Last Thursday, Brian Kemp, the Republican governor of Georgia, filed a lawsuit against Keisha Lance Bottoms, the mayor of Atlanta, and the Atlanta city council. Kemp had issued a statewide order the day before, preventing local governments from mandating that people in their jurisdictions wear masks.
Kemp’s lawsuit argues that local municipalities lack the legal authority to issue orders that are more or less restrictive than those issued by the governor. On the legal question the governor has a strong case: Article V of the Georgia constitution vests him with sweeping executive powers in the case of a public-health emergency, which was declared by Kemp and ratified by the Georgia legislature earlier in the year. However, the likely legality of the move does not in the least make it a practically advisable one. It isn’t — and that’s understating things.
The lawsuit goes well beyond the enforcement of the governor’s original prohibition, asking for an injunction to prevent Mayor Bottoms from issuing any more instructions related to social distancing. Kemp defended this move on Friday, arguing that the mayor’s “decision to shutter businesses and undermine economic growth is devastating” and that her policies “threaten the lives and livelihoods of our citizens.” The governor is clearly troubled by the prospect of a heavy-handed municipal government stifling economic activity with hundreds of thousands of livelihoods on the line. But if his ends are laudably conservative, the one-size-fits-all means he’s employed to achieve them ignore certain salient and salutary principles of statecraft that ought to predominate in the minds of Republican lawmakers during this pandemic.
One of the greatest conservative insights about the nature of government to have emerged over the past 300 years is that power should be dispersed to the most local level possible. Why? Because the granular particularities of human action cannot be effectively abstracted into manipulable categories by distant technocrats. At no time in recent history has this insight been more relevant than it is now. If full-scale national or statewide lockdowns are to be avoided as we move into the latter half of the year, then local municipalities must be allowed to take more restrictive measures when flare-ups of the virus occurs in their jurisdictions. The alternative is to allow safe passage for the virus from one community to the next.
Governor Kemp defended his decision on Friday, saying he’s “confident that Georgians don’t need a mandate to do the right thing.” But according to the Atlanta Journal-Constitution, Georgia was placed on a list of “red zone” states by the White House Coronavirus Task Force, meaning that the state had more than 100 new cases per 100,000 people last week. According to the state’s department of health, Georgia reported 3,908 new cases and 28 confirmed deaths from the virus on Friday alone, and as of the same day, a tracker from Johns Hopkins University estimated that Georgia has 135,192 confirmed cases altogether. The unfortunate truth is that many people in many places in Georgia and across the country do need a mandate to do the right thing — which, in this case, is to wear masks. As James Madison wrote in Federalist No. 51, “if men were angels, no government would be necessary.” Kemp’s position seems to be that when it comes to public health, all men pretty much are angels and can be left to their own devices.
This has put him out of step with his fellow Republican governors. On the same day that he issued his executive order prohibiting any masking mandate across the state of Georgia, the governor of Alabama instituted such a mandate statewide, with Arkansas following suit on Thursday. Even in Republican-governed states without a statewide mask order, local municipalities have the authority to impose one when and where they see fit.
An important caveat must be made: We often heard from President Obama that if a legislative measure has the potential to save even one life, it is justified. This is self-evidently ridiculous. If the American people really believed this, there would be a federal speed limit of five miles per hour, and all contact sports would be banned. All governments clearly operate according to the assumption that some risk of death for some members of the population is a price that must be paid in order for society to function. The coronavirus, however, is qualitatively different from deadly car accidents or fatal incidents on the field of play.
To borrow a term from public-goods theory, COVID-19 is a “nonexcludable” threat: There is no way to allow its spread among some of the population without risking its spread through all of the population. Civil magistrates have the same responsibility for dealing with nonexcludable public evils as they have for providing nonexcludable public goods.
Kemp has framed his particular measure in economic terms, which is indicative of where this debate has arrived. The battle lines have been drawn between those who prioritize public health and those who prioritize economic survival, an obviously false choice. If the governor is at all interested in combating the spread of the virus and keeping Georgia in rude economic health at the same time, then granting municipalities a level of autonomy would be a great move, allowing for a more deft and nimble strategy for containing COVID-19 in hot spots without restricting market activity across the entire state. Kemp’s rationale also overlooks that the pandemic itself, quite apart from any given governmental response to it, has ineluctable economic consequences.
Instead, the priority should be geographic dexterity. The particular idiosyncrasies of the economic and medical conditions of particular localities have to predominate in the public-policy considerations applied to the spread of the virus. And the only way to implement this approach effectively within the constraints of federalism is to have governors mandate a minimum threshold of anti-virus measures across the state and allow municipalities to add additional measures when and where they’re necessary. Governor Kemp’s strategy thus far has been to do precisely the opposite, restricting any further action at both state and municipal levels in one fell swoop. Masking is one of the most minimally invasive measures that could possibly be required by municipalities during the pandemic, and the fact that Kemp regards even this as a step too far raises the question as to what measures he is willing to support in order to slow the spread of the virus in Georgia. Until a vaccine becomes widely available, localism is the best weapon in the conservative policy arsenal for combating the spread of the virus and Republican governors only harm themselves and their constituents by rejecting it out of hand.