Thursday, April 30, 2020

The most solid foundation for the stay-at-home orders is...

...the willingness of people to abide by them. Consensus. The consent of the governed.

Like it or not -- and, if you've been paying attention at all, you know that Gov. J.B. Pritzker does not like it -- the courts are going to get increasingly involved in the questions of what authority the Governor has to implement the many restrictions he has imposed on our day-to-day lives during this coronavirus crisis and whether the Governor has exceeded that authority.

Among the latest challenges is this Complaint, filed by another Republican State Representative, John Cabello.

The Attorney General has, as the Governor has promised he would, asked the Supreme Court to take the appeal directly in the Bailey matter and bypass the Fifth District Appellate court (you can access the Governor's Emergency Motion for Direct Appeal Under Illinois Supreme Court Rule 302(b) and/or Supervisory Order Under Illinois Supreme Court Rule 383 by clicking here).

The deeper you get into the weeds on these questions of authority, the more likely you are to find flaws.

That's not a knock against Gov. Pritzker or his legal team. They are trying to pay attention to the requirements of the law but they are understandably distracted by the demands of reality: People continue to get sick from the COVID-19 virus. Not all of them get better. And a lot of those who do get sick will need extensive hospitalization, potentially swamping our medical systems -- but for the stay-at-home orders.

Gov. Pritzker and the other authorities who talk seriously about this crisis are extraordinarily deferential to the "experts" -- the epidemiologists, the mathematicians, the doctors -- who have prescribed these life-altering stay-at-home orders.

But these men and women are not asking us to shelter in place because they know so much about the coronavirus. On the contrary, their advice is based on the fact that they know so little about it. Remember, just a couple of months ago, these same experts were absolutely convinced that you could not get the disease unless you got sneezed on by someone recently arrived from Wuhan, China.

The experts have learned an awful lot in the last eight or 10 weeks, and they've been sharing what they've learned with the rest of us right along. Sometimes what they learned, or thought they learned, on Monday was undercut by something they learned on Tuesday. Sometimes the experts don't agree with each other. None of this makes them bad experts.

The experts tell us we need to stay at home, and to maintain a "social distance" from everyone we encounter whenever we are forced to venture out, because that's the surest way to avoid picking up any infectious disease.

That makes sense.

Now... there's a balancing that has to be done here... and everywhere... whether the damage to the economy caused by the shutdown is outweighed by danger of this particular disease. Open the economy back up too soon, or too fast, and more people will die. On the other hand, as Gov. Pritzker has said himself many times, it's not a question of whether you will get the disease, it is only a matter of when. So we can't stay put forever.

And, clearly, some people are getting more antsy than others.

Not surprisingly, there is more discontent in areas where the disease has not made the same inroads as it has in other communities.

But it seems to me -- and maybe it's the bubble that I live in, but I don't think so -- that there is broad support for the continuation of the stay-at-home orders, at least for now.

And that's the best possible news for the Governor and his team.

Unless the Governor is prepared to abandon the stay-at-home orders entirely, there really is no alternative to forging and maintaining a consensus. (That's not to say there could not be other approaches -- Sweden did not do a complete lockdown, for example -- but the Governor has determined a course of action, consistent with the approach taken, at least initially, by most other American states.)

Think about it.

The only alternative to consensus acceptance is bayonets. And, while the Chinese Communists may have done it in Wuhan without hesitation, the American people would not stand for shooting people for failing to maintain a proper social distance.

That's why the Governor keeps saying that he counts on people to 'do the right thing', making only vague threats of 'consequences' for those who do not comply. That's the approach Mayor Lori Lightfoot has taken as well. (If the host of that infamous house party really is an Ambulance Commander in the Chicago Fire Department, however, I would not expect that the mayor to be as diplomatic in private as she has been in public.)

The courts will address the challenges to the Governor's orders. That's their job.

The legislature may yet convene and provide support or assistance for the orders or (and this is not likely, as a practical matter) challenges to the Governor's actions. That's their job.

But, in the meantime, the best thing the Governor and his team can do is maintain and sustain the consensus supporting the actions he's taken so far. That's not a legal defense to the various lawsuits challenging his authority, but it's his best defense.

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