The Pandemic: It Isn’t Over Until You Have Been Compensated for Your Losses

This column is being published on June 30 – the day that Gov. Kate Brown (D-OR) has declared the date by which Oregon is to open post-COVID 19 despite her failure to achieve the seventy percent goal for at least one shot (inoculation) for eligible adults. (According to the official page Ms. Brown was still short about 19,000 adults as of the close of business on Monday, June 28 and given that the number of new inoculation has declined over the last several weeks it is still possible but not probable that Oregon will reach the seventy percent mark by the end of business on June 30.

There are two things wrong about that first paragraph. First, Ms. Brown’s count is using the wrong metric. The metric should be the number of eligible adults who have been immunized either by inoculation or by having incurred the coronavirus and recovered. And even with just counting those inoculated Ms. Brown failed to consider the significant number of people who received their inoculation in another state where they reside for the winter months or because the delay in the delivery of the vaccine by Ms. Brown’s administration drove people to seek assistance elsewhere. In any case, as I have noted before, Oregon probably achieved the seventy percent goal weeks ago and yet had to continue to suffer the restrictive measure imposed by Ms. Brown due to the ineptitude of her administration.

The second thing wrong is that Ms. Brown has absolutely no intention of “opening” the state. She extended her emergency powers until the end of 2021 and she intends to continue using them. The best that can be said is that the facemask mandate will expire for many – but not all – and the restrictions on occupancy levels for most businesses (including restaurants and bars) will likewise expire.  So with regard to facemasks, children will still be required to wear them in the classrooms – presumably that will include indoor sports – and practice safe distancing using the Plexiglas cages introduced in most public school classrooms. (Nothing changes in the public schools without the teachers unions’ blessings.) Public transportation (when it runs) will still require facemasks. There are also a variety of agencies within Ms. Brown’s administration that have yet to be heard from regarding their requirements – they include healthcare workers, barbers and beauticians, massage therapists and the list goes on. If you and/or your children are still subject to restrictions by the government then the state has not reopened.

But even if all of those restrictions are lifted, this isn’t over. People have lost jobs, businesses have been destroyed, property rights have been violated, and people have sustained injuries both physical and emotional. One of the fundamental elements of the United States Constitution is found in Amendment V of the Bill of Rights:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis supplied)

There are two elements here: due process and just compensation. There is no question that the government has a broader latitude of action in an emergency but while the pandemic may have dragged on for eighteen months, the emergency did not. Ms. Brown continues to stress that she was just “following the science” but she wasn’t. Early on the science demonstrated that while the coronavirus could be deadly, age and intervening medical conditions were a significant key to its morbidity. However, despite the science no effort was made to distinguish between those for whom the virus might induce sickness and whom the virus might kill. Such a distinction would have had a significant impact on the closing of businesses and the furloughing of workers. Similarly, early on the science demonstrated that the virus was not easily transmitted via hard or smooth surfaces, and yet outdoor activities such as golf were restricted by removing ballwashers, banning the touching of pins (flags), forcing filling of cups to prevent balls from touching the bottom of the holes, etc.

The science, if anybody would have asked, would have indicated that there was no difference between government offices serving the public and private retail outlets doing the same and yet public offices were closed delaying issuance of automobile registrations and titles (up to nine months) as well as other licensing, permits, approvals and other “retail” functions when the same social distancing, facemasks and Plexiglas shields required in retail stores would have provided the same protections to customers and workers alike. (One is left to speculate that it was the public employee unions and not science that caused the discrimination between government and private retail establishments.)

The overwhelming case law on the interference of government in basic rights requires that the government act in the least intrusive manner and yet Ms. Brown’s administration closed churches while leaving open businesses that provided lottery tickets. The point has often been made in the past twelve months that constitutional rights are not suspended during a pandemic and yet they have been and they have continued to be even when the science demonstrated that the government actions are excessive.

Those who have lost jobs, those who have had their businesses destroyed or their property rights violated, and those who have sustained injuries both physical and emotional are entitled to be compensated. There are lawyers for that but a good government, one that cares about the people they have injured would setup a process for providing a remedy for these intrusions without having to pay lawyers, clog the courts and suffer the indignities of varied outcomes.

The pandemic won’t be over until people are free and their losses and injuries are compensated. Quite frankly I don’t care whether the compensation comes from state governments for overreaching or from foreign governments due to either creating the virus or allowing its escape.