Face Masks and the First Amendment

By David B. Rivkin Jr. and James Taranto

May 18, 2021, in the Wall Street Journal

Why do we have to wear face masks? The official answer changes from week to week. “It’s a patriotic responsibility, for God’s sake,” President Biden said when asked on April 30 why he still did despite being vaccinated against Covid-19. But last week he recast mask mandates as a coercive sanction against the unvaccinated. “The rule is now simple: get vaccinated or wear a mask until you do,” he tweeted Thursday.

In fact, no rule had changed. The Centers for Disease Control and Prevention merely issued “guidance” that if you’re fully vaccinated, “you can resume activities without wearing a mask . . . except where required by federal, state, local, tribal, or territorial laws, rules, and regulations.” Within days, many states relaxed their mask edicts, and Washington followed on Monday by applying its decrees only to unvaccinated people on most federal property. But California officials said they’d stand pat until June 15, and the White House and CDC still require universal masking on public transportation and at transit hubs, including airports.

Critics argue that masking has become a form of virtue signaling. Mr. Biden reinforced that claim with his appeals to patriotism, which began during last year’s campaign as a rebuttal to the mask-resistant President Trump. But if wearing a mask conveys a political message, mandating it is constitutionally suspect. “No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette (1943), which held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.

To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance: that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home.

Officials would argue that they are regulating conduct, not expression, and that they are doing so to protect public health. A few months ago that defense almost certainly would have prevailed. The pandemic’s severity, coupled with the lack of effective means to control it, would have persuaded most judges to defer to the government’s contention that the danger of infection outweighed the right to dissent or any other rights (such as bodily autonomy) that plaintiffs might assert.

Now the facts have changed. The pandemic has receded rapidly, with the number of daily U.S. infections down 88% since its January peak and still declining. Since mid-April vaccines have been available free of charge to any adult in America. Almost 124 million Americans—including more than 47% of adults and nearly 73% of the vulnerable 65-and-over population—have been vaccinated fully. The CDC acknowledges implicitly with its latest guidance that vaccinated people are at trivial risk of contracting the virus or transmitting it to others.

All this would be relevant to a court considering a First Amendment challenge to a mask mandate. To defend content-based limits on speech, the government must satisfy a standard known as strict scrutiny. It has three elements, all of which must be met: The government has to demonstrate that the restriction furthers a “compelling interest,” that it is “narrowly tailored” to fulfill its objective, and that it is the “least restrictive means” of doing so.

The government undoubtedly has a compelling interest in preventing infectious disease. But that doesn’t necessarily imply a compelling need for mask mandates. If it did, they could be justified in perpetuity. Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic.

Widespread vaccination makes mask mandates far too broad to be a properly tailored remedy. Selective enforcement against the unvaccinated is impracticably cumbersome, so authorities have to rely on what CDC Director Rochelle Walensky calls “the honor system”—which presumably is why the CDC hasn’t relaxed its own order requiring universal masking in transportation facilities. Many of the relaxed mandates arbitrarily apply to the 32 million Americans with natural immunity from prior infection unless they are also vaccinated. And if selective enforcement were possible, it would compound the First Amendment violation with an intrusion into medical privacy by effectively requiring the disclosure of vaccination status as a condition of going out in public.

Some mandates still apply outdoors—including Mr. Biden’s in national parks until Monday—despite scientific evidence that open-air transmission of Covid is vanishingly rare. The University of Massachusetts Amherst suspended three students for not wearing masks at an outdoor off-campus party last month. It barred them even from online classes, making clear the action was punitive, not preventive.

Mask mandates are ill-tailored for another reason: Practical limits on their application make them underinclusive. For obvious reasons they exclude restaurants, or at least seated customers. But if a restaurant is safe enough to operate without masks, other similarly or less crowded public places should be too. Nor do mandates apply in private homes, where Covid spread is “common,” according to the CDC.

Most important, mask mandates have ceased to be the least restrictive means of stopping viral spread. For several months, Washington and state governments have made a determined effort to encourage vaccination. That measure has involved almost no coercion, making it much less restrictive than mask mandates.

It has also proved far more effective. Nationwide infections rose more or less steadily in the fall and early winter—including in states that had strong mask mandates—before peaking in January as vaccination got under way. Infections declined sharply until mid-February, dropped more slowly into late March, then rose a bit before resuming their decline in mid-April, right around the time vaccines became available to all adults. The decline has continued even as some states, including Texas and Florida, lifted mask mandates.

In 2009 a reporter asked President Obama why he wasn’t wearing an American flag pin on his lapel. “Right after 9/11, I had a pin,” Mr. Obama answered. “Shortly after 9/11—particularly because as we’re talking about the Iraq war, that became a substitute for I think true patriotism, which is speaking out on issues that are of importance to our national security—I decided I won’t wear that pin on my chest.”

With the nationwide pandemic over or nearly so, there is no reason to deny any American the freedom to make the same decision about that mask on his face.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Taranto is the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/face-masks-and-the-first-amendment-11621356093

Sheldon Whitehouse Is No Friend of the Courts

By David B. Rivkin Jr. and Andrew M. Grossman

April 29, 2021, in the Wall Street Journal

The “Trump judiciary” is corrupt, Sen. Sheldon Whitehouse claims, and the remedy is to scrutinize parties presenting legal arguments in friend-of-the-court, or amicus, briefs. The proposal wouldn’t make the courts any cleaner, but it would violate the First Amendment. It is also part and parcel of the broader Democrat-driven effort to politicize and intimidate the judiciary.

Amicus briefs are a fixture of litigation, particularly in appellate cases presenting broad and important legal questions. While the parties to a case present their positions in their own briefings, amici inform the courts with additional perspectives and analysis. Typical amicus briefs address the history of a constitutional provision or statute, dive deep into legal doctrine and precedent, or argue about the practical consequences of approaches the court might take. Many are filed by, or on behalf of, legal scholars. At the Supreme Court, the justices often question lawyers on points raised by amici, and they occasionally engage amicus-brief arguments in written opinions.

Where others see public-spirited legal advocacy, Mr. Whitehouse sees a plot. In a 2019 amicus brief of his own, the senator, joined by four Senate Democratic colleagues, denounced amici supporting a gun owner denied the right to transport his firearm as “marionettes controlled by a puppetmaster” as part of a “project” in partnership with the court itself to “thwart gun-safety regulations.” Amicus briefs, the senator asserted in his own, are driving a “pattern of outcomes” in which “corporate and Republican political interests prevailed.”

“The Supreme Court is not well,” the brief concluded ominously. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ”

Mr. Whitehouse expanded on the point in a 2020 screed co-authored with Sens. Chuck Schumer and Debbie Stabenow, titled “Captured Courts.” It contends that a “network” centered on the Federalist Society—which doesn’t file amicus briefs or even take positions on cases or issues—is using such briefs “to inject its boundary-pushing theories directly into Supreme Court jurisprudence.”

The senator has introduced legislation, the Assessing Monetary Influence in the Courts of the United States Act, that would require any organization filing three or more amicus briefs a year to register with the government and disclose the identities of those who worked on the brief and of its significant donors, even those who didn’t seek to fund any particular brief. In February Mr. Whitehouse wrote a letter to the Judicial Conference Committee on Rules of Practice and Procedure, urging it to adopt the same approach through court rules.

Mr. Whitehouse’s claims of corruption are frivolous. It’s not as if there are hundred-dollar bills tucked between the pages of the PDFs. And how exactly are amici supposed to be influencing judges other than by making persuasive legal arguments? The common complaint from the bench is that too many amicus briefs are useless because they merely restate the parties’ arguments or make an empty show of support.

The courts, unlike politicians, decide cases under the law and have to show their work. So while an amicus’s argumentation can be persuasive, its support for one party or the other carries little weight. (Some amicus briefs don’t even take a position on which party should prevail.) If the courts were counting noses, the support of the Chamber of Commerce and a half-dozen other business groups should have swung things for Ford Motor Co. in the big personal-jurisdiction case the Supreme Court decided last month. But Ford lost unanimously. Federal judges, with life tenure, don’t have a campaign on the horizon or a constituency to please.

This isn’t the first time politicians have sought to compel disfavored organizations to disclose their associations. In NAACP v. Alabama (1958), the Supreme Court turned back the state’s demand that the civil-rights organization turn over its membership list. The justices recognized that the First Amendment protects citizens’ right to join together to advance beliefs and ideas and that “privacy in group association” can be essential to such advocacy, “particularly where a group espouses dissident beliefs.” The court has since consistently subjected disclosure requirements implicating associational rights to “exacting scrutiny,” requiring that disclosure further an important governmental interest like combating fraud or corruption or preserving election integrity.

The courts already require amici to disclose whether a party to the case wrote its briefs or made any contributions intended to fund them, and those requirements further the courts’ interests in preventing parties to a case from using amicus briefs as supplements to their own briefing. By contrast, donors who make general contributions to an organization—whether the Chamber of Commerce or the NAACP Legal Defense and Educational Fund—aren’t putting themselves before the court. Whether an argument presented by an amicus sinks or swims turns on its merit, not who contributed to its filer’s operating expenses. Perversely, Mr. Whitehouse’s proposal would cement into law the opposite presumption, with predictably corrosive consequences for the public’s view of the judiciary and the law.

That is the objective. With a conservative majority on the Supreme Court, and many originalist and textualist judges now serving on courts of appeals, Mr. Whitehouse understands that the policy-driven mode of judging that underpins so many progressive legal victories is on the wane. So he spelled out a new strategy in “Captured Courts”: attack the conservative legal movement and tar the judges who share its principles with made-up claims of corruption. Donor disclosure is the fodder for the attacks.

The damage to Americans’ freedom would be substantial. Organizations advocating on all sides of controversial issues would be forced to publicize their supporters, even ones who may disagree with those particular briefs and positions. They would be targeted for harassment, as practically anyone taking a controversial stand today is, and many would curtail their associations with groups that file amicus briefs.

The endgame, per the senator, is to dry up support for what he regards as “unpopular and self-serving positions.” The First Amendment exists precisely to protect the right to take unpopular positions.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/sheldon-whitehouse-is-no-friend-of-the-courts-11619713971

Congress Sowed the Seeds of Jan. 6 in 1887

The Electoral Vote Count Act lets Congress think it can choose the President, but it’s unconstitutional.

By J. Michael Luttig and David B. Rivkin Jr.

March 18, 2021, in the Wall Street Journal

Congress plans to establish a commission to investigate the Jan. 6 storming of the Capitol. We already know one reason for that terrible event. Members of the mob acted in the mistaken belief, encouraged by President Trump, that lawmakers had the power to determine the election’s winner. Congress itself sowed the seeds of this belief when it passed the Electoral Vote Count Act of 1887 and could destroy it root and branch by repealing that law.

The EVCA grew out of another bitterly contested presidential election. In 1876 officials in Florida, Louisiana and South Carolina certified competing slates of electors, one for Republican Rutherford B. Hayes and one for Democrat Samuel J. Tilden ; a single electoral vote from Oregon was similarly contested. The 20 disputed votes were enough to decide the election. A congressional commission ultimately chose Hayes in a political deal. In exchange for the presidency, Republicans agreed to end Reconstruction and withdraw federal troops from the South.

The EVCA was enacted 10 years later, largely to limit Congress’s role in determining which electoral votes to accept. Yet Congress gave itself more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges. The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as “irregularly given,” a process that a single representative and senator can trigger by filing an objection.

Fortunately, this provision has seldom been invoked—only twice before 2021—and no objection has ever been sustained. But this year Republican lawmakers vowed to contest the results in six swing states that Joe Biden carried. Although the objections had no prospect of success in a Democratic House and those that were filed (for Arizona and Pennsylvania) were voted down overwhelmingly in both chambers, the law put Congress smack in the middle, where it uncomfortably found itself in 1876.

That’s not what the Framers intended. The Constitution’s Electors Clause gives state legislatures plenary authority over the manner of choosing electors and relegates Congress to determining on what day the Electoral College would cast its votes. The 12th Amendment, ratified in 1804, reformed the Electoral College by providing for separate votes for president and vice president. It also reiterates the Article II, Section 1 language that the certified state electoral results are to be transmitted to Washington, opened by the president of the Senate, and counted in the presence of both congressional houses.

No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes. Significantly, the 12th Amendment gives Congress no power to enact legislation to enforce its provisions, unlike subsequent amendments expanding the franchise. The Necessary and Proper Clause doesn’t support such legislation either. The constitutional text contains further indications that the Framers chose to exclude Congress from participating in presidential elections. While Article I, Section 5 grants Congress the authority to judge the elections of its own members, no such power is given with regard to presidential elections. And Article II, Section 1 forbids members of Congress from being appointed as electors.

In fact, after much debate, the Framers deliberately chose to deny Congress any substantive role in selecting the president and vice president, except in the rare case that no candidate has an Electoral College majority. This was for compelling separation-of-powers reasons. As Gouverneur Morris explained at the time, “if the Executive be chosen by the [National] Legislature, he will not be independent [of] it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence.”

Thus Congress’s prescribed role as audience during the process of opening and counting the electoral votes is ministerial. With electoral college votes coming from all of the states, the counting had to be performed by a federal government entity, and both the executive and judicial branches had potential conflicts of interest. That Congress has no constitutional “skin in the game” of presidential selection made it perfectly positioned for this role of official observer.

Who then does have the power to settle disputes over electoral slates, such as those in 1876 and 2020? Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.

Congress should promptly repeal the Electoral Vote Counting Act. Given the tight constitutional timeline for casting and counting votes and inaugurating a president, lawmakers should enact a statute providing for expeditious federal judicial resolution of all questions relating to compliance with state legislatively established procedures for selecting presidential electors, the validity of elector selection, and the casting of electoral votes—and requiring eventual mandatory Supreme Court review.

By ridding the country of this unconstitutional and anachronistic law, lawmakers would remove themselves from the process for choosing the president and surrender back to the federal judiciary the role Congress unconstitutionally arrogated to itself almost a century and a half ago. That would go a long way toward ensuring that America never witnesses a siege on the National Capitol on a future Jan. 6.

Mr. Luttig served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. He advised Vice President Mike Pence on the 2020 vote certification. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/congress-sowed-the-seeds-of-jan-6-in-1887-11616086776

Legal analysis of the Democrats’ proposed elections law

In this interview (20 Feb 2021) on the Dan Proft show, David Rivkin shows that the Democrats’ proposal to regulate federal elections is unconstitutional, especially in relation to presidential ballots. The constitution stipulates that determining the manner of presidential elections is a power held by the states, not by Congress. The interview follows a recent op-ed published in the Wall Street Journal

An Unconstitutional Voting ‘Reform’

Democrats want to impose federal rules on elections for president. Congress doesn’t have that power.

By David B. Rivkin Jr. and Jason Snead

Feb. 16, 2021, in the Wall Street Journal

House Democrats have made election “reform” their top legislative priority. House Resolution 1, styled the For the People Act, would vitiate existing state election laws, federalize the rules of congressional and presidential elections, and effectively do the same for state elections, which are often conducted on the same ballot. Critics have noted that the proposed rules are designed to benefit Democrats. They’re also unconstitutional.

The key problem is that the Constitution doesn’t give Congress the authority to regulate all federal elections in the same way. Congress has significant power over congressional elections. The Elections Clause of Article I, Section 4 provides that state legislatures “shall prescribe” the “times, places and manner of holding elections for senators and representatives,” but also authorizes Congress to “make or alter such regulations.”

Yet Congress has only limited authority over the conduct of presidential elections. They are governed by the Electors Clause in Article II, Section 1, which provides: “Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” Congress’s timing determination is binding on the states, as the Eighth U.S. Circuit Court of Appeals held last year in Carson v. Simon, which rejected Minnesota’s modification of its ballot-receipt deadline. (The Honest Elections Project sponsored the litigation, and Mr. Rivkin was the plaintiffs’ lead attorney.)

But the Electors Clause gives state legislatures plenary power over the manner of selecting presidential electors. It does not permit lawmakers to promulgate a comprehensive federal elections code. Nor does the 15th Amendment, which bars racial discrimination in voting, or the other amendments extending the franchise. Each grants Congress the power to enforce its guarantees through “appropriate legislation.” But as the Supreme Court explained in City of Boerne v. Flores (1997), “Congress does not enforce a constitutional right by changing what the right is.” None of these amendments guarantee the right to vote in any particular way—such as by mail versus in person—so Congress can’t rightly be said to be enforcing them through H.R.1. And none of them repeal the Electors Clause.

Although all 50 state legislatures have provided for popular election of presidential electors, the legislatures could change state law and appoint electors directly. H.R.1 violates the Electors Clause on its face, purporting to govern not merely the time, place and manner of congressional elections, but also regulating presidential elections in exactly the same prescriptive matter as congressional elections.

The profound difference between the Electors Clause and the Elections Clause was no accident. The 1787 Constitutional Convention in Philadelphia considered many possible methods of choosing the chief executive: direct popular election, selection by one or both houses of Congress, even a vote of state governors. Ultimately, delegates settled on a college of electors, chosen in a manner to be determined by the legislature of each state, to avoid the president’s selection by Congress. As Pennsylvania’s Gouverneur Morris said at the convention, “if the Executive be chosen by the [national] legislature, he will not be independent [of] it; and if not independent, usurpation and tyranny on the part of the legislature will be the consequence.”

Another delegate, South Carolina’s Charles Pinckney, explained later: “In the Federal Convention great care was used to provide for the election of the president of the United States independently of Congress; to take the business as far as possible out of their hands.” Congress, Pinckney continued, “had no right to meddle with it at all.” The only exception is that the House chooses the president if no candidate commands an Electoral College majority.

The Supreme Court has recognized state legislatures’ primacy in regulating presidential elections. In McPherson v. Blacker (1892), the justices upheld Michigan’s apportionment of presidential electors by congressional district, holding that the Constitution “leaves it to the [state] legislature exclusively to define the method” of appointing electors. Subsequent rulings have adhered to that principle. In Burroughs v. U.S. (1934), the court held that Congress’s authority is limited to enacting laws that don’t “interfere with the power of a state to appoint electors or the manner in which their appointment shall be made.”

The court restated this principle as recently as 2000, holding unanimously in Bush v. Palm Beach County Canvassing Board that the Florida Supreme Court couldn’t change state election laws on its own authority, without action by the Legislature.

Even if lawmakers cured the constitutional deficiency of H.R.1 by applying it only to congressional elections, it would still be bad policy. Voting systems are vast and complex. Even minor, well-intentioned changes can have significant unintended consequences. Few know this better than election officials themselves. According to a recent report by Pennsylvania’s county commissioners, “uncertainty regarding court challenges” and “confusion because of ever-changing guidance” from Secretary of State Kathy Boockvar contributed to the November delays and problems experienced by counties across the commonwealth. It took Philadelphia two weeks to count 700,000 ballots.

By contrast, Florida has spent two decades bolstering its election system after the debacle of 2000. The Sunshine State processed 11 million ballots in November and reported accurate results on election night. More states should be doing what Florida does.

But H.R.1 would put Florida’s success at risk. Its law requires voters to show identification and return absentee ballots by Election Day, bans organized ballot trafficking, and requires that voters cure problems with their mail-in ballots no later than two days after an election. Common-sense measures like these help the state deliver honest elections with prompt and accurate results even in the face of a pandemic. For H.R.1’s drafters, though, these are instruments of “voter suppression.” The bill would dilute or prohibit all these measures.

Keeping states in charge of elections also limits the damage when policy changes fail. States can experiment with voting improvements, learn from missteps, and replicate successes. Not so with a one-size-fits-all system. Any troubles caused by a national voting law will instantly affect all 50 states, none of which will have the freedom to correct them. Imposing unconstitutional voting changes on the whole nation would politicize the machinery of democracy and risk permanently tainting the credibility of elections.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/an-unconstitutional-voting-reform-11613497134

The Constitution Will Survive Covid-19

By David B. Rivkin Jr. and Lee A. Casey

Nov. 27, 2020, in the Wall Street Journal

The Covid-19 pandemic “has served as a sort of constitutional stress test,” Justice Samuel Alito observed this month. “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” The setting underscored the point: Justice Alito made his remarks in an online speech that ordinarily would have been delivered in a cavernous hall, before a crowd of hundreds gathered for the Federalist Society’s annual dinner.

A public-health emergency may justify curtailments of liberty that would be unacceptable in normal times. But even in an emergency, America’s government doesn’t wield unlimited powers. Measures taken to deal with this pandemic have imposed severe restrictions on the most basic rights and liberties, often with little consideration of their legal basis. The U.S. Constitution prohibits many of the most draconian measures taken or under consideration.

Joe Biden has implicitly acknowledged the point. Accepting the Democratic presidential nomination in August, the former vice president declared: “We’ll have a national mandate to wear a mask—not as a burden, but to protect each other. It’s a patriotic duty.” But his transition website promises only to “implement mask mandates nationwide by working with governors and mayors.”

A federal mask mandate is a nonstarter because it would have to be grounded in one of Congress’s constitutionally enumerated powers, all of which have limits. The go-to section to justify federal regulation is the clause granting lawmakers the power “to regulate commerce . . . among the several states.” As the Supreme Court held in National Federation of Independent Business v. Sebelius (2012), which involved the ObamaCare mandate to buy medical insurance, individuals must be engaged in commercial activity before Congress can regulate them. Congress cannot impose requirements on the citizenry “precisely because they are doing nothing,” Chief Justice John Roberts wrote.

The same is true of other prospective federal anti-Covid measures, such as a national “stay at home” order or an overall economic lockdown. Congress does have broad authority to regulate business, which it could use to impose workplace safety rules, including mask mandates. But nationwide lockdowns are a dubious legal proposition. Congress has never attempted to eliminate all or most economic activity. Any such requirement, even if supportable under the Commerce Clause, would raise significant concerns about the constitutional rights of people prevented from earning a living.

State and local mandates pose a more complicated question. Unlike the federal government, states have a general “police power” that permits them to enact public-health regulations. State and local mask mandates will likely survive judicial scrutiny, as the burden is relatively small. But quarantine requirements imposed on otherwise healthy people, and especially stay-at-home orders and shutdowns of economic activity, are another matter.

Courts have generally upheld quarantines as proper exercises of state police power. But they have traditionally required the involuntary seclusion only of infected individuals and those exposed to them. Quarantines for travelers may survive constitutional challenges. They are generally limited to 14 days or less and arguably supported by the states’ interest in limiting the potential to spread the infection from viral “hot spots.”

But states have no constitutional authority to discriminate against out-of-state persons, goods or services or to burden interstate commerce unduly. It would be hard to justify restrictions that draw arbitrary distinctions between intra- and interstate travelers or among states. New York’s current rules, for instance, exempt travelers within New York and from adjacent states while ordering quarantine for those from distant states with lower Covid rates.

Universal, open-ended stay-at-home mandates and general economic shutdowns are unprecedented in America. The former amount to the imposition of house arrest on vast numbers of people without due process or any provision for basic needs. They raise important constitutional issues involving freedom of assembly, due process and equal protection.

Mandating how many individuals can meet in one’s home, as some states did in time for Thanksgiving, is particularly difficult to justify. If the government can regulate your dinner guests, what can’t it do? Although the government has imposed location-specific curfews in times of war and civil disorder to address specific public-safety concerns, protracted populationwide curfews directed at more-nebulous threats will be difficult to justify.

Some of these issues will doubtless reach the Supreme Court, but lower courts are already wrestling with them. In County of Butler v. Wolf, William S. Stickman IV, a federal district judge in Pittsburgh, struck down Pennsylvania’s most draconian anti-Covid-19 measures. These included strict limits on indoor and outdoor gatherings, stay-at-home requirements, and the lockdown of businesses that aren’t “life-sustaining.” Judge Stickman found these measures wanting on First Amendment, due-process and equal-protection grounds, even under an “intermediate” level of scrutiny.

“A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists,” Judge Stickman concluded in his September decision. He took particular note of Pennsylvania’s diversity of communities—and hence of Covid risks—as against the state’s “one-size fits all approach” to stay-at-home orders, which were not in any way tailored to minimize the burden while achieving the government’s legitimate ends.

Judge Stickman concluded that Pennsylvania’s business lockdown requirements failed to meet even the lowest level of constitutional scrutiny—being rationally related to a proper state purpose. He noted that the state had not articulated “a set, objective and measurable definition” of “life-sustaining” businesses, and that its requirements arbitrarily favored large retailers over small ones. Pennsylvania has appealed Judge Stickman’s decision, but it is difficult to see how the state can defend such capricious and comprehensive restrictions. The same goes for other states: Such details as closing health clubs but not beauty salons (New York), or imposing restrictions on the use of sailboats but not motorboats (Michigan), appear driven not by any rational basis but by government officials’ aesthetic and ideological preferences.

No doubt some judges will be inclined to defer to government officials in an emergency. Five Supreme Court justices did so earlier this year when churches in California and Nevada sought to enjoin state orders limiting the number of worshipers at services. In both cases, Chief Justice Roberts voted with the court’s four Democratic appointees to deny immediate relief.

But the other four justices dissented in both cases on the grounds that the orders violate freedom of religion by imposing greater limits on religious activities than comparable secular businesses, including casinos. As Justice Alito quipped during his Federalist Society speech: “Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty. You will not find a craps clause.”

This Wednesday the court granted injunctive relief to the Roman Catholic Diocese of Brooklyn and an Orthodox synagogue, which are challenging New York Gov. Andrew Cuomo’s occupancy limits. Justice Amy Coney Barrett joined the new 5-4 majority. In a concurring opinion, Justice Neil Gorsuch observed that the state had ignored “long-settled principles” that almost always prohibit government officials “from treating religious exercises worse than comparable secular activities.”

One area in which the states clearly can impose anti-Covid mandates is vaccinations. In Jacobson v. Massachusetts (1905), the Supreme court upheld the city of Cambridge’s authority to respond to a smallpox outbreak by mandating vaccines for all inhabitants. The justices affirmed that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Congress may also be able to impose vaccination or testing on employees or others engaged in commerce. But proponents of economic lockdowns overreach when they cite Jacobson in support. The case was modest in scope and dealt with a far surer remedy for a deadlier virus than Covid-19.

Federal and state officials have every right to urge Americans to take precautions against viral spread, though it would help if they consistently followed their own advice. But when the government moves beyond persuasion to coercion, its requirements must meet constitutional muster.

Some of them will, such as well-tailored state-level mask and vaccination mandates. Others probably won’t, including broad curfews, stay-at-home orders, economic lockdown mandates and measures that target protected First Amendment activities. There may be a “judicial impulse to stay out of the way in times of crisis,” Justice Gorsuch wrote in the New York case. “But . . . we may not shelter in place when the Constitution is under attack.”

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/the-constitution-will-survive-covid-19-11606502792