Opinion: The expiration date on the “essential business only” doctrine has passed

by Peter Heck · Apr 4th, 2020 7:13 am

The most recent data I could find from the New York Times says that currently residents in at least 38 states, the District of Columbia, Puerto Rico, and an additional 14 other major cities not in a participating state have been placed under "stay-at-home" directives from authorities in an attempt to quell the spread of COVID-19. For those keeping track at home, that amounts to nearly 300 million people in our country who are being told not to go to school, or work, or anywhere, unless it is absolutely necessary.

There are exceptions, of course. "Essential businesses" are exempted in all of these areas. But what constitutes an "essential business?" The truth is there is no fair or reasonable way for any governing authority to make such a determination, at least not for the length of time we are already enduring.

When Hurricane Barry was bearing down on Louisiana last year, an "essential business" decree would be explicit, necessary, and understood: hospitals, maybe gas stations for those evacuating, and of course those charged with maintaining social order like police and fire. But that order is enforceable and reasonable because it is for a very short duration – a couple days preceding the storm and lifting the day after.

"Essential business" doctrine runs into all kinds of philosophical, constitutional, and even legal problems once the crisis extends past a few short days. If you're wondering why, simply take a look at this appalling visual of unemployment claims in the last two weeks:

While that is obviously unsustainable – there is no tax base to possibly provide benefits for that number as it exists now, no less what it will be in another week or two – it also reveals the pernicious flaw in our understanding of "essential."

It's easy for a well-intentioned governor to declare the local printing shop or shoe store "non-essential." After all, my life is not imperiled by being unable to get my business cards made or a new pair of kicks. Clearly those places aren't essential for my survival in the midst of a national health crisis. But the print shop and the shoe store are unquestionably essential for their owners and employees to be able to put food on their family table, purchase medicine for their sick child, tithe to their church, or pay their family's mortgage.

Once these "essential" decrees persist past a couple days of emergency, they become dictatorial and counterproductive. After all, if our economic engine grinds to a halt, feeding our essential healthcare workers, providing maintenance for our essential healthcare workers' cars, paying the bills to compensate our essential healthcare workers, all become impossible. And we find out the hard way that all those non-essential businesses were actually essential after all.

Here's the inconvenient truth that our leaders need to accept sooner rather than later: In a mixed-market economy like ours, virtually every private business is essential. Society cannot function, it cannot sustain itself, it can't maintain services, healthcare, or anything without an active private sector. Shutting it down entirely for any extensive (and by that I mean weeks) period of time is not an option.

Where does that leave us? I would suggest that our governing authorities in the various states go back to the drawing board. Stay-at-home orders are not a long-term solution. And if what we're doing now qualifies as "short-term," then stay-at-home orders are not a short-term solution either.

Mandate face-coverings, social-distancing, spend the federal money we are futilely allocating for future unemployment to mass-produce and distribute COVID-19 testing kits to states, to be passed on to hospitals and healthcare facilities. Do the same with respirators, N95 masks, and other critical personal protective equipment.

In World War 2 the United States produced 3 jeeps every 4 minutes; for every plane that was shot down in combat, the United States produced 13 to replace it; while a Japanese soldier could draw on just 2 pounds of supplies, the United States produced the equivalent of 4 tons of supplies per soldier. This was 80 years ago, so don't tell me we are incapable of this kind of wartime production now.

Our healthcare system is critical, and the logic behind our economic shutdown is that we don't want that system to be overrun. Fair enough. But gutting our economic engine will cause the system to implode from within, not to mention cause a host of other dire consequences. We need forward thinking governors and new strategies. Fast.

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