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It was arbitrary because small hardware stores had to close, while big ones could stay open. Also, because in most states someone in the governor’s office just

by db48x 4y ago

It was arbitrary because small hardware stores had to close, while big ones could stay open. Also, because in most states someone in the governor’s office just went down a random list of professions or business types and decided on the spot whether to shut them down or not. That’s the very definition of arbitrary and capricious. It also fails the rational basis test, since the government hadn’t even come up with a rationale for why certain businesses have to close while others can stay open. Or why a Walmart could have a 500 people in it, while churches were limited to 10 people at a time (regardless of the size of the church’s building, even), etc.

themitigating 4y ago
Then why?
- db48x 4y ago
  Then why what? Can you elaborate a bit?
  - themitigating 4y ago
    Sorry, why would he do this? If he wasn't doing it thinking it would help then what?
    - db48x 4y ago
      I’m not sure which person you are referring to, but it doesn’t matter if someone thought it would help. That’s not sufficient. The rules vary somewhat from state to state, but in general a government order must be narrowly tailored to serve a legitimate government interest, there must be a rational basis for how the order will actually serve that interest, and it must not be arbitrary or capricious. It has to have all three or it’s out. Notably, “I thought it would help” isn’t quite on the list. If you can explain why something might help, then that could form your argument for the rational basis test (although it would be better if you could explain how it _will_ help, rather than how it _might_ help). But the order had better meet all the other requirements as well. There are often other requirements as well. The agency writing the order must have the explicit authority to do so. Some types of orders are limited ahead of time by legislation. For example, many states have a written maximum amount of time that any order based on a state of emergency can last. Etc, etc.
triceratops 4y ago
I didn't know about small hardware stores being forced to close. That's the arbitrary part then. If it was a question of space, they should've been allowed to continue business with curbside pickups. Religion and community are important. But congregating inside a church building is not something that needs to be prioritized during a pandemic. Schools and daycares first.
- db48x 4y ago
  > But congregating inside a church building is not something that needs to be prioritized during a pandemic. Schools and daycares first. Not everyone puts priorities in that order. For many people, religion is much, much more important than daycare. Plus, any order which treats businesses differently is going to be arbitrary. If you can go to a school but not a bar, then that is arbitrary.
  - triceratops 4y ago
    > If you can go to a school but not a bar, then that is arbitrary. It literally is not. I don't think you understand what "arbitrary" means. It's not "I don't see the difference". > For many people, religion is much, much more important than daycare. So have the service in the parking lot of the church. Or on an open field, the way JC used to preach. Not having daycare is far more disruptive to far more people objectively. Way more people go to school and daycare every day, than go to church. Way more people depend on having a school or daycare to send their kids to, than go to church.
    - db48x 4y ago
      > I don't think you understand what "arbitrary" means. It's not "I don't see the difference". Arbitrary here means that the rule wasn’t decided rationally. The government must typically establish a “rational basis” for any rule that they want to impose on people. It is commonly understood that being indoors with a lot of people increases the risk of transmitting a virus between those people. The risk is understood to go up when more people are present, but it is also higher when the building is smaller than when it is larger. Thus, a rational basis for the maximum occupancy of a building during a pandemic would be based on the number of people per square foot. A rule such as “1 person per 100 square feet” treats both large and small groups fairly, as well as treating large and small buildings fairly. When we look at specific rules that were actually in place during the pandemic, we often find that there was no such rational basis. The rules were instead arbitrary. In NYC, churches were limited to a flat 10 people in the building at any one time, regardless of the size of the church building. This limits a large church more than a small one, and thus the rule is arbitrary. It would have been no more arbitrary if they had rolled dice to pick the number. Similarly, the same rule in NYC did not apply to big–box hardware stores. A Home Depot could have hundreds of people in it all the time! No matter how important hardware stores are, this is an arbitrary distinction. There is no rational basis under which the virus is dangerous to a group of 11 people who are in a church, but not to a group of 11 people who are in a Home Depot. The relative importance of churches and Home Depots is not important. What is important is that the difference in how the rule applied to them was arbitrary.

by db48x 4y ago

themitigating 4y ago

Then why?

db48x 4y ago
Then why what? Can you elaborate a bit?
- themitigating 4y ago
  Sorry, why would he do this? If he wasn't doing it thinking it would help then what?
  - db48x 4y ago
    I’m not sure which person you are referring to, but it doesn’t matter if someone thought it would help. That’s not sufficient. The rules vary somewhat from state to state, but in general a government order must be narrowly tailored to serve a legitimate government interest, there must be a rational basis for how the order will actually serve that interest, and it must not be arbitrary or capricious. It has to have all three or it’s out. Notably, “I thought it would help” isn’t quite on the list. If you can explain why something might help, then that could form your argument for the rational basis test (although it would be better if you could explain how it _will_ help, rather than how it _might_ help). But the order had better meet all the other requirements as well. There are often other requirements as well. The agency writing the order must have the explicit authority to do so. Some types of orders are limited ahead of time by legislation. For example, many states have a written maximum amount of time that any order based on a state of emergency can last. Etc, etc.

triceratops 4y ago

I didn't know about small hardware stores being forced to close. That's the arbitrary part then. If it was a question of space, they should've been allowed to continue business with curbside pickups. Religion and community are important. But congregating inside a church building is not something that needs to be prioritized during a pandemic. Schools and daycares first.

db48x 4y ago
> But congregating inside a church building is not something that needs to be prioritized during a pandemic. Schools and daycares first. Not everyone puts priorities in that order. For many people, religion is much, much more important than daycare. Plus, any order which treats businesses differently is going to be arbitrary. If you can go to a school but not a bar, then that is arbitrary.
- triceratops 4y ago
  > If you can go to a school but not a bar, then that is arbitrary. It literally is not. I don't think you understand what "arbitrary" means. It's not "I don't see the difference". > For many people, religion is much, much more important than daycare. So have the service in the parking lot of the church. Or on an open field, the way JC used to preach. Not having daycare is far more disruptive to far more people objectively. Way more people go to school and daycare every day, than go to church. Way more people depend on having a school or daycare to send their kids to, than go to church.
  - db48x 4y ago
    > I don't think you understand what "arbitrary" means. It's not "I don't see the difference". Arbitrary here means that the rule wasn’t decided rationally. The government must typically establish a “rational basis” for any rule that they want to impose on people. It is commonly understood that being indoors with a lot of people increases the risk of transmitting a virus between those people. The risk is understood to go up when more people are present, but it is also higher when the building is smaller than when it is larger. Thus, a rational basis for the maximum occupancy of a building during a pandemic would be based on the number of people per square foot. A rule such as “1 person per 100 square feet” treats both large and small groups fairly, as well as treating large and small buildings fairly. When we look at specific rules that were actually in place during the pandemic, we often find that there was no such rational basis. The rules were instead arbitrary. In NYC, churches were limited to a flat 10 people in the building at any one time, regardless of the size of the church building. This limits a large church more than a small one, and thus the rule is arbitrary. It would have been no more arbitrary if they had rolled dice to pick the number. Similarly, the same rule in NYC did not apply to big–box hardware stores. A Home Depot could have hundreds of people in it all the time! No matter how important hardware stores are, this is an arbitrary distinction. There is no rational basis under which the virus is dangerous to a group of 11 people who are in a church, but not to a group of 11 people who are in a Home Depot. The relative importance of churches and Home Depots is not important. What is important is that the difference in how the rule applied to them was arbitrary.