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
