Just before I was interviewed at Fox today about the ongoing challenges in closing orders, Admiral Brett Giroir was interviewed and expressed the welcomed views on the science behind pandemic orders. A hearing is scheduled tomorrow to challenge the California corporate lockdown ordered by Governor Gavin Newsom. Giroir said, however, that there is no evidence or scientific evidence to support the nature of the categorical lockdown in states like California, particularly bans on outdoor dining. The statement poses a possible conflict with Dr. Anthony Fauci. It certainly contradicts the common media narrative and the recent election. Giroir is a widely recognized public health professional who has reiterated a calm and science-based approach to the White House Coronavirus Task Force.
As I mentioned earlier, the courts have taken a closer look at these pandemic orders. The initial respect for the pandemic order tends to wane over time. The first such postponement was predictably fraught with challenges based on the violation of constitutional rights, particularly the free exercise of religion under the first amendment. Such challenges have the benefit of a higher standard of tight control.
But now there are again challenges for companies below the lower standard of the basic rational test. This is due to the contradiction of some orders with known scientific knowledge or data on transmission rates and sources. For example, during the election, the Democrats suggested that President Donald Trump was effectively trying to kill children by pushing for schools to reopen, including Washington Post columnist Jennifer Rubin. Rubin has previously shown that the factual basis of their allegations has been disregarded. However, until recently, the Democrats have maintained that schools must be closed because of the high risk of transmission, despite increasing scientific evidence to the contrary. Ads that ran prior to the election quoted Dr. Fauci, as he said that opening schools would endanger children’s lives for political reasons:
Recently, Mayor diBlasio lifted his order to close New York schools after criticizing the lack of scientific support for the policy. In fact, it contradicts the longstanding knowledge of health organizations that young children are at an exceptionally low risk of contracting or dying from Covid-19. There are also studies showing the high cost of locking in massive economic losses, through suicide spikes, to increasing medical emergencies (not Covid-19).
Fortunately, the courts tend to pay more attention to the factual basis of their own conclusions. At most, you will find one mixed scientific record supporting the categorical prohibitions.
In particular, Dr. Anthony Fauci said publicly that he supports the new California lockdowns. Giroir, however, referred to Fauci and the other members of the task force by saying that they “have not seen any data saying you need to close outdoor restaurants or outdoor bars”. He said that science does not support such categorical locks, stated
“We have to restrict indoor restaurants and bars on an upswing, but you don’t have to close schools, you don’t have to close universities, you don’t have to close your main industries. . . Science doesn’t support restricting indoor restaurants and bars. It’s time for nuances. This is not March or April. This is December. We know what science says, we know that there are effective countermeasures …
… Whatever the phrase, throwing the baby out with the bath water, I think we could do a lot more harm by overly restrictive recommendations that aren’t backed by science, ”he said. “What I’m saying is that the evidence clearly does not support restrictions on things like alfresco dining, especially spatial outdoor bars – the evidence just isn’t there. . . Shutting down completely, especially if you don’t have evidence, can be counterproductive. “
This is likely to play a key role in these increasing challenges for blanket shutdown orders. State and local officials will continue to be respected, but the science of some of these restrictions may now be questioned. The best choice for governors is still the rational base test, which is usually an easy standard to meet. In some of these cases, the “Follow the Science” call may not be clearly supportive. There now appears to be significant science-based arguments that can be used against blanket bans. When a court is faced with science on either side, the advantage still rests with states and their pandemic orders. You need to provide a rational basis for why such locks are needed. This could include reducing the travel of parents with their children to schools and the need for significant numbers of adults to support school operations, including apparently teachers. In such a balance, statements by experts like Admiral Giroir are likely to be brought and examined in court.