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May 7, 2020 by Daniel Farber

The Coronavirus and the Commerce Clause

Originally published on Legal Planet. Reprinted with permission.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”

What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.

The 2012 oral argument in the Supreme Court

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal Government doesn’t have the power to get people inoculated, to require them to be inoculated, because that’s just statistical.

CARVIN [the lawyer]: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against –

JUSTICE BREYER: Is your answer to that yes or no …

May 6, 2020 by Matthew Freeman
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One of the most telling aspects of the COVID-19 pandemic is has been its disparate impact on minority communities in the United States. At least three factors seem to be at work in the elevated death rate: uneven access to health care, greater prevalence of preexisting (and often inadequately treated) comorbidities, and greater likelihood of on-the-job exposure. Writing in the Boston Globe last week, CPR Member Scholar Shalanda Baker, together with co-authors Alecia McGregor, Camara Jones, and Michelle Morse, point out yet another way that the pandemic is taking a particular toll on low-income communities and communities of color.

They point to a decision by a for-profit hospital chain, Steward Health Care, to convert Carney Hospital in Dorchester, Mass., which under normal conditions serves as a safety net hospital for low-income residents, into a dedicated COVID-19 hospital.

The co-authors note that while the decision was initially deemed …

May 6, 2020 by Michael C. Duff
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In what for me is an ominous development, the Smithfield Foods public nuisance case, about which I blogged earlier, has been summarily denied by a Missouri federal district court and the case has been dismissed. The decision took all of twelve days.

In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set "mood points." And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers' compensation or tort law. Narrowly read, the heart of the case is …

May 5, 2020 by Michael C. Duff
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Cross-posted by permission from Workers' Compensation Law Prof Blog.


As Senate Republicans and corporations continue to lobby for the broadest possible “liability shields” in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court. From the Nolo Plain-English Legal Dictionary, a public nuisance is defined as “[a]n activity or thing that affects the health, safety, or morals of a community. It is distinguished from a private nuisance, which harms only a neighbor or a few individuals. For example, a factory that spews out clouds of noxious fumes is a public nuisance, but playing drums at three in the morning is a private nuisance bothering only the immediate neighbors.”

So, under the theory of the case I'm about to discuss, when a meat-packing plant does not conform to, for example, CDC social-distancing guidelines, it …

May 5, 2020 by Darya Minovi
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As the COVID-19 pandemic spreads across the globe, public health data continues to show that the virus’s worst effects are felt by communities already weighed down by the burden of multiple social and environmental stressors. As of May 3, in CPR’s home city of Washington, DC, African Americans account for 79 percent of coronavirus deaths, despite making up only 45 percent of the city’s population and 47 percent of diagnosed cases. This inequitable trend appears to be playing out across the country.

Widely cited research from the Harvard T.H. Chan School of Public Health has also connected long-term air pollution exposure and coronavirus mortality, prompting researchers to explore this link in their own communities. Using Harvard’s data, Tulane University’s Environmental Law Clinic mapped particulate matter emissions against parish-level health and COVID-19 data in Louisiana. Their findings confirmed the suspicions of local …

May 4, 2020 by Rachel Micah-Jones, Matt Shudtz
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This is an excerpt from an op-ed originally published in the Baltimore Sun. You can read the full op-ed here.

President Donald Trump invoked the Defense Production Act to order meat and poultry plants to continue operating despite COVID-19 outbreaks, exposing Maryland's poultry workers to enormous risks. Poultry processors haven't demonstrated they're able to keep workers safe and healthy, but they know that many of these low-wage workers will be forced to return. To top it all off, one of the president's goals with this order was to provide legal immunity to companies, so that they can't be sued by employees who are infected as a result of unsafe working conditions.

All the risks cascade down onto the workers. Many are from immigrant backgrounds and don't speak English. They're also exempted from vital protections, federal relief packages, and can't access COVID-19 treatment and care. We're standing in …

May 4, 2020 by Sean B. Hecht
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For decades, "states' rights" has been a rallying cry of the right wing. Most Americans are familiar with the dynamics that required the federalization of civil rights law, both in the 1860s and again in the 1960s, the protection of much of our nation's federal lands, and the national crises that necessitated the federal government to enact national minimum standards to protect public health and the environment. Many of us are also familiar with the right-wing backlash to these movements—indeed, the devolving of baseline environmental standards and public land management to the state and local level has been a keystone of the political right since at least Ronald Reagan's presidency.

But federalism—the division of authority between state and local governments, on one hand, and the federal government on the other—doesn't have to tilt in one (rightward …

May 1, 2020 by Karrigan Bork, Thomas Harter, Steph Tai
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This post was originally published on California WaterBlog. Reprinted with permission.

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges. In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to …

April 30, 2020 by Robert Verchick
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No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation.

I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go …

April 30, 2020 by Michael C. Duff
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Update: The president's order has issued. I now have doubt as to whether the Defense Production Act provides immunity to tort actions (if that was the plan) to parties bound by it outside the context of military contractors. See In Re Aircraft Crash Lit. Frederick, Md., 752 F. Supp. 1326, 1330 n.2 (S.D. Ohio 1990); see In Re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 843 n.27 (E.D.N.Y. 1984). As we used to say back in my ice hockey days, this could be a donnybrook.


When I was a young whipper-snapper, an airline supervisor once ordered me to put my rain gear on and enter an airplane baggage compartment into which "lavatory fluid" had discharged due to a malfunction. I told him to pound sand. That memory popped into my head when I read that the president was ordering …

CPR HOMEPAGE
More on CPR's Work & Scholars.
July 2, 2020

Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

July 1, 2020

California Keeps on Truckin'

June 19, 2020

Supreme Court Affirms Title VII Protections for LGBTQ+ Community

June 19, 2020

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

June 18, 2020

The Climate Crisis and Heat Stress: Maryland Farms Must Adapt to Rising Temperatures

June 18, 2020

D.C. Circuit Restricts 'Housekeeping' Regulations

June 17, 2020

OSHA, Other Agencies Need to Step Up on COVID-19, Future Pandemics