several criteria that must be met if emergency declarations are to be legitimate.

These criteria, according to Lea Ypi of the London School of Economics, include a requirement that the emergency be declared by the proper authority; a fixed time limit on the state of emergency; widespread agreement among citizens that a crisis is at hand; a determination that the crisis is potentially existential or that it threatens the conditions under which life is ordinarily lived; and proportionality of response. The COVID-19 pandemic and the state government’s response to it satisfy all of these criteria.

Have the proper authorities issued emergency declarations? Federal and state laws designate chief executives — the president and governors — as the primary decision-makers in times of crisis. Lawmakers long ago realized that, when time is of the essence, it is more efficient for a single elected person to be responsible for crisis management than for a bicameral legislature, designed for unhurried deliberation, to call the shots. You may not like the way President Donald Trump or Gov. Tom Wolf have utilized their emergency powers, but there is simply no legal debate about their authority to declare a state of emergency.

However, states of emergency cannot be allowed to continue indefinitely. For that reason, time limits on emergencies are set by federal and state law. In Pennsylvania, the law limits a state of emergency to 90 days. Emergency declarations can be renewed by the chief executive, but doing so repeatedly and without justification is likely to provoke a backlash. Furthermore, legislatures can terminate a state of emergency at any time by passing joint resolutions (subject to executive veto).

Just because chief executives can issue emergency declarations doesn’t mean they are right to do so in a given situation. For an emergency declaration to be justified, most citizens must recognize the crisis and support emergency measures to confront it. Without such recognition and support, crises become partisan and divisive.

One might have thought that our current level of partisan polarization would make broad agreement about COVID-19 nearly impossible. And, yet, in late March, a Fox News poll revealed that 75% of the public favored “a national stay-in-place order for everyone except essential workers” and only 17% opposed such action. Similarly, a Quinnipiac University poll in early April found 81% support for “a stay-at-home order on a national level.” More recently, a Quinnipiac poll found that 75% of registered voters preferred that “the country reopen slowly, even if it makes the economy worse,” while only 21% favored reopening quickly “even if it makes the spread of the coronavirus worse.”

There is, in other words, widespread agreement among the public with respect to this crisis.

Is the COVID-19 pandemic really a serious threat to our existence or to our way of life? How might we make such a determination? Unfortunately, a mountain of empirical evidence demonstrates that people are not particularly good at assessing risk. In one classic study, subjects estimated that individuals are more likely to die in a tornado than from asthma, even though the latter causes 20 times more deaths. Our cognitive biases make us very bad at calculating risk.

Experts, too, have cognitive biases and their judgments are sometimes mistaken. But when it comes to assessing risk in the field they know best, they are much better at it than is the average citizen. This is an uncomfortable reality for those of us who think the people should rule.

Nevertheless, democracy and expert opinion need not be enemies. A people with faith in science and at least a modicum of trust in expertise can seek guidance from those with more knowledge of a given subject.

Among public health experts, there is simply no doubt but that this virus is extremely dangerous. The president now expects there to be more than 100,000 COVID-19 deaths in the U.S. — and that’s assuming federal safety guidelines are closely followed.

Finally, has the response been proportional to the severity of the crisis? The answer to this question is obviously related to the previous one. Unless we have a realistic assessment of the threat, we can’t know whether the response has been appropriate.

The answer is further complicated by the fact that the effect of the response, and of a range of alternative responses, must be estimated. Have stay-at-home orders hurt the economy more than it would have been hurt if such orders hadn’t been issued? How many more lives would be lost, or saved, at varying levels of allowable public activity? If we’re honest with ourselves, few of us can answer these questions with any level of precision.

So who makes decisions about our safety, and our liberty, in a time of crisis? Our elected representatives do. In particular, chief executives have been given the legal authority to declare emergencies and wide latitude in handling crises. However, in order to make those decisions in an effective but proportional manner, they must rely on guidance from experts.

To ignore such advice, as some elected officials appear bent on doing, is to depend on little more than partisan and electoral considerations.

Stephen K. Medvic is the Honorable & Mrs. John C. Kunkel Professor of Government at Franklin & Marshall College.