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Let’s face it: There is no perfectly safe way for America to come out of its lockdown. None of the expected panaceas—a treatment or a vaccine—are in sight. America is nowhere close to having South Korea’s mass testing capacity that allowed that country to “flatten its curve.” And the longer America stays hunkered down, the more the goal of herd immunity (even if it were possible) becomes elusive, because not enough people are getting exposed and developing resistance to the virus.

Yet the economic devastation from the lockdown is becoming more intolerable, with not just livelihoods but lives on the line.

So what should America do, besides praying for a summer miracle? Start thinking of the answer not as a binary choice between “lockdown” or “liberation.” We need more targeted approaches to contain high-risk activities and protect high-risk populations while giving ordinary Americans more—not less—freedom to figure out when and how they want to return to work and some semblance of normal life.

The lockdown was originally imposed because the pandemic caught America by surprise and hospitals were simply not equipped to cope with the onslaught. America already has more than 1,000,000 infected cases and over 63,000 dead.

This “achievement” has come at a hefty price. About 27 million Americans have filed for unemployment, basically wiping out all the job gains since the Great Recession. And economic output is down a stunning 30 percent. Clearly, things can’t go on this way much longer before the economic pain becomes intolerable.

Yet, notes Avik Roy, president of the Foundation for Research on Equal Opportunity (FREOPP), every major plan to phase out the lockdown relies on some combination of a vaccine, a cure, and mass testing. Given that corona is a virus, there is no guarantee that a vaccine will ever emerge—and if it does, it will probably take at least a year and a half. A treatment is more likely but is still months away. Meanwhile, America is performing fewer than 200,000 tests every day; the White House, in a much-hyped Monday announcement, promised to ramp that up to just 267,000 by the end of May. Getting to South Korea’s level will require 1,000,000 tests daily—not to mention tracing all the contacts of those who test positive and putting them in quarantine.

The Harvard Safra Center for Ethics’ bipartisan “Roadmap to Pandemic Resilience,” co-authored by Nobel laureate Paul Romer, wants five million tests per day by early June and 20 million tests per day by August, to perform repeated screening of the population to catch any secondary outbreaks. That would be terrific, but it seems like wishful thinking right now. As for herd immunity, it’s uncertain how long immunity after exposure lasts so it’s unclear whether population-wide immunity can even be achieved.

Yet Americans can’t hide forever in their homes. In fact, several more months of a blanket lockdown might mean piling an economic catastrophe on top of a health catastrophe.

So what should America do?

The first and paramount thing is to prevent health care facilities—hospitals and nursing homes—from becoming superspreaders themselves. Even in the absence of a pandemic, patients pick up 1.7 million infections in American hospitals annually and 99,000 of them die.

Jonathan Tepper, founder of Variant Perception, points out in a deeply researched article that in Wuhan, the original epicenter of the disease in China, around 41 percent of the first 138 patients diagnosed in one hospital contracted the virus in the hospital itself. Likewise, one reason why Italy’s Lombardy region might have been worse hit than neighboring Veneto is that Lombardy transported 65 percent people who tested positive into hospitals, compared to 20 percent in Veneto, exposing the virus to the entire chain of health care workers, from ambulance drivers to paramedics to doctors. A group of Lombardy doctors wrote in The New England Journal of Medicine that “hospitals might be the main COVID-19 carriers.”

It is too early to find reliable stats about coronavirus infections generated from American hospitals, but a Wall Street Journal investigation found that nursing homes in just 35 states accounted for 10,783 deaths—more than 20 percent of all U.S. fatalities. Data from five European countries shows that nursing care homes account for 42 percent to 57 percent of all coronavirus fatalities.

Meanwhile, in Canada’s largest two provinces, Ontario and Quebec, elderly patients in nursing homes make up about three quarters of all the deaths from COVID-19.

Preventing health care facilities from becoming the gasoline on the coronavirus flames has implications both for patient care and for providers. On the patients’ end, it is vital to emphasize non-hospital settings for less severe cases and to fashion coronavirus-dedicated hospitals for the more severe ones, as South Korea did nationwide and as some hospitals have come around to doing in America.

On the provider end, America must race to procure protective gear—masks, gowns, glasses—for frontline staff. Shortages compromise not only their safety but their patients’ too. Similarly, until America can build ubiquitous testing capacity, it will have to prioritize testing medical staff. It is less important to chase down asymptomatic carriers, the celebrated writer-cum-surgeon Atul Gawande points out. South Korea didn’t.

Meanwhile, hospitals also need to beef up their hygienic practices and embrace a “checklist” that Gawande has long been crusading for. This simple and powerful idea, which has resulted in a stunning drop of hospital infections when tried, would involve creating a coronavirus-appropriate protocol of hygiene—washing hands, disinfecting the patient before touching, wearing masks and gowns—and then having physicians attest that they have adhered to every item on it by check-marking each one before interacting with patients.

In addition to this focus on hospitals, any reopening plan has to beware of other superspreading venues, such as mass transit, and superspreading events, such as games, concerts, and campaigns.

Furthermore, around 78 percent of the coronavirus deaths are concentrated in those over 65. Indeed, there is a 22-fold difference in the death rate between 25-to-54-year-olds and the over-65 cohort, with children facing very few deaths. Yet blanket lockdowns treat everyone as if they are equally affected.

Given the differential impact, Roy recommends a strategy that allows young people to get back to normal life as much as is safely possible. This means reopening schools and lifting stay-at-home orders for all but the elderly or those with underlying conditions that make them more susceptible.

Of course, the young and the old are not sealed off populations. Indeed, most young people have high-risk individuals such as elderly relatives among their close circle of loved ones. So there is no denying there will be an all-around increase in risk for everyone after reopening. Yet some increase in risk might be worth taking: If the economy decays beyond a point, it’ll eat into the country’s medical capacity to fight the disease—not to mention its capacity to hand costly rescue packages to affected workers.

Whatever the downside of the lockdown, its one very great advantage is that it vastly accelerated the national learning curve on radical social distancing and other precautions. Preventative practices have become part of the national fabric; even if the lockdown is relaxed, few people will go back to their pre-coronavirus lifestyle. So it is not pollyannish to believe that this, combined with greater precautions against superspreaders, will diminish the toll from any follow-up outbreaks.

Rolling back the lockdown will also give businesses the freedom to come up with innovative adaptive strategies. Essential businesses that were allowed to remain open have found all kinds of ways to enhance consumer safety—plexiglass spit barriers at grocery store check out counters, disinfecting every cart. There is every reason to believe that “inessential” businesses will do the same when given the chance.

Coronavirus is a cruel microbe. But we will have to find more clever ways of fighting it than mass captivity.

A version of this column originally appeared in The Week.

Bonus reading: Reason Foundation just released its working paper for an evidence-based approach for easing lockdowns. It takes a comprehensive look at which approaches have worked and which haven’t.

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Frontline workers are doing the Lord’s work right now ensuring that grocery store shelves are stocked, hospital patients are cared for, and trains are running (mostly) on time. Congressional Democrats have a couple of proposals to put them out of a job.

This week, Rep. Bonnie Watson Coleman (D–N.J.) introduced the Essential Pay for Essential Workers Act, which would guarantee essential workers an extra $15 an hour on top of whatever they are currently earning.

These essential workers are “putting their lives and their families’ lives at risk with little protection and even less compensation, and they are often already the individuals with the least financial security,” said Watson Coleman in a press release. “This bill is about recognizing something we’ve always known but have never admitted—that we can’t function without these workers.”

Her bill, which has picked up three co-sponsors so far, would guarantee this wage premium to workers in a string of industries, including health care, agriculture, energy, transportation, and law enforcement.

The text of the bill has yet to be released. Coleman said on Twitter that employers would be required to pay the extra $15 an hour up front, for which they would receive a 100 percent tax credit.

The employer provides the $15 per hour cost upfront and it's treated as a 100% tax credit

— Rep. Bonnie Watson Coleman (@RepBonnie) April 30, 2020

Hazard pay for those working in environments where they might contract COVID-19 is both a popular idea among policy makers and an economic reality at many companies. Amazon has temporarily bumped pay for warehouse workers by $2 an hour, and it is offering double overtime pay in the U.S. and Canada. A number of grocery chains and state governments have followed suit with pay bumps of their own.

But not all employers have introduced increased hazard pay, and some workers say their employers’ increases are insufficient to compensate them for the added risks they face.

Cue the calls for government-provided and/or government-mandated hazard pay.

Coleman’s proposal is the most recent, and the most generous, but it’s similar in kind to other bills that have been floated by congressional Democrats.

Rep. Matt Cartwright (D–Penn.) introduced legislation last week that would require employers to pay high-risk health care workers an additional $18.50 an hour and other essential workers an additional $13 an hour. The mandated increases [right?] would be capped at $35,000 per year for health care workers and $25,000 per year for other essential workers. Employers would be responsible for paying it.

Senate Democrats have also been pushing the idea of a Heroes Fund. This would also provide essential workers with an additional $13 an hour, and it would give certain health care workers a $15,000 recruitment incentive bonus for taking a job right now. The pay bump would be capped at $25,000 a year for those earning under $200,000, and $5,000 for workers earning $200,000 or more.

Unlike either Cartwright or Coleman’s proposal, the federal government would fund this hazard pay upfront through grants to employers.

The American Action Forum (AAF), a center-right think tank, estimates that the Heroes Fund would cost between $153.9 billion and $672.8 billion, depending on the duration of the program and how broadly it defines essential workers.

Molly Kinder of the Brookings Institution, a liberal-leaning think tank, has published an analysis of various hazard pay proposals. She argues that the $2-an-hour pay bumps adopted by some corporations are too little, and that the Heroes Fund levels of hazard pay would be more appropriate.

Both AAF and Brookings point out that the Heroes Fund’s singular pay bump would be simple, and therefore easy to administer. It would still be a massively expensive program. The higher $672 billion cost estimate puts the Heroes Fund in spitting distance of what we spend on our bloated Defense Department each year. It would come in addition to the trillions in new coronavirus spending that Congress has already authorized.

And while a single, flat pay increase might be simpler to administer, it wouldn’t reflect the varying levels of risk that come with different essential jobs. Workers would, therefore, be incentivized to migrate to the least risky jobs covered by a Heroes Fund, leaving many crucial industries and positions understaffed.

On the other hand, by having the federal government pay for this hazard pay directly, it would also avoid the more serious defects contained in Coleman and Cartwright’s proposals.

Many private employers of essential workers are already coping with coronavirus-induced increases in expenses and reductions in sales. Even companies that are doing more business are often seeing profits shrink.

Amazon CEO Jeff Bezos, for instance, told investors yesterday that despite a 26 percent increase in earnings, the company’s profitability was likely to decline over the next few months. Grocery stores, which saw a similar surge in sales last month as people stockpiled goods, are bracing for a drop-off in demand.

Telling these same employers that they’ll have to find the money to pay for $13- or $15-per-hour pay increases overnight is a recipe for big layoffs, price increases, or cuts in crucial investments in safety and expanded production to meet the demands of the current crisis.

There’s a fierce academic debate about whether a minimum wage increase of $2 or $3 phased in over time reduces employment. But mandating an immediate doubling of many workers’ pay certainly would. Coleman’s offer of a 100 percent tax credit to employers for this increased hazard pay wouldn’t address the immediate cash crunch many would certainly face trying to pay these higher wages.

Things would be even worse for local governments that employ first responders, bus drivers, and police officers. The coronavirus pandemic has devastated local tax revenues, making it difficult if not impossible for many places to fund the pay increases mandated by Coleman or Cartwright’s bills. And Coleman’s tax credit would be worth nothing to local governments.

The result: higher wages for some workers, but fewer workers overall. If these workers are truly essential, that’d be a counterproductive result.

Frontline workers are doing dangerous, crucial tasks at a very stressful time. They deserve to be compensated for the increased risks that they’re taking on. But the debt we owe them doesn’t eliminate businesses’ and governments’ budget constraints, and it doesn’t purge government programs of bad incentives and unintended consequences.

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Today, the North Carolina Supreme Court handed down State v. Mylett, in which the UCLA First Amendment Clinic had filed an amicus brief on behalf of the Pennsylvania Center for the First Amendment. The court reversed the defendant’s conviction on the grounds that there wasn’t enough evidence that he conspired to intimidate a juror (congratulations on that to Rob Heroy, the defendant’s lawyer), and therefore didn’t need to reach our arguments that the juror-intimidation statute, as interpreted by the North Carolina Court of Appeals, was overbroad.

But I thought I’d pass along our amicus brief for those who are interested in such things—and of course I wanted to thank our superb pro bono local counsel, Noell Tin of Tin Fulton Walker & Owen, and my student Bruce Lee, who worked on the brief with me.

Summary of Argument

N.C. Gen. Stat. § 14-225.2 criminalizes “threatening” or “intimidating” a juror because of his or her “prior official act as a juror.” This statute is content-based on its face, because it “draws distinctions based on the message a speaker conveys” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)—here, based on whether it conveys a “threatening” or “intimidating” message. The statute is also content-based because it requires prosecutors and other law enforcement officials to “examine the content of the message that it conveyed to determine whether” a violation has occurred. McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014). The Court of Appeals thus erred in concluding that the statute merely criminalizes conduct, not speech, and in concluding that the statute is content-neutral.

Because the statute is content-based, it must be narrowly tailored to a compelling government interest. See Reed, 135 S. Ct. at 2231. The statute can satisfy this test if the statute is read as limited to “true threats,” one of the narrow categories of speech that is excluded from First Amendment protection. See, e.g., Virginia v. Black, 538 U.S. 343, 359-60 (2003).

But the Court of Appeals read the statute as going beyond just true threats, even though the dissent pointed out that such a broad reading violates the First Amendment. Indeed, the decision below upheld a conviction even though the trial court expressly refused the defense’s request to instruct the jury that “threaten” and “intimidate” was limited to true threats.

This makes it possible for convictions to rest solely on constitutionally protected speech—for instance, statements that can be seen as “intimidat[ing]” people through fear of public embarrassment or social ostracism. Under such a reading, it could be a crime for a newspaper to harshly criticize jurors’ decisions, or for a “group of people who had gathered in a public space outside a courthouse to voice their dissatisfaction with a verdict in a high profile case,” State v. Mylett, No. COA17-480, 2018 WL 6314137, at *17 (N.C. Ct. App. 2015) (McGee, dissenting). This cannot be constitutional.

This Court should therefore overturn the Court of Appeals’ decision, and conclude that § 14-225.2 must be interpreted as limited to “true threats.”

Argument

[I.] Section 14-225.2 is a content-based speech restriction

Section 14-225.2 criminalizes any speech that is “threatening” or “intimidating” to a juror and that is said in response to that juror’s official act. The statute is content-based for two related reasons: First, it restricts speech based on the “message a speaker conveys,” Reed, 135 S. Ct. at 2227—here, a message  that is “threatening” or “intimidating.” Second, it requires prosecutors and other “‘enforcement authorities’ to ‘examine the content of the message that is being conveyed to determine whether’ a violation has occurred,” McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) (citation omitted), again to see if the content is “threatening” or “intimidating.”

This would be true even if § 14-225.2 were read as limited to criminalizing true threats (a reading the court below did not adopt). Laws that permissibly restrict true threats are nonetheless content-based—in Virginia v. Black, the Court listed bans on “true threats” as “restrictions upon the content of speech,” albeit ones that are allowed under the First Amendment. 538 U.S. 343, 358-59 (2003) (internal quotation marks omitted). Likewise, in Watts v. United States, the Court noted that a statute making it illegal to threaten to kill or injure the President of the United States criminalized “a form of pure speech.” 394 U.S. 705, 707 (1969) (per curiam). The same is true of this statute.

The Court of Appeals thus erred in concluding that the statute is content-neutral, and that it restricts conduct, not speech. See State v. Mylett, No. COA17-480, 2018 WL 6314137, at *3-5 (N.C. Ct. App. 2015). Though the statute does not mention speech expressly, and could in theory be violated by nonspeech conduct, here the statute covered Mylett’s speech because of the supposedly threatening or intimidating message that the speech communicated. Even laws “directed at conduct” are content-based speech restrictions when “the conduct triggering coverage under the statute consists of communicating a message.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).

Thus, in Holder, the Court held that a statute prohibiting “material support” to foreign terrorist organizations was a content-based speech restriction, even though “material support” “most often does not take the form of speech at all.” Id. at 26-28. Likewise, § 14-225.2 is not rendered content-neutral just because the statute happens to also criminalize threatening or intimidating conduct as well as threatening or intimidating speech.

Similarly, in Cohen v. California, the Court struck down the conviction of a man who was convicted under a statute prohibiting maliciously and willfully disturbing the peace or quiet of any neighborhood or person by “offensive conduct.” 403 U.S. 15, 16 (1971). Cohen was convicted for wearing a jacket bearing a vulgar and offensive anti-draft message; and because “[t]he only ‘conduct’ which the State sought to punish [was] the fact of communication,” the Court treated the law as a content-based restriction on speech. Id. at 18; Holder, 561 U.S. at 27-28; United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000) (giving Cohen as an example of a case involving “a content-based speech restriction”); Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972) (same); see also Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1284 (2005). The same analysis applies to § 14-225.2.

[II.] Section 14-225.2 would not be narrowly tailored to a compelling government interest unless it is read as limited to “true threats”

Because the statute is a content-based speech restriction, it is unconstitutional unless it is narrowly tailored to a compelling government interest. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015); State v. Bishop, 368 N.C. 869, 877 (2016). The State does have a compelling interest in “ensuring that jurors remain free from threats and intimidation directly resulting from their duty to serve.” State v. Mylett, No. COA17-480, 2018 WL 6314137, at *5 (N.C. Ct. App. 2015). And if the law were read as limited to constitutionally unprotected true threats, it would be narrowly tailored. “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence,” Virginia v. Black, 538 U.S. 343, 359 (2003), and intimidation “in the constitutionally proscribable sense of the word is a type of a true threat.” Id. at 360.

But laws criminalizing threatening speech “must be interpreted with the commands of the First Amendment clearly in mind” in order to distinguish true threats “from constitutionally protected speech.” Watts, 394 U.S. at 707. In this case, though, the Court of Appeals rejected the dissent’s call to read the statute as limited to true threats. State v. Mylett, No. COA17-480, 2018 WL 6314137, at *19 (N.C. Ct. App. 2015) (McGee, C.J., dissenting). The law as read by the court below thus covers a broad range of speech that might be loosely seen as “intimidating” rather than threatening, or might be seen as threatening just embarrassment or social ostracism rather than criminal conduct.

Other courts have recognized the importance of following Watts and limiting threat statutes to “true threats.” Thus, in State v. Johnston, the Washington Supreme Court held that a statute banning “threaten[ing] to bomb or otherwise injure any public or private school building” could only apply to true threats. 156 Wash. 2d 355, 360 (2006). Under any looser construction, the court reasoned, the statute would be rendered “unconstitutionally overbroad under the First Amendment.” Id. at 363. And because the jury was not instructed using the true threats standard, the court reversed the conviction. Id. at 366.

Similarly, in State v. Perkins, the Supreme Court of Wisconsin overturned a conviction under a statute criminalizing threats against judges because the jury instructions failed to distinguish between true threats and “hyperbole, jest, innocuous talk, expressions of political view, or other similarly protected speech.” 243 Wis. 2d 141, 165 (2001). To be constitutional, the jury instructions needed to “contain a clear definition of a threat based on the true threat standard.” Id. at 166. Likewise, Mylett’s conviction should be reversed and the case retried with the jury being given such a “clear definition of a threat.”

[III.] If read as the court of appeals read it, the statute would be facially overbroad and thus unconstitutional

The Court of Appeals’ interpretation also renders the statute invalid on its face. Under the First Amendment, “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.'” United States v. Stevens, 559 U.S. 460, 473 (2010) (citation omitted). Here, if the statute were not read as limited to true threats, it would indeed have a substantial number of unconstitutional applications.

Speech could be said to be “intimidating” or “threatening,” for instance, just because it makes people fear public embarrassment or social ostracism. Under the Court of Appeals’ reading of the statute, then, a newspaper columnist could be prosecuted for naming jurors and condemning their recent verdict in a way that some jurors saw as “intimidating,” even if the op-ed made no constitutionally unprotected true threats. Yet a conviction on this basis would be unconstitutional: “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982).

Likewise, the Court of Appeals’ loose reading of “threatening” and “intimidating” could apply to angry denunciations of a jury verdict (criminal or civil) in a political candidate’s speech, or on a citizen’s Facebook page, if the speakers have reason to think that the denunciations might be forwarded to some jurors. And, as the Court of Appeals dissent noted, the statute could permit the prosecution of citizens who had lawfully gathered “outside a courthouse to voice their dissatisfaction with a verdict in a high profile case,” State v. Mylett, No. COA17-480, 2018 WL 6314137, at *17 (N.C. Ct. App. 2015) (McGee, dissenting), even when they do not make any true threats—a prosecutor could argue that the mere presence of an angry and passionate crowd would intimidate a juror leaving the courthouse.

The way to avoid such unconstitutional facial overbreadth is to do what the dissenting judge below suggested, and what the Washington and Wisconsin Supreme Court decisions cited above did: read the statute as limited to “true threats,” and as requiring that the jury be instructed accordingly.

Conclusion

Section 14-225.2 restricts speech and not just conduct, and restricts it based on its content. That is permissible if the statute is read as limited to “true threats,” a constitutionally unprotected category of speech. But the jury was not instructed that it had to find a true threat, and the Court of Appeals rejected the dissenting judge’s call to read the statute as limited to true threats. The Court of Appeals decision should therefore be reversed.

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A little more than two weeks ago, President Donald Trump earned broad condemnation by declaring he has the “total” authority to determine when states reopen their economies. In fact, precisely the opposite is true: The states, not the president, get to make those calls. And that’s how it should be. 

Yet concerns about Trump’s assertion of unlimited executive control have sometimes been paired with an opposing concern: that there is not enough centralization, that the federal government is refusing to take charge, that Trump should step up and do more. As the White House waffled on closure guidelines in March, former Maryland Gov. Martin O’Malley called the federal response a “Darwinian approach to federalism.” New York Gov. Andrew Cuomo has complained that the president “has to put forth a model.” Critics have pointed to more centralized measures in other countries and wondered why America can’t do the same. The state of Georgia has come in for criticism for moving faster to reopen than other states. Anthony Fauci, the point person for the federal response to the pandemic, said this week that although state governors, mayors, and other local officials know their own areas best, “you want to give them a little wiggle room”—but added, “my recommendation is, you know, don’t wiggle too much.” 

But states are making their own decisions. A handful are reopening segments of their economies, with the details varying from state to state, and others are preparing to do so in the coming weeks. The result is what The New York Times calls a “patchwork” approach, in which different states make different choices about how to proceed. That’s good. A patchwork approach is almost certainly what we need. 

The outbreak has produced a reminder of federalism’s essential value: In a country as large as the United States, different localities are going to have different needs. And we may all benefit from seeing the results of a variety of approaches to balancing economic and public health goals. 

Many of those differences are medical. In terms of infections and deaths, the difference between New York City and nearly everywhere else is stark. Even among dense, coastal blue states, there are large differences in outcomes. By the middle of April, New York had 14 times as many deaths as California. That disparity probably has something to do with when social distancing began in each place, but it also reflects New York City’s unique structural attributes. It is not just highly populated but dense, and it relies on public transit more than any other U.S. city. 

I say probably, because one of the problems facing policy makers right now is that there’s still much we don’t know about the virus, how it spreads, and how it eventually kills. There are ongoing questions about how the virus is passed from person to person, with some speculation that it might be exacerbated by air conditioning. The effect of temperature on the virus continues to be debated as well. Even the list of symptoms seems to be growing. (Have you heard of “COVID toe“?) In the face of such persistent uncertainty about the basic mechanisms for transmission and infection, we’re best off with a multiplicity of responses, one that assumes there’s no single right answer, or at least no obvious one, because too many essential facts remain unknown.

And then there are political considerations: Even beyond the unfortunate way that the pandemic has been subsumed into the left-right culture wars, there are meaningful differences in what different parts of the country want, and will accept, in terms of economic restrictions. More rural, less populous states are likely to have less tolerance for extended lockdowns. (Indeed, a few states never imposed stay-at-home orders at all.) Denser urban areas may be willing to accept more control. 

State leaders might gripe about the lack of direction from the White House, but there are political opportunities for them as well. Several states have formed explicit compacts, essentially working groups to coordinate their own responses. And several governors, including the Ohio Republican Mike DeWine and the New York Democrat Andrew Cuomo, have risen in popularity and profile, in part by bucking Trump. 

It’s true, of course, that the national response under Trump has often been lacking: The president has failed to set priorities within his own administration, and he has failed to deliver a clear and consistent message to the nation about the response and what to expect. The Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention made catastrophic early decisions, and at times federal authorities have even blocked state-level efforts, such as when the FDA initially refused to expand a cap on facemask decontamination in Ohio. 

These federal failures—of leadership, of planning, of execution, of communication—are another reason to be glad that the most important locus of control is at the state level. A single point of control is also a single point of failure. The federalist approach means the country is not completely hamstrung by bumbling federal bureaucracy and a hapless president.

The varying responses should also provide something we desperately need: information. In particular, information about what happens when differing levels of economic restriction are applied. 

“It is one of the happy incidents of the federal system,” Justice Louis D. Brandeis famously wrote in 1932, “that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The same applies today, perhaps more than ever.

The information from these state-based experiments will necessarily be imperfect and subject to broad interpretation, because each state is different. But it will give us tools to keep improving our ability to make better, smarter, more tailored decisions. That’s decisions—plural, not singular. Those sorts of decisions are what federalism enables, and arguably more than anything else, they are what we need right now. 

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If there was any lingering hope of President Donald Trump making good on his promise to “quickly” balance the federal budget, COVID-19 has obliterated it once and for all. Pandemic relief spending has pushed 2020’s federal budget deficit north of $3.5 trillion while the economy is forecast to shrink by around 6 percent this year. As borrowing increases and economic growth is erased, publicly held debt is projected to exceed GDP for the first time since World War II.

These numbers are daunting, but the magnitude of the debt we’re taking on to grapple with the pandemic’s economic effects cannot be an excuse for excess. To all the talk of responsibilities COVID-19 has occasioned, add one more: Not leaving future generations with a balance higher than must be. As federal revenues decline, no expenditure should escape scrutiny, least of all the single biggest slice of the discretionary pie: Pentagon spending.

With a foreign policy pivot toward restraint and diplomacy, we can spend less—far less—on the military while strengthening U.S. security and peace. Here are five ways to start.

Reassess priorities. Effective foreign policy reform requires Washington to recognize its resources are limited and their use must be better prioritized. The purpose of U.S. defense spending is U.S. defense, not policing the world, meddling in other nations’ internal politics, or attempting to manage the balance of power in regions on the other side of the planet. The interventionist, military-first approach of the last two decades was always dangerous, expensive, and inhumane. It is clearer now than ever it is a mistake we cannot afford. Trump reportedly realizes this concerning Afghanistan, but the lesson must be applied more broadly.

End wars. The single most important way to reduce Pentagon spending and bolster U.S. security is to stop fighting a litany of counterproductive wars with no plausible path to anything like victory and an unacceptably high cost in blood and treasure. Get out of Iraq, Afghanistan, Syria, Yemen, Libya, Somalia, and smaller conflicts around the Middle East and North Africa. Don’t start a new war with Iran. Indeed, stop using military intervention as the primary option in U.S. foreign policy and rebuild American foreign affairs around patient, pragmatic diplomacy instead.

Share burdens. Trump has made a point of complaining about NATO allies free-riding on U.S. security, and the pandemic’s downward pressure on defense spending is an opportunity to put words into action. We should wind down U.S. influence and activity in NATO; bring U.S. troops home from permanent bases in Europe; and end U.S. involvement in Eastern European conflicts with Russia, which present an enormous risk of escalation into great power conflict.

Reduce footprint. In addition to reducing U.S. military presence in Europe, Washington should dramatically scale down our foreign military bases elsewhere around the world. This includes conducting a new round of Base Realignment and Closure (BRAC), which shutters unused facilities and others the Pentagon has already determined it does not need. But it should also include a bigger strategic move away from the assumption that it benefits the United States to have around 800 overseas bases in 70 nations. This global military sprawl is abnormal and unnecessary. It exposes us to needless risk and hikes the Pentagon’s annual baseline far too high.

Cut waste. To call for cutting Pentagon waste is a fiscal hawk cliche because the Department of Defense has a history of unreliable accounting and indefensible expenditures, perhaps no worse than average in Washington, but certainly on a larger scale. Better oversight will lower spending, and less spending will make good oversight more feasible. This is less important than strategic reform and cannot be its substitute, but it is probably also less controversial.

Writing at Foreign Affairs this month, Massachusetts Institute of Technology’s Barry R. Posen mulls the possibility of a “pax epidemica,” that widespread illness might curtail global military conflict. Whether that theory proves correct, the coronavirus pandemic should certainly occasion more prudence at the Pentagon in strategy and spending alike.

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