On March 24 Arizona Governor Doug Ducey issued an executive order allowing CRNA’s (Certified Registered Nurse Anesthetists) to practice independently of physicians or surgeons, thus adding needed personnel to the health care work force during this public health emergency. Guidelines issued by the Centers for Medicare and Medicaid Services state that nurse anesthetists should be “supervised” by a physician, thus preventing these well-trained specialized nurses from providing anesthesia independently while freeing up physician anesthesiologists so more patients can receive care. Because these CMS guidelines are listed as “optional,” the Governor decided that Arizona will opt out. The press release from the Governor’s office stated:

“Arizona’s hospitals and medical professionals need all the help and resources they can get right now,” said Governor Ducey. “I am confident that this exemption will enhance access to high quality care, provide additional options to our rural hospitals, and is in the best interest of the citizens of Arizona.”

Arizona joined 17 other states that have already opted out of these federal guidelines.

As we are seeing so frequently as the COVID-19 pandemic unfolds, regulations on the state and federal level stand in the way of needed care, equipment, drugs, and tests. In our federal system states have power over occupational licensing and determining the scope of work in which a licensee may engage. In the matter of the licensed health care professions, this is referred to as “scope of practice.”

For decades state legislators have witnessed turf battles among the various health care professions. Nurse practitioners and physicians’ assistants, for example, seek to practice independently of physicians and to expand their scope of practice to meet their level of training. This is usually met with resistance from medical doctors who argue NPs and PAs lack the necessary training to safely provide care beyond a narrowly-defined scope. The degree to which the scope of practice of NPs and PAs has been widened varies from state to state. Broadening their scope would help address the current health care crisis. But once the crisis passes, maintaining the broadened scope would give people more health care options and access, particularly in underserved rural areas.

Similarly, state capitals witness battles between optometrists, who seek to expand their scope to include prescriptive authority and simple surgical authority, and ophthalmologists who believe such expansions are dangerous.

In most states doctorate-level clinical psychologists are not allowed to prescribe psychiatric medications to their patients, even if their graduate degree program included extensive training in psychopharmacology. Therefore, patients who need medication to assist in their psychotherapy must go through the added expense in time and money to see a physician—usually a psychiatrist—for a prescription while continuing to see their psychologist. Guam was the first U.S. territory to permit psychologists with psychopharmacology training to prescribe to their patients. Currently five states—Idaho, Illinois, Iowa, New Mexico, and Louisiana—also allow appropriately trained psychologists to prescribe.

Pharmacists are another health care profession seeing its scope gradually expanded. All 50 states currently allow pharmacists to vaccinate patients, with states differing on age limitations and types of vaccinations allowed. Rhode Island and Oregon allow pharmacy technicians to perform vaccinations. Several states now allow pharmacists to prescribe oral contraceptives, and last fall California became the first state to allow pharmacists to prescribe HIV pre-exposure prophylaxis (PreP) and post-exposure prophylaxis (PEP). Pharmacists’ scope of practice can be expanded to include a host of services, including tuberculosis skin testing and interpretation; testing and administering prescription meds for patients with influenza and other viral illnesses or common bacterial infections like strep throat; non-sedating or low-sedating antihistamines, corticosteroids, and decongestants; and extending routine non-controlled chronic medication prescriptions for an additional 30–60 days.

Modern technology lets pharmacist provide many of these services remotely using vending machines in kiosks. In some states, regulations stunt the growth of this option.

Most states now allow direct-to-consumer lab testing, saving patients the time and inconvenience of a doctor visit and promoting self-care and health awareness. Unfortunately, New York, New Jersey, Massachusetts, Rhode Island, and Maryland prohibit or restrict such activity.

On the dentistry side, dental therapists are an emerging profession analogous to physician’s assistants or nurse practitioners. These trained professionals serve underserved communities today in Alaska, Minnesota, Washington State, Arizona, Maine, Vermont and others. Unsurprisingly, lawmakers considering dental therapy legislation receive pushback from the dental profession, which claims to be concerned about patient safety.

In every one of the examples above—and the list is not exhaustive—resistance to reform usually comes from incumbent professions that would lose market share when health care consumers are given more choices. Every example also provides greater health care choice and access to patients. And the added competition that results should help drive down prices.

This unfortunate pandemic provides us with many lessons on how to streamline and improve the provision of goods and services to the public, and how regulations stand in the way. Many regulatory obstacles are being temporarily set aside on all levels of government. When this crisis passes, policymakers should not rush to put those obstacles back in place, only to wait until the next crisis to remove them again. Rather, they should use these lessons as a springboard to regulatory reform.

The prominent legal scholar Geoffrey Stone reminds us that war is a perilous time for freedom of speech. The struggle with COVID-19 seems like a war. Some have evoked executive authorities created for, and justified by, wartime exigency. Unity will be needed to defeat this “invisible enemy.” How is free speech doing in this difficult time?

Speech may be restricted by public or private authorities. Public officials have strong incentives to censor or restrict speech perhaps especially during a crisis; hence, the First Amendment limits their powers over “the freedom of speech.” Content moderators also may restrict speech. Their powers in this regard are limited largely by their own commitments to free speech and consumer choices.

Some saber rattling by local police departments aside, the government has done little to limit dissent or a diversity of views. Yesterday, the Democratic leadership proposed a stimulus bill that imposed additional disclosures and banned lobbying by companies receiving aid. This proposal has little chance of becoming law, though it bears watching.

Social media platforms have been active in both advancing and suppressing speech. Most tech companies are providing their users with expert information about COVID-19. Facebook is “actively trying to steer [users] toward authoritative sources” about the pandemic. By their own accounts they are also suppressing a lot of misinformation. Facebook has also devoted an extra million dollars to fact checking claims on its platform, though much of its emergency moderation effort has been focused on the less politically salient, though more immediately harmful threat of mental health crises fostered by isolation. Suppression can be legitimate as a recent case shows.

Shortly after the realities of the Coronavirus pandemic took hold in the United States, a young Californian technologist named Aaron Ginn wrote a paper arguing that the government’s response to the virus was overblown and costly. He posted the essay to Medium, an online platform specializing in hosting such writings. Less than a day later, the moderators at Medium removed the Ginn essay. The Ginn essay attracted extensive criticism on Twitter from Carl T. Bergstrom, a professor of biology at the University of Washington who noted that the paper was getting “too much traction here and even in traditional media.” After the removal from Medium, the Ginn paper then was uploaded to at least two sites, one of which was Zerohedge, a website that sometimes pushes conspiracy theories. The venue of republication has some effect on readers’ perception of the article, just as the article’s presence on Medium might impact Medium’s reputation. Republication by Zerohedge may be reputationally poisonous, while an archive​.org link, as I have used above, merely indicates that the content in question is no longer available at its original source. The extent to which the perceived reputational effects of hosting and deplatforming drive the politics of content moderation is underappreciated.

From a libertarian perspective, everything seems in order at this point. A person expressed a controversial opinion and published it online via a popular blogging platform. Acting within its rights, the moderators of the platform took down the essay. They may have done so to avoid being associated with controversial and perhaps harmful speech. (To his credit, Ginn himself would later affirm that Medium and other platforms “are free to associate with whom they want.”) Meanwhile, the essay had prompted speech by Bergstrom countering its claims about the pandemic. The suppression of the essay related only to Medium. Everyone had a right to download the essay when it was on Medium, or from archive​.org after its removal. Readers had no legal obligation to refrain from reposting the essay elsewhere. Ginn’s article was available, counter speech sought to expose its shortcomings, and everyone retained the responsibility to make up their own minds about Ginn’s arguments.

Does speech misinforming people about the pandemic incite a kind of violence? Speech that misinforms people thereby convincing them to spread the COVID-19 which in turn infects some initially unidentified people who die or incur health care costs. I do not think such “incitement” meets the legal test for justifying criminalizing speech. The speech in question does not intentionally bring about imminent harm. But that incitement test applies to public not private authorities. Tech companies believe they are suppressing speech to halt the spread of the virus and attendant harms, fulfilling a public responsibility. In other words, they are balancing the value of some speech against the probability of it doing harm in the general population. In current circumstances, the platform’s antipathy to hoaxes and conspiracy theories seems justified. But doesn’t advocating a return of economic life by Easter pose a certain probability of doing harm to some people? How much speech threatens harm in current circumstances and beyond?

Finally the potential costs of false positives by content moderators. Let’s imagine almost all the speech removed from the biggest platforms does threaten to harm some people. Yet inevitably content moderators will make mistakes especially if moderation by algorithm matters more in coming weeks. Imagine also that a contrarian offers an unexpected insight about the pandemic, one that could save lives. Once shared on social media, his idea might seem not just contrarian but dangerous. Moderators might then remove his post. It might then turn up almost immediately on a fringe site where the idea goes unnoticed and unconsidered. Will many people be saying in late July “if we had only known!” about the contrarian insight that would have saved lives?

Well, yes, they might be saying that later this year. But notice the contrarian idea was not suppressed. It appeared elsewhere; anyone could consider its arguments though most would stay clear of its marginal host. No system of social choice is perfect. But private content moderation beats public censorship even when the former suppresses speech that has great value. The nature of the internet means such suppression is never complete. Under a regime of piecemeal private moderation, it’s still possible that the valuable speech will be heard and heeded. Because platforms are open by default, and moderation occurs post-publication, even fringe ideas can get an initial hearing. Censorship seeks to make sure the relevant speech is neither heard nor heeded.

Our current crisis will not be good for free speech. Classical liberals may regret anyone suppressing speech even when justified. However, private moderators can legitimately suppress speech on social media. Indeed, leaders of the companies may feel they have a larger responsibility to suppress some speech during a pandemic. We should keep in mind that the suppressed speech will be removed from one platform and not the internet. It may also be stigmatized. That outcome will be better for speech than being censored and forgotten. We still might wonder how slippery the slope may be in defining “harmful speech” and how costly the moderators’ errors will turn out to be. Giving acceptable answers to those questions are also a part of the responsibility tech companies have to the larger public in this crisis and beyond.

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The Trump Administration is reportedly considering an executive order to restrict federal agencies from purchasing foreign medical supplies and equipment. That would be a mistake. As a general matter—and, especially during a pandemic—the White House should avoid measures that impede Americans’ access to affordable, quality medical supplies.

Discriminatory government procurement laws are part of the disastrous trade policy legacy of President Herbert Hoover, who signed into law, on his last full day in office, the Buy American Act in 1933. This law was intended to compel the U.S. government to procure American-made goods, in an era when federal government expenditures were expanding dramatically. Of course, restricting the supply of goods and services available for government acquisition only ensured (and still does ensure) that taxpayers got the smallest bang for their buck. It also made it harder (and still does) for U.S. suppliers to compete abroad, as foreign governments adopted similar measures. 

Although tariffs and other trade barriers were reduced considerably over the decades from their Hoover-era peaks, discrimination against foreign goods through “Buy America” and other protectionist procurement rules continued. Some international trade rules restraining these kinds of practices emerged over the years, but they were riddled with exceptions. Today, these rules are the shiny object catching the attention of an administration that considers imports a cost, trade a zero-sum game, and walls preferable to bridges.

These discriminatory procurement provisions are always a problem, but today the stakes are even higher. The public health crisis is bringing the economy to its knees. Supply shortages abound. And demand for goods and services has plummeted amid widespread social distancing.

Advocates of “Buy American” provisions and American “self-sufficiency,” more broadly, invoke a noble purpose: To decouple America from its reliance on China, which presents some vaguely defined national security threat. Reports suggest that the prospective executive order picks up on this theme, noting that the president would designate active pharmaceutical ingredients as “critical technology,” necessary for national security.

But if diversifying away from China (which, for some products, may be prudent from a national security perspective) is the objective, it is hard to justify the collateral damage that Buy American provisions would cause. Buy American means forgoing purchases from all other countries, not just China.

In a report detailing pharmaceutical drug shortages even before the pandemic, the FDA noted that only 8 percent of FDA-approved finished dosage form (FDF) manufacturing sites and 14 percent of active pharmaceutical ingredients (API) sites were located in China in 2018. Comparatively, the United States was home to 37 percent and 12 percent of the world’s FDF and API facilities, respectively. In other words, restricting U.S. government acquisitions to U.S.-manufactured pharmaceuticals would put 55 percent of the world’s FDA-approved FDF sites and 74 percent of its API facilities off limits. That outcome risks severe supply shortages and very high prices for finished pharmaceutical medications—two scourges the administration should be trying to subdue.

Meanwhile, a review of the Census Bureau’s import statistics suggests that the argument that Americans are too reliant on China for pharmaceuticals and their ingredients is greatly exaggerated. In 2019, the United States imported $132 billion of products classified in the Harmonized Tariff Schedule of the United States (HTS) as “Pharmaceuticals” (Chapter 30). Of that $132 billion, only $1.6 billion (or 1.2%) came from China. As for the chemical ingredients in pharmaceutical products—most of which are classified in Chapter 29 of the HTS under “Organic Chemicals”—U.S. imports amounted to $49.2 billion in 2019, of which China accounted for $7.7 billion, or 15.6 percent. Granted, there may be some specific products or ingredients where China accounts for a more significant share of U.S. imports, but broad Buy American restrictions would be akin to using a sledgehammer to do a scalpel’s job.

“Buy American” provisions also generate other costs. On top of the economic disruptions, protectionist procurement rules would risk further damage to already frayed U.S. relationships with other countries at a time when we should be working together to contain the pandemic and its economic costs. This could further erode America’s sullied reputation and further impede the next president’s efforts to reestablish trust and reassert U.S. global leadership.

There is still time to avoid this outcome. President Trump should note that trade is doing some great things to help fight the pandemic, that it would be wise to forego a Buy American executive order, and that he should heed the advice of other advisers and Senate Finance Committee Republicans. Too much is at stake.

The Senate has passed a $2.2 trillion aid bill in response to the coronavirus crisis. The bill is expected to be passed quickly by the House and signed by the president.

Members of Congress stuffed a vast array of subsidies in the 880-page legislation, ranging from $454 billion for big businesses to $25 million for the Kennedy Center in Washington, D.C.

Here are the main spending buckets:

• $454 billion to finance loans to businesses and the states.
• $46 billion in loans and grants to airlines and other specified businesses.
• $377 billion in loans and grants to small businesses.
• $290 billion in stimulus checks for all individuals below an income cutoff.
• $260 billion in expanded unemployment benefits.
• $175 billion in grants to state and local governments.
• $180 billion in health-related spending.
• $154 billion for education, agriculture, food stamps, housing, and other programs.
• $290 billion in business and individual tax cuts.

CRFB summarizes the costs here, congressional summaries of parts of the bill are here, and a Wall Street Journal summary is here.

Some of the spending is poorly targeted, such as the $1,200 stimulus checks mailed to every lower- and middle-income adult whether unemployed or not. Some of the spending could create harmful incentives, such as the $600 across-the-board boost in weekly unemployment benefits, which could encourage companies to lay off workers.

Some of the spending, such as for education and housing, is not properly federal and should have been left to the states. Much of the spending will create a bad precedent for expansive generosity, such as the airline and small business aid programs that are not loans but full cashflow and paycheck protection plans.

Much of the business aid comes with rules that micromanage company operations, such as worker pay and retention requirements and share buyback and dividend restrictions. Some of the business aid may include equity stakes, which is pure socialism. All these interventions make it easier for governments to take similar big-government actions during normal times.

Some businesses receive special treatment including airlines, farms, and defense contractors such as Boeing. As for the Kennedy Center, its wealthy patrons should be bailing it out, not taxpayers.

All the spending will strengthen the belief that the federal government always comes to the rescue. Many state and local governments have insufficient rainy day funds to deal with crises. Many businesses are heavily indebted and vulnerable to downturns. Many individuals also save too little for short-term contingencies. American society in general is too heavily leveraged—partly because the welfare state crowds out savings, partly because the tax code encourages consumption and borrowing, and partly because with each crisis the government enacts ever-larger bailouts.

When the COVID-19 health crisis is over and the economy recovers, policymakers should tackle the massive federal debt, which had already been on an unsustainable path. But it is hard to be optimistic when the last two major crises—9/11 and the 2008 financial crash—prompted vast new spending that was added to the national credit card with no plan to pay it back.

The Trump administration has not been shy about expressing its fondness for tariffs. It imposes them whenever it can find a reason, and resists any call to lower or remove them afterwards. But now and then there is an argument against tariffs that even it cannot withstand: In the context of a pandemic, tariffs on medical-care products are a truly awful policy.

The administration recently removed a few of the tariffs it had imposed on imports of medical products from China as part of the U.S.-China trade war. Subsequently, late last week, it put out the following notice: “In light of ongoing developments, the Office of the U.S. Trade Representative (USTR) is requesting public comments on possible further modifications to remove duties from additional medical-care products.”

With the internet, it’s very easy to file public comments, and as of the last time I checked there have been 394 of them. Some are like this:

||

| END|

| ALL THE |

| TARIFFS |

||(\__/)||

() ||

/

I approve this message, but it’s not directly on point and probably won’t influence the administration. Others are more helpful. Here is one example:

Consistent with the USTR’s request for public comments to modify or remove duties for essential medical-care products we are offering specific information on non-contact infrared thermometers. These products are medically necessary in the response to limit the outbreak of COVID-19.HTSUS Code: 9025.1990.10 Digital battery operated non-contact infrared thermometers are used for screening and treating patients for elevated body temperature. The thermometers measure body temperature, surface temperature and ambient temperature. The thermometers do not require entering the patient’s body or make contact with the skin thereby reducing the risk of cross-contamination to patients and health care workers. There is a visual/​audible alert when temperatures exceed 100.4F. They are accurate, precise and the measurements are displayed instantly. The operating procedure is simple thus reducing human errors. Our company is an importer and distributor of non-contract infrared thermometers. Duties on these products increases the cost and impacts the ability to obtain them and to sustain the critical supply chain. The duties add significant cost to the distribution chain, and to the end users such as hospitals, clinics, long term care facilities and services conducting screening to limit the COVID-19 outbreak.

And here is another:

On behalf of the companies listed at the bottom of this text, we are requesting an exemption from 301 tariffs “on all products listed in Section XI (Textile and Textile Articles) that are suitable for use in making protective masks, hospital gowns, or any item that the Secretary of Health and Human Services determines to be a priority for use during a public health emergency declared pursuant to section 319, and is certified at the time of import or reliquidation by the importer for such purpose.” We would suggest making the effective date the date the 301 tariffs were imposed so that material currently sitting in factories that are useable for serving this purpose also are covered under the exemption. This will increase liquidity at these companies as they reliquidate those items so they can afford to stock fabrics that they need now. The Men’s Apparel industry is prepared to convert its plants to produce critical needs, with the initial focus being protective masks. The industry’s hope is to be able to begin production using existing fabric supplies, and then enhance the products if possible, by finding more effective input materials. Our hope is to source as much as possible from domestic sources especially given time constraints. We are also being approached to make hospital gowns with inputs yet to be determined. This industry does not normally supply medical end users. We need the latitude to acquire fabrics to make whatever we are asked to make without concern of a large penalty duty assessment. We also don’t want to find that at the end of the current emergency we are sitting with fabrics that were also subject to high 301 duties that are not part of our normal supply inventory. We believe that domestic mills also should have access to yarns and other items they need to supply our industry and others who want to produce needed products. Therefore, we urge you to quickly adopt a broad exemption that covers textile products tied to serving the emergency needs of our country.

I sincerely hope that the Trump administration takes these and other requests from the private sector seriously and removes tariffs on the products at issue. We know the views of this administration on protectionism, trade deficits, etc., and it is not going to be eager to grant these requests. For the time being, however, the administration should put the broader trade policy debate aside and deal with the most urgent public health crisis most of us have ever seen. If there is a remotely plausible argument as to how removing tariffs on particular products could help with this crisis, the administration should take action.

Not long ago, many people decried screen time as an epidemic. But now that humanity finds itself in the midst of an actual disease pandemic, screens are proving to be a boon to the species. Progress in digital technology has perhaps never been more evident than in this moment of widespread social distancing measures.

Without today’s technology, “social distancing” would have meant isolation. From work, education and errands to leisure activities and socializing, technology is making “social distancing” possible with minimal sacrifice compared to what previous generations would have had to endure to achieve the same degree of physical separation.

It is of course true that looking at screens for prolonged periods has its downsides and that moderation is important. But the use of technology to help people stay connected and keep society running smoothly during this pandemic is turning the narrative that digital technology threatens human interaction and happiness upside-down.

Widespread reports have emerged of virtual dinner parties (warranting coverage in The Washington Post) and other virtual gatherings. It has become increasingly clear that social distancing should more aptly be called physical distancing — because those practicing it can still be social.

As bars temporarily shut down to prevent potential virus transmission, virtual cocktail parties and happy hours are taking off, meriting recent articles in The New York Times and The Wall Street Journal covering the phenomenon. Happy hour gatherings, those fixtures of many young professionals’ lives, have transformed into digital social events involving split-screen video chats between participants as they each raise a glass from their respective locations.

Virtual gatherings, enabled by digital platforms like Zoom, Google Hangouts, Facebook Live, FaceTime and others, are helping socially-distanced people across the world to engage with one another and socialize.

Activities that normally involve congregations of people, ranging from book clubs and fitness classes to religious services and group meditation, are going online.

Physical distancing also does not mean cultural deprivation. Many of the world’s museums, including the British Museum in London, the Guggenheim Museum in New York and the Louvre in Paris, offer virtual online tours. For those who prefer the presence of a tour guide, it is now even possible to take a live guided virtual tour at some museums (such as the third U.S. president Thomas Jefferson’s historic home Monticello), asking your guide questions and receiving answers in real time as you tour.

Unable to hold live concerts, musicians ranging from pop star Miley Cyrus to country singer Willie Nelson are holding virtual concerts. In a similar vein, theater-streaming services are stepping in to offer plays, ballets and Broadway performances online. New York’s Metropolitan Opera House now offers “Nightly Met Opera Streams” of past performances, set to continue for the duration of the opera house’s pandemic-induced closure.

And of course, movie streaming services can bring the magic of the cinema into your home. Technology has made it easier than ever to hold a physically-distanced “watch party” synchronized so that viewers in different locations see the same part of a movie at the same time. For those who like to discuss movies as they watch, technology also enables a running group commentary of each scene in real time.

If you miss traveling, know that Google has created an online experience whereby five U.S. National Parks can be toured virtually. Without leaving home, birdwatching enthusiasts can enjoy a live view of the birds of the Panamanian rainforest thanks to Cornell University’s lab of ornithology or watch puffins off the coast of Maine, courtesy of the private non-profit National Audubon Society. Similarly, live zoo webcams can bring the fun of observing nature’s creatures, from majestic lions to playful sea otters, into your living room.

What about errands? Shopping at home is easier than ever, and now that regulations on the production of hand sanitizer have loosened, perhaps it will even become available again soon. For those who prefer to try clothes on before they buy, many retailers now offer a free trial period for clothing purchased online and delivered to the customer.

Telehealth is being utilized on a scale never seen before, allowing patients to connect with medical professionals without leaving home. It may soon be possible to order a COVID-19 test online, with a medical professional remotely reviewing your symptoms, as some companies have already promised. (The FDA has just announced that it has moved to ban in-home tests, but hopefully it will reverse that decision given the testing shortage). The internet can also help with more mundane health concerns. For example, it is now possible to take an online eye exam to update your lens or contacts prescription, and multiple companies will ship sample frames to you to try on at home.

And, of course, online learning platforms let students learn without risking their health, while remote work similarly allows employees to keep being productive while slowing the spread of the pandemic. Even internships can be conducted remotely.

Some recent changes, like greater workplace flexibility toward remote work and improved accessibility of telehealth services, may prove enduring. “This is an inflection point, and we’re going to look back and realize this is where it all changed,” Jared Spataro, a Microsoft executive, opined in an online press briefing, referring to more organizations shifting toward openness to remote work amid the pandemic. “We’re never going to go back to working the way that we did,” he predicted. Whether he is right or not, it is clear that the pandemic has pushed humanity to use technology in innovative new ways, and that technology has made severe social distancing measures much more bearable.

This was cross-posted on Human​Progress​.org.

In recent days, there has been snark from some quarters about the current crisis somehow catching libertarians flat-footed. The argument goes that the need for a big government response disproves a political ideology that is often, though in somewhat oversimplified fashion, summarized as favoring “small government.” A better description would be a government limited in scope but sufficient to meet that scope.


Libertarianism, properly understood, encompasses certain core functions as the proper role of government. It is not the libertarian view that government should be ineffective at protecting individual rights or dysfunctionally paralyzed in the face of a massive threat to people’s lives. Government has a role to play in responding to the pandemic in much the same way it is the government’s job to prosecute murderers or defend the country from invasion.


At the same time, libertarian principles and insights can provide some guideposts for how to respond in this unprecedented global emergency.

One thing to keep in mind is that some limits on government power are even more crucial now. Emergency powers should be limited in duration and limited to directly addressing the present situation based on the facts as best we know them. Such policy responses shouldn’t be larded up with a pre-existing wish list of unrelated concerns. It is essential to preserve constitutional liberal democracy and resist excessive long-term concentration of power in the executive.


Social distancing measures should rely on voluntary compliance to the greatest degree possible, and most people have been voluntarily complying. Even when enforcement is necessary, simply breaking up gatherings without citation or prosecution is possible and preferable in many cases. A heavy-handed reliance on coercive enforcement might not only be unnecessary in some regards, it can also backfire by sparking protest non-compliance, and it might also be redundant to all the other measures already in place. With so much shut down, the only place most people have to go is to one of the essential businesses left open such as grocery stores. You don’t need to order people to stay home—except for the list of exceptions—if they already have almost nowhere to go that isn’t on that list of exceptions. For that reason, some states have so far rejected compulsory “stay at home” or “shelter in place” orders. There is no need to fuel further panic or distract police from their more important duties to worry about safe and benign activities like taking the family dog for a walk.


At the same time, many jurisdictions have moved to suspend petty arrests altogether, mostly for victimless crimes, in an effort to reduce jail populations. Also under consideration are proposals to release many of those individuals currently in jail awaiting trial for minor offenses. This is a welcome shift that should prompt us to reconsider the necessity of some of these laws, many of which have long been the target of libertarian ire.

Another insight comes from Nobel laureate, libertarian icon, and Cato Distinguished Senior Fellow, the late F. A. Hayek. In works such as The Constitution of Liberty, he wrote that good laws should be general, equal, and certain. That is a principle that is relevant even in something as far removed from the libertarian ideal as the emergency economic responses currently under consideration. Rather than targeted industry bailouts and micro-managed interventions, policy responses should be clear, simple, system-wide, and with a defined end date as soon as possible. Simple universal payments to individuals are also preferable to corporate bailouts. It is not feasible for the government to abruptly order massive shutdowns of so much economic activity without some kind of compensation, in much the same way we require just compensation for eminent domain. It is proper for the government to own the consequences of its orders and to soften the shock of this sudden disruption. But in doing so, it’s best to follow the KISS principle: Keep It Simple, Stupid.

Libertarian criticisms of bad regulations have proven especially prescient. A crucial government failure has been the FDA’s inflexible and heavy-handed bureaucracy, which has held up tests and prevented thousands of private and academic labs from quickly increasing testing capacity. For most of February, the FDA required everybody to rely solely on tests produced by the CDC and refused to grant permission to other labs. This proved to be catastrophically flawed when the first round of tests produced by the CDC didn’t work and had to be replaced. This failure is a large part of why America’s coronavirus testing response to date compares so unfavorably with South Korea’s.


Another example of a libertarian response to the pandemic has been the quick need to suspend many occupational licensing restrictions, such as by letting doctors practice interstate and upgrading the permissions of nurse practitioners and doctors’ assistants. Even mundane and trivial regulations of the sort that only libertarians would have worried about before have suddenly been cast aside. Two months ago, who would have thought it an urgent concern to suspend alcohol regulations so that restaurants can serve beverages to go for home delivery by rideshare drivers?

While we can welcome these wins, there is no doubt that we have also seen extreme impositions on personal freedom. Libertarians can find that loss especially painful. Even when these new rules are sadly necessary and justified by the facts, it is a cost we should carefully weigh as we eventually move to unwind restrictions and return to some kind of normalcy. In the name of saving lives from the immediate threat, governments around the world have suspended most international travel and heavily curtailed consumer freedoms and freedom of association. The acute loss of freedoms we’ve long taken for granted underscores how valuable they truly are. And some freedoms, like freedom of speech and the right to privacy, should remain sacrosanct and defended tenaciously even in the face of an emergency.


While much of the policy response so far has been in good faith (if often inept), the propensity for power grabs by authoritarian populists should not be discounted. Preserving the rule of law, checks and balances, and constitutional liberal democracy is essential. Elections should proceed on time and with whatever accommodations prove necessary. Legislatures and courts should be kept open for essential business, including by remote participation if necessary, and foundational constitutional structures should remain in place. We have no need of a dictator in the United States nor in other countries around the world.


And perhaps most importantly: emergency rules and powers should extend only for the duration of the emergency, and be repealed at the earliest feasible opportunity. We should be wary of the ratchet effect, where governments tend to retain powers and keep open programs long after their original justification has disappeared.


Freedom is precious, and in the grand sweep of human history it has often been fleeting and tenuous. Right now we are facing the greatest threat to a free and open society that most of us have ever witnessed, at least in the United States, if not in many other nations that have been through worse scourges of totalitarianism and major wars. So libertarians will continue as they always have, ready to defend the principles of human freedom at every turn.