Ruled Out

The Georgia Department of Public Health has suspended the Medical Center of Elberton in North Georgia from the statewide COVID vaccination program for a period of six months.

Since this is a rural area, the residents who might normally look to the Medical Center of Elberton for its COVID vaccinations, will now be required to obtain them elsewhere, if they can get them at all.

What did the Medical Center of Elberton – and let’s not forget the inconvenienced residents – do to deserve this punishment?

Well, technically the inconvenienced residents did nothing as they had no role whatever in the decision of the Medical Center of Elberton to … wait for it … vaccinate teachers, school bus drivers and cafeteria workers so that children could return to live classes.

This was in violation of a rule setting priorities as to whom to vaccinate.

Perhaps the Georgia Department of Public Health was following a rule created in Washington? Perhaps it had no choice? Perhaps the Georgia Department of Health was simply being adamant and demanding to be obeyed?

Either way, it had a powerful weapon to deploy against the Medical Center of Elberton for its temerity. There was a rule and it had not been followed.

No matter that the innocent residents would also be impacted, a rule is a rule.

No matter that the decision to vaccinate the educators might have actually been better for the Elberton community.

A rule existed. It had been violated. End of story.

Stories like this happen every day and most of them draw little notice. The frustrated citizen who is forced to interact with his government has no choice but to deal with it because, for most, making a stink is not worth it.

In aggregate, our rules-based culture takes a toll. People become frustrated with rule makers who seem to have little familiarity with their lives and, worse, perhaps not much concern.

There is nobody who feels more strongly about this than Philip K. Howard, a 70-something lawyer (and quite a capable bike rider and skier). He is a graduate of Yale and the University of Virginia Law School and the retired Vice Chair of Covington & Burling, a highly regarded Washington-based law firm.

I introduced him at a Zoom Meeting last August. Here is an excerpt:

I knew about Philip Howard before I actually got to know Philip Howard. In fact, I first wrote about him eight years ago.

I first became aware of him in the mid-1990s with his book “The Death of Common Sense.” He has written five more since — all on the same or similar themes: too many rules that stifle initiative both inside and outside of government.

His concern is not so much what government does as with how government does it. He describes himself as a radical centrist.

Asking a question of the audience is a reliable method of getting people engaged, but Zoom is not well-suited to that. We’ll have to rely on you to answer for yourselves.

Please think about any of your own endeavors and ask yourself “what percentage of the consumers of your services would you like to be “very” or at least “somewhat” satisfied with your efforts?

I think I would like 80% to 90% to be “very” satisfied and at most 10% to 20% to be only “somewhat” satisfied. I would prefer there be none at all saying they were “somewhat” or “very” dissatisfied.

For decades, Gallup has been asking the question: “how satisfied are you with the federal government and how it works.”

Over the past 20 years the percentage of those who are “very” or “somewhat” satisfied with the federal government has declined from 68% to 43%, while the “somewhat” or “very” dissatisfied categories have risen from 30% to 57%. Virtually everyone has an opinion, with only 1% or 2% saying they don’t.

Howard founded an organization called Common Good  that tries to do something about changing people’s attitudes toward the sanctity of rules and our replacement of individual decision making with rote rule following.

One might hope there would be nothing more bi-partisan – better still non-partisan – than avoiding dumb decisions.

Philip Howard and Common Good are about just that — minimizing dumb decisions by re-empowering front-line decision-makers. It is a worthy effort.

22 Responses to “Ruled Out”

Tim Warburton, February 01, 2021 at 5:31 pm said:

On the Common sense front – explain this:
I got this from my friend Lee Bowman, I am not sure who wrote it or who to attribute it to. But you can google the first sentence and find a lot of places that it has been published!!


I would say this is unbelievable for a politician to say this, but now days it seems almost normal.
In Texas, State Representative Terry Meza (D-Irving) has introduced HB196. Her bill would repeal the state’s “castle doctrine.” This doctrineallows a homeowner to use deadly force against an armed intruder who breaks into his home.
Now listen to what she has to say . . .
“I’m not saying that stealing is okay,” Meza explained. “All I’m saying is that it doesn’t warrant a death penalty. Thieves only carry weapons for self-protection and to provide the householder an incentive to cooperate. They just want to get their loot and get away. When the resident tries to resist is when people get hurt. If only one side is armed fewer people will be killed.”
Meza was quick to reassure that her bill “would not totally prevent homeowners from defending themselves.
Under the new law, the homeowner’s obligation is to flee the home at the first sign of intrusion. If fleeing is not possible he must cooperate with the intruder. But if violence breaks out it is the homeowner’s responsibility to make sure no one gets hurt. The best way to achieve this is to use the minimum non-lethal force possible because intruders will be able to sue for any injuries they receive at the hands of the homeowner.”
“In most instances, the thief needs the money more than the homeowner does,” Meza reasoned. “The homeowner’s insurance will reimburse their losses. On balance, the transfer of property is likely to lead to a more equitable distribution of wealth. If my bill can help make this transfer a peaceful one so much the better.”


Haven Pell, February 01, 2021 at 5:48 pm said:

Here is a link to the Snopes check on this claim finding that is partially true and partially false.

It is quite detailed in confirming what is accurate and what is not.


Ron Bogdasarian, February 01, 2021 at 8:09 pm said:

Since the homeowner would be directed to cooperate with the thief, I would suggest the thief leave the gun at home (not needed), politely knock or ring, and request what they need, sort of like a bank withdrawal. Perhaps the donation could qualify as a tax deduction?


Haven Pell, February 02, 2021 at 9:36 am said:

would there be cards and PIN numbers?


Bob Homans, February 01, 2021 at 5:51 pm said:

I have been doing a lot of work in Sub-Saharan Africa lately, where countries following English Common Law (most former British colonial possessions), a system based on legal precedents, exist side-by-side with countries following Franch Civil Law (mostly former French colonial possessions), that is a system based on rules. The practical difference is that under English Common Law you can do anything that is not otherwise prevented by a statue, whereas under French Civil Law, you can only do something if there is an applicable rule. The Elberton case you mention seems to be evidence that the US, even though a common law country, is moving toward enacting rules normallly found in civil law countries. There are a few cases in Africa, in common law countries where this, almost without exception, has turned out badly. Perhaps we can learn some lessons.


Kathleen, February 01, 2021 at 6:31 pm said:

So how does this affect the popular response that it is better to proceed with an action and hope for the best, rather than ask permission and be denied?


Haven Pell, February 02, 2021 at 9:29 am said:

Perhaps it diminishes the appeal of your suggestion by adding consequences, but I doubt the practice will disappear.


Haven Pell, February 02, 2021 at 9:25 am said:

Seems to me another benefit of the Common Law system is that it can evolve. Rules, once established, are difficult to change so they become dated. Few are perfect right out of the gate and the ability to fix mistakes is a good thing


Temple Grassi, February 01, 2021 at 5:59 pm said:

Double locking our doors here in Chevy Chase and waiting for the ‘shot in the arm’ ( like ‘boots on the ground’!)😷🤞😉


Haven Pell, February 02, 2021 at 9:26 am said:

Scheduling vaccinations is definitely a topic of much conversation and controversy


Garrard Glenn, February 01, 2021 at 6:23 pm said:

This Georgian act of poor governance is an example of what has been going on in this country for 100 years, as summarized in the book “Bureaucracy in America” by Joseph Postell:

The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.


Haven Pell, February 02, 2021 at 9:27 am said:

Garrard, You have surpassed me and moved up the scale to Philip Howard levels.


Sellers, February 01, 2021 at 7:25 pm said:

Big government? What could go
wrong? We were warned, but we paid no attention.
I have read that we all commit 3-7 felonies a day without the slightest knowledge we are breaking the Law?.True? False? Who knows? Who cares?

The scary part is that it gives the government the ability to lock us up or make our lives miserable for the most banal of reasons. Those poor farmers who dug a ditch and found that they
had broken some obscure regulation about inland waterways promulgated by some agency they had never heard of! Ditto for the land owners who removed a beaver dam (on their own property) because they needed the water further downstream. Or that farmer who saved a starving fawn only to be visited by armed Feds who hauled off the poor animal.

DC went insane on Thursday on both sides of the aisle because the crowd funding trading app Robinhood stopped the buy side trades on GameStop. Turns out the Depository Trust and Clearing Corporation had forced Robinhood to increase its reserves by an amount they did not have. Guess who regulated those reserve requirements?
A few years ago Maxine Waters called in the heads of all the major money center banks to discuss predatory lending on student loans. I think it was Jaime Diamond who informed her early in the debate that the government had taken over this sector a few years earlier and that banks no longer played any role.
Regulations and legislators blamed speculators for causing the 2008 housing crash, which was precipitated by regulations passed by these very same regulators and legislators.
An over simplification, but so it goes.

The stupidity of legislators cited above who will not permit homeowners to defend their homes and property is mind-boggling. The thieves need my money more than I do? The government is supposed to protect us and our property, is it not? That’s why governments are created and tolerated. That’s what we pay them for.

Or am I hopelessly naive?

The examples are legion, but enough is enough.


Haven Pell, February 02, 2021 at 9:35 am said:

I wonder if Congressional grand standing might be a slightly different issue. Many of the 535 are ill informed and speaking from talking points that are sometimes lacking in wisdom or perspicacity. Fortunately, they look like idiots when they are wrong. In England, rules are goal oriented. “This is what we’d like the result to be; you figure it out.” Then the regulator comes back ask asks, “how did that go?”


Gaetano Cipriano, February 01, 2021 at 7:34 pm said:

Seems logical to do what is needed to get the kids safely back in school . Decisions are almost always best when decentralized , closest to the people impacted directly .


Haven Pell, February 02, 2021 at 9:35 am said:

Two competing objectives but see Bob Bailey’s comment as well.


Gary Lee, February 02, 2021 at 12:46 am said:

While agreeing totally with the Common Sense comments, the discussion about HB196 makes me thing that the US has got it all wrong. In Australia citizens are not allowed to own guns let alone carry them. (Some exceptions for farmers) Do we have more violence – certainly not. Do we have more home invasions – certainly not. Do we have more injuries to homeowners when break ins do occur – certainly not. Do we have dead burglars – absolutely not. So from my perspective the need to introduce laws like HB196, as lacking in commonsense as it appears to your readers, is only indicative of a much greater problem, the USA’s inability to address gun laws. After the Port Arthur massacre we had a strong Prime minister in John Howard who was able to implement an almost complete ban on guns coupled with a Government buy back of existing weapons. That was 25 years ago and almost every year since the incidence of violent crime has fallen. Perhaps we are a much more compliant nation, and our approach to COVID 19 probably proves that with virtually zero cases for a long period and a very low death rate. Are we so different to citizens of the USA? Does “Common Sense” need to start somewhere else?


Haven Pell, February 02, 2021 at 9:40 am said:

Gary, you are a brave man to venture into American attitudes about guns. They are, to say the least, strongly held on both sides. Since this is theoretically a story about rules themselves not the subjects of the rules, I will leave it at that.


Bob Bailey, February 02, 2021 at 2:14 am said:

I don’t want to wade into the waters of government overreach, but I think in this case – The Elberton one – you got it wrong. The Georgia Dept of Public Health (DPH) is indeed following CDC (the Feds) guidelines regarding scale up of the Covid-19 vaccines. They are free to do otherwise, but they are really going on the basis of current evidence for how vaccines can most effectively suppress the virus and save lives in a community. The Medical Center of Elberton was not only flouting the DPH mandate, but it was going against existing evidence. Those at highest risk of contracting the virus and dying or having long term illness from the virus are put by the DPH first in line for what is (currently) a limited resource. Those are “healthcare workers (physicians, nurses, laboratory technicians, EMS personnel, environmental services, etc.) Residents and staff of long-term care facilities. Adults aged 65 and older.” It seems Elberton knew better and decided not to prioritize those at highest risk of death and of further spreading the virus and decided to give first priority to teachers, school bus drivers and cafeteria workers. I guess they figured that may allow kids to go back to school, as you wrote. The thing is – wait for it – kids are actually safer in schools than out of schools and adults working in schools actually have lower incidence of Covid than adults not working in schools. This has been shown is thousands of schools in studies from North Carolina, Wisconsin and Sweden, among others. One caveat: most of the schools included in the studies had good mitigation measures (distancing, consistent mask use, small pods), but the point is that school kids and teachers and bus drivers are at MUCH lower risk than the elderly and front line health workers. If we want to control this virus and be able to get back to work, open restaurants and movie theaters and be able to travel freely, we will get there much faster if we focus first on the high priority groups. Meanwhile, it is criminal, in my view, to not have kids in school, and we shouldn’t wait for widespread distribution of the vaccine. The risks of covid morbidity to children and teachers who are in schools are very low and the adverse consequences to the children and families and communities are unacceptable.

Further, it seems the good residents of Elbert County were hardly inconvenienced, as you suggest. Indeed, they were helped by the recalcitrance of Elberton. Additional vaccination sites were opened in the county and Albert county was allocated an additional 2100 doses that they were not originally allotted, and all those who received their first dose at Elberton were given or are on schedule for their second dose.

Slavish following of rules or imposition of rules is usually not a good thing, especially if a community doesn’t believe in them, but some rules are promoted for good reasons. Not following the DPH guidelines really is a matter of life and death and the DPH did the right thing in my view.

Full disclosure: The Commissioner of the Georgia DPH is an old (very smart and dedicated) friend of mine.


Haven Pell, February 02, 2021 at 9:50 am said:

Long time readers will recognize one of the more famous characters to grace these pages — The Epidemiologist from Eberlin’s ( Dr./Professor Bailey knows his science and his Eggs Benedict. Let’s acknowledge that Bailey’s assessment is correct — at the very least more so than mine. The citizens of Elberton could simply have sent the children to school with no great harm done.

In trying to illustrate a point about a topic that might be little understood, it is useful to select a compelling example. I chose this one and it appears I chose it unwisely. Maybe the experience will teach other decision makers to just open the schools.

Let’s not allow my choice of example to tar the work being done by Philip Howard. This might not be a bad rule, but there are many that are.

Thank you Bob, for a better solution than mine or Elberton’s.


charley matheson, February 03, 2021 at 10:38 am said:

Do what you damn well please! Claim ignorance and apologies. Much easier than to ask permission.
Caveat: Does not work for lawyers.


Haven Pell, February 03, 2021 at 6:06 pm said:

Not getting caught also helps


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