Musk’s COVID-19 suit vs. county is badly needed
When he announced the reopening of his Tesla plant in the face of the COVID-19 shutdown, Elon Musk is reminding Americans of the importance of James Madison’s work more than 230 years ago.
Madison drafted the first 10 amendments to the U.S. Constitution, which were adopted by the states in 1791. This Bill of Rights was designed to protect American citizens from abuses of power by their own government, not unlike many of the abuses suffered under British rule.
The Bill of Rights guarantees our right to freedom of religion, speech and assembly; our right to due process under the law, and our right to have our property safe from unwarranted government seizure. Today, police widely respect individual rights by following the myriad laws and procedures that, like the Miranda rule, now define the details of what the Bill of Rights means. For example, police can arrest a thief caught in the act, but they cannot detain a suspected thief without probable cause.
Yet, our “health cops” violate many of our basic rights on a daily basis.
What happens when the thief is a local bureaucrat who steals not your wallet, but your entire means of livelihood? Unlike the detailed boundaries of criminal law that were defined case-bycase over time, the boundaries of public health encroachment on our basic rights have yet to be defined — and that’s exactly why Elon Musk’s suit against Alameda County is badly needed. Musk asked to be the only one arrested should the government make such a move in the context of his plant resuming business.
While appellate courts will probably agree that a person sick with COVID-19 can be separated from those who might be infected, they probably will not agree that it was lawful to use COVID-19 as an excuse to shut down Mississippi and Pennsylvania church services in closed automobiles. Nor are they likely to sanction the arrest of a Colorado man for engaging in a twoperson softball game with his daughter. Nor are they likely to agree that Michigan Gov. Gretchen Whitmer had the right to prohibit “all public and private gatherings of any number of people, not part of a single household.”
Musk threatens to move the Tesla plant to a state more business-friendly than California, which, for years, has ranked in multiple studies as one of the very worst states in which to do business. When I was the CEO of Cypress Semiconductor, I felt that my shareholders deserved better than California’s abusive treatment, which included levying a stiff sales tax on buying the capital equipment needed to build new factories and create new jobs.
When Cypress decided to put its second plant in Round Rock, Texas, I was overjoyed when I was invited by locals to a celebratory fish fry at the main street gas station. My company enjoyed every day we spent in Round Rock, as well as in Bloomington, Minnesota, where we built out third plant. Other Silicon Valley semiconductor CEOs made similar decisions. That’s why there is no more silicon left in Silicon Valley.
After calming down, Musk will do what’s right for his shareholders, which will probably not include an expensive, immediate relocation. But do you think he will ever expand the Fremont plant to create any more jobs? Or, is he more likely to manufacture his new automobile models somewhere else, and then ramp down the Fremont facility when it is not fully loaded? Remember, General Motors was first to abandon the Fremont plant, shutting it down in favor of its plants in other states. Our disrespectful local and state governments should stop taking companies (and their jobs) for granted.
No CEO in today’s litigious world would deliberately put employees at risk, but Musk stated the obvious: “Tesla knows more about what needs to be done to be safe through our Tesla China factory than an (unelected) interim junior official in Alameda County.”
What Americans need now is for our courts to decide how much harm public health officials can inflict before they have to deal with the rights of the people they claim to protect.