U.S. Semi-Shutdown Is Mostly Voluntary, and Uniquely American

(Bloomberg Opinion) -- As more U.S. states roll out stay-at-home orders to combat the spread of coronavirus, it’s now possible to identify an emerging American model of such restrictions. The approach is notably less strict than Covid-19 measures adopted in other affected countries, not only autocratic China, but even democratic Italy. And although the model is sufficiently restrictive that it will have massive effects on the economy, it does not come close to a complete shutdown of economic activity.

The emerging American model has several distinctive elements. The first is that, while its contours are being specified in emergency orders issued first by local governments and now by state governments, it isn’t particularly coercive. Indeed, at least in this first iteration, the American model depends mostly on voluntary compliance.

To be sure, governors are issuing what they are calling “orders,” not mere recommendations. Some governors, like New York’s Andrew Cuomo, have made a point of saying that the orders are meant to be taken seriously, and hinted that police could issue fines to violators.

Yet even if police enforcement is mentioned, there is little practical possibility of systematically implementing it. There just aren’t enough law enforcement officers. The legal basis for such enforcements would be shaky given the language of the orders thus far drafted. Above all, the orders allow for such a large range of exceptions for people to move around that even the most efficient police force couldn’t figure out whether people on the move fit into exceptions or not. For better or worse, the American model is going to operate for the foreseeable future as an honor system.

The exceptions are also noteworthy and important. It’s not only that the American orders allow people to shop for food and medication. They also allow people to go out to get fresh air and exercise.

Whether this exception or others are good ideas as a matter of public health isn’t the point — although leading epidemiologists like Harvard’s Marc Lipsitch have endorsed them. Rather, what’s significant is that the option of leaving the house discretionarily at any time to move around guarantees that Americans aren’t confined to quarters, no matter how trapped they might feel.

As the weather warms up in northern U.S. climates, this get out of the house option is likely to be taken by more and more people. It might create problems if people walk or run or sit in urban parks too close to one another — something that may already be happening in urban centers where green space is limited. Yet it fundamentally underscores the reality that there is no lockdown going on.

Then there are the many exempt employment sectors. In a uniquely weird American phenomenon, those are increasingly being specified by state governors on the basis of the federal list of essential sectors promulgated by the Cybersecurity and Infrastructure Security Agency (CISA), which is under the jurisdiction of the federal Department of Homeland Security. (Thus, for example, California’s order pointed to the CISA list, and the more recent Massachusetts order also cites the CISA list, although it adds to it.)

These sectors stretch pretty far into to the economy, as I noted when the first order came out. They include not only food supply chains and medical workers but also such sectors as “financial services.” The definitions offered by the CISA list are pretty vague and general. There are enormous numbers of potentially uncertain edge cases around the margins. This means it will mostly be up to employers and employees to determine whether their functions are essential or not. Again, self-regulation will likely be more important here than government regulation. And it’s not as though the state orders require everyone working in one of these sectors to carry around identification proving they work in one of these sectors and are therefore permitted to go to work.

Many retail businesses will be closed by these orders, with predictable and predictably devastating economic consequences. Yet it’s also true that big box stores will probably remain open, since they typically also sell food or other daily necessities. In a world where Walmart, Target, Costco, and even Home Depot remain open, as do convenience stores and pharmacies and supermarkets, a great deal of economic activity can still take place. And of course the online sector of the economy will continue to function, even if delivery times will slow down radically as a result of increased demand. Indeed, there will presumably be a large increase in delivery — another sector exempted from restrictions as part of transportation.

The upshot is that, for the foreseeable future at least, the American model of quasi-voluntary stay-at-home with lots of exceptions is going to be an experiment. It remains to be seen whether it will successfully flatten the epidemiological curve. Regardless, it is highly noteworthy that its relatively cautious measures rely so much on public willingness to cooperate — and that the model is aimed to keep at least some of the economy going in the midst of crisis.

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2020 Bloomberg L.P.