Elon Musk is no stranger to controversy, so it was not a surprise when the Tesla CEO started tweeting out hot takes slamming the shelter-in-place guidelines aimed at limiting the spread of the coronavirus in the U.S. He even took time during Telsa’s earnings call to criticize the measures.
Is Musk right that we need to “FREE AMERICA NOW,” or is he joining the ranks of Twitter conspiracy theorists? Let’s get down to facts:
Claim: Shelter-in-place orders are unconstitutional
In a Tesla earnings call on Wednesday, Musk lambasted the shelter-in-place orders that states across the U.S. have instituted: “To say that they cannot leave their house and they’ll be arrested if they do? This is fascist.” He claimed the measures were “forcibly imprisoning people in their homes against all their constitutional rights.”
Judicial precedent is not on Musk’s side here. Under the 10th Amendment, the Constitution grants states the rights and powers “not delegated to the United States,” and public health is one of these. The shelter-in-place orders in the various states have been implemented by those states themselves, not fascist federal overlords.
The Supreme Court has upheld a state’s right to police public health at various times. In Jacobson v. Massachusetts, the court reaffirmed the state’s right to require vaccinations, with Justice Marshall Harlan noting that “in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint … as the safety of the general public may demand.”
Additionally, states have been able to “impose short-term economic restrictions” in times of crisis, as Stanford Law professor Bernadette Meyler writes in the New York Times, citing a 1934 case in which the Supreme Court upheld a law that extended the time borrowers had to pay back their mortgages, potentially in conflict with the Constitution’s Contracts Clause.
Claim: Authorities can arrest those who violate quarantines
During the Tesla earnings call, Musk expressed anger that the government would arrest people for leaving their homes. While states do have the power to use the criminal justice system to enforce stay-at-home orders, many police departments are taking a measured approach, asking crowds to disperse and issuing fines if they refuse, only escalating to arrest in severe circumstances.
The rare arrests that have happened occurred in cases where people organized and refused to disperse crowds or reopened nonessential businesses in violation of the orders. Even then, police are tending to ask for compliance rather than slapping on handcuffs. Different states vary in how strict they are, but none of them have become outright police states.
Claim: Sweden is getting it right
If the last few months haven’t seemed crazy enough, Sweden has become the darling of some quarantine critics thanks to its relaxed approach to the coronavirus, with restaurants, schools, and more remaining open. Musk calls Sweden’s approach “sensible.” Do the numbers back that up?
Sweden is sensible
— Elon Musk (@elonmusk) April 30, 2020
Not really. While Sweden’s numbers may look good compared to New York, the country is faring much worse than its comparable neighbors, with over 21,000 cases and over 2,500 deaths (in contrast, Norway has just 7,710 cases and a little over 200 deaths).
Sweden’s approach may be attractive to businessmen who want their operations to continue, but at this point, it’s way too early to call the nation’s hands-off approach a success.
Claim: California’s hospitals are half-empty
California responded early and aggressively to the pandemic, and the state’s measures have drawn Musk’s ire. He tweeted a graph showing that California’s hospital bed occupancy since April 1 has been drastically lower than Gov. Gavin Newsom’s predictions.
Hospitals in California have been half empty this whole time pic.twitter.com/8GL2BLypqV
— Elon Musk (@elonmusk) April 30, 2020
Empty hospitals may seem like a sign that the pandemic worries are hysterical, but the truth is more complicated. For starters, many hospitals have canceled “elective procedures” in order to free up space for any surge of coronavirus patients that may present itself.
As ProPublica explains in a report on the nation’s hospitals, in a moderate scenario where 40% of adults contract the disease and a fifth of those required hospitalization, America’s ICU beds would be woefully insufficient, and “the total capacity would need to be increased by 74%.”
Empty hospital beds are a sign of preparedness, rather than an indication that the virus is not that bad.
It’s also important to note that Newsom’s order came down March 19, almost two weeks before the data in that graph. The empty hospital beds could just as easily be proof California’s approach has worked, rather than evidence that it’s unnecessary.
For the latest updates on the novel coronavirus outbreak, visit the World Health Organization’s COVID-19 page.
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