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.
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?
CARVIN: Oh, I’m sorry; my answer is no, they couldn’t do it, because Morrison —
JUSTICE BREYER: No, they could not do it.
CARVIN: Yes.
JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there’s — okay, fine. Go ahead.
As we’ll see, the lawyer’s reliance on the Morrison case may not have been misplaced.
What was Morrison, and why did the lawyer think it was relevant? The commerce clause gives Congress the power to regulate commerce among the states. Congress has used that clause to regulate everything from job discrimination to industry pollution. But starting in the 1990s, the conservative majority on the Supreme Court began imposing new limits on Congress’s power. Morrison is one of those cases.
The Morrison case involved a challenge to the Violence Against Women Act. The Supreme Court held that even if domestic violence had important economic repercussions, Congress, using its broadest power, which is under the commerce clause, could not take steps to address it.
Morrison built on the Court’s earlier decision in the Lopez case, which struck down the Gun-Free School Zones Act. That law prohibited carrying a gun within a thousand feet of a school. Congress pointed to the impact of gun violence on education and on the economy. In his dissent, Justice Breyer amassed evidence to support Congress’s conclusion. The conservative majority on the Supreme Court considered that evidence irrelevant. It announced a general rule that Congress cannot use the commerce clause to regulate noncommercial activities. Getting sick is not a commercial activity.
Think of it this way. Lopez says Congress can’t ban guns in schools to protect kids. Morrison says Congress can’t protect women from being killed by their partners. If so, it’s hard to see how Congress could make them get vaccinated in order protect them.
If you want to dive a little deeper into this, the Court did recognize three exceptions from this general rule. But none of the exceptions seems to apply here. (Feel free to skip ahead if you don’t care for the details.) Here are the three exceptions:
Of course, people may have to pay for vaccinations. That would be a commercial market. And doctors are paid for their work. So when people choose to get vaccinated, Congress could probably regulate who does it and how. But that doesn’t imply that Congress can make people get vaccinated when they’d prefer not to.
Can Congress require people to enter the market for vaccination services? Chief Justice Roberts’ opinion in the Obamacare case says that the power to regulate interstate commerce does not include the power to force anyone to engage in that commerce in the first place. That’s why he held that the individual mandate was beyond Congress’s powers under the commerce clause. (He then found a way to uphold it as a tax measure, but that’s not a useful dodge here.)
Does all this seem like hairsplitting? The answer is yes, but that’s exactly the kind of hairsplitting the Supreme Court’s opinions call for.
As a matter of common sense, a national vaccination requirement makes perfect sense. Some people can’t be vaccinated – maybe they’re too young or too old, or maybe they’re immune-compromised. The only way to protect them is to ensure that everyone else gets vaccinated. Action by individual states isn’t enough; we need to be sure people in every state are vaccinated.
Under the Supreme Court doctrines that I’ve just discussed, however, it’s doubtful that Congress could actually legislate a vaccination mandate. The Court has already said that Congress can’t protect someone against being assaulted and killed by a spouse or shot in a school. Nor can it require someone to buy health insurance, without which they may later be unable to get lifesaving treatments. Logically, there’s no obvious reason why vaccination against a virus would be any different.
Do I actually think that the Supreme Court would follow this logic and strike down a federal law requiring people to get vaccinated for the coronavirus? I certainly hope not.
I’m hopeful that a majority would find some way around those earlier decisions. Hopeful, but far from certain. I’m pretty sure that Justice Thomas at least would vote to strike down a vaccination mandate, quite likely with Justice Gorsuch by his side. It might well be a 5-4 decision either way, depending on how Roberts voted.
What does it say about the law, when a lawyer can make a perfectly good argument that Congress is powerless to protect the nation against a pandemic? In my view, it indicates that something in the Supreme Court’s federalism rulings has gone really awry.
Showing 2,829 results
Daniel Farber | May 7, 2020
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.”
Matthew Freeman | May 7, 2020
In a recent op-ed in the Waco Tribune-Herald, CPR Board Member Thomas McGarity lays bare the real cost of Senate Majority Leader Mitch McConnell's efforts to extend a liability shield over businesses that endanger employees or customers by failing to take adequate precautions to prevent the spread of the coronavirus. Such a shield, he writes, would "destroy a powerful incentive for companies to protect their workers, their consumers, and their neighbors from this invisible killer."
Matthew Freeman | May 6, 2020
One of the most telling aspects of the COVID-19 pandemic 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.
Michael C. Duff | May 6, 2020
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.
Darya Minovi | May 5, 2020
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. These issues and more were addressed last week in CPR’s fourth installment of our climate justice webinar series, titled, “Vulnerability and Resilience to COVID-19 and the Climate Crisis.” The featured speakers were Dan Farber, Dr. Monica Schoch-Spana, and Dr. Aaron Bernstein.
Michael C. Duff | May 5, 2020
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.
Matt Shudtz, Rachel Micah-Jones | May 4, 2020
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.
Sean B. Hecht | May 4, 2020
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) political direction.
Karrigan Bork, Steph Tai, Thomas Harter | May 1, 2020
Last week, the Supreme Court decided a case involving discharge from a wastewater reclamation facility owned and operated by the County of Maui, which discharged 3 to 5 million gallons of treated wastewater per day into four injection wells about half a mile from the ocean. Recent research showed that much of the injected waste eventually discharges to the ocean. Environmental groups sued the county for not obtaining a Clean Water Act permit, arguing that point source discharge of pollutants that eventually reach surface water is governed under the Act. Justice Breyer, writing for the Court majority, wrote "we do not see how Congress could have intended to create such a large and obvious loop hole in one of the key regulatory innovations of the Clean Water Act." On the "fairly traceable" approach, the opinion stated that such interpretation "would require a permit in surprising, even bizarre circumstances".