Why is our government holding us liable for COVID-19?

Rather than bet on Americans’ resolve to defeat COVID-19, politicians in Washington and the states are readying to hedge their bets against us. Their plan may save their political futures, but their deliverance will come at high cost to the country and America’s businesses.

As Congress returns to session, its foremost concern appears to be not so much how to halt the spread of the virus but how to spread the liability for COVID-19 onto Americans — the communities, businesses, service providers, mass transit, grocery stores, restaurants, barbers, hair stylists, hospitals, doctors, caregivers, schools, churches and citizens who will reopen America, if America is to reopen.

The shutdown necessitated by the pandemic has ravaged our national economy, leaving the nation on the precipice of economic calamity. The shape and form of a recovery in the second half of the year is beginning to be discernible. But as if intent on snatching defeat from the jaws of victory, Congress and the states are fast drawing up a plan that will imperil that recovery.  That plan: Hold Americans and America’s businesses liable for the further spread of COVID-19.

While the pace of our knowledge is quickening, the fact is we do not yet know how to protect Americans from the scourge of this virus. At the same time, there is an urgent need to reopen our country. America must return to work, if she is to survive this pandemic economically.

The reopening of America is the first order of business, now. And the first order of business for the reopening of America is reopening businesses. If there is a nation up to this task, it is America — you can always bet on America. Our politicians need to bet on us, too.

The last thing we need right now is for our politicians — the ones urging us to reopen our country, some believing too soon — to turn around and impose devastating liability on businesses and citizens for anticipated failures to protect employees, customers, passengers, clients, patients, students, congregations and the public at large from COVID-19. This, when neither the politicians nor anyone else knows how to protect us from the virus.

If ever in our history there were a circumstance that legally, morally — and even politically — defies the imposition of liability upon those who will reopen America, then it is this pandemic.

Rather than search for ways to impose liability on Americans for this virus — which Sen. Chuck Grassley (R-Iowa) aptly called in legal parlance “an act of God” — Congress should, through federal legislation pursuant to the Commerce Clause, declare that there shall be no cause of action — federal or state — arising during calendar year 2020, for injury allegedly caused by the failure to foresee, anticipate and/or prevent the coronavirus or its spread, in any circumstance, including in the workplace and in commercial and retail businesses, mass transit, grocery stores, hospitals, schools, churches and other public establishments.

Americans and American businesses have every incentive in the world — personal, business, regulatory and, not least, patriotic — to do everything within their power to protect their employees, customers and the general public, flatten the curve, and stop this viral enemy dead in its tracks.  And they will — without the Damoclean sword of legislatively prescribed lawsuits dangling over them.

President Kennedy famously admonished his fellow citizens to “Ask not what your country can do for you — ask what you can do for your country.” At this most precarious of moments, when all of America is united in the single objective to defeat this heartless enemy of humanity, and on the eve of the defeat of this disease, our fellow citizens can perhaps do as much for their country as anything, by refraining from battling their fellow Americans in the courts of the land, as if they were the enemy, and continuing to wage the noble war against COVID-19 — our real enemy.

The mistaken political want of every politician is always to fashion some legal cause of action that will enable people to sue for any possible grievance that a lawyer can conjure up. In America, we sue.  

But in this instance, not only are the politicians being misled by their political instinct, there is no standard of liability, however limited, that would not spawn what Senate Majority Leader Mitch McConnell (R-Ky.) termed the “second pandemic of lawsuits” and Sen. Ted Cruz (R-Texas) called the inevitable “tidal wave of suits” by plaintiffs’ attorneys and trial lawyers. This litigation tidal wave will assuredly handicap, if not cripple, the nation as it struggles to return itself to productive and societal normalcy as quickly as possible. 

Once the legislature provides for a cause of action, the plaintiffs’ bar will be released to prey upon our communities and business establishments, with what almost universally will be meritless individual and class action lawsuits for any perceived slight by businesses and citizens to prevent the spread of COVID-19.  Merely defending against these strike suits will cost businesses billions of dollars. In cruel irony of unintended consequence, these billions of dollars likely will have to come from the very stimulus money these businesses were given so they could survive while shuttered in quarantine, to open their doors again.

The largest companies cannot afford costly, protracted lawsuits, let alone can our small businesses. The latter will simply be bankrupted — if not by the protracted litigation of these lawsuits, then by the extortionate settlements that invariably will be extracted by plaintiffs’ attorneys.

If I owned or operated an American business, especially a small business, and the quid for the reopening of my business were the quo that I would be held financially liable for any further spread of COVID-19, I would tell the politicians, “Take a hike and try reopening America by yourself.”

Michael Luttig is a former U.S. Court of Appeals judge for the Fourth Circuit and former general counsel of The Boeing Company.