Why Biden and Congress can mandate masks if governors refuse to act

 This column originally appeared in The Hill.

With a rising number of infections from the Delta variant across the country, in states such as Florida and Texas where governors have refused to act to protect their populations, can President Biden and the federal government mandate masks or take other actions? The traditional answer from constitutional lawyers is no, and the Supreme Court under Chief Justice John Roberts has made federal action more difficult. But there is one legal option: declare the coronavirus an interference with interstate commerce, allowing the federal government to act.

 

The United States is a country of divided authority between states and the national government.  In many areas, states have far more power than the federal government. “Police power” is the authority to act to protect the health, safety, welfare and morals of the people, the basis of state power to pass criminal laws, housing codes, environmental laws, and even public health measures. Over time, the Supreme Court has upheld broad, inherent authority of states to promote public health, including recent mandatory quarantines and vaccination laws.

 

The United States government lacks police power. Its powers are limited to the text of the Constitution or what is necessary and proper to execute its explicit powers. Without police power, the national government has significantly less authority over many aspects of our lives.  However, Congress has used Article I, Section 8, Clause 3 of the Constitution — the Commerce Clause — to regulate measures that affect interstate commerce. It also has used Article I, Section 8, Clause 1 — the authority to tax and spend for the general welfare — as a tool to induce parties to act under threat of a financial penalty.

 

There is a long Supreme Court history surrounding Congress’s use of the Commerce and Tax clauses as tools of regulation. Yet the simple answer is that, together, they have allowed the national government to prescribe criminal and environmental laws, as well as workplace conditions, and to regulate the sale and distribution of drugs and food products. In upholding the constitutionality of the 1964 Civil Rights Act, for example, the court ruled that decisions by businesses to refuse to serve people of color interfered with interstate commerce. Together, these two clauses have given the national government broad power to act.

 

Yet, these clauses have limits. The Supreme Court has said that, generally, the national government cannot order or, in its words, “commandeer” states to act because of Tenth Amendment or federalism concerns. It cannot tell states directly to lower highway speed limits, for example, or to raise age limits for the consumption of alcohol, or lower blood-alcohol levels for determining when someone is driving while intoxicated. It can, however, offer financial inducements to encourage states to do all this — if the incentives are not coercive.

 

What all this means is that the president and federal government historically have lacked broad public health authority to act and to tell states they must do the same. The Supreme Court compounded this problem in 2012 when it ruled in National Federation of Independent Business v. Sebelius on the constitutionality of the Affordable Care Act. The court decided that Congress lacked authority under the Commerce Clause to mandate individuals to carry health insurance, because not being insured did not interfere with interstate commerce. 

 

The court did uphold the individual insurance mandate under the Tax Clause by arguing that individuals were free to not get insurance, but they then would have to face a tax. The court struck down the part of ObamaCare encouraging states to expand Medicaid eligibility, ruling that the combination of incentives and threats were coercive and violated the Tenth Amendment.

 

Americans should rue this decision. It hampered the expansion of health care coverage and now crimps the ability of the national government to respond to the coronavirus pandemic. Roberts Court conservatives have clipped the wings of governors in California and New York to restrict gatherings at religious institutions, arguing it violates the Free Exercise of Religion. This is a court simply out of touch with realities associated with the coronavirus and the need for strict public health measures. The court’s decisions enable irresponsible behavior by governors who refuse to act during a public health crisis.

 

However, it is indisputable that the pandemic has wrought significant impact on the U.S. economy. We have nearly 18 months of proof that the pandemic impacts interstate commerce. Decisions to not wear masks or get vaccinated can impact interstate commerce, just as much as the decision of a business not to serve people of color was the basis for upholding civil rights laws because those decisions impacted interstate commerce.

 

Not wearing a mask or getting a vaccine arguably affects others more than not getting insurance, and therefore it affects interstate commerce. Given the reality of how COVID-19 is impacting interstate commerce, President Biden and Congress have a good-faith argument that they have the authority to step in and act if governors choose not to.  

No New Yorkers May Enter: May States Ban Residents from Other States From Entering to Protect Their People?

            

            Viruses do not stop at borders.  But can people infected with viruses be stopped at borders?  Could Pennsylvania stop a New Yorker from entering the state  whether suspected or not of being infected to protect its people? Already some US states are trying to prevent residents from other states from entering as they seek to fight the coronavirus epidemic.  This problem of cross-border infection will only intensify as some states begin to open up their economies or end their shelter-in-place orders over the next few weeks.  Allowing infected or even healthy people to travel interstate could jeopardize  public health measures to confine the coronavirus.  Do states have the authority to limit or ban individuals from entering their state to fight the pandemic?  Current constitutional law says no.

            States have broad authority over public health measures.  What is called their police power allows them to impose  quarantines over persons and livestock within their borders to prevent the spread of a virus.  Many states have authority to limit importation from other states' vegetation and animals that could bring with them parasites or disease.

            Yet this police power is not unlimited, especially when it comes to interstate commerce.  The US Constitution gives broad authority to Congress to regulate interstate commerce, preventing states from interfering with it or discriminating against  other states in an effort to protect their own businesses.  Yet in some cases the Supreme Court has allowed for some interference with  interstate commerce if the purpose of the regulation is non-discriminatory and it does not impose a severe burden.  Would limiting or banning residents from other states to limit the spread of the coronavirus qualify as an exception?  The answer is no for two reasons.

            One, the general police power exceptions are limited to goods, services, or  the instrumentalities of commerce.  By that, states may be able to restrict the flow of animals, produce, vegetation, and other goods into their state, but the rules are different when it comes to people.

            Unlike animals, food products, and other goods and services, people have constitutional rights.  Specifically, they have a constitutional right to interstate travel.  In the 1930s when the Depression kicked in and the farm crisis across the central plains grew, many farmers packed up and sought to move to places such as California.  John Steinbeck’s classic The Grapes of Wrath tells the story of Joad family moving west.  In 1937 California passed what was called  an “Anti-Okie” law making it illegal to bring into the  state "any indigent person who is not a resident of the State, knowing him to be an indigent person".  In Edwards v. People of State of California, 314 U.S. 160 (1941), the  Supreme Court ruled that this law violated the Commerce Clause.

            In the 1960s as various states enacted welfare or other public assistance measures, some feared that the poor would migrate to their state for the benefits.  In Shapiro v. Thompson, 394 U.S. 618, (1968), the Supreme Court ruled that such laws violated a  fundamental right to interstate travel.  After Congress had enacted welfare reforms given states more control over benefits, California and other states adopted laws allowing them to pay  lesser benefits  to recent immigrants from other states compared to residents for a certain period of time.  The Supreme Court Sáenz v. Roe, 526 U.S. 489 (1999), struck down these durational residency requirements as a violation of the Privileges or Immunities clause of the US Constitution.

            While in some situations the Court has upheld laws that treat residents and non-residents differently in cases involving college tuition at public schools or in matters of child custody, generally the Court has been firm in ruling that actions that involve a state discriminating against residents of another state are unconstitutional.

            There may be additional clause of the Constitution that prevent  these border bans.  The Due Process clause of the Fourteenth Amendment may make random or arbitrary stops at state borders illegal. There is also the Equal Protection clause of the Fourteenth Amendment which is a tool used to address discrimination.  Unfortunately, and no doubt many of the individuals who will get stopped at state borders will be people of color.  There is also the privileges and immunities clause of the Fourth Amendment to the Constitution too.  The point is that there are many constitutional clauses banning this type of state activity.

            Perhaps the coronavirus and  the needs of  abating a pandemic  might be treated differently by the courts, seeing its regulation as a neutral protection of public health within state regulation.   After all, a pandemic virus is different from indigency or welfare.  It would take  an extraordinary argument to show that banning interstate travel is the only way to address the virus and current case law does not support that measure.

Obama Won by Losing: Thoughts on the Health Care Decision

President Obama won by losing on Thursday.  Yes his health care legislation was upheld but it came at the expense of federal power and perhaps further losses down the line in terms of civil rights and other forms of federal power. The media will report that by a 5-4 decision the Supreme Court affirmed the individual mandate and upheld the Obama Health Care Act.  But a tighter and more thorough reading demonstrates this to be a very conservative decision and Obama lost big legally.

Congress passed and the Obama administration defended the Patient Protection and Affordability Care Act primarily on Commerce Clause grounds.  Their argument was that Congress under the Commerce clause (giving them the power to regulate interstate commerce) justified the imposition of the individual mandate.  They cited an important 1938 New Deal case Wickard v. Filburn as precedent.  Five justices rejected this argument.  Chief Justice Roberts along with the four dissenters contended that Congress may not compel an individual to buy health insurance because individuals who do not have insurance where not engaged in the activity of interstate commerce.  Instead, the individual mandate compelled them to enter commerce.  They used this argument to distinguish this health care regulation from the regulation in Wickard where in that case a farmer was growing wheat for personal consumption and not sale and the Court said that this still constituted commerce.  In that case the farmer was doing something, here people who do not buy insurance were not engaged in commerce.

The broccoli argument here was persuasive.  Roberts alluded to broccoli once and the dissenters specifically mentioned it 12 times in their opinion.  They agreed that by the logic of the Obama administration the federal government could force us to buy broccoli because it is good for us.  Thus, the individual mandate to buy health insurance is not something that the federal government can do.

Yet the backup argument by the Obama administration was that Congress’s power to tax saved the mandate.  Yes, sort of.  Roberts again drew on another landmark New Deal case United States v. Darby.  Here a New Deal Court affirmed a law under Congress’s taxing power to regulate and eliminate child labor.  In the health care case on Thursday Justice Roberts and the four liberals affirmed the individual mandate as a tax.  They contended that no one is required to buy insurance  but if they do not then they have to pay a tax.  Thus, contrary to media reports, Congress cannot compel us to buy health insurance, but they can tax us if we do not.

Some may state this is a difference that does not make a difference.  This is not true.  The four liberals on the Court would have affirmed the individual mandate on Commerce clause grounds in addition to the tax claim but Roberts only supported it on taxing power.  What are the implications?  In the last 50 or so years major legislation on civil rights and many other regulatory issues have been affirmed in part on Commerce Clause grounds.  This decision today actually trims back the Commerce Clause power of the federal government, raising questions about the Voting Rights Act and other civil rights legislation in the future.  This is the case both because of a weakened Commerce Clause and also because it suggests a Court perhaps less sympathetic of federal power than thought.  All this is significant especially in light of state challenges to legislation in these areas.

Yes, Obama got a win on Thursday.  He had a good week.  Housing prices are going up, gas prices going down, and he has clear leads in Ohio, Florida, and Pennsylvania.  He won the Arizona case too. But the health care victory is a pyrrhic one at best.  It is not a major expansion of federal power but a contraction.  Justice Roberts gave the president very little and he actually was a genius.  He agreed with most of the conservative dissenters while making it look like the Court is above politics and in the process preserved its institutional image.  Obama won by losing today.

Obamacare on Trial: The Supreme Court and Health Care Reform

Note: Today's blog draws upon a discussion of health care reform and the Commerce Clause found in my textbook Constitutional Law in Contemporary America, published by Oxford University Press.

[The Congress shall have power] “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Constitution Article I, Section 8, Clause 3.”

Obamacare goes on trial beginning Monday. The fate of this law now rests with the Supreme Court and its decision on its constitutionality will hinge on how it interprets the Commerce clause and a Supreme Court case decided in 1942.

In 2010 President Barack Obama signed into law the Patient Protection and Affordable Care Act of 2009.  The law, known to its critics as “Obamacare,” was a significant effort to regulate health care insurance in the United States in order to provide coverage for more individuals. Among the major provisions of the law was a mandate that required individuals who otherwise did not have health care coverage (such as through their employers) to purchase the coverage or face a fine. The bill cleared Congress along partisan lines, with Democrats supporting it and Republicans opposing it. Tea party activists, especially disliked the law, contending that it also violated the Tenth Amendment and states’ rights.

Many contended that this personal individual mandate was unconstitutional. A range of claims were offered to support this assertion, but the main argument was that Congress lacked the authority under the Commerce clause to mandate individuals purchase health care insurance.  Shortly after the passage and signing into law, several legal challenges to the Patient Protection and Affordable Care Act were brought in court. Four cases reached decisions on the merits regarding the constitutionality of the act under the Commerce clause.  Two district court decisions, Liberty University, Inc. v. Geithner, and Thomas More Law Center v. Obama upheld the individual mandate under the Commerce clause while two other cases Commonwealth ex rel. Cuccinelli v. Sebelius, and Florida v. Health and Human Services, found it exceeded Congress’ power under the Commerce clause. Federal courts of appeal also split over the constitutionality of the individual mandate.

The heart of the constitutional issue is actually quite simple. First, is the decision not to purchase health care insurance an act that affects interstate commerce? If it does, then Congress does in fact have the authority to mandate its purchase.

The Commerce clause is perhaps the most potent clause in the Constitution depending federal power.  Its insertion into the original Constitution of 1787 was made necessary because the then existing Articles of Federal government (the first constitution for the United States) proved ineffective in preventing individual states from discriminating against one another. States imposed tariffs and special taxes on imports, and the national government seemed ineffective in building a national market and regulating trade.  For some the Commerce clause is the heart of the Constitution.

Some of the Supreme Court’s most important and major constitutional decisions defining the scope of congressional power have been rooted in interpretations of the commerce clause. Cases such as Gibbons v. Ogden (1824) defined congressional commerce power as almost limitless, but other decisions have drawn its power and scope more narrowly. In the post Civil War Nineteenth century Supreme Court decisions struck down numerous federal laws, ruling that efforts to regulate certain business practices either did not constitute commerce or that they exceeded the scope of the power Congress could regulate. For example, in  Hammer v. Dagenhart (1918) the Supreme Court ruled that Congress lacked authority under the Commerce clause to regulate child labor.

The highwater mark of the Supreme Court invalidating congressional legislation as exceeding  its Commerce clause authority occurred during the first New Deal in the 1930s.  In decisions such as Schechter Poultry Corporation v. United States (1935), United States v. Butler (1936), and Carter v. Carter Coal Co.  (1936) the Court ruled that many of the original pieces of New Deal legislation pushed by FDR and passed by Congress exceeded the constitutional limits imposed by the Commerce clause.

However, then it all changed.  In 1937 FDR threatened the Court with a plan to add more justices. As a result of that threat, the retirement of some justices, and his replaced with new ones, the Supreme Court changed its mind in a new round of New Deal cases, upholding them as not inconsistent with the Commerce clause. Among the most notable decisions, Wickard v. Filburn (1942).

In Wickard, at issue was whether a small dairy farmer who planted wheat for personal use could be fined under the Agricultural Assessment Act (AAA) because his production wheat violated the quota he was allotted. Wickard had argued that his growing of wheat for personal use had no direct impact on interstate commerce and therefore Congress had exceeded its constitutional authority in the creation  of the AAA and in the imposition of the quota and fine. The Supreme Court rejected Wickard’s arguments, ruling that statutory penalties may be applied to those who raise more than the assigned quotas of acres of wheat even though the wheat is to be consumed on the farm and not moved in interstate commerce. The Court held that this exerts a substantial economic effect on interstate commerce since “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market.” For the Court, decisions not to purchase goods can impact interstate commerce–such as the decision not to purchase wheat and grow it instead for personal consumption.

The fate of Obamacare rests with what Wickard means as a precedent. Does the decision not to purchase health care insurance burden or affect interstate commerce? This is the question before the Supreme Court starting Monday. Do not look to the Court striking down the entire law–at issue is only a portion of it (the individual mandate) and not the entire act.

Since decided in 1942, Wickard’s expansive reading of the Commerce clause has been used to justify extensive regulation and legislation, including promoting civil rights laws, anti-trust, and protection of the food supply. The Court has agreed with clams that refusing to serve customers, for example, affects interstate commerce, thereby justifying civil rights or anti-discrimination laws.

There have been only two decisions since Wickard that have invalidated federal legislation under the Commerce clause. In 1992 the Court in United States v. Lopez struck down a provision of the Gun-Free School Zones Act of 1990 as exceeding federal commerce powers. And in 2000 the Court in United States v. Morrison strikes down a  provision of the Violence Against Women Act of 1994 as exceeding federal commerce powers. Both of these decisions were decided under the Rehnquist Court when both Chief Justice William Rehnquist and Justice Sandra Day O’Connor pushed an agenda limiting federal power and championing states rights. Outside of these two cases, no other federal law has been invalidated on Commerce clause grounds since 1937–75years ago.

But the Rehnquist Court is not the Roberts court. The current court that replaced Rehnquist with Roberts and O’Connor with Alito is less interested in federalism issues (limits on the federal government) than its predecessor. One can easily see a scenario where this Court upholds Obamacare, especially if it follows Wickard. Not purchasing health insurance and thereby shifting costs of medical care to others (for the uninsured) is just as much an impact on interstate commerce as the decision of one farmer not to buy wheat but purchase it.

Whatever the Court does do, its impact politically will be significant. Were Obama and the federal government to win it might rally the conservatives come November, whereas an Obama loss might mobilize Democrats and liberals. Thus, losing in Court might be a political blessing for November.