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Federal health officials’ coronavirus meetings should be treated as classified, according to a White House order first reported by Reuters.

As a result, relevant health experts who lack the necessary security clearances have been kept out of meetings since January. This is a serious, idiotic act of self-sabotage on the part of the Trump administration. It will not only hamper transparency—it will compromise the efficacy of the government’s coronavirus prevention strategizing.

Four Trump officials told Reuters that dozens of coronavirus meetings have been held in a high-security room at the Department of Health and Human Services (HHS), and that “staffers without security clearances, including government experts, were excluded from the interagency meetings, which included video conference calls.”

As a result, “some very critical people who did not have security clearances” were kept out of the meetings.

The HHS coronavirus meetings are held in a Sensitive Compartmentalized Information Facility (SCIF), a type of secure room where cell phones and cameras are forbidden. SCIFSs are typically used for government officials to discuss sensitive intelligence reports or plan military operations.

The coronavirus pandemic originated in China, and thus it does carry national security implications. But secrecy should not be a higher priority than expediency. The slower the government’s response, the more widely the disease will spread throughout the U.S. Lives are quite literally on the line. Quite obviously, the Trump administration should not be putting up obstacles for federal health experts to overcome, and yet the classification order came “directly from the White House,” according to Reuters.

A National Security Council spokesperson disputed this characterization of the meetings, and HHS voiced support for greater transparency:

An NSC spokesman did not respond to questions about the meetings at HHS. But he defended the administration’s transparency across federal agencies and noted that meetings of the administration’s task force on the coronavirus all are unclassified. It was not immediately clear which meetings he was referring to.

“From day one of the response to the coronavirus, NSC has insisted on the principle of radical transparency,” said the spokesman, John Ullyot. He added that the administration “has cut red tape and set the global standard in protecting the American people under President Trump’s leadership.”

A spokeswoman for the HHS, Katherine McKeogh, issued a statement that did not address questions about classified meetings. Using language that echoed the NSC’s, the department said it that it agreed task-force meetings should be unclassified.

In that case, the administration should clarify immediately that all coronavirus meetings are unclassified, and all relevant personnel should participate in them. Nothing is made better by pointless red tape. The government’s knee-jerk impulse to conceal information from the public is a bad habit in the worst of times; at present, it’s an actual threat to public safety.

Unfortunately, as Reason‘s Ron Bailey pointed out in a recent post, federal agencies have also thwarted an infectious disease researcher’s early efforts to detect the coronavirus in Seattle. These missteps by the government are embarrassing, and among the many reasons why The Atlantic‘s absurd straw-man contention that “There Are No Libertarians in an Epidemic” is self-evidently wrong: It is precisely in times of crisis that the incompetence of large and unwieldy federal bureaucracies is most evident. (Read Reason‘s Eric Boehm for more on this subject.)

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Worrying that “countries have done too little, too late to contain the [COVID-19] epidemic,” an editorial in The Lancet suggests that “China’s vigorous public health measures,” which have included quarantines and travel restrictions affecting hundreds of millions of people, offer a model for other governments to follow. While “other nations lack China’s command-and-control political economy,” the eminent British medical journal says, “there are important lessons that presidents and prime ministers can learn from China’s experience.” The editorial also describes Italy’s now-nationwide “lockdown,” which officially requires that people remain in their homes except for work, medical care, and “necessities” such as grocery shopping, as a policy that initially “shocked European political leaders” but looks wise in retrospect.

Although it seems unlikely that the United States would copy either China’s approach or the milder but still draconian Italian model, the extent of state and federal quarantine powers is surprisingly unsettled. Unlike in China, there are statutory and constitutional limits on the use of force to curtail the spread of communicable diseases in the U.S. But exactly what those limits are remains largely untested.

When asked whether Americans might see Italian-style lockdowns in response to COVID-19, Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told Fox News Sunday host Chris Wallace: “It’s possible….You don’t want to alarm people, but given the spread we see, you know, anything is possible. And that’s the reason why we’ve got to be prepared to take whatever action is appropriate to contain and mitigate the outbreak.”

Federal quarantine authority is based on the power to regulate interstate and international commerce. The Public Health Service Act empowers the secretary of health and human services to “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

State quarantine authority is based on the general “police power” retained by the states under the 10th Amendment. In the landmark 1824 Commerce Clause case Gibbons v. Ogden, a unanimous Supreme Court “stated unequivocally that enacting quarantine laws is among the powers reserved to the states,” Cornell law professor Michael C. Dorf notes. But that quarantine power is not unlimited.

In 2014, Kaci Hickox, a nurse who had treated Ebola patients in Sierra Leone, was detained for 80 hours after arriving at Newark Liberty International Airport, then sent back to her home state of Maine under an order by New Jersey Gov. Chris Christie. Although Hickox had no Ebola symptoms and had tested negative for the virus, Maine Gov. Paul LePage ordered her to remain at her home in Fort Kent for three weeks. Hickox, who defied that order by going for a bike ride, successfully challenged LePage’s edict in state court.

Charles C. LaVerdiere, chief judge of the Maine District Courts, ruled that any potential threat posed by Hickox could be adequately addressed by “direct active monitoring” aimed at detecting the onset of symptoms should she become ill. Since Hickox “currently does not show any symptoms of Ebola and is therefore not infectious,” LaVerdiere said, forcibly isolating her at her home was not justified.

To obtain the court order it sought, the state had to present “clear and convincing evidence” that Hickox posed a “public health threat” and that a 21-day quarantine was “the least restrictive measure” to deal with it. LaVerdiere concluded that “the State has not met its burden at this time to prove by clear and convincing evidence that limiting Respondent’s movements to the degree requested is ‘necessary to protect other individuals from the dangers of infection.'”

In Washington, the first state to experience an outbreak of COVID-19, a court order enforcing a quarantine lasting longer than 10 days likewise is supposed to be based on “clear, cogent, and convincing evidence” that “quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.” But judges are required to approve shorter quarantines if there is “a reasonable basis to find that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.”

In New York City, the health commissioner is authorized to order the detention of “a case, contact or carrier, or suspected case, contact or carrier of a contagious disease” when he believes there is “clear and convincing evidence” that the individual “may pose an imminent and significant threat to the public health resulting in severe morbidity or high mortality.” After three days, the subject of a quarantine order can challenge his detention in court. To justify the continued detention of “a person or group,” the commissioner “shall prove the particularized circumstances
constituting the necessity for such detention by clear and convincing evidence.”

That “clear and convincing” standard is consistent with the due process requirements that the Supreme Court has applied to involuntary psychiatric treatment. In a 2018 SMU Law Review article, public health professor Michael Ulrich and law professor Wendy Mariner, both of Boston University, argue that the analogy, which state courts have applied in quarantine cases, is apt. “Civil commitment is a form of preventive detention, a measure generally disfavored in the United States,” they write. “Whereas criminal confinement may stem from voluntary criminal acts known to violate the law, an individual’s civil commitment may result through no fault of their own.”

The implication, Ulrich and Mariner say, is that quarantine orders, like involuntary psychiatric treatment, require “appropriate procedural due process,” including, “at a minimum,” these safeguards: “(1) the right to legal counsel; (2) adequate written notice of the grounds for commitment; (3) adequate notice of the hearing and opportunity for discovery; (4) an expeditious hearing by an independent judiciary to avoid unnecessary confinement; (5) the right to be present, confront witnesses, and present witnesses; (6) clear and convincing standard of proof; and (7) the
right to a transcript for use on appeal.” They argue that the 2017 federal regulations issued in response to the Ebola scare fell notably short of meeting this standard.

COVID-19 is more readily transmitted than Ebola but far less deadly, and both of those factors are relevant in determining whether someone poses, e.g., “a serious and imminent risk to the health and safety of others” (under Washington’s rules) or “an imminent and significant threat to the public health resulting in severe morbidity or high mortality” (under New York City’s). But Ulrich and Mariner note that the danger a potential carrier poses hinges not only on the nature of the disease but also on his likely behavior:

In its civil commitment cases, the U.S. Supreme Court has recognized that the state has no cognizable interest in confining individuals who have not committed any crime unless the individual, by reason of mental illness, is essentially unable to control his own dangerous behavior so that he is likely to harm other people….

The principles in these cases provide the doctrinal structure for laws authorizing involuntary civil commitment for individuals with a contagious disease who are likely to spread it to others. The mere presence of the contagious disease, like the mere presence of mental illness, does not by itself constitute a likelihood of harming others. In both cases, the potential harm comes from the person’s behavior. In the case of contagious disease, the behavior may be deliberate or inadvertent—contact with other people that could actually infect them. This is analogous to the harm that could be inflicted by a person who cannot control behavior because of a mental illness. It is for this reason that both elements—contagious disease and actions that place other people at risk of harm—are necessary to justify involuntary confinement. There is no reason—and no constitutional justification—for confining people who are able to control their behavior and avoid putting others at risk of being harmed. Therefore, both the characteristics of the disease and the characteristics of the individual must be examined to determine whether involuntary confinement is warranted.

In Kaci Hickox’s case, Judge LaVerdiere noted that she “has been cooperating with Direct Active Monitoring and intends to continue with her cooperation,” a fact that figured in his conclusion that home confinement was not justified. Washington’s quarantine regulations likewise favor cooperation over coercion, saying a local health officer should not order a quarantine unless he or she has made “reasonable efforts, which shall be documented, to obtain voluntary compliance” or else determined, “in his or her professional judgment,” that “seeking voluntary compliance would create a risk of serious harm.” The rules also specify that “isolation or quarantine must be by the least restrictive means necessary to prevent the spread of a communicable or possibly communicable disease to others.”

If Ulrich and Mariner are right, it is hard to see how broad confinement orders affecting large groups of potential disease carriers, the vast majority of whom are not actually infected, can be squared with due process. But as they note, the Supreme Court “has not heard a case involving the involuntary quarantine or isolation of an individual to prevent the spread of disease.”

Responding to questions from Vox‘s Brian Resnick, Lindsay Wiley, a health law professor at Washington College of Law, said “a mandatory geographic quarantine” would “probably be constitutional.” But the issue has never been squarely addressed.

“As a matter of constitutional law,” Wiley said, “the courts would typically require government officials to try voluntary measures first, as a way of proving that mandatory measures are actually necessary. Furthermore, any mandated measures would have to be narrowly tailored and backed by evidence….To pass constitutional muster, an order not just urging but requiring all people within a particular area to stay home would have to be justified by strong evidence that it was absolutely necessary and that other, less restrictive measures would be inadequate to slow the spread of disease.”

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The White House and congressional Democrats are reportedly set to pass a short-term relief package to protect some politically favored industries from incurring financial losses due to the outbreak of coronavirus.

Just don’t call it a bailout, says Treasury Secretary Steve Mnuchin.

“This is not a bailout,” Mnuchin said, according to The Washington Post‘s Jeff Stein. “This is considering providing certain things for certain industries. Airlines, hotels, cruise lines.”

So you might say it’s a bailout.

The specifics of the package have not yet been released, but Mnuchin says the two sides have been talking about a smaller aid package aimed at “businesses and workers” that may be particularly hard-hit by the expected economic downturn triggered by the disease. He compared it to the type of disaster relief bill Congress might typically pass in the wake of a natural disaster like a hurricane.

There’s no price tag on the deal, which is still being negotiated, but The Wall Street Journal reports that lawmakers expect it to be “in the billions.”

And that’s just the start.

“This package isn’t going to include everything,” Mnuchin said Wednesday. “This is round one. We’ll be back for more.”

As foolish as a bailout for the leisure industry might be, it also might be the least bad option currently on the table. Politico reports that House Speaker Nancy Pelosi has squashed Trump’s initial coronavirus stimulus proposal: a payroll tax holiday that would extend through November.

Fiscally, a payroll tax cut would be utterly irresponsible. The payroll tax funds Social Security, Medicare, and Medicaid—all of which Trump has sworn to protect from cuts. That means his proposed payroll tax cut would only add to the shortfalls already facing those entitlement programs. According to the Tax Foundation, a nonpartisan tax policy center, Trump’s proposed payroll tax holiday would reduce revenues by $900 billion between April and November.

And it would probably fail as a way to stimulate an economy hobbled by a pandemic anyway. Because the economic shock from the coronavirus is likely to be a supply-side disruption, stimulating demand—and that’s what a tax cut would try to do—would be of limited use.

“Big tax cuts—such as the proposed employee payroll tax cut—seem an expensive blunt instrument for alleviating distress,” writes Ryan Bourne, an economist with the Cato Institute, a libertarian think tank. “If social distancing is necessary, we don’t want employees out spending more money because they have more in their pockets.”

The timing is also pretty convenient if you were, say, a president running for re-election who has been pushing for a payroll tax cut since well before the coronavirus outbreak began. Tax cuts are great, of course, but they have to be accompanied by spending cuts (which this wouldn’t be) and tax policy should not be dictated by how it will affect the president’s poll numbers.

There is one worthwhile tax policy idea under consideration, however. Mnuchin said Wednesday that the administration is considering a plan to postpone the April 15 income tax deadline. Not requiring Americans to pay their taxes on time would keep an estimated $200 billion in the economy—rather than having it vacuumed up by the government—and the fact that those tax bills would still be due at a later date means this approach wouldn’t add to the deficit.

Another good idea would be for the Trump administration to lift the tariffs it has imposed on steel, aluminum, and imports from China. Politico reported Wednesday that business and industry groups are lobbying Congress and the White House to include tariff relief in any coronavirus stimulus package. Some House Democrats have already climbed aboard the effort, according to a report from Inside Trade.

On one hand, yes, this is just another example of a politician or interest group using the coronavirus as an excuse to pass policies they already wanted. On the other, lifting the tariffs would be a big economic boost that comes without any of the downsides of cutting the payroll tax.

The only problem? The Office of the U.S. Trade Representative, Politico reports, “was not receptive” to the tariff-cutting plan. Of course.

But none of this should be a surprise. The Trump administration says China is paying for the tariffs, despite all available evidence to the contrary. They said the 2017 tax cuts would pay for themselves without spending cuts, but that didn’t happen.

Now Mnuchin says a bailout isn’t a bailout. Don’t buy that either.

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The order is here; key excerpts:

WHEREAS, COVID-19, a respiratory disease that spreads easily from person to person and may result in serious illness or death, has been confirmed in 9 counties of Washington State resulting in 24 deaths, with significant community spread in King, Pierce, and Snohomish counties; and

WHEREAS, to reduce spread of COVID-19, the United States Centers for Disease Control and Prevention and the Washington State Department of Health (DOH) recommend implementation of community mitigation strategies to increase containment of the virus, including cancellation of large gatherings and social distancing in smaller gatherings; and

WHEREAS, implementation of limitations on large gatherings and use of social distancing prevent initial exposure and secondary transmission to our most vulnerable populations, and are especially important for people who are over 60 years old and those with chronic health conditions due to the higher risk of severe illness and death from COVID-19; …

NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington, as a result of the above-noted situation, and under Chapters 38.08, 38.52 and 43.06 RCW, do hereby proclaim that … to help preserve and maintain life, health, property or the public peace, I hereby prohibit the following activities in King, Pierce and Snohomish counties related to social, spiritual, and recreational gatherings, which restrictions shall remain in effect until midnight on March 31, 2020, unless extended beyond that date:

Gatherings of 250 people or more for social, spiritual and recreational activities including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.

Violators of this of this order may be subject to criminal penalties pursuant to RCW 43.06.220(5).

I’m inclined to say that this is constitutional; it does restrict various activities protected by the Free Speech Clause and the Assembly Clause, but it does so in a content-neutral way, it generally leaves open ample alternative channels for communication, and passes the intermediate scrutiny applicable to such restrictions.

What about religious events, and especially worship services? The Washington Supreme Court has read the Washington Constitution as mandating strict scrutiny of laws that substantially burden religious practice. It’s possible that the federal Free Exercise Clause would do the same, even after Employment Division v. Smith, as to restrictions that interfere with religious gatherings are treated as “hybrid situations,”  including when “the Free Exercise Clause [is implicated] in conjunction with other constitutional protections, such as freedom of speech and of the press.”

But I’m inclined that, for many religious people, the law won’t impose a substantial burden, because their religious beliefs don’t preclude worshiping in groups of 250 people or fewer (e.g., by splitting up worship services). And even if the members of the organization feel a religious obligation to gather as one group, it may well be that the restriction will pass strict scrutiny, on the grounds that it’s narrowly tailored to a compelling interest in preventing the transmission of a potentially deadly disease.

Note that Seattle and King County are also imposing certain obligations, though not total bans, on gatherings of under 250 people.

Thanks to Mark Leen for the pointer.

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