By Russell Withers, General Counsel & Senior Policy Analyst. Mar. 30, 2020
As Chief of Staff to President Obama during the Great Recession, Rahm Emanual is attributed with the quote that "you never let a serious crisis go to waste," meaning that transformational events make fundamental policy changes feasible where they otherwise would not be so. The spirit of that sentiment was alive and well during debate over the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act") as House Majority Whip James Clyburn described the package on a phone call with his Democratic colleagues as “a tremendous opportunity to restructure things to fit our vision.” The CARES Act was held up for a few extra days while Democrats attempted to "restructure" the bill to include funding for long held policy priorities such as wind and solar energy, and increased collective bargaining power for unions.
Similar games are being played in Texas. Governor Abbott has issued several executive orders related to COVID-19 preparedness and mitigation, including limiting social gatherings to 10 people or less, avoiding dining-in at restaurants, and temporarily closing public schools, to name a few examples. The Governor's March 19 order on this topic leaves room for local governments to issue more stringent orders, but makes clear that "all critical infrastructure will remain open" and people are not prohibited from visiting "grocery stores, gas stations, parks, and banks."
There are early signs that local governments are discriminating against disfavored businesses in their own stay-at-home ordinances. After several local governments in Texas crafted orders requiring firearm stores to close, Attorney General Ken Paxton issued an opinion making clear that "Subsections 229.001(a) and 236.002(a) of the Local Government Code prohibit a municipality or county from adopting regulations related to the transfer, possession, or ownership of firearms, or firearms in commerce," and those statutes apply even during an emergency.
Another example is the Dallas County order, which expressly discriminates against payday lenders by excluding them from the definition provided for "financial institutions," which are categorized as essential critical infrastructure to remain open. This contravenes the Department of Homeland Security's guidance on critical infrastructure, which broadly makes reference to banking and lending services. The only reason for Dallas County to specifically carve out payday lending as "prohibited" is because it has a policy preference against short-term lending. Such a cynical approach to public policy during an ongoing emergency will likely harm people who need those critical loans to keep the lights on and pay the bills.
There is a rich history of using government power to discriminate against businesses disfavored by certain ideological stripes. Operation Choke Point during the Obama Administration, for example, was an organized effort that specifically targeted firearms businesses and payday lenders through the power of financial regulation. Those are legal businesses providing valuable services for self-defense and financial liquidity, respectively. It should go without saying that a global pandemic should not be used by local officials as a "serious crisis" and an "opportunity to restructure things to fit [their] vision” with respect to those policies.
Deal with the crisis. Leave the everyday policy disagreements to the everyday policy debates. They will resume eventually.
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