This weekend The Washington Post published an exhaustive analysis highlighting the Trump administration’s desperate efforts over the last two months to find an excuse—any excuse—to “reopen” American businesses even as the COVID-19 pandemic continues to surge. This single-minded focus on “reopening the economy” demonstrates a grim understanding by the administration that a still-tanked economy in November would spell near-certain doom to Donald Trump’s reelection prospects.
As the Post article notes, this has been Trump’s only real focus over the past two months, ever since the seriousness of the pandemic became impossible for him to minimize, lie about, or ignore.
Notably, Trump wasn’t the only one with the “reopen” mantra. According to the Post:
Trump heard that message from others as well. He held regular calls with a group known internally as “Kudlow’s guys” — generational peers with high media profiles, including Laffer, financier Steve Forbes and economist Stephen Moore.
“Get open, get open, get open — we kept pressing that point,” Moore said. Otherwise, he recalled telling Trump, “You’ll have a mini-Great Depression. You’ll have body bags of dead businesses and jobs that will never be resurrected.”
If nothing else, the Post article is remarkable because it shows a complete lack of concern by Trump for anything but his reelection prospects during the past two months. Yet if Donald Trump expects the economy to “reopen” any time soon, he is likely to be sorely disappointed. The irony is that he will have no one but himself to blame.
As observed in March by Quinta Jurecic and Benjamin Wittes writing for the Atlantic, the Trump administration’s approach to governance can be distilled into two words: malevolence and incompetence. In most cases, the malevolence is seen first, and it is often tempered by the administration’s ineptitude in execution.
In the administration’s response to the COVID-19 pandemic, however, the formulation has been reversed: First we saw the incompetence, and only now are we seeing the malevolence. As Jurecic and Wittes noted, it is the nature of the pandemic itself that has upset Trump’s typical “playbook.”
Trump’s normal playbook is particularly ill-suited to a crisis in which nobody is to blame, involving an adversary who cannot be bullied and against which competent crisis management offers the only plausible hope for success.
The problem with “reopening” businesses during this pandemic is a case in point. There is really only one thing right now impeding a lot of businesses from reopening, and it’s not so much a tender “concern” for the safety of their workers. When large corporations (and some small ones as well) “reopen,” it will most assuredly not be the highly compensated officers, directors, partners, and shareholders who venture into their crowded workplaces to risk death by the coronavirus. It will be the necessary clerical and logistical day-to-day workers—colloquially known as “the support staff”—who will be the ones asked to risk their lives. The more highly paid workers issue their edicts and send their urgent "action" intraoffice emails while nesting safely at home and tending to their children, whose private schools will remain shuttered over the summer and probably into the fall.
Nor is it fear of lack of business. If that occurs (as is quite likely), the existing workers can simply be fired or furloughed. New workers can always be rehired later. There will certainly be enough people looking for jobs.
No, what terrifies many, many businesses most of all right now is legal liability. And on that score, corporate America is in very uncharted, unmapped, unconsulted, and sparsely advised territory. As reported in The New York Times, the issue of legal liability is what’s been keeping business executives up at night. And they’re loudly complaining to Trump about it during telephone calls with him.
Another issue of great concern to the executives on the call, one participant said, was the need to address the liability companies could face if employees got sick after returning to work, given the possibility that workers who felt that they were brought back too soon — or were not placed in a safe environment — could sue en masse.
They’re scared. And they have a right to be. Just imagine: Sleazy McSleazebag owns the controlling interest in the Bump and Grind nightclub in downtown Philadelphia. He really wants to reopen and start raking in those profits, but he’s terrified that someone will contract COVID-19 after coming to his club. Now in some states (at least in theory) he can try to have his customers sign a waiver, but if they go on to infect grandpa and grandma after a visit to the nursing home, McSleazebag is potentially on the hook for multiple wrongful death suits, and his insurance just won’t cover that. Thus McSleazebag, and those like him, are scared shitless of reopening.
Yes, anyone suing McSleazebag will be faced with significant proof problems. (How can anyone be certain they contracted the virus by freak dancing at the Bump and Grind?) But just the threat of being hauled into court by an ever-expanding chain of third-party contacts is enough to make any stodgy businessman tremble. That’s how plaintiff’s lawyers make their money, and simplistically speaking, that’s why so many cases are settled. This analysis from Fox Business summarizes the possibilities:
[T]he core argument for claims related to the coronavirus is that "a customer/employee/patient/member of the public/etc. was exposed to COVID-19 in a business facility or as the result of a business’ particular action, or failure to act, and then that claimant became sick."
Claims employees can make can range anywhere from simple negligence to strict liability to public nuisance.
The point is that almost any business is potentially liable, if not to its employees (because worker’s compensation generally precludes an employee suing his employer directly), but to its customers, suppliers, vendors, and anyone else they may come into contact with. This goes double for any business involving personal contact such as barbershops or even physical therapists. And the employer payments for worker’s compensation coverage would be staggering, even if employees were barred from suing.
So now the administration is telling Corporate America that it will try to provide some sort of “pandemic liability shield” into the next stimulus package. But any stimulus package including such protections at the federal level must pass the Democrat-controlled House of Representatives. How likely is it that someone like New York Rep. Alexandria Ocasio-Cortez going to vote for such a provision? Answer: Not likely at all, even if the administration tries to extort such a provision as a condition for providing further aid to unemployed Americans. Mitch McConnell suggests he will do just that as a condition of any further stimulus measures, in effect setting up a preemptive ultimatum to House Democrats.
But McConnell’s hand may actually be weaker than it looks. The businesses that want this type of immunity are bleeding, and many of them are looking at bankruptcy if the shutdowns go on too much longer. From the voting public’s perspective (and even from a purely Machiavellian perspective) getting the economy moving again is really Trump’s problem to solve if he wants to get reelected. If the economy is still spiraling downward with no hope in sight by November, Trump is a goner. That’s why he’s completely obsessed about it. And from a practical and moral perspective, Democrats have the upper hand: No one should be sacrificed to COVID-19 just so Donald Trump’s donor base can be immunized from liability.
There is a solution: If, after cases of infection begin to wane, after the curve is “flattened,” businesses can verifiably demonstrate their compliance with strict, uniform social distancing guidelines as prescribed by the CDC or other reputable medical organizations, that in itself may operate to create a presumption that a business or corporation made its best effort to protect not only its employees but its customers, vendors, and third parties. That presumption could either establish an immunity, a safe harbor, a cap on damages, or it could force a person desiring to sue to overcome the presumption. These are all common vehicles in other legal contexts, and they can be negotiated in the legislative process, with appropriate input from Democrats in charge of the House.
But here’s the rub: Who enforces those guidelines? If you want uniformity (and businesses do want uniformity, otherwise while they may be immune from lawsuits in Alabama, they may be susceptible to them in North Carolina) then such standards and guidelines have to be established at a federal level. And they have to be enforced, otherwise they’re meaningless. The only federal body with the power to establish such guidelines—and enforce them—is the Occupational Safety and Health Administration (OSHA).
Like all federal agencies under the Trump administration, however, OSHA has been hollowed out and filled with incompetent, pro-business Trump cronies.
OSHA is enforcing the CDC guidelines and conducting inspections in response to deaths in hospitals but not in other cases, according to an OSHA memo released April 13 and Debbie Berkowitz, Worker Safety and Health program director for the National Employment Law Project, a worker advocacy group. About 4,000 coronavirus-related complaints have been filed against employers that fail to provide safe workplaces but the agency has not issued any citations or fines, Berkowitz says. Instead, she says, OSHA is pointing businesses to the voluntary guidelines.
“OSHA is not enforcing anything,” says Berkowitz, former OSHA senior policy adviser during the Obama administration. “OSHA does not have the backs of workers…It’s a travesty.”
“No enforcement,” translated, means no compliance by business—or, at best, half-assed compliance. Blanket “safe harbor” provisions granting companies immunity have much the same effect: They actually encourage non-compliance. But either way, an agency that has completely forgotten how to do its job is not going present a very convincing reason for Democrats to agree to any type of “immunity” or letting businesses off the hook for their own liability simply by adhering to “social distancing” regulations that aren’t even being enforced. A much stronger OSHA presence should be necessary, one with real teeth, and one with an enforcement mandate greater by orders of magnitude than the one that exists today.
Democrats, meanwhile, are trying to beef up what they see as weaknesses in OSHA enforcement. Democratic lawmakers pressed for a bill requiring OSHA to issue an emergency standard to obligate all workplaces to implement coronavirus exposure and control plans.
It should go without saying that this type of solution goes directly against all Republican orthodoxy, and against all efforts that this administration has made thus far in the area of federal regulation. It would actually require this administration to properly staff an agency with people who care about ordinary Americans. And in fact, the administration has already declined to beef up OSHA enforcement in response to workers victimized by the meatpacking industry. So this administration is unlikely to suddenly embrace any stronger federal regulation. But if you want to live by that creed, you risk dying by it as well.
Whether or not Democrats are successful in requiring stricter enforcement from OSHA will be decided in the next few months. But even if they are successful, it doesn’t seem likely that the bureaucratic gears will suddenly be greased enough to satisfy American business that its liability concerns have been wholly addressed by November.
So Trump’s fervent desire to “reopen” the economy is likely to end up a casualty of his own administration’s malignant incompetence, and his own party’s antipathy towards good government.
In other words, it will be Trump’s own damn fault.