In response to the spread of COVID-19 (also known as the Coronavirus), on March 28th, State Health Officer Mylynn Tufte issued a Confinement Order to those “traveling back to North Dakota from all international locations and states in the U.S. classified as having widespread disease by the Centers for Disease Control and Prevention.” Those classified by the U.S. Department of Homeland Security as “Essential Critical Infrastructure Workers” are exempt.
In short, the Confinement Order requires:
“All subject persons… to quarantine immediately upon reentry to the State of North Dakota and for a period of fourteen days. The place of confinement is the subject person’s place of residence.”
On the surface, many individuals won’t question the order. The Health Department is, after all, simply doing their best to “flatten the curve”.
Yet, has anyone considered how impossible it is to effectively enforce such an order? Do you really think the State Health Officer knows the names and addresses of each person she’s ordered quarantined? Not a chance. No, she’s given in to what Judge Andrew Napolitano calls the “totalitarian temptation”— which is giving in to the temptation to show that she can do “something”.
Believing government needs to do even more, some North Dakotans are now calling on Governor Doug Burgum — via petition — to issue a shelter-in-lace order for the entire state. As you can see here, our state is 1 of 8 who’ve not yet taken this step. The Executive Orders already in place apparently aren’t enough for those signing the petition.
While the online petition was started three days ago, it has just 4,000 signatures. And as Governor Burgum himself noted today, we don’t even know how many of those are North Dakotans. In other words, thus far, it’s not exactly a tidal wave of support for forcing us all to stay home.
Like it or not, the majority of us probably can’t tolerate being cooped up in our homes for the long haul. We just can’t. The economics alone are already staggering for individuals, families, states, and our country. If this all continues, the economic fallout could be devastating. And a shelter-in-place order would only contribute to that.
While many questions could be asked in relation to a shelter-in-place order, let’s consider two.
- Is it necessary?
- Is it legal?
Is it necessary?
As of this writing, just 3.1% of COVID-19 tests administered in North Dakota have come back positive (225 of 7,213). The death rate is 1.3% (3 deaths out of 225 positive tests).
When we consider the data related to “new cases” on the Trending Curve, the line closely resembles much of North Dakota’s landscape— it’s pretty well flat. You can see today’s chart from the North Dakota Department of Health below.
In other words, at this point, we don’t have the problem of exponential growth that some other parts of the world have experienced.
And so, we move to our next question.
Is it legal?
This is an area of significant disagreement. Does Governor Burgum have the authority to utilize the power of the pen (i.e. Executive Order) to decree that all North Dakotans stay home? I’d argue that he doesn’t.
Let’s consider Article I of the North Dakota State Constitution— otherwise known as the “Declaration of Rights”. By way of example, how could the following rights not be violated by a shelter-in-place order?
- The “free exercise and enjoyment of religious profession and worship”. (Section 3)
- The “right, in a peaceable manner, to assemble together”. (Section 5)
- The right “to obtain employment wherever possible” and to enjoy “employment already obtained”. (Section 7)
- “No person shall be… deprived of life, liberty or property without due process of law.” (Section 12)
And lest you think that the governor’s emergency powers laid out in Section 37-17.1 of the North Dakota Century Code are somehow an exemption to these things, consider these additional statements from the Declaration of Rights:
- “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” (Section 20)
- “The provisions of this constitution are mandatory and prohibitory unless, by express words, they are declared to be otherwise.” (Section 24)
Make no mistake about it, the constitutional protections afforded North Dakotans by our state’s founding document are — as they should be — significant.
Now, please, don’t misinterpret my support for protecting the rights of the citizenry as some sort of opposition to taking COVID-19 seriously. It’s not. I just don’t believe usurpation of power, via a shelter-in-place order, is the answer.
What is the answer?
Is there a simple solution to stopping the spread of COVID-19? At this point, it doesn’t seem so. But individual responsibility is paramount. As I wrote last month, government cannot stop the Coronavirus from spreading. And people should stop pretending that it can.
If we don’t want to risk getting the virus, then we should stay home and distance ourselves from others. If we choose to leave home, then that decision carries with it the risk of infection.
Is an acknowledgement of this reality heartless? I don’t think so. But if it is, then what does that say about a society that tolerates tens of millions of illnesses, hundreds of thousands of hospitalizations, and tens of thousands of deaths resulting from the flu?
Now, before someone loses their mind, I’m not saying that COVID-19 is the flu. It’s not. But how many deaths are acceptable? Is it okay to call for a shelter-in-place for the one and not the other?
We’d all love to live in a perfectly sanitary society. One in which leaving our homes brings no risk of disease or death. Unfortunately, that isn’t possible. It wasn’t before, it’s not now, and it won’t be in the future.
It’s time to stop looking to the government for answers. Protect yourselves and let’s get back to work.
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Sources:
1. https://www.health.nd.gov/news/tufte-orders-quarantine-individuals-traveling-international-locations-or-select-states
2. https://www.health.nd.gov/sites/www/files/documents/Files/MSS/coronavirus/HCW/SHO-Order.pdf
3. https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce
4. https://video.foxbusiness.com/v/6142412084001/#sp=show-clips
5. https://www.cnn.com/2020/04/04/politics/republican-governors-stay-at-home-orders-coronavirus/index.html
6. https://www.kvrr.com/2020/04/06/petitioners-gov-burgum-shut-down-this-state/
7. https://www.legis.nd.gov/constit/a01.pdf
8. https://www.governor.nd.gov/executive-orders
9. https://theminutemanblog.com/2020/03/16/government-cant-stop-spread-of-the-coronavirus/
10. https://www.cdc.gov/flu/about/burden/preliminary-in-season-estimates.htm
