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

19 September 2020 in the Wall Street Journal

The week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the Senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day. That nominee, Stephen Breyer, now sits on the Supreme Court.

Justice Breyer’s second nomination, in 1994, got more attention, but his first in 1980 neatly illustrates a constitutional principle: The president’s authority to make judicial nominations, and the Senate’s power to weigh them, is unaffected by the electoral calendar.

Minutes after the news broke Friday that Justice Ruth Bader Ginsburg had died, Senate Minority Leader Chuck Schumer declared his opposition to considering any nominee “until we have a new president.” The argument is an appeal to precedent; Mr. Schumer’s tweet was lifted from a statement by Majority Leader Mitch McConnell after Justice Antonin Scalia’s death in February 2016.

Then, the Senate withheld its consent from President Obama’s nominee, Judge Merrick Garland. Mr. McConnell’s rationale was that the voters should have a say in selecting the next justice. Put aside that Mr. Schumer and his caucus were on the other side of the issue four years ago. The important question is: What’s the right precedent?

It isn’t 2016. In the realm of Supreme Court nominations, practice has long followed principle. Twenty-five times presidents have made nominations to fill Supreme Court vacancies that arose in presidential election years, and 21 times the Senate confirmed the nominee. The general rule is that when there is a vacancy on the nation’s highest court, the political branches will fill it.

At the same time, the Senate has long observed a narrow exception to that rule—one also guided by constitutional concern—and that’s what was in play in 2016. When the nation chooses a president and a Senate, it makes its choice about who wields the power and bears the responsibility to pick and confirm judges. But when the president and Senate have divergent views on judges and judicial philosophy, there’s no clear mandate on what kinds of judges ought to be confirmed. For well over a century—the last exception was Chief Justice Melville Fuller in 1888, during President Cleveland’s first term—the Senate hasn’t confirmed a Supreme Court nominee chosen in an election year by a president of the opposite party. That’s why, in 2016, Mr. McConnell let voters break the stalemate.

This exception was popularized in 1992 by Sen. Joe Biden, then chairman of the Judiciary Committee. He urged President George H.W. Bush to refrain from making any Supreme Court nominations in that election year. What made 1992 different from other election years, Mr. Biden explained, was that “divided Government” reflected an absence of a “nationwide consensus” on constitutional philosophy. “Action on a Supreme Court nomination must be put off until after the election campaign is over,” the future vice president insisted. No vacancy arose until 1993, when Bill Clinton was in the White House and Ginsburg’s nomination easily passed a Democratic Senate. But the Biden rule fit 2016 to a tee.

It’s especially ill-suited to 2020. Not only does the same party control the White House and the Senate, but the 2016 and 2018 elections were both unusually focused on the issues of constitutional philosophy and judicial selection, owing to the Scalia vacancy and the Democrats’ smear campaign against Brett Kavanaugh. The voters made their choice, sending Donald Trump to the White House with his list of prospective nominees and a Republican majority to the Senate. There’s no stalemate for the voters to break this time around.

There’s not even a serious debate over judicial philosophy. Mr. Trump has maintained and expanded his list of prospective nominees, but Mr. Biden refuses to release one. That reflects the reality that, while Democrats bemoan the originalist bent of Mr. Trump’s picks, they embrace no competing doctrine, only the insistence that judicial power be wielded to achieve their political ends. Their instant opposition to any Trump nominee is of a piece: the exercise of power divorced from principle.

Another bit of history: In 1980, Mr. Biden voted to confirm Judge Breyer.

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

Source: https://www.wsj.com/articles/why-the-biden-rule-doesnt-apply-in-2020-11600545795

By David B. Rivking, Jr., and Lee A. Casey

25 August 2020 in the Wall Street Journal

If the 2000 election provoked a constitutional crisis, the 2020 one is flirting with disaster. Debate over voting by mail has focused mostly on the potential for fraud and logistical difficulties. But there are also legal problems with it, which carry the seeds of chaos before Inauguration Day and continuing instability after.

Under federal law, the presidential election must take place on Nov. 3, and the electors chosen on that day must vote on Dec. 14 to select the new president and vice president. These dates can’t be changed without an act of Congress, and the 20th Amendment sets Inauguration Day on Jan. 20.

Article II of the Constitution gives Congress the power to “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 has done so by enacting laws mandating that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” and that the Electoral College must meet and vote on “the first Monday after the second Wednesday in December.” As the Supreme Court held in Foster v. Love (1997), taken together the relevant constitutional and statutory provisions mandate “holding all elections for Congress and the Presidency on a single day throughout the Union.”

It follows that although state statutes permit the use of certain mail-in ballots sent on or before Election Day, no ballot cast after Nov. 3 is constitutionally valid. That implies that counting unpostmarked mailed ballots that arrive after Election Day would be unconstitutional, as there would be no way to tell if they were cast in time. In addition, the winner of each state’s electoral votes must be determined by Dec. 14, or those votes cannot be cast.

These requirements create a six-week window during which the electors must be chosen and certified, leaving little time for errors or challenges to the results. The delays inevitable in widespread voting by mail would make it difficult or impossible for some states to meet the Dec. 14 deadline, even without challenges to the results—which are certain this year if the election is close.

The deadline is even tighter thanks to another federal statute, which requires that any controversy over the electors a state has appointed must be resolved, under pre-existing state law, at least six days before the Electoral College meets. If a dispute isn’t resolved by the Dec. 8 “safe harbor,” the state legislature has until Dec. 14 to determine how the electors are to be selected or forfeit its electoral votes. If a state meets the Dec. 8 deadline, the result is conclusive and Congress must accept it.

The U.S. Supreme Court stopped the biased Florida recount on Dec. 12, 2000—that year’s safe-harbor deadline. Time had run out to remedy the equal-protection and due-process violations in the recounts that the Florida Supreme Court had ordered. The state court had earlier concluded that the Florida Legislature intended its electors to “participate[e] fully in the federal electoral process.” Thus, the high court concluded, the safe harbor had to be met.

We can assume no state would want its electoral votes to go uncast. As a result, there is only a very short window for mail-in-ballots to be received and counted. State actions and litigation—which are already being pursued with gusto—establishing an overlong period for counting such ballots will endanger a state’s electoral votes, impeding the Constitution and federal election statutes. And, as the Supreme Court said in Ex parte Siebold (1880), Congress’s election regulations “are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.”

Proponents of universal mail-in-voting argue that reliance on traditional in-person voting will disenfranchise many Americans because of the Covid-19 pandemic. Even if that’s true, the established constitutional and statutory requirements must be met. Drawing out the tabulation of large numbers of ballots received after Election Day would make this nearly impossible.

At best, the result would be electors chosen by state legislatures. At worst, states would be disfranchised in the Electoral College—or send rival slates of electors to vote on Dec. 14, leading to a bitter dispute in Congress over which votes to recognize. Any victor who emerged from such chaos would serve under a cloud of illegitimacy, promising four more years of political instability.

One of America’s greatest constitutional imperatives is the smooth and timely transition of power from one duly elected president to the next. That is now in doubt not because of the absurd notion that President Trump will refuse to leave office on Jan. 20 if the voters reject him on Nov. 3, but because the push for mail-in voting may overload the system, making an orderly election impossible.

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/mail-in-voting-could-deliver-chaos-11598376494

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

17 August 2020 in the Wall Street Journal

Plaintiff lawyers want insurance companies to absorb the cost to business of the Covid-19 pandemic—and they’ve had some early successes. A federal judge in Kansas City, Mo., last week allowed salon and restaurant owners to proceed with a lawsuit claiming that Covid shutdowns constituted “direct physical loss or damage” covered by business-interruption policies. California lawmakers introduced legislation in June that would establish a presumption that Covid-19 qualifies for such coverage.

Yet however sympathetic their clients, the lawyers’ efforts are unconstitutional and dangerous. They threaten to bankrupt the insurance industry, on which American businesses and consumers depend.

Most commercial policies include coverage for business interruption caused by physical damage to the business assets. If a car dealership suffers tornado damage to its roof, it can recover repair costs and losses incurred while the premises are closed. But disease isn’t “physical loss or damage,” as that phrase is ordinarily understood or typically intended in insurance contracts. Most such contracts expressly exclude such losses. That’s because losses associated with communicable diseases—like those from war or nuclear accident—aren’t insurable. The risks are unknowable, preventing the calculation of a premium sufficient to cover the losses if the event occurs.

As the Supreme Court observed in Los Angeles Department of Water and Power v. Manhart (1978), “drastic changes” in the legal rules governing insurance policies can “jeopardize the insurer’s solvency and, ultimately, the insureds’ benefits.” If the Kansas City lawsuit and hundreds like it succeed in redefining “direct physical loss” to include Covid-induced business closures, insurers would be forced to cover losses that were never underwritten. The industry has enough reserves to pay up to $800 billion for losses covered by home, auto and business policies. Uncovered Covid-19 losses are estimated in the trillions.

Fortunately, there are significant constitutional limits on the ability of either courts or legislatures to change private insurance contracts. The Constitution forbids the states to “impair the obligation of contracts.” As Chief Justice John Marshall observed in Ogden v. Saunders (1827), the power of contract impairment “had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society and destroy all confidence between man and man.” The effect was “not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith.”

The Contracts Clause has been invoked less frequently since the ratification of the 14th Amendment, whose Due Process Clause has become the preferred vehicle for challenging state regulatory actions. But the justices made clear in Allied Structural Steel Co. v. Spannaus (1978) that it still “limits the power of a State to abridge existing contractual relationships.” In that case, Minnesota rewrote pensions, requiring an employer to pay $185,000 to nine employees who were terminated before their benefits vested under the company’s plan. The court struck down the law as a “severe” and “unreasonably conditioned” retroactive alteration of agreed-upon obligations. Sveen v. Melin (2018), another Minnesota case, upheld a state-mandated invalidation of life-insurance beneficiary designations on divorce—but only because the impairment of the parties’ contractual obligations was minimal. The policyholder could redesignate the former spouse and “reverse the effect of the . . . statute with the stroke of a pen.”

Even during the Depression, the high court was skeptical of state laws that impaired private contracts. Home Building & Loan Association v. Blaisdell (1934) upheld a state law that extended the time allowed for redeeming real property from foreclosure under existing mortgages, but only because the redemption extension was a reasonable temporary condition.

State legislatures that attempt to abridge commercial insurance contracts today may argue that they are meeting a Depression-caliber economic emergency. Yet although the court reaffirmed in Spannaus that states’ ability to impair contract obligations is greater during an emergency, it also held that such laws must be “tailored to the emergency that it is designed to meet” and impose only “reasonable” conditions. Legislative changes establishing liability for Covid-19 losses would completely abrogate existing contracts and impose immediate, permanently binding, ruinous contractual obligations that the parties specifically contracted not to cover. They would almost certainly be struck down under the Contracts Clause.

Federal efforts to impose new contracts on insurance companies would also be unlikely to survive a constitutional challenge. The Fifth Amendment’s Due Process Clause prohibits Congress from imposing retroactive liabilities that, as the court put it in Landgraf v. USI Film Productions (1994), “increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” In Eastern Enterprises v. Apfel (1998), the court struck down a law imposing new pension liabilities on employers based on decades-old contracts. The justices couldn’t agree on a rationale for their ruling: A plurality saw it as an unconstitutional taking without just compensation. But in a concurring opinion, Justice Anthony Kennedy argued that it violated due process. He noted that political pressures tempt lawmakers “to use retroactive legislation as a means of retribution against unpopular groups or individuals.”

Businesses, especially small ones, have suffered terribly because of the Covid-19 virus. Many likely won’t survive. But shifting the burden to the insurance industry by either judicial rewriting or legislatively abrogating insurance contracts would be unconstitutional, especially since the losses have been largely caused by government decrees. Congress has already provided enormous financial assistance to American businesses—the appropriate means of compensating losses suffered from the government’s shutdown of the economy.

Because the litigation threat is existential, the insurance industry should do more than defend specific lawsuits. It should seek declaratory judgments now, establishing the limits of their potential liability. It also should work to convince federal and state lawmakers that they neither should nor constitutionally could abrogate and rewrite private insurance contracts.

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. Luttig was general counsel of the Boeing Co., 2006-20. He served as a judge on the Fourth U.S. Circuit Court of Appeals. 1991-2006.

Source: https://www.wsj.com/articles/coronavirus-contracts-and-the-constitution-11597705464

By David B. Rivkin Jr. and John S. Baker Jr.

Aug. 2, 2020, in the Wall Street Journal

President Trump met wide derision last month when he issued an executive order excluding illegal aliens from the census numbers used for apportioning House seats. “Persons means persons,” Thomas Wolf of the Brennan Center for Justice told a reporter. “Everyone must be counted.” But counting is different from allocating political power, and Mr. Trump has the better constitutional argument.

Section 2 of the 14th Amendment provides: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” This revises a provision in Article I that uses similar language but also includes the infamous Three Fifths Clause.

When voting on the latter provision, the Constitutional Convention used the term “number of inhabitants.” The Committee on Style shortened that to “numbers,” but that linguistic change was of no import. As Chief Justice Earl Warren noted in Powell v. McCormack (1969), the committee wasn’t authorized to make substantive changes to previously voted provisions. In Wesberry v. Sanders (1964), Justice Hugo Black wrote for the court that “the debates at the Convention make at least one fact abundantly clear: that . . . in allocating Congressmen, the number assigned to each State should be determined solely by the number of the State’s inhabitants.”

The administration argues that illegal aliens don’t qualify as inhabitants, and it’s right. The definition of “inhabitant” at the time of the Founding had an important political and economic context because of the legal responsibility of localities to care for the destitute under the 1601 Act for the Relief of the Poor. An inhabitant was a person who rightfully resided in a jurisdiction, contributing to and qualifying for available benefits. Like illegal aliens today, those whose presence was unlawful were not considered inhabitants and were subject to removal.

According to the 2018 Yale study, there are at least 16.7 million, and more likely around 22.1 million, illegal aliens in the U.S. The apportionment following the 2010 census yielded congressional districts containing roughly 710,000 people each. That means the illegal-alien population is the equivalent of around 30 districts, more than any state except California (53) or Texas (36).

States inflating census numbers has been a ever-present danger to the proper functioning of America’s federalist system. In Federalist No. 54, James Madison addressed what he called states’ “interest in exaggerating their inhabitants” to bolster their representation in Congress: “It is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers.”

Millions of illegal aliens are distributed disproportionately throughout the U.S., more than enough to cause shifts in apportionment of congressional seats, which also affect the Electoral College. In an example of the kind of swelling Madison warned about, some states and localities entice illegal aliens with “sanctuary” laws promising to shield them from federal law enforcement and provide them free health care and other benefits. In the years ahead, that could make the illegal alien population become larger and more concentrated in these states.

Yet this is not simply a blue vs. red state conflict over political power. Sanctuary state California will lose representatives if illegal aliens are excluded from apportionment, but so will Texas and Florida. It is also a Sun Belt vs. Rust Belt conflict. States like Indiana, Michigan, Pennsylvania and Ohio are the ones that stand to gain (or at least not lose) in apportionment under the president’s plan.

Since only a few states lose representation after each decennial census, this gradual erosion of political power has rarely been challenged. The Supreme Court has never addressed the constitutionality of including illegal aliens in congressional apportionment and has only occasionally been asked to do so (including in a 2011 case in which we represented Louisiana). When the court rejected Mr. Trump’s proposed citizenship question on the census, it was on technical administrative procedure ground, not the merits.

That leaves it to the political branches to carry out the constitutional mandate of counting only inhabitants for reapportionment. Congress has done so, by enacting statutes giving the president wide discretion on reapportionment decisions. Mr. Trump is right to take the next step.

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. Baker is a visiting professor at Georgetown’s Center for the Constitution and a professor emeritus at Louisiana State University Law Center.

Source: https://www.wsj.com/articles/madison-warned-about-sanctuary-states-11596396761

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

June 17, 2020, in the Wall Street Journal

Senate Republicans have an opportunity to reverse one of Chief Justice Earl Warren’s most pernicious legacies—but they seem determined to blow it. Sen. Tim Scott, who is leading the majority’s police-reform effort, said Sunday that abolishing “qualified immunity,” which protects law-enforcement officers from lawsuits under a law known as Section 1983, is “off the table.” Police unions, Mr. Scott said, view it as a “poison pill.”

Section 1983 originated in the Civil Rights Act of 1871, which opened federal courts to lawsuits challenging civil-rights violations by defendants acting “under color” of state and local law. It provides that violators “shall be liable” to their victims. The idea was that freed slaves could go to court to enforce their newly won constitutional rights.

It didn’t work out that way, and much of the blame lies with the Supreme Court, which in the late 19^th century defanged the 14th Amendment, relieving states of their obligation to honor all citizens’ federal rights. The court only began to correct that error in the mid-20th century, proceeding on a right-by-right basis under a doctrine known as incorporation.

What the court gave with one hand, it took away with the other. In Mapp v. Ohio (1961), the justices held that states were obligated to observe the Fourth Amendment right against unreasonable searches and seizures. But in Pierson v. Ray (1967), they relieved state officials from civil-rights liability unless their actions violated “clearly established law.” That’s “qualified immunity.”

The results can be infuriating. In one recent case, police officers escaped liability for siccing an attack dog on a suspect who was sitting with his hands up. A previous case had found a Fourth Amendment violation, but the court held the precedent didn’t apply because the suspect in the earlier case was lying on the ground. In another case, cops shot a fleeing driver who posed no threat. In another, police stole a collection of rare coins while executing a search warrant. Because such larceny by officers hadn’t arisen in a previous case, the court reasoned, the plaintiff’s right not to have his property stolen by police was not “clearly established.”

To call this a double standard would be an understatement. Civilians are subject to civil and criminal liability when they violate the law, even when their legal obligations aren’t perfectly clear. When state officials violate constitutional rights, qualified immunity often makes it impossible to hold them to account. It’s easy to understand why this disparity inspires cynicism about the rule of law.

Warren’s rationale for qualified immunity was that officials had historically enjoyed immunity for acts taken in “good faith.” He concluded that unless a court had already established that a particular act violated the law, it couldn’t be presumed that Congress intended to impose liability.

But Will Baude of the University of Chicago has demonstrated that there was no general “good-faith defense” for public officials and that qualified immunity can apply even to violations committed in bad faith. Further, Warren’s conclusion about Congress’s intent is at odds with the statute’s language; the words “shall be liable” brook no exception.

The Warren court established qualified immunity at a time when it was rewriting the Constitution by discovering new rights at an astonishing clip. It’s possible the justices worried that imposing liability for violations of the new rights would encourage resistance and stymie the rights revolution.

Yet as the Warren court relieved itself from the strictures of the Constitution, it did the same for state officials. Qualified immunity has made civil-rights litigation such a crapshoot that it does little to deter misconduct, particularly rights violations by police, which can be remedied only after the fact with money damages.

Some conservatives fear that correcting the error of qualified immunity could alter incentives for the worse, by putting police officers at risk of liability for doing their best to protect the public. That concern is misplaced. Other professionals face tort liability irrespective of whether the law on some point was “clearly established” by a prior court decision. No one argues that hinders the practice of law or engineering.

Besides, unlike most other professionals, police are almost always indemnified by their departments. Police departments take advantage of qualified immunity rather than make difficult choices like confronting or firing bad cops, standing up to police unions, or insisting on use-of-force rules that could deter abuses. In these ways, qualified immunity does a disservice to the overwhelming majority of police who take their duties to their communities seriously.

The Roberts court appears disinclined to correct its predecessor’s error, denying review this week in a score of cases asking it to reconsider the doctrine. That means it’s up to Congress. House Democrats are promoting legislation that would eliminate immunity for police officers. The only sound objection is that the Democratic plan stops short of ending the failed experiment of qualified immunity altogether.

Limited to police officers, it would leave the doctrine on the books for other state officials, making the Supreme Court less likely to correct its original error. And it would arbitrarily deny recourse to victims of, say religious discrimination by a mayor or racial discrimination by a licensing officer. All state officials, including the police, should be accountable for respecting constitutional rights.

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

Source: https://www.wsj.com/articles/how-the-warren-court-enabled-police-abuse-11592410930

Congress has the power to limit coronavirus liability while regulators develop rules to control contagion.

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

20 May 2020 in the Wall Street Journal

As Congress considers another Covid-19 rescue bill, the usual partisan divide has opened over limiting pandemic-related tort liabilities. Republicans and business owners argue that litigation will hamstring recovery. Trial lawyers, unions and Democrats counter that liability limits would encourage businesses to endanger employees and consumers. The Senate Republican leadership proposes immunity for all businesses that comply with public-health guidelines except in cases of “gross negligence” and willful misconduct.

Republicans’ approach is appealing in theory, but in practice it can’t be implemented without detailed regulatory standards—which in the case of Covid-19 won’t be written for some time. Rather than permanently change liability standards based on incomplete information about the virus, it would be wiser to enact an immediate but temporary immunity. That would permit the economy to begin reopening while allowing time for federal regulators to promulgate standards on which long-term immunity could be conditioned.

The existing tort liability system, which rests mostly on state statutory and common law, has few virtues and many flaws. It is inefficient and often arbitrarily imposes liability. Tort litigation, unlike regulatory standards and enforcement, is largely unconstrained by due process and other constitutional limits. The results can be crippling for small businesses, which can’t afford protracted litigation, and even large companies have to settle meritless or frivolous lawsuits. The system is driven by jackpot-justice incentives.

This system is particularly ill-equipped for dealing with Covid-19, which affects the whole economy. Yet hundreds of lawsuits are already pending against universities, processing plants, manufacturing, mass-transportation companies and other businesses. Plaintiff lawyers are petitioning legislatures to rewrite or courts to reinterpret insurance policies, which specifically exclude pandemic-related liabilities, in an effort to obtain large recoveries. While such efforts are constitutionally suspect, these lawsuits won’t die easily.

The notion that businesses will act recklessly if Congress affords liability relief ignores the good-faith compliance culture of American enterprises and the regulatory environment in which they operate. Businesses have strong incentives against even negligent behavior, which would cause bad publicity and customer distrust. We’ve seen many announcements in recent weeks about what businesses are doing to keep customers and employees safe. Bad actors can and will be held to account by states and municipalities using police and regulatory powers to fine, close or even prosecute those that operate dangerously. An elaborate system of federal and state workmen’s compensation provides additional protection.

Tort law is primarily a state matter, but it’s well-established that Congress can intervene via its power to regulate interstate commerce. Federal law has provided tort liability protections to firearms makers and for nuclear power. Congress also enacted laws to limit liabilities arising out of Y2K—like Covid-19, a specific event that was thought to have potentially calamitous economic consequences.

The Supreme Court has sustained congressional authority to sweep aside state policies, statutes and procedures that impair interstate commerce, beginning with Gibbons v. Ogden (1824), which affirmed federal pre-eminence in regulating interstate navigation. In New York v. Beretta (2008), which upheld the limitations on liability for firearms makers, the Second U.S. Circuit Court of Appeals held that Congress’s authority includes the power to ban state tort lawsuits that “are a direct threat” to specific industries.

While there are legitimate doubts—which we share—that the Commerce Clause’s original meaning encompasses intrastate economic activities, the high court has embraced this view since 1942, when it held in Wickard v. Filburn that the federal government could ban growing wheat for personal consumption because it impaired a wheat-production scheme created by federal statute. The justices also asserted in Gonzales v. Raich (2005) that the Commerce Clause allows Congress to regulate intrastate activities that “substantially affect interstate commerce.” Those precedents are enough to allow Congress to protect businesses with local footprints, such as beauty salons or restaurants, that buy products or supplies in interstate commerce.

Senate Republicans should also propose to make protection against tort liability a precondition for states and localities to receive nearly $1 trillion in the new Covid-19 rescue bill. In National Federation of Independent Business v. Sebelius (2012), the ObamaCare case, the Supreme Court limited Congress’s ability to coerce states into adopting new policies by threatening to withdraw money for existing programs. Since this money is new, that won’t pose an obstacle. Using its spending and Commerce Clause powers, Congress can promulgate a variety of regulatory schemes that would replace current federal and state statutory and common-law liabilities for Covid-19 and that would survive litigation challenges.

Making liability protection work will require regulation to evolve along with scientific understanding of Covid-19. Current federal, state and local guidelines, including those published by the Centers for Disease Control and Prevention, are informed exclusively by medical considerations and do not reflect traditional regulatory criteria such as cost and feasibility of implementation, and are too ambiguous and inconclusive to be a proper basis for imposing or limiting Covid-19-related liabilities. New, industry-specific guidelines will have to be developed by agencies such as the Occupational Safety and Health Administration.

OSHA and other federal agencies have the expertise to evaluate scientific, practical and cost-effective standards governing operations of a wide range of businesses. What they need is new statutory authority to issue safe-harbor guidelines for businesses that pre-empt tort liability under state law. Companies and trade associations would work with OSHA and propose industry- or business-specific guidelines to the agency, such as for meat packing plants or package sorting facilities. OSHA would promptly review each proposal, make necessary modifications, and then issue it as an immediately effective regulation with the legal force to override lawsuit liability. Businesses that comply with these regulations can rest assured that they’ve met their legal obligations.

Such considered Covid-19 liability reform—temporary immunity while businesses reopen, followed by promulgation of comprehensive federal regulatory guidelines—would be constitutional and consistent with federalist values. It would protect public health while enabling a prompt and full economic recovery.

Mr. Luttig is a former general counsel of the Boeing Co. He served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. 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/lawsuits-neednt-block-recovery-11589993211