Follow-up II: Pinning the tail to the COVID-19 donkey

As I wrote last week ([1]), the German government has been jumping back-and-forth on the topic of an Easter ease-up, clamp-down, or business-as-usual (by the COVID standards).

It appeared that the last bid had been “business as usual”, but, as I learned a few days later,* this was not the case. The individual German Bundesländer (“states”), to some degree individual municipalities**, are allowed to set their own rules, within some limits, and it appears that they are doing so. In the case of Wuppertal, where I live, I have been unable to find a reasonable description of the exact rules that will apply, but it appears that stores may only be visited after a “rapid test” (“Schnelltest”) during the Easter days. I am taking the safe course and treating the situation as a five-day*** everything-will-be-closed. Correspondingly, despite having been grocery shopping yesterday, I went again today to load up a little.

*I had not originally looked into the details, but merely noted the repeated pin-the-tail attitude.

**With reservations for what exact word applies.

***There appears to be some unclarity over the time spam, but my impression is that the Sunday (everything closed anyway) and the two holidays (everything closed anyway) are complemented by restrictions for both tomorrow/April 1st (ha!) and Saturday (April 3rd).

Here we have two issues: Firstly, does it really matter from a COVID-POV whether I went to the store today or whether I had done so on Saturday (as originally planned)? I doubt it. Secondly, quite a few other people seemed to have had the same idea, making the store unusually full for the time of day (and likely to grew much worse as the day progresses). Considering the governmental obsession with keeping distance, would this not make matters worse from a governmental perspective than if the store visits had been spread over several days? It would not surprise me.

The bigger picture also raises at least two other issues:

Firstly, federalism and subsidiarity. Normally, I am in favor of this more often than not; however, here we see it backfire. One of the most important points behind these principles is to protect the citizens (and other entities, including individual states and municipalities) from too arbitrary, too undiscriminating, too self-serving, whatnot decisions “from above”. If we look at the U.S. and the COVID approach of e.g. Texas and Florida, we see how this can work well.* In Germany, however, there appears to only be two approaches—hard lockdowns and harder lockdowns. Here subsidiarity does not serve to protect the citizens from the federation but to screw them over even when the federation does not. (While I have not looked into the details on other issues, my general impression is similar: if the federation does not screw something up, count on the Bundesländer to do so; if the Bundesländer do not, count on the municipalities.)

*Generally, my fears of the complete corruption of the U.S. in the wake of Biden have been slightly reduced in light of my growing awareness of the power remaining with the individual states and that the GOP might have fared better on the local level than on the federal level. (Nevertheless, the picture is very, very bleak. By the next federal elections in 2022, the damage will be absolutely horrifying, if things continue down the current path—even COVID aside.)

Unfortunately, I have no good solution to offer that would also preserve the positive aspects of federalism and subsidiarity, but a general principle might be that a “lower” entity may only ever weaken restrictions and regulations, reduce taxes, and whatnot compared to what a “higher” entity suggests. (Possibly, with some exemptions for extraordinary circumstances, say a local natural disaster or local riots.)

Secondly, communication: It absolutely, positively, must be mandatory that the involved entities communicate various rules in an explicit, clear, and timely* manner. This, notably, not restricted to COVID but in general. For instance, I have had massive problems, because my (now de-installed) gas heater was subject to various obscure, counter-intuitive, internationally unusual laws and regulations, spread over several different texts, none of which I had even encountered during my twenty-something years in Germany—until a belligerent and incompetent piece-of-shit of a chimney-sweep sics the authorities on me.** Given these laws, even discounting that they are unreasonable to begin with, it should have been the governments responsibility to inform me that I had to pay attention to certain regulations—which would have been trivial in light of both the heater being on registry and my purchase of the apartment being registered. Given the extreme size and complexity of current laws, and how often they go against common sense and/or vary drastically from place to place, the principle of ignorantia juris non excusat simply is neither conscionable nor compatible with Rechtsstaatlichkeit when the government has not actively informed the citizens or when the need for citizen to inform himself is obvious.

*To the degree that the situation allows. That e.g. an explosion in the infection rates can force a short-term measure is understandable, but this is not the case here where politicians have just been pinning-the-tail, and often concurrently.

**I will not go into details of the overall situation, but as a for instance: portions of the regulations are buried in the “Schornsteinfeger-Handwerksgesetz” (“chimney-sweep trade law”). That a regular citizen would even contemplate investigating what appears to be regulations strictly for the chimney-sweep trade is highly unlikely. Would you bother to read a “dog-groomer trade law” in order to find out e.g. whether pets must be spayed and neutered? Hardly. Would you even be aware that one existed? I doubt it. (That there is a “chimney-sweep trade law”, at all, might be seen as proof of over-regulation, even if the justification is larger than for dog grooming.)

As a minor correction to [1], it appears that Merkel’s back-tracking was only partially caused by the public outcry. Another part came from a business outcry, a “we simply cannot reasonably shutdown with such short warning”. This is certainly a legitimate concern, but one that should have been obvious to the government and one which I assumed had been taking into consideration, e.g. through discussing this with relevant business organizations. Apparently, this was not the case, and that makes the approach the more amateurish. To take just one example from my own professional experiences: In my last project, the topic of bank holidays was important, e.g. to calculate payout dates, often a week or more in advance. Assume that such a date is calculated and communicated today, and arrangements are made for payouts and book-keeping, based on a certain set of bank holidays, possibly spanning several countries. Assume next that tomorrow someone adds a new holiday, retroactively making these dates incorrect. Now, how are we going to resolve this? Without massive additional effort and chain-reactions affecting other businesses, the best bet might be to just send apologies (“due to circumstances outside our control, blah blah”) and hope that no-one is sufficiently dissatisfied as to sue, shorten payments, or jump to another provider.

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