North Carolina will move into Phase 2 of the governor’s three-phase reopening plan on Friday, May 22nd at 5 p.m. Gov. Roy Cooper and Department of Health and Human Services Secretary Mandy Cohen made the announcement on Wednesday, two days before the scheduled transition.
Many are calling the governor’s approach overly cautious, especially given the positive results of lifting restrictions in surrounding states. In the midst of the economic disaster, the state legislature may consider measures to speed up the state’s reopening.
Cooper and Cohen each emphasized that Phase 2 is more “modest” than they had initially envisioned due to a continued increase in the number of coronavirus cases in North Carolina. However, they acknowledged that the increase in lab confirmed cases is a natural result of the dramatic increase in testing, and the percent of tests coming back positive has decreased since late April.
When the plan was announced on April 23, Phase 2 included openings of bars, gyms, entertainment venues, and public playgrounds – all of which remain closed under the revised Phase 2 plan.
Phase 2 as outlined in the governor’s April 23 press conference. Full slide deck available here: https://governor.nc.gov/news/governor-extends-stay-home-order-through-may-8-plans-three-phase-lifting-restrictions-based
Many have criticized the governor’s new Phase 2 as arbitrarily restrictive. Why are restaurants safer than bars? Why can gyms not open by appointment as hair salons can? If there are valid scientific reasons for these distinctions, the Cooper administration hasn’t been very clear about them.
The tightened restrictions of Phase 2 are even more harmful given that this phase is scheduled to last five weeks. The 5-week timeline was part of the initial plan, not adjusted at all in light of the stricter standards. Perhaps an alternative would’ve been to do a Phase 2a and 2b, with 2a lasting a week or two, then moving to 2b which could’ve been the original Phase 2 proposed by the governor in April.
Facilities left out of the Phase 2 reopening have been closed since mid to late March. Adding five weeks to their already minimum eight week shutdown will be a death sentence for some of those businesses. Even businesses that are allowed to reopen for Phase 2 – such as dine-in restaurants – face restrictions on capacity that may make it impossible to keep their doors open.
Some members of the state legislature have been vocally opposed to the new, more restrictive Phase 2 on their social media platforms. A few examples include Senate President Pro Tem Phil Berger’s office, House Majority Leader John Bell, and Rep. Chuck McGrady.
What can the General Assembly do to help the businesses and families that will be devastated by the new Phase 2?
One option may be for the legislature to enact direct changes to the executive orders. This route could entail small changes, like expanding restaurant capacity, or larger changes, such as adding gyms and bars to the list of businesses that can reopen. The legality of such a move would have to be evaluated by the legislature’s lawyers, given separation of powers considerations. But this would also come with considerable political risk for the majority party, which is Republicans in both chambers. The legislature may essentially save Cooper, a Democrat, from himself under this scenario as tensions mount over the governor’s slow reopening. These two factors make this option unlikely, even if it is good policy.
Another option – and one that may be more legally and politically feasible – is to remove the threat of enforcement from the governor’s shutdown orders. The House and Senate have each filed a bill that would remove the enforcement mechanism from the governor’s shutdown of the state’s economy. The NC Freedom to Work Act removes the criminal liability associated with business owners operating against the governor’s executive orders and reduces the civil liability to a $25 fine for the first violation with an additional dollar for every day thereafter. The bill also prevents state occupational licensing boards from revoking licensure for order violations.
One UNC economics professor urged the governor to consider the “enormous cost of each lockdown day” compared to the comparatively low marginal health benefit, according to his analysis. The announced additional five-week shutdown or major restriction on North Carolina businesses could be catastrophic for many business owners, employees, and their families. If the governor will not properly weigh the benefits and the harms of additional shutdowns, the legislature may have an obligation to the people of North Carolina to step in and fill the leadership void.