Tuesday, February 01, 2022

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 mishandling of 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 interlocking pandemics 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.

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