Michigan is being hit hard by COVID-19. Governor Whitmer must make decisions using incomplete and imperfect information, because there are so many things no one yet understands about this virus. The stakes are literally life and death.
And yet, scientists are reasonably confident about several aspects of the disease. 1. Infected people are often asymptomatic. 2. The virus seems to be spread primarily through particles coughed, sneezed or exhaled by an infected person, and then inhaled by others in close proximity. 3. The virus can live on hard surfaces where an unsuspecting person can infect themselves by touching the surface, then rubbing their eyes or touching their nose or mouth.
Therefore, to combat what we know about the virus, the objectives seem straightforward. 1. Assume all people are potentially contagious. 2. Contain respiration, particularly coughs and sneezes, to the extent possible with face masks, and maintain a minimum of six feet of distance between all people. 3. Disinfect hands and surfaces frequently. Might the contagion be significantly slowed if Governor Whitmer ceaselessly proclaimed and required compliance with these three goals?
Instead, Governor Whitmer has issued a cascade of executive orders, filled with often arbitrary and sometimes draconian limitations on civil society. Maybe she thinks that if she can anticipate enough possible scenarios, and write a restrictive rule about each, she’ll be able to tamp down the viral contagion in her state.
I don’t live in Michigan, so Governor Whitmer’s executive orders do not affect me personally. But they illustrate something that troubles me about laws, regulations, and executive orders at all levels of government in this country. Instead of defining objectives, and then letting the citizens of Michigan creatively determine how to meet those objectives, Whitmer has specified how the people of Michigan must behave. She is prescribing the process, instead of the outcome. In many cases, the behavior she requires—the process—doesn’t necessarily even impact the outcome she desires.
For example, motor boating is forbidden, although canoeing is allowed. There is nothing inherently more contagious about operating a motor boat than a canoe. The guy who takes out his bass boat at dawn is not endangering anyone but the bass. Commercial car washes are closed. The driver in the car as it is pulled along the car wash tracks will certainly have her windows rolled up. If she sneezes, no one is exposed. Lawn services can’t cut grass. Unless the homeowner hitches a ride on the lawn tractor, it’s unlikely the virus will pass between the landscaper and the homeowner. Stores can’t sell paint…or rototillers…or picnic tables. Customers in Walmart to buy milk are no more likely to spread the virus than customers shopping for house paint or new patio chairs. Rule after rule after rule.
I am not privy to Whitmer’s thought-process. To give her the benefit of the doubt, I can imagine that she doesn’t want crowded parties on pontoon boats. But instead of stipulating that people who don’t shelter together must maintain a separation of six feet at all times—a stipulation that would by default nix pontoon parties—she outlaws motor boating but allows canoeing. This is ironically both overkill (e.g., the solo bass fisherman) and insufficient (e.g., the nine college kids who grab three canoes for a day along the river).
When questioned why she is outlawing the sale of paint and gardening equipment at stores otherwise open for business, the governor said that she wants stores to be able to reduce their necessary sales force. Presumably, she wants fewer sales people in the stores to reduce the number of people who might pass the virus amongst themselves. Again, this is ironically both overkill (Whitmer doesn’t know the operating procedures and precautions taken in stores) and insufficient (the now-unemployed sales person might contract the virus when he heads over to the liquor store to buy enough Scotch to drown his sorrows.)
There is no possibility that Gov. Whitmer can imagine every way people can potentially pass this virus to one another, nor can she foresee all the unintended consequences, repercussions, and loopholes. Rather than issue countless complicated and convoluted executive orders, she should issue a few simple rules which will minimize people’s chances of getting sick or dying, but maximize their choices for living.
Further, every executive order that is obviously half-baked only weakens the population’s trust in her other executive orders. Pretty soon, even reasonable orders are met with skepticism if not outright derision. The more executive orders issued, the less likely that the citizens of Michigan will be aware of them all, remember them all, or understand them all.
As I wrote a few paragraphs back, I don’t live in Michigan. None of this affects me. This COVID-19 pandemic will eventually end, and the executive orders will be moot. So why am I writing about a transitory issue that doesn’t concern me personally? Because I believe the Michigan executive orders are a useful example of my much broader concern.
The rule-makers in our society—elected officials, unelected bureaucrats, school principals, pastors, factory floor supervisors, union leaders—get so caught up in the heady thrill of creating regulations that they lose sight of what they’re actually trying to accomplish. Rule-makers need to clearly articulate the objectives instead of attempting to dictate the process by which the rest of us must achieve those objectives. The result will be a less resentful population free to experiment with the myriad options for compliance. The greater public good is not inherently diminished by allowing space for individual liberty.
