Coronavirus Lockdown, Day 13.

We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!
Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats’ feet over broken glass
In our dry cellar

It’s business as usual for me and mine. My wife are both work from home, so I have little unique to complain about. Well, except for the kids – schools are closed for the immediate future. I don’t mind them being home; we live in an area so safe that even the modern mother – harried by an unceasing panopticon of doom – can feel comfortable allowing them to go out and play. My wife only asks me occasionally for reassurance they’re okay out playing in our slice of suburban ease.

My wife has her law degree and handles insurance claims – bad ones – for a major carrier. It’s not her passion, but we met when she handled claims for an insurance company of which I was an officer and founding member. Given how much fraud she sees in the New York labor law book she handles, I can see why it drags her down. She thinks it’s all non-essential to the human experience. By contrast, I find insurance fascinating – the concept, anyway, not so much the regulation. I also think insurance is essential to complex markets – and complex systems, more generally.

Most human beings crave certainty; it makes it easier to arrange our lives when we can make appointments into the future and know that the people on the other end will keep them. Indeed, you could understand the law as an evolutionary mechanism to help instill certainty in our lives: These are the rules by which everyone must abide. Break them and consequences follow. Contract law tells us what promises are legally enforceable and which ones are just…pretty words. Libel and slander tells us which words may not be yelled aloud if they’ll harm another person’s standing in their community. Trademark laws tell us which words (and goods) may not be expropriated and passed off as one’s own, thereby stealing another person’s business goodwill. And on and on.

Insurance is an attempt to pool the risk – and disburse the costs – of events with some quantifiable probability between 0 and 1 with an undesirable harm. Life insurance is eventually going to pay off as a risk-mitigation decision… for everyone who has it at the moment they shuffle from this mortal coil. It’s underlying premises, however, change over time: when you’re young and broke, you likely don’t need more than necessary to cover your funeral costs; when you’re in peak earnings potential and married with kids (and financial obligations), it ideally exists to replace the lost income stream for your spouse; when you’re older, and death gets closer, the premiums go up and the amounts may vary depending upon how much you already have saved. These are simple examples and market-distorting events can change them. For example, student loans being non-dischargeable in bankruptcy (a government policy, I note) has led to a market for parents buying large life insurance policies for their college age kids. It’s terrible to contemplate, but there are enough parents who have co-signed for student loans that if their son or daughter gets killed in a DUI, the resultant crush of student loans would costs mom and dad the house. It would be a financial burden from which they could not recover and, for some, the cost of insurance would be small enough to be a worthwhile consideration in order to avoid financial ruin on top of family tragedy.

Shape without form, shade without colour,
Paralysed force, gesture without motion;

You get down the rabbit hole of regulation and yeah, I guess it is kinda pointless. In New York construction law cases, the legislature has essentially made builders 100% liable for fall injuries of whatever kind: from Miguel the illegal immigrant with the fake SSN on his fourth fall from a ladder – to – someone dropped a screwdriver from the 17th floor fell and it hit a guy on the 8th floor, and a whole lot of crazier shit in between. My lovely bride describes it as “essentially strict liability” and she uses those terms in the way lawyers do, as she is one herself. Her company no longer writes NY policies, but she’s still cleaning out the backlog of cases; years worth, so there’s still work to do, even while the economy is on pause. Thank God.

We’re a family of two lawyers, but where would we be (?) if her company said tomorrow: “Sorry. We think we’ll rehire you, but coronavirus pause and all that.

Essential. Non-essential. Just like that – a snap of the fingers and stroke of the pen – and you’re out of work.

Those who have crossed
With direct eyes, to death’s other Kingdom
Remember us-if at all-not as lost
Violent souls, but only
As the hollow men
The stuffed men.

When governors and Media blather on about who will be allowed to work during these “shutdowns” and “quarantine orders” – who are deemed essential and non-essential I always hear a voice querying: “Essential to what? Decreed by whom?” Every man and woman who is getting paid to perform some task in the American economy is essential to someone, be it themselves or a family member, a relative, a close friend. Every man is a piece of the continent, A part of the main.

I find it humorous when the statists tell us how we are essential cogs in the machinery of society when it’s for the purpose of driving socialist/statist solutions. Oh, you think you’re an individual with agency and sovereignty? Not according to Wickard v. Filburn, Citizen!

Whether the subject of the regulation in question was ‘production’, ‘consumption’, or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’

317 U.S. 111, 125 (1942)

Farmer Filburn made the mistake of growing more wheat than some New Deal federal agency said was allowable in order to feed his livestock. Didn’t matter that he wasn’t selling any of it ‘in commerce.’ That federal agency claimed the power to control the price of wheat for the entire country, and therefore the authority to fine Filburn for the crime of growing wheat in excess of the federally allowed amount.

Every man is a piece of the continent, A part of the main.

Conservative lawyers were cheering when NFIB v. Sebelius went to the Court because it was widely believed that John Roberts was going to finally trim back the Commerce Clause. A series of cases in the ’90s had pushed back on the scope of the Congress’s commerce clause power under Wickard, so Roberts rushed in to let everyone know that even if the commerce clause had its limits, the taxing clause could fill in just fine in a pinch!

The Government’s tax power argument asks us to view the statute differently than we did in considering its commerce power theory. In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

NFIB v. Sebelius, 567 U.S. 519 (2012)(emphasis added)

When the statists want your money, every penny counts and must be counted; nothing – not even your homegrown wheat, not even your actuarial existence – can be excluded from the count. You are in toto an essential part of the government’s market, Citizen, inseparable from the whole, and therefore you can be regulated or taxed into penury, the same as everyone else…

EXCEPT and UNLESS some natural disaster intervenes: like the hurricanes that perennially – coming from the latin for “every fucking year” – ravage big chunks of the eastern and southeastern United States; or the fires, mudslides, and earthquakes that cover the west; or the “bomb cyclones,” “arctic blasts,” blizzards, lake-effect snow, and Nor’Easters that cover the northern tier of our Nation; and then there are the tornadoes that foray through their Alley, which is ironically held in place by a Bible Belt. And then there’s the possibility of infectious disease, something we’ve only been dealing with for all of human history.

ALL of those things can lead to Declarations of your instant non-essentialness, Citizen. Some (economic) animals are more equal than others, Citizen. To wit: while getting an (evidently essential) haircut this morning, I was listening to the news when they announced that public schools will now be closed for the rest of the year. I guess teachers are non-essential, I was about to say, when the newsreader immediately followed up by noting that teachers will continue to get paid because our legislature and governor were Johnny-on-the-Spot and made sure those more equal animals got taken care of – with your tax money, I should note. And when our Brave Leaders decree that your business has to close… well, now you’re no longer quite as essential to the Health of the State, Citizen… but here’s the bill.

That’s different than when the solicitor general argues about how your individual wheat growing in excess of 11.1 acres could leads to the economic ruination of your fellow citizens (Wickard); or when the solicitor general argues that growing a single marijuana plant in your backyard for purely personal use is part of the entire “market” for marijuana, because everyone knows that plant is “fungible.” (Gonzales v. Raich, 545 U. S. 1, 17 (2005)).

Congress’s attempt to regulate the interstate market for marijuana would therefore have been substantially undercut if it could not also regulate intrastate possession and consumption. Accordingly, we recognized that “Congress was acting well within its authority” under the Necessary and Proper Clause even though its “regulation ensnare[d] some purely intrastate activity.”

NEIB v. Sebelius, 567 U.S., at ___, citing Gonzales v. Raich.

Yes, then your actions really “count,” Citizen. They harm the State deeply and must be accounted for, every jot and tittle. But when we declare emergencies… well, then “hard choices” have to be made to protect the Health of the State, Citizens, at least the health of the people whom we have declared to matter… like the Kennedy Center for the Arts, to which you must pay $25 million, Citizens! For the health of the State! The Kennedy Center only has assets totaling $557 million right now, Citizens, and during these dark times, sacrifices will have to be made. The Corporation for Public Broadcasting must also continue, Citizens, so you’re going to have to pay $75 million for NPR and Big Bird. Essential. In times of crisis where businesses must be shuttered, obviously you will understand that you must pay $600 million to the National Endowment for the Arts – how else will we have great art to commemorate the current suffering of our citizens so that people will remember it centuries from now? You understand, Citizens, the absolute necessity of sacrifice and why your non-essential business must shutter during this pandemic. Here’s a check for $1200 to help you through these dark times.

Eyes I dare not meet in dreams
In death’s dream kingdom
These do not appear:
There, the eyes are
Sunlight on a broken column
There, is a tree swinging
And voices are
In the wind’s singing
More distant and more solemn
Than a fading star.

As an attorney with an interest in the Constitution, I’m wondering how these declarations get squared with our “takings” jurisprudence under the Fifth Amendment. “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” There is an entire body of law around regulatory takings, in which the State effectively condemns a person’s property via regulation. I’m not entirely certain how a small business owner can be deemed non-essential, ordered and required to shut down for say… three months – and that not be a “taking” of that person’s property. It is a lot worse to a business to be completely shut down for some indeterminate number of months than it would be to have the government condemn 25% of one’s business. At least in the latter case one can continue to build goodwill, continue to take orders, see customers, etc. In the current circumstances, however, the government has declared that it may close entire industries if the State deems those sectors not merely a health threat, but merely non-essential. I know several governors have ordered tattoo parlors, nail salons, and barber shops based upon these officials’ totally expert understanding of how the NOVEL coronavirus likely spreads… likely.

I am grateful that my wife’s and my professions – our jobs – are not currently deemed non-essential by our Top Men. I hope that something else – something that can be possibly be framed as a public health crisis – doesn’t come along soon to change that.

The eyes are not here
There are no eyes here
In this valley of dying stars
In this hollow valley
This broken jaw of our lost kingdoms

In this last of meeting places
We grope together
And avoid speech
Gathered on this beach of the tumid river

Sightless, unless
The eyes reappear
As the perpetual star
Multifoliate rose
Of death’s twilight kingdom
The hope only
Of empty men.

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