Gov. Kathy Hochul Will Tell You if You’re ‘Essential’ – WSJ

Power grab. It keeps happening. How long will the general population put up with this? mrossol

Gov. Kathy Hochul announced on Christmas Eve that people whose jobs New York state deems unimportant must stay home and quarantine for 10 days if they test positive for Covid-19. Others are free to return to work five days earlier. The state Health Department described its guidance as allowing for a shortened quarantine for “Healthcare Workers and Other Critical Workforce.” But the meaning is the same: People will be confined to their homes not based solely on their risk of contagion but also on the government’s perception of their social or economic value.


Throughout the pandemic, politicians have exhorted the public to “follow the science.” Courts have generally deferred to public-health decrees that greatly restrict individual liberty—on the assumption that they are grounded in epidemiological considerations. Such factors include the disease’s incubation period, its severity and the immunity of the exposed person. The Centers for Disease Control and Prevention this week said that quarantine beyond five days is unnecessary for any vaccinated person.

New York’s policy makes confinement in quarantine turn substantially on economic or political considerations. That isn’t science; it’s central planning.

If a shorter period is medically acceptable, it should be the default, not a government-bestowed privilege. Public-health agencies have no expertise in making determinations about what makes the economy tick. To the extent quarantine decisions are demonstrably influenced by nonscientific factors, the protective bubble that constitutional doctrine has placed around them should be weaker.

The jobs New York deems “critical” go far beyond those necessary to sustain human life. Bartenders, movers and law professors may return to work after five days under New York’s new guidance. People providing services to “government owned or leased buildings” are essential—but those doing the same for private buildings aren’t.

Many of the jobs with a shorter quarantine period—including schoolteachers—are those where increased transmission could be thought to be a particular concern. The guidance also makes healthcare workers eligible for the light quarantine out of concern for staffing shortages, which have been exacerbated by vaccine mandates.

The New York quarantine guidance is another step toward general governmental authority to determine who gets to work and who doesn’t. The process began during the lockdown phases of the pandemic, when states across the country issued lists of exempted “essential” jobs—with no intelligible principle determining what made something essential. (New York had such exemptions from its quarantine policy for interstate travelers, which Gov. Andrew Cuomo lifted in April 2021.) Gossip columnists were “essential” in many states. So were marijuana dispensaries, illegal under federal law.

People disagree passionately on policies such as mask and vaccine mandates. But one neutral way to ensure that policy makers don’t abuse the power, and limit coercive measures to the minimum, is to apply them across the board. In a free society, everyone is equally essential.

Mr. Kontorovich is a professor at George Mason University Scalia Law School.


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