A Libertarian Legal Perspective on Vaccine Mandates
Bob Levy, Chairman of the Cato Institute, discusses the nuances of individual and property rights that Biden’s new employer mandate brings up.
Where does Biden get the authority to mandate vaccination? It’s a difficult question, and everyone seems to have their opinion. Indeed, there are approximately as many opinions as there are arms that can receive the jab. Walter Olson predicts that the new OSHA-issued employer vaccine mandate will be challenged, all the way up to the SCOTUS. But will it survive? And more importantly, is it a good policy? Libertarians disagree, and although they almost all oppose the mandate, they oppose it for different reasons.
The Cato Institute Chairman Bob Levy joined me to discuss the nuances of the libertarian perspective on vaccine mandates. He recently wrote an op-ed for the Hill titled, “Vaccine mandates: A liberty-minded perspective”, in which he helps us think through the various liberty concerns around bodily autonomy versus endangerment. He’ll also define the “nondelegation doctrine,” and explain why every thoughtful citizen should understand this 5-syllable word.
Bob Zadek 00:00
I have a principle, driven by how I interact with people, for selecting my guests. I must confess, I find somebody’s opinion as a freestanding concept boring. Everybody has an opinion. What is intensely interesting to me is the “why,” or the reasoning behind the opinion.
Once I know that, we can roll up our sleeves, dig deep, and determine whether our opinions ought to be changed based upon the reasoning supporting the other opinion.
I have known Bob Levy for quite some time through my interaction at the Cato Institute. Bob is the Chairman of the board of directors of the Cato Institute. His name is found at the Robert A. Levy Center for Constitutional Studies. Bob joined Cato a number of years ago after becoming an attorney, and that was preceded by a successful life in business.
Bob recently published a piece relating to vaccine mandates, subtitled “a liberty-minded perspective.” Levy offers not simply yet another opinion on the mandates, but a liberty-minded reason supporting the opinion. He joins me to discuss the reasoning behind the constitutionality and appropriateness of President Biden seeking to impose a mandate on a large group of employers in our country — requiring them to either verify that their employees are vaccinated, or are tested weekly. After 240 odd years, we can find important constitutional issues still unresolved in our country.
Levy will help us put the Biden attempted mandate in context, not from a medical perspective — that we leave to others — but to resolve the tension between the government imposing its will upon us, and our right to live our lives the way we want.
Bob Levy 05:08
It’s great to be with you.
Five Arguments Against a Federal Vaccine (Employer) Mandate
Bob Zadek 05:11
Being a libertarian means adopting and respecting a few core principles that help us form our opinions on whether behavior — particularly governmental behavior — is appropriate from a liberty standpoint, and whether it is also constitutional. What are the starting principles in a conversation about the mandate, specifically what Biden is attempting to do through OSHA?
Bob Levy 06:16
The core libertarian principle is the right to live your life as you choose, as long as you don’t inflict harm on others. Personal autonomy is an issue when it comes to the vaccine, particularly since we’re talking about the injection of a medical substance into our body. On the other hand, it’s always been a core libertarian principle that your right to punch ends where my nose begins.
The controversy boils down to this: If the vaccine doesn’t cause any injury to the person who’s being vaccinated, can that person refuse to be injected, notwithstanding that his refusal might expose some risks to other people? Most libertarian questions fall comfortably on one side of the line to the other. Frankly, this is a close call. Even those who resist government intervention, as libertarians typically do, will endorse rules that bar persons from violating the rights of others, and the persons harmed are not just those who refuse the vaccine.
There are at least three other classes of persons harmed. The first is those who can’t be vaccinated. They don’t refuse, they’d like to be but they can’t be for medical reasons. Then, they could contract COVID from a non-vaccinated person. Second are those who can’t obtain medical treatment for other ailments because unvaccinated COVID patients have strained the capacity of hospitals and equipment and staff. As we know, almost all of the hospitalizations for COVID are unvaccinated persons. By the way, as an aside, I went through that experience a week ago — I had to go to the hospital for something unrelated to COVID. I spent two full days in the emergency area because there were no hospital beds available under general admissions. It is a very serious problem caused by those who are for the most part unvaccinated. The third group that’s harmed is people who either have been or may be afflicted by this new Delta variant, which probably would not have mutated if we had a larger percentage of the population that had been vaccinated, especially if we had reached a herd immunity.
“It’s plausible to argue that a pristine libertarian perspective, that your personal autonomy may not be violated, comes into question when in fact, you’re causing harm to lots of other folks.”
By the way, the class of unvaccinated persons may be relatively small, but it does currently include all kids under the age. Quite a few of those kids are now experiencing some more serious problems because of the Delta variant. It’s plausible to argue that a pristine libertarian perspective, that your personal autonomy may not be violated, comes into question when in fact, you’re causing harm to lots of other folks.
Bob Zadek 09:30
I have made an informal calculation that I am 99% certain that the government cannot mandate that an individual get vaccinated. The government can, however, deny you access to the general population — for example, schools — but that is different from imposing a vaccination mandate. We are not talking about requiring school children to be vaccinated as a condition of attendance at school. We already accept that as being an appropriate use of the power of government. We are discussing this OSHA-driven mandate. Tell us what Biden is attempting to do. Why did he choose OSHA of all governmental organizations? OSHA has nothing to do with public health.
Bob Levy 11:53
Let’s start with the Biden proposal itself. It covers all federal employees, and it covers private companies that employ more than 99 persons. I think it’s legal for federal employees to be imposed upon as a condition of employment. The government, as any other private employer, is entitled to impose reasonable conditions of employment on those that it hires. Arguably, it’s legal to impose on private parties if those private parties are quasi-state entities — including parties that receive a huge amount of funding from Medicare, for example, or Medicaid. The government could require employees of those hospitals for example to be vaccinated as a condition of receipt of that funding. The same is true with respect to certain other federal contracts — although it’s fuzzier because we don’t know the extent to which the federal contracts represent a significant portion of the company’s business.
The real question arises for other private employers — not employers that are dependent upon federal money. There I would make five arguments that suggest that such a mandate is not permissible as a legal matter.
First, I would argue that Congress cannot delegate such broad power to OSHA.
Second, even if Congress could delegate such broad power, I would argue that it did not. That’s a question of statutory interpretation.
Third, under our system of government, states have what’s called the police power — the power to impose regulations regarding health and safety — not the federal government.
Fourth, to the statute that says that this mandate is simply a regulation of interstate commerce, I would make the argument that the health mandate is not a proper exercise of the commerce power. We have support for that in the Obamacare case, where — even though it validated the law — the court did decide that the mandate to buy health insurance under the taxing power was not an appropriate exercise of commerce power. You cannot mandate people to engage in commerce so that then you can regulate them for having engaged in commerce.
Finally, I would argue that this mandate on private employers is impermissible because the feds are not permitted to commandeer private parties — in this case, private corporations — to do what the feds themselves cannot do. The feds, in my view, do not have the power to mandate vaccines nationally. As you say, Bob, the vaccine mandate is not actually a mandate, because the employers have the option, for example, of conducting weekly tests. By the way, the administration is going to argue that those tests are far less invasive than the vaccination itself. Also, those tests don’t raise religious freedom questions, but I would counter argue that those two assertions are not relevant to the five points that I raised, in terms of the legality of the mandate on private employers.
“You cannot mandate people to engage in commerce so that then you can regulate them for having engaged in commerce.”
Bob Zadek 16:06
Those five points are literally a semester’s worth of work in constitutional study, but just to highlight a few of them, why did Biden pick OSHA, this agency which is in charge of enforcing workplace safety, and not having wires where people can trip over them and the like?
Because when the federal government wants to do something, and it wonders if it has the power, it pokes around to see what piece of legislation Congress may have enacted — not with the pandemic in mind, but which is broad enough. Congress, in its laziness (and perhaps intentionally), often chooses to delegate, saying, “Okay, we’re going to create OSHA — make everything safe,” and they give these broad mandates to an administrative agency. The agency then has great latitude to interpret a broad statute any way they wish. Here you have this package of broad rights laying around since I think 1971. Some wise person in the White House dusted that off and said, “We have the perfect solution. Let’s use OSHA’s broad power over workplace safety.”
That’s rather cynical. The idea says, if the members of the House and the Senate were sitting around today, they would confess they had no idea that they were empowering OSHA to do what Biden wants them to do, but there we have it. Now we have OSHA requiring that employers do what the government doesn’t have the power to do directly. That is the commandeering that Bob mentioned a second ago.
There are several issues. There is a serious constitutional question yet to be decided on whether OSHA has the power. As the press has pointed out, there are a large number of examples where OSHA, in the past, taking advantage of the broad instructions Congress gave it, enacted regulations that were struck down. OSHA’s regulations are more frequently than other agencies’ regulations struck down as being overreaching. There was a time that OSHA tried to regulate ergonomic chairs and offices, and that was struck out. It’s suspect to begin with.
But the question is whether or not that is good policy — putting aside the serious constitutional questions involving commandeering and administrative agency overreach. As a policy matter, we are discussing imposing behavior on some employees for the greater good of many other employees. Bob, as you said, it’s a close call.
Meeting the Strict Scrutiny Standard
Bob Zadek 20:23
Putting aside constitutionality for a moment — I hate to say that because I never want to put aside constitutionality — but I’m going to say it only for the purpose of my question, as a pure libertarian scorecard, how do you come down on the principle behind trying to use the workplace to “force” workers to get vaccinated or undergo a some meaningful inconvenience of being tested every week?
Bob Levy 21:08
There’s a principle in constitutional law known as strict scrutiny. Basically, strict scrutiny describes the hoops that the government has to jump through in order to justify regulations of fundamental rights. Of course, personal autonomy is a fundamental right. That strict scrutiny has a number of aspects to it. First, the government has to show this compelling need for the regulation, in this case for the mandate. Second, it has to show that the regulation is not going to cause any harm, and it will be effective in accomplishing its objective. Third is to show that there’s no better way to do it without violating personal autonomy.
Before we even get to that there is a controversy in law about the extent to which it’s appropriate to regulate activities that haven’t created any injury whatsoever. This is the issue of whether you can address past injury versus the possibility of future injury. Punishing aggressive acts that have already caused damage, we do that all the time. It’s more complicated, however, when the government compels conduct — in this case, getting vaccinated — that might minimize or reduce a harm that hasn’t yet occurred. This is an area of law called endangerment, where it’s difficult to apply rights theory. An example of this might be speed limits: we have speed limits, and libertarians, for the most part, don’t object to speed limits. At the time the limit is enacted, nobody has caused any harm. It’s only when the limit is violated. Most people who break the speed limit don’t cause harm, but it does increase the risk to innocent bystanders.
Safety requirements for nuclear power plants: surely, we wouldn’t argue that you have to wait for an explosion to occur before you go after a company for having caused that explosion with inadequate safety procedures. The real question boils down to, how much risk do I have to put up with before you can engage in activities that while you’re not harming me at the moment, you’re taking measures that might harm me in the future? It’s very difficult to resolve that question based on rights. Sometimes we have to look at these cost-benefit trade offs — utilitarian calculations — and that’s when safety, efficacy, and reasonable alternatives come into question. We can discuss each of those if you like. I think the three key factors are 1) is the vaccine safe, 2) is the vaccine effective, and 3) couldn’t we accomplish the same thing by some other means?
“Basically, strict scrutiny describes the hoops that the government has to jump through in order to justify regulations of fundamental rights.”
Bob Zadek 24:16
We are talking about trying to influence behavior, or in this case, imposing behavior in order to reduce the risk — not to stop somebody from being harmed, but to jiggle the odds to reduce the risk. The statistical resulting risk is not for the political process. Is 60 miles an hour the right number? Nobody knows for sure. It seems right. It’s as good as we’re gonna get, so let’s make it 60. If somebody wants to drive 70, and they’re inconvenienced, well, that is too bad. You’ll just have to suck up the inconvenience of limiting your speed to 60.
In my view, there is a totally non-governmental, free market solution that works in many other similar areas. I’m surprised this solution, that protects choice and rights, never gets discussed. Wouldn’t it solve all of these issues, including overcrowding of hospitals, which inconveniences people like yourself — if health insurance companies simply said, “We will not cover COVID related medical care if you’re not vaccinated?”
That would mean every individual, when they make a decision not to be vaccinated, will be making a free will decision, which will have scary consequences, because the trip to the hospital is life-altering if you don’t have the money. Might that work? Bear in mind that we are accustomed to this happening. After all, when you buy health insurance, your premium is adjusted for behavior like whether you smoke. Does it check all the boxes?
Bob Levy 27:53
Even though one would hope that the insurance companies can adjust their premiums to cover the amount of risks that they are incurring, and even though it’s quite clearly a higher risk for the insurance company to provide medical insurance for an unvaccinated person than for a vaccinated person, there are lots of examples where the insurance companies have been prohibited by law from adjusting their premiums. We see that, for example, in differences in mortality between women and men. Yet, gender distinctions on insurance are not permitted.
There are a number of areas where the government bureaucrats have decided that they know better than the insurance companies how much risk the insurance companies are going to be subject to, or they’re willing to overlook the fact that there are differential risks, and they do not permit insurance companies to adjust premiums.
Setting that aside, if, in fact, the government could be persuaded to allow insurance companies to reflect in their premiums the amount of risk that they would likely incur, then I think your idea is very good. There are some administrative difficulties. That is, some people are not refusing vaccines, but they medically can’t be vaccinated. There’s the question of the extent to which we determine whether or not refusal is the motivating factor. Could not people simply claim that they have a religious exemption, for example, or that they have a medical exemption from being vaccinated, therefore they’re entitled to be covered, because they have not refused? They simply are exercising either their constitutional rights or their right to be free of harmful vaccines being imposed by that. In short, I like your solution. I do think that there might be some administrative difficulties, but it certainly does conform to libertarian principles.
Bob Zadek 30:03
First of all, as to underwriting, the insurance company would simply say, “No, we’re not going to adjust the premium, we simply will not cover any COVID-related healthcare if you’re not vaccinated.” It’s yes or no. That would eliminate the actuarial evaluation of jiggling the premium. Second of all, as to insurance companies prohibited from scaling rates based upon sex, even though that is statistically defensible, the society simply, for whatever reason, historical reason, inequality and the like, has decided that’s a bad idea. I dare say the unvaccinated do not have the same lobby collectively as old women in America. I doubt there would be any political resistance.
As to the issue of religious exemptions, that’s the case if another insurance company wants to cater to that audience, and insure the unvaccinated, and it would price its premiums accordingly, and they could go after that market if it chose to do so. That would, in effect, to me, give the unvaccinated second thoughts, or at least have them absorb the societal cost of crowded hospital rooms — putting the costs where they belong. Perhaps some CEO of an insurance company who is listening to the show will see a market opportunity and go after it.
Now, as to the issue of vaccination, this is an attempt to allocate and make a judgment call about the degree of protection to society versus the cost to society of a certain type of behavior. Speed limits are the perfect example. Statistically, the odds of dying if you are vaccinated is pretty much lower than dying from the normal flu, yet we don’t have a mandate for the normal flu vaccine. If those statistics that are often presented to the public are true, would you then be less sympathetic to the government. because the odds seem to be based upon this balancing, and the harm from the unvaccinated imposed upon the vaccinated is pretty low.
Bob Levy 34:23
As far as the safety of the vaccine is concerned, as the argument for its safety increases, I think the argument for the government being able to mandate vaccination increases. If the vaccine were harmful to the person who’s vaccinated, then clearly a mandate would be an impermissible function of government. As of this date, almost 200 million Americans have been vaccinated against COVID according to CDC, and CDC has looked at this pretty darn carefully: the vaccine is safe. We don’t have very many adverse events and long-term side effects are not deleterious.
By the way, these mandates are nothing new. Every one of the 50 states mandates school vaccines, Wyoming is one I took a look at — they actually have required vaccines for 12 different diseases. The Supreme Court has weighed in on this back when we had the smallpox question. In 1905, in a case called Jacobson v. Massachusetts, the court said that a vaccine mandate was okay. If we were to look simply at this issue of safety, I think the argument in favor of a mandate is increased because the vaccine is provably safe. The reverse would be the case if the vaccine were shown to have caused harm for those who are vaccinated. That mandate would be a good deal less permissible and maybe even impermissible. But safety is only one part of the question.
The next part of it is whether or not the vaccine does any good. As you say, the statistics there too, are, I think, undisputed. We have data from virtually all the states and fully vaccinated people would come from somewhere between 0.2 percent and 6% of deaths, and somewhere between 0.1 percent to 5% of hospitalizations. All the rest of the deaths and hospitalizations involve unvaccinated persons. It’s quite clear — I would even go so far as to say indisputable — that the vaccine not only is safe, but also is effective. This argument that, “Well, look, some of the people who are vaccinated nonetheless get infected,” is not a very persuasive argument.
First of all, it’s not very many of the people that do have these so-called breakthrough cases. The key reason that we see the breakthrough cases increasing as a percentage of total is that we’re vaccinating more and more people. As a reductio ad absurdum, if we were to vaccinate, let’s say 99% of the population, then quite clearly, most of the cases that you see would be breakthrough cases because almost nobody is unvaccinated. We shouldn’t be surprised to see the proportion of cases rising. The important thing is that people who are fully vaccinated experience, as we already discussed, far fewer hospitalizations, and far fewer deaths than do the unvaccinated. I think this question of safety on the one hand versus efficacy on the other comes down very strongly in favor of permitting a mandate. It does leave the third question: couldn’t we do other things that would resolve the problem that would avoid violation of personal autonomy? One of those other things is the one you just mentioned: have insurance companies step in and refuse to cover unvaccinated persons while I don’t think we’ve fully fleshed that out. It is an idea that is definitely worth exploring.
The Principle Non-Delegation
Bob Zadek 38:34
OSHA has broad powers to issue this regulation. You have written about the issue of non-delegation — a core constitutional principle that we still are in profound disagreement about as a country. One would think living under a constitution for 240 years, you’d figure out how it works. That’s by no means the case. Help us understand the principle because it’s important in Obamacare, with the CDC eviction moratorium, and it’s important here. Give us the 30,000 foot view of the important constitutional principle/
Bob Levy 40:02
Sure, there are two questions here. The first of which is whether Congress can in fact delegate this kind of authority in the case of the vaccine to OSHA. The second question is whether if Congress can do so, did they, in fact, do so? On the second question, since that’s one we can dispense with rather quickly, the statute that you mentioned gives the Secretary of Labor the authority to issue what’s called an “emergency temporary standard.” That is what OSHA does to protect workers if there’s a, “grave danger” from exposure to substances, or it is determined to be toxic or physically harmful. I would argue that that principle is overbroad. There’s no limiting principle involved. We don’t know where government power starts and ends. We don’t know what constitutes a grave danger. What if we have herd immunity? Is there a grave danger? What if we have somebody who has natural immunity for having contracted COVID? Does that still constitute a grave danger? That’s a statutory question.
Your key question is, can Congress delegate this kind of authority to an administrative agency? The very first sentence in the constitution if the preamble says, “All legislative Powers herein granted shall be vested in a Congress of the United States” Why does it say that? Because the framers were smart guys, and they knew if Congress passes an oppressive law, the voters can respond by changing the membership of Congress. The question is, suppose the law is murky. Suppose the Congress wants one of these all 320 or so regulatory agencies in Washington DC to flush out these oppressive details. The fact is, the courts don’t do much about it. The voters can’t do much about it, because these agencies in the cabinet departments are run by unelected bureaucrats and they’re not responsive to the political process. Congress’s powers are not inherent. They are delegated to Congress by us, by the people, through the Constitution. Accordingly, Congress can’t turn around and re-delegate those powers, unless we — again, the people– through the constitution, can sense that most important, the doctrine of separation of powers, which is a centerpiece of the Constitution, does not permit combining legislative, executive and judicial functions in one entity. Yet many — most — of these administrative agencies exercise all three functions. What are the courts saying? Basically, they said, “Yeah, we know Congress is not supposed to do this. They’re not supposed to pass the buck, but governing is pretty complicated. It’s okay for these executive and administrative agencies to have this power, as long as Congress lays down what’s called an intelligible principle. The agencies know how to fill in the gaps.” Nobody has quite figured out what that means.
“Congress’s powers are not inherent. They are delegated to Congress by us, by the people, through the Constitution.”
Bob Zadek 43:24
If you could just repeat that last sentence, because it was very important.
Bob Levy 43:32
The court says delegation of these legislative functions to the agencies and executive departments is okay, as long as Congress lays down an intelligible principle, so that the agencies know how to fill in the gaps in the legislation. Nobody has quite figured out what constitutes an intelligible principle. The net result is that these Washington DC alphabet agencies are now operating overtime. We have HHS in regulating healthcare. The FCC is trying to control the internet. The Consumer Financial Protection Bureau is making a lot of mischief under the Dodd Frank Act. If you want to know how big a problem this is, you have to consider that these federal agencies now dwarf Congress when it comes to making rules that control what Americans can do. These rules are compiled in what’s called the Code of Federal Regulations. It’s now 200 bound volumes — about six times as large as the US code that contains all the laws passed by Congress. This is a huge problem. Sad to say, it’s getting worse.
Bob Zadek 44:52
The dynamics are obvious to anybody who even pays passing attention to the political process. Congress enacts broad legislation, like, “Let’s have clean air. Let’s have clean water. Let’s all be polite.” They get credit for brilliantly making life in America better. They pass broad legislation. The agencies have carte blanche. When people are angry, they’re not angry at Congress, they’re angry at the agencies. Then what does Congress do? They drag the agency heads up to the Hill, and they then examine them on C-span. They indignantly say, “You did what is out of your mind,” and they criticize the agencies for taking advantage of the broad authority that Congress gave them. They get to pass the legislation and get reelected, then criticize the agencies who are struggling to figure out what Congress intended. When the agencies get it wrong, according to popular opinion, Congress gets another bite at the apple, and they get more credit for being angry at the agencies for guessing wrong. It is a win-win for Congress. This is passing the buck on governmental steroids.
Now you have the issue of whether the agency went too far. Well, who gets to decide ultimately — the courts? The courts are forced to make political decisions. Did the executive branch go too far? The last thing the judicial branch wants to do is resolve questions that shouldn’t have existed, but for Congress passing the buck. That leaves us with, in effect, the judiciary as the dominant ultimate branch of government, never as intended.
Tell us a bit about how unhappy this must make the judicial branch, particularly the Supreme Court — being dragged into this fight, which they desperately want to be able to avoid.
Bob Levy 48:07
Chief Justice Roberts has been focused quite a lot on ensuring the institutional respectability of the court. He’s pointed out that to the extent that the court is politicized, the respectability of the court diminishes, and the public’s willingness to abide by the dictates of the court are correspondingly diminished. The chief justice and some of the other justices — particularly Breyer and Thomas — have taken pains to ensure everybody that the court is not politicized.
Well, in cases like this, delegations of power by Congress to administrative agencies come before the court, the court is forced into a political mold that they want to avoid. The court wants to be able to say that there are clear, precise guidelines drafted by Congress and they have either been complied with or they have been violated. Congress not only doesn’t give you precise guidelines, but doesn’t give you any guidelines at all, and simply delegates power to an administrative agency or even worse an executive branch agency. The court doesn’t have legislation that they can refer to in the process of determining whether the statutory obligations have been complied with. I think Chief Justice Roberts is quite correct, this diminishes the intellectual and institutional respectability of the court, something that we want to avoid. The Court is our last bulwark against violating constitutional requirements. It’s the job of the court to make sure that the legislative and executive branches are bound by the chains of the Constitution. When those branches abdicate the authority that the custom patient gives to them, that puts the court in a very difficult position.
Bob Zadek 50:24
It is so interesting to me to see how something like COVID creates such a profound stress test on our core constitutional principles. Secondly, it brings these important constitutional issues into the public debate. You cannot avoid wondering, “Did the founders get it right?” And for sure they did in balancing power, but issues like COVID bring this to our attention.
I want to close by thanking both Bob Levy for his contribution this morning, and for his writings, and for his leadership of Cato. Cato is clearly the preeminent American think tank on personal liberty, individual choice, and very limited government. Cato does magnificent work providing scholars up on the Hill, and to us ordinary folks who simply want to learn more about how our government works. Bob, how can our friends out there follow the work of Cato and of your writing?
Bob Levy 51:48
Well, the best way is to check out our website, which is cato.org. Also check out folks like you who spread the libertarian message and do a big favor by helping us spread the message that we think is critical to limited government and securing individual freedom.
- Robert A. Levy | Cato Institute
- “Vaccine mandates: A liberty-minded perspective”, by Robert Levy, The Hill
- Vaccine Mandates, George Mason, and the Bill of Rights with Todd Zywicki and Jenin Younes, August 25, 2021
- Vaccines & the Totalitarian Principle with Dr. Jeffrey Singer, April 4, 2021
- Unprepared: Government Failure at the CDC/FDA with Alex Tabarrok, April 9, 2020
- How to Stay Sane as a Libertarian on Lockdown with Jacob Sullum, March 27, 2020