E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
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Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
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The “War” Against Covid: Warfare and its Discontents
Guest Blogger
For the Balkinization Symposium on Death and Legal Scholarship Catherine Powell “This is
a war.You are the frontline troops.” President Joe
Biden,
March 19, 2021 This
post examines a puzzle that I’m wresting with in a longer paper tentatively titled
“The War Against Covid and Our Post-Pandemic Future: Warfare Metaphor and its
Discontents.” The longer paper critically analyzes the wartime framing Presidents
Trump and now Biden have invoked in fighting the mass carnage of COVID-19. This militarized framing aims to, in Trump’s
words, “fight that invisible enemy,” coronavirus. The
conundrum: how might lawmakers address the COVID crisis with the urgency of an
emergency without reinforcing our militarized, securitized, overly-policed
carceral state? I’m particularly grateful to Mary Dudziak for her related work on wartime and
peacetime as well as her encouraging me to
purse this project. At
the time of writing, the number of individuals who have died directly from COVID
is over 5.5 million
globally and over 800,000 in the United States. More broadly, countless people have died and suffered
indirectly from COVID due to (1) the inability to treat other severe illness
because of the strain on the healthcare system, and (2) the economic wreckage
resulting from various quarantine limitations, including lockdown measures that
led employers to suspend operations and/or close permanently, leading to loss
of jobs and income for workers. Thus, I’m examining the twin, interrelated
health and economic crises of the pandemic, and the steps necessary for
building a post-pandemic recovery (even while recognizing the likelihood that COVID
itself may be endemic and therefore ongoing). As
such, this project builds on my recent scholarship and related work on the “Color of Covid” and “Gender of Covid,” which illustrate the substantially raced and gendered
disparate impacts of the current crisis with regard to: on the one hand, pandemic-related
job loss, and, on the other hand, representation in “essential” (frontline)
work. In the early stages of the pandemic, while public health professionals
and scholars rightly drew attention to disparate transmission, hospitalization,
and death rates (and, later, vaccine access), in parallel, my “Color of Covid” work
unmasks the racial and gender justice paradoxes of our stay-at-home COVID
economy. Paradoxically, people of color and women (and particularly women of
color) were simultaneously under- and over-represented in the labor force
during the first year of the pandemic, based on the structural inequalities that
are amplified in our increasingly touchless (remote work) economy and society. Beyond the disparate
economic suffering, these economic consequences place disadvantaged groups at
greater risk of health insecurity (due to job loss) and COVID transmission in
frontline jobs (which, itself, may partially explain racially disparate COVID rates). Wartime Framework: A
Militarized Approach Joe
Biden invokes the idea of war to call attention to the massive government
effort needed to address the pandemic. In remarks at the CDC in spring 2021,
for example, Biden emphasized, “This is a war” and “[Y]ou are the Army. You’re the Navy.
You’re the Marines. You’re the Coast Guard…. You are the frontline troops.” Framing
the fight against COVID as a “war” did not begin with Biden. When Donald Trump
was president, he announced that the
fight against COVID was “our big war…. It’s a medical war. We have to win this war.”
In doing so, Trump added fuel to the fire for a
trade war with China, as well as anti-Asian hatred, referring to “our war
against the Chinese virus.” In fact, Trump sought to blunt criticism of his own
mishandlingof the COVID
response by pushing blame
onto a foreign power. Beyond
the rhetorical value, declaring a “war” against COVID provided Trump with a
legal hook to authorize presidential power under the Defense Production Act
(DPA). While Trump was slow to invoke
the DPA to accelerate production of personal
protective equipment, he used his emergency powers to maintain production in poultry plants, where assembly line workers are disproportionately
Black and Latino (and lack OSHA oversight). Invoking the DPA as
the basis of his executive
order, Trump instructed his Agriculture Secretary, “to ensure America’s meat and poultry processors
continue operations,” claiming
scarcity of meat and poultry. As Jane Mayer documents, Trump’s obsession with keeping poultry plants open was
in part based on his cozy relationship with donors in the poultry industry. The
challenge of maintaining social distance on the assembly line led to outbreaks
at numerous poultry plants. But Trump used the “war” against Covid to support poultry
production as well as his Southern Border wall, which, as I’ve discussed elsewhere, has roots in racial tropes. War powers were a convenient shield
for Trump in asserting, “To this day, nobody has seen anything like what they were
able to do during World War II….Now it’s our time. We must sacrifice together
because we are all in this together and we’ll come through together.” Warfare During Periods of
Crisis and Constitutional Change War
and other moments of crisis often prompt calls for transformative change. Given
our current interlockingpandemics of COVID, economic precarity, and inequality, observers draw
upon history to emphasize the importance and urgency of this moment. For
example, analysts frame this moment as calling for, alternatively: a “Third
Reconstruction” or “New
Reconstruction” (noting the post-Civil
War era); a “21st
Century New Deal” or Joe Biden’s new “New Deal” (noting the aftermath of the Great Depression);or a new “Marshall Plan”—even putting a racial
justice “Thurgood
Marshall Plan” or feminist “Marshall Plan for Moms” spin on it (noting U.S. aid for European rebuilding after World
War II). Pros and Cons of a
Militarized Framework On
the one hand, invoking “war” as a way to define a battle justifies presidential legal
authority and helps rally political support for
quick action in the face of an emergency. On the other hand, reliance on a militarized
framing risks reinforcing the legitimacy of domestic militarization,
strengthening the carceral state, and undermining more transparent, democratic
forms of governance. The militarization of American policing
reveals a dangerous downside of military models for domestic policy. Conclusion: We Need an Alternate
Framework Rather
than use wartime legal authority and rhetoric—approaches which privilege
militarization, securitization, and “law and order” over justice—we need develop
and deepen an ethics, politics, and legal framework of care.