The American policy response to COVID left a great deal to be desired. Figuring out what went wrong and how to do better next time should be at the top of our list going forward. But getting reform right will be difficult if we succumb to the temptation to substitute the false clarity of moral outrage for the murkiness and ambiguity of careful policy analysis.

Vinay Prasad has an essay up on his substack and at the Brownstone Institute that illustrates the challenges here. I do not think all of his criticisms of COVID policy are wrong. But I do think he is led astray by moralistic wishful thinking about politics and policy. He swings back and forth between assuming everyone will agree with him about what should be done, and assuming that legalistic restrictions can magically prevent people from doing things that he thinks are wrong. His moral certainty prevents him from thinking about how to make progress in an imperfect world and how to deal constructively with people who disagree with him. More ominously, his disappointment that the world does not live up to his standards leads him to use rhetoric that encourages polarization and dissatisfaction with democratic political institutions. Prasad’s essay is worth examining closely for what it can teach us about COVID policy, and because it illuminates the dangers posed by moralistic political thinking more generally.

Three political fallacies

Let’s begin by reviewing three common political fallacies that will help us understand Prasad’s essay.

The “everyone would agree with me if they heard my arguments” fallacy

I know that X is bad, and most people would agree with me if they heard my reasoning.

As Friedrich Hayek observed in The Road to Serfdom, many people who disagree with each other believe that their views would prevail in an open debate: “…we all think that our personal order of values is not merely personal, but that in a free discussion among rational people we would convince others that ours is the right one”. Most of the people who think this are wrong all of the time, and all of them are wrong some of the time. This does not mean that debate and persuasion are unimportant, but it is a reminder of the inherent messiness of democratic politics.

The “people who are smart and good like me should be in charge” fallacy

Policy X is bad.
Policymaker Y did X because Y is an idiot or a morally bad person.
Therefore, the power to decide whether to do X should be taken from Y and given to policymaker Z, who is a wise and benevolent person, and who just so happens to agree with me.

There is no way to ensure that wise and good people are always in positions of power. There is no solution to the well-known political problem of “who will watch the watchers”. Hopefully voters will elect wise and good legislators and presidents, and hopefully these elected officials will put wise and good people in policymaking roles, but there is no way to ensure this. See: Trump, Donald.

This fallacy also assumes that bad policies get enacted because policymakers are bad or dumb, but sometimes bad policy gets made because decision makers are responding to democratic pressures, and if we replaced them with other policymakers the same pressures would remain.

The “there ought to be a law” fallacy

Someone did X.
X was bad.
Therefore, there ought to be a law against X, or X should be allowed only if the evidence for X is very strong.

Passing laws against doing bad things is, of course, sometimes justified. But limiting the discretion of government actors has costs as well as benefits. In many cases X will be good in some circumstances and bad in others. It is easy to overlook the value of flexibility when you are looking backwards at past failures. Requiring “strong evidence” for government action is far from obviously desirable, both because acting on imperfect information is sometimes justified, and because it leads to litigation and delays and forces courts to weigh in on scientific disputes. The best arrangement may be to direct policymakers to set policy based on the available evidence, to defer to their reasonable judgments, and then to try to persuade policymakers to use their power judiciously. This does not guarantee perfect decisions will be made (see the first fallacy above – persuasion often fails) but passing a law against X or requiring strong evidence is far from a magic bullet.

Vinay Prasad’s reform agenda

Now let’s review Prasad’s reform agenda.

First thing, let’s get rid of all the idiots!

Prasad begins as follows:

Just yesterday, I read that NYC public schools will remove the OUTDOOR mask mandate starting Monday. How Brave!

Let’s reflect on this for a moment. NYC school district has been requiring children wear masks OUTSIDE all this time. Years after we knew the virus almost never spreads outside. During recess when kids play, forced to wear a mask while exerting themselves. Wow!

Whoever made the policy is an idiot. No way around it. They are not fit for policymaking. They abused the power of government to coerce children (at incredibly low risk of bad outcomes) to wear a mask in a setting where the virus simply does not spread. In other words, they participated in something done in the name of public health, which actually made human beings worse off. Worse, they used coercive force to do it.

Let’s stipulate that making kids wear masks outside is unnecessary. This does not mean that the person who made this policy is “an idiot”. There may have been better reasons for the policy when it was first adopted. The problem, in this case, is that the policy remained in place longer than it should have (that is, after it became clear that outside transmission was rare).

Keeping policies in place past their “sell by” date is indeed a problem and figuring out why it happens is important. But it need not be because school administrators are “idiots”. For example, administrators may be aware that masking outside is unnecessary, but be under pressure from parents or teachers or other constituents to keep the rule in place. We live in a democracy, and public opinion matters. This is a feature of democracy, not a bug, even if sometimes it forces policymakers to make less-than-perfect decisions. Or perhaps policymakers have other more pressing problems to focus on. Or maybe there is something else going on. The point is, we know policymaking is imperfect, but to improve it we need to understand why it is imperfect and persuade those who we believe are wrong. Just calling people “idiots” is unlikely to be helpful.

Dumbing coercion down

Also, note how Prasad defines “coercion” down. In The Constitution of Liberty, Friedrich Hayek worried about giving administrators unreviewable power to tell people what to do or how to live. He especially worried about the power to single out individuals for harsh treatment. For example, Hayek worried about giving government bureaucrats the power to tell people where to work. This eliminates free choice of occupation, a fundamental right, and it is open to horrendous abuse: a system in which a bureaucrat can send you to cut trees in Siberia because you criticize the ruling party or were mean to him in grade school is not a good system.

These days, apparently, standards have changed, and making children wear masks outside is “coercive force”, even though wearing a mask is not like cutting trees in Siberia, and individual children are not being singled out for mask wearing. Defining coercion down in this way is useful if your goal is to generate maximum moral outrage. But moral outrage drives polarization, and it can distort our judgment: if X is an outrage, then surely there ought to be a law! Lo and behold…

There ought to be a law!

Post-COVID we need to seriously talk about setting restrictions. But not on people. We need to place restrictions on public health and things done in the name of public health. We cannot allow individuals who are poor at weighing risk and benefit and uncertainty to coerce human beings, disproportionately the young and powerless (waiters/ servers) to participate in interventions that have no data supporting them, for years on end.

OK, so Prasad is switching from masking students outside to closing restaurants. (I think. Maybe he believes it’s “coercive force” to make waiters wear masks.) But what is his point? It sounds like he’s saying that only people who are good at weighing costs and benefits should be allowed to impose any public health restrictions. How do we find such people? Is Prasad saying anything more than that policymakers should all agree with him about what constitutes sufficient justification for “coercive force”?

A digression on the thirst for revenge

Prasad continues:

Public health should be the subject of restrictions; a taste of its own medicine. Some of those restrictions should be placed on governments, but others on private actors who are appealing to public health. Here is what that might look like:

Note the thirst for revenge: public health needs “a taste of its own medicine”. This is common among libertarians who are outraged by COVID policy, but it’s a dangerous sentiment. Also, note how he personifies “public health”. As we will see, treating things that are not people as if they are people is not a route to clear thinking.

Magical thinking about evidence, sunset provisions, and fighting the last war

Prasad then makes some specific suggestions. Let’s look (numbering omitted):

In an emergency situation, if governments mandate or advise individual level behavioral interventions (e.g. masking), those entities should have generated robust data in 3 months (cluster RCTs) to demonstrate efficacy, or the intervention is automatically revoked. Some may argue 3 months is too short, but if it is truly a crisis warranting emergency proclamations, then you should see a signal in 3 months, and governments can expand sample size to ensure prompt results.

Prasad seems to be saying that guidance or restrictions on individual behavior can only be justified with a particular kind of evidence (RCTs), with a 3-month grace period for collecting RCT evidence.

It is far from clear that this requirement would be beneficial. The evidence taken as a whole can suggest that masking is valuable even if RCTs are not available or are inconclusive. Allowing agencies to act on non-RCT evidence with a 3-month sunset rule is not a magic bullet. It is not hard to imagine a trial of mask efficacy taking longer than 3 months to design, set up, run, and analyze. What happens if the government does a trial, but the analysis is contested, or if it does a handful of trials and they are suggestive but inconclusive? Or suppose the government does a cluster RCT of masks and the trial simply fails (it turns out the protocol was flawed, or it wasn’t followed, or the data was too noisy, or whatever). What then? Should the mask mandate be removed even if there is reasonable observational evidence for masks, or if masks seem likely to be effective given what we know about how disease is spread?

And what happens if the government just doesn’t do an RCT? Maybe a sunset rule will give government officials an incentive to do the RCTs that Prasad believes are needed. On the other hand, if the government does not do the required study, the sunset provision may end up punishing the public by eliminating a policy that is justified given the then-current imperfect state of knowledge.

Hindsight bias and the value of flexibility

Finally, it seems like Prasad is fighting the last war. He’s saying that the government in the next pandemic should do what he thinks it should have done in this pandemic, and if it tries to do something else it shouldn’t be allowed to do it. But if anything is certain, it is that the next pandemic will be different than the last pandemic. What if the next epidemic is more lethal than the current one, observational evidence suggests that masks save lives, the government fails to do an RCT, Congress is gridlocked, and a sunset provision forces the government to end mask mandates prematurely? Fighting the last war leads Prasad to undervalue administrative flexibility by directing his attention away from all the things that might happen in the future but did not happen in the past.

Deliberation is not a deus ex machina, and policy proposals need to be actual policies and apply to actual people

Prasad continues:

If a trial is positive that does not mean the policy continues forever, but must be debated (net benefit/ net harms/ tradeoffs) by the body politic.

Policy proposals need to be actual policies, and they need to apply to actual people. Deliberation is not a policy, and the “body politic” is not a person, or even a clearly identified group of people.

Here are some actual policies Prasad may have in mind when he insists on “debate” in the “body politic”. Maybe Prasad thinks administrative agencies should be required to justify emergency regulations to a court after 3 months by showing that the benefits exceed the costs, using only “robust” RCT evidence. We have already seen that regulations can be justified even if RCT evidence is lacking or inconclusive. And even if the evidence for a regulation is fairly strong, interest groups or political partisans may have an incentive to challenge the regulation in court. Requiring courts to take a “hard look” at the evidence base for regulations is highly controversial, because it leads to endless opportunities for legalistic maneuvering and forces courts to rule on questions they are not competent to evaluate. (If this is what Prasad is thinking, I would love to know which Supreme Court Justices he thinks are capable of assessing RCT evidence, and which interest groups he thinks will refrain from challenging a justified policy for private gain.)

Maybe Prasad thinks that Congress is the “body politic” and a sunset rule should be used to force Congress to debate and adopt agency regulations after 3 months. But as we have seen this is not obviously a good idea. It could easily result in the death of a good regulation due to gridlock or partisan sabotage.

Finally, Prasad may believe that the Supreme Court should require Congress to justify policies to the satisfaction of the Court by subjecting pandemic restrictions to “strict scrutiny“, rather than applying the more forgiving “rational basis” standard of review. We may be heading somewhere like this, with our emboldened conservative Justices arrogating more and more legislative power to themselves. Prasad may think this is a good idea, but to say the least he needs to argue for it, not just make grand statements about “debate” in the “body politic”.

Prasad may not have any of these actual concrete proposals in mind. As I noted above, Hayek warned in The Road to Serfdom that most of us believe that our ideas will prevail in a free exchange of ideas. Perhaps Prasad is falling into this trap. He may be just fantasizing about a perfect democracy in which free debate in the “body politic” leads everyone to magically agree with him.

Shifting authority from one decision maker to another does not ensure good decisions

In the United States, politics often involves shifting the locus of conflict from one political forum to another. You lose in Congress, you try to change state laws; you lose in the states, you go the Courts, etc. This often makes sense for people who care about an issue, but shifting decision making power does not ensure that the new policymakers are better than the old ones.

Prasad:

Private entities should be prohibited from mandating emergency drug products. Check out this tweet by my conversation partner— VPZD PODCAST— Zubin Daminia. Cal Academy is a museum in Golden Gate Park. Do they have any business nor ability to mandate boosters in adolescents? [Note: apparently the museum does not mandate boosters. Whatever. Ed.] No, it is absurd. Two senior officials with the FDA— Gruber and Krause- resigned over this decision. Paul Offit and Luciano Boro and others have been publicly critical of boosters for young people, and Cal Academy mandates it? Cal Academy is not qualified to make this decision.

The same is true for daycares and private schools that have already mandated kids vax 5 to 11. Should random private individuals be permitted to coerce vaccination under Emergency Use Authorization (EUA)? I believe restrictions must be put in place to prevent them from doing such a thing. Perhaps it should be explicit that it is illegal to coerce any medical product under EUA status. This would stop Cal Academy and private schools.

The same is true for boosters. Colleges should be prohibited from mandating medical products under the auspices of EUA. What is going on right now on college campuses is astonishing foolishness.

Prasad believes that the FDA made a mistake when it approved boosters for young people. He may be right; as he notes there was disagreement among experts on this, both in this country and internationally. But his proposed “solution” is far from obviously justified. If a vaccine booster is safe and effective and reduces infection and transmission, why shouldn’t private entities be able to mandate it, even if it is under an EUA? Of course, private schools are not experts and they may defer to experts when the experts are wrong. But there is no way to ensure that experts will always agree with Prasad, and there is no way to ensure that schools will always do what Prasad thinks they should do.

Rights are not a deus ex machina

Invoking “rights” is a form of the “there ought to be a law” fallacy. Prasad:

Hospital patients deserve a bill of rights. Prohibitions on visitation, particularly of children or older people; especially near the end of life were cruel and disgusting. Even long after PPE was adequate— into 2022— these rules continued. Patients need a bill of rights, and hospitals should face severe restrictions on their ability to ban visitors. To my knowledge the US has not— like Hong Kong— separated a baby from her parents, but our rules are unjust.

It is certainly arguable that visitation rules at hospitals should have been more lenient. Maybe patients should have a bill of rights. But what rights exactly? Will there be any exceptions or discretion? Will the same rules apply in a community hospital in rural Tennessee and a teaching hospital in Boston? Will the rules apply during a pandemic? Will they apply when hospitals are overwhelmed? One imagines there will be exceptions, especially in pandemics and other emergencies. But then it is not clear what having a “bill of rights” will accomplish.

And what about enforcement? Can a patient who gets ticked-off run to federal district court and get an emergency injunction directing the hospital to allow a visit? How many patients will be aware of this right and prepared to exercise it when their loved one is dying on a ventilator? Will there be a hearing? Will the hearing be ex parte? Will there be witnesses? Can aggrieved patients get damages? Should class actions be allowed?

I don’t know the right solution here, but it’s not obvious that what we need is more “rights” and more lawsuits. Remember that we have a non-legal option: we can focus on changing hearts and minds of public health officials and hospital administrators, rather than assuming that every bad thing in the world requires a legal solution.

Prasad continues in the same vein:

Do people have the right to return to their home country? Read this excellent article about Australians trapped in India. This is an important issue.

Arguing for less restrictive travel policy is fine. I happen to believe that Australia and New Zealand should have made more of an effort to allow people trapped abroad to return home (with appropriate quarantine upon arrival). But Prasad seems to have in mind a legal solution, a solution involving “rights”. Again, there ought to be a law. But it’s far from clear that a legal solution would be desirable.

Here is what I have said about this previously:

It is possible to argue that any limitation of basic rights is authoritarian and unacceptable. Alex Tabarrok suggests here that Australia is an authoritarian state because it has suspended the right to travel, which is a basic human right enshrined in the Universal Declaration of Human Rights.

The problem with this argument is that rights are not and simply cannot be absolute. The real world is messy and full of tradeoffs. Rights often conflict with each other and with the duty of government to promote the public welfare. The right to a fair trial can conflict with the right to a free press. The right to a free press can conflict with the right not to have your reputation attacked. Criminal and civil due process rights are limited in every country on earth because process is expensive, and as a result giving people lots of process conflicts with the duty of government to promote the general welfare. Every legal system in the world recognizes that rights must be limited when they conflict with each other or the general welfare. The Universal Declaration of Human Rights states clearly that the rights it enumerates – including the right to travel – can be restricted to promote the general welfare.

Of course we can argue about how the balance between different rights and the public welfare should be struck in particular cases, but to declare Australia an authoritarian state because it has restricted the right to travel is over the top. Liberal democracies can and must put reasonable limits on rights. Serious questions would indeed be raised if the right to travel was being withheld to punish enemies of the government or to burden socially disfavored groups…

Prasad is on a roll, and he continues by arguing for a “bill of rights” for students:

Who decides if schools should close? Schools are too important to permit local decision makers to close them for years on end. In the USA, this happened along partisan lines, with the most progressive cities punishing children the most. There has to be some bill of rights for kids to prevent this from happening. Schools might need to close in rare circumstances in the future, but this should be done only in extraordinary times, and no one can justify closing schools only in Democratic cities. Kids need a real champion, and it is not the AAP.

I am sympathetic to arguments that school closures lasted much too long. But not everyone agreed. The question is what those of us who favored earlier opening of schools should do.

Prasad as usual reaches for a legal solution. But what is his proposal? Is he proposing an amendment to the Constitution (“bill of rights for kids”)? Or does he think that our national Congress should pass a law regulating local school policies concerning public health? Or does he think we need some conservative judicial activism here? All of these proposals have serious drawbacks, it is not obvious that any of them would be an improvement over just muddling through and letting people bitch and moan in standard democratic fashion. Prasad can bitch and moan too. He should just stop pretending that there is some deus ex machina legal solution that will magically ensure that only policies he likes will be adopted.

And obviously “kids need a real champion” is not a policy, it’s just magical thinking. Prasad is tacitly imagining a world in which some all-powerful policymaker exists who – mirabile dictu! – just so happens to agree with him.

Moral outrage, legalistic fantasies, and distrust

Prasad concludes as follows:

These are just a few examples of where governments or institutions have overreached in the name of public health, but there are many more. Post Covid, the group that needs to face the strongest restrictions is public health itself. We must carefully remove the power we have granted public health, which has often been misused.

Yes, governments have overreached in some ways in response to COVID. Prasad’s impulse is to respond by reducing the ability of the government to act. But many of the worst COVID policy failures were failures of the government to act: to invest enough in the development and production of vaccines and treatments, to produce enough high-quality masks, to do enough testing and surveillance, to authorize first-doses-first and partial doses in the spring of 2021, etc. It is far from obvious that placing new restrictions on government is the right orientation for reformers.

Prasad has strong views about policy failures during the COVID epidemic and he is angry at his public health colleagues. But even if he is right about what the main policy failures were – a point which could certainly be disputed – just saying we need “restrictions” on “public health” is not a serious proposal. Instead, it’s the kind of error people make when they let moral outrage substitute for careful policy analysis, when they focus on past mistakes and fantasize about a world in which everyone agrees with them about what should be done, and when they fail to think carefully about the very real limitations of democratic government and of legalistic solutions to perceived problems.

Finally, Prasad is not only concerned about past failures, he is deliberately fanning the flames of moral outrage. He does this by making morally inflammatory charges (“coercive force”) and by pretending that the right thing to do was abundantly clear to any smart and decent person. This is the formula for polarization and distrust: if policymakers do things that any idiot can see are despotic, how can we trust them? And it is polarization and distrust above all else that will make it hard for us to do better in the next pandemic.

Author

  • Eric Kramer blogs about politics and economics at angrybearblog.com and is writing a book on democracy and political economy. Eric is an economist and lawyer by training and worked for many years as a senior finance and strategy executive at The Plymouth Rock Companies, a regional property and casualty insurance group located in Boston.

Posted by Eric Kramer

Eric Kramer blogs about politics and economics at angrybearblog.com and is writing a book on democracy and political economy. Eric is an economist and lawyer by training and worked for many years as a senior finance and strategy executive at The Plymouth Rock Companies, a regional property and casualty insurance group located in Boston.