With demands to “do something” ringing in their ears, it’s tempting for mayors and county judges to respond to COVID-19 with heavy-handed measures that at least give the appearance of action.
That temptation is powerful. On Tuesday, city of Austin officials, along with Travis County and Williamson County, issued “shelter-in-place” orders, affecting millions of us.
But these shelter-in-place orders miss the mark and are fundamentally flawed. Specifically, these orders fail to credibly match the stated urgency of the current health epidemic with the government commands in these orders that limit our civil liberties and have already forced thousands to lose their jobs.
The order represents the worst kind of “balance.” It appears restrictive, but for the vast majority of Austin residents the order is, in fact, toothless. And yet the few restrictions that are enforced are permanently destroying jobs, upending the lives of those unfortunate enough to be targeted, and creating lasting damage.
Austin’s order contains so many ambiguous loopholes and exceptions that it’s already being ignored and not enforced.
For evidence, look no further than the public area below Barton Springs Pool in Austin’s Zilker Park, which this week was packed with swimmers and sunbathers after the City had already prohibited gatherings of ten or more and announced the shelter-in-place order.
Austin’s stay home order is both draconian and unenforceable—a combination that undermines not only the effectiveness of a law, but respect for laws overall. It’s also inconsistent and arbitrary, showing that too little thought and too much hurry went into them.
The problem with an unenforceable law is that it undermines the rule of law. As New York City attorney and legal scholar Howard S. Gans wrote more than a century ago, public officials seem to believe that “by some process of hypnotic suggestion” laws upon the books “will induce in the community the virtues” the officials deem they should possess.
It doesn’t work like that. It’s said that the law is a teacher; when legislators pass unenforceable laws, they merely instruct the public that some laws must be obeyed, while others need not.
Even worse are inconsistent and arbitrary laws. The list of “essential” businesses exceed common sense necessities like grocery stores, and also allow everything from big box retailers to moving companies. Austin orders everyone to stay home, but keeps public transportation running. It essentially allows everyone to decide for themselves if they are essential.
Even for those of us who clearly understand our place in the world (non-essential), the new rules are arbitrary and conflicting.
These rules make little sense to most Austinites, particularly those who are out of work because of the decree. Can they look for a job? If they’re on the wrong side of the digital divide, the answer seems to be no—at least, they mustn’t travel to do so.
These inconsistencies are the result of a rush-job.
Austin, Travis County, Williamson County and countless other locales would benefit from a reasoned rethinking of these orders.
The best evidence shows that a more narrowly tailored emergency order, which quarantines the sick and discourages mass gatherings—while encouraging the simple hygiene efforts that are proven to protect us all—works. And the economy need not grind to a halt.
Austin is a small business city of restaurants and nightclubs, of musicians and artists. It thrives on interaction. A poorly thought-out shelter-in-place order will do more harm than good, here of all places. At best, it will give public officials the satisfaction of feeling like they did something. At worst, the order will be flouted and will undermine the efforts that will actually promote public health.
Repeal the order, and issue a better, more narrowly tailored one.