The Vaccine Mandate Case May Mark the End of the ‘Work-Around’ Era

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

Jan. 6, 2022, in the Wall Street Journal

Hours after President Biden’s Sept. 9 speech announcing a series of vaccine mandates for private-sector employees, his chief of staff, Ron Klain, retweeted an MSNBC anchor’s quip that wielding workplace-safety regulation to force vaccinations was “the ultimate work-around.” Congress has never enacted a law requiring American civilians to be vaccinated—assuming it even has the constitutional authority to do so, which is doubtful. The Supreme Court hears arguments Friday on two of the mandates, which are likely to meet the same fate as other recent attempts to circumvent Congress that the courts have rejected.

The Constitution vests the power to make laws in Congress and charges the president with the duty to execute them. That’s what many in Washington derisively call the “high school civics class” model of government. It’s slow, it’s cumbersome, it rarely approves measures that don’t enjoy widespread public support, and it forces compromise, moderation and tailoring of policies to address the circumstances of a vast and varied nation. The temptation of avoiding it via executive fiat is obvious.

All it seems to take is clever lawyering. The U.S. Code is littered with broadly worded laws, made all the more capacious by judicial deference to agencies’ interpretations of them. Rather than dutifully carry out Congress’s design, a president can set his own policy and then scour the statute books for language that can be contorted to authorize it. In a 2001 Harvard Law Review article, then- Prof. Elena Kagan called the practice “presidential administration.” President Obama put it more plainly when he faced congressional resistance to his agenda: “I’ve got a pen to take executive actions where Congress won’t.”

But it isn’t quite that easy. The Clean Power Plan, Mr. Obama’s signature climate policy, set rigid and unattainable emission limitations for fossil-fuel power plants to force them out of operation and transform the energy market. It relied on an adventuresome interpretation of an obscure provision of the Clean Air Act. In 2016 the Supreme Court blocked it from taking effect, and the Trump administration later repealed it. (We represented Oklahoma in the litigation.)

Mr. Obama’s immigration-reform measures—also taken in the face of congressional opposition—suffered a similar fate. Deferred Action for Childhood Arrivals—which allows illegal aliens who were brought to the U.S. as children to work and avoid deportation—remains in legal limbo nearly a decade after it was established, following setbacks in the courts. Its counterpart for parents of U.S. citizens and permanent residents was enjoined before it took force.

Mr. Biden has had a taste of defeat himself, in a case that prefigures the mandate challenges. After Congress declined to extend the Trump administration’s nationwide eviction moratorium, the Biden administration acted on its own, relying on a 1944 statute authorizing the Centers for Disease Control and Prevention to undertake clearly delineated disease-prevention measures like fumigation and pest extermination. The justices, however, found it unthinkable that Congress had intended to confer on CDC so “breathtaking” an authority: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

In other words, loose language in old laws isn’t enough to support a presidential power grab. Yet that’s all the support the administration has been able to muster for the vaccination mandates. The Occupational Safety and Health Administration mandate forcibly enlists all companies with 100 or more employees to administer a vaccination-or-testing requirement that reaches nearly 85 million employees. It relies on a narrow provision addressing workplace-specific hazards that has never been used to require vaccination. The mandate for Medicare and Medicaid providers (covering 10.3 million workers) rests on general provisions authorizing regulations necessary to administer those programs—which, again, have never been used to require vaccinations. None of these statutes contain even a hint that Congress authorized any agency to administer broad-based vaccination mandates touching millions of Americans.

Although the mandates are flawed in other ways, their lack of clear congressional authorization is the most striking defect. Excessive judicial deference to agencies’ statutory interpretations is what enabled Mr. Obama’s “I’ve got a pen” agenda and its revival under Mr. Biden. The result has been to distort the entire federal lawmaking apparatus. Members of Congress now lobby the executive branch to make law through regulation rather than legislate themselves. Agencies enact major policies that have the durability of a presidential term before they’re reversed. And the president would sooner blame the courts for legal defeats than admit he lacks the power to do his allies’ bidding.

The courts share blame for this state of affairs, having lost sight of the basic separation-of-powers principles that should guide questions of agencies’ statutory authority. A decision rejecting the vaccination mandates because they weren’t clearly authorized by Congress would serve as a shot across the bow signaling that the work-around era is over.

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/end-of-work-arounds-biden-executive-order-vaccine-mandate-covid-omicron-supreme-court-11641505106

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

The limits of government power during a pandemic

In this interview (April 3rd, 2020) with Timothy Doescher from the Heritage Foundation, Cully Stimson and I lay out some of the limitations on what governments can do even during a pandemic.

Alito Teases a Judicial Revolution

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

23 June 2019 in the Wall Street Journal

The Supreme Court’s decision last week in Gundy v. U.S. was deceptively anticlimactic. The vote was 5-3, but there was no majority opinion and the decision made no new law. Justice Samuel Alito’s lone concurrence, however, suggested that a major break with precedent—and a return to the Constitution’s original meaning—will soon be in the offing.

The Constitution’s first clause after the Preamble states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since 1935 the justices have ignored that provision and permitted lawmakers to delegate their authority to the executive branch. At issue in this case was a provision of the Sex Offender Registration and Notification Act of 2006, or Sorna, that directed the attorney general to “specify the applicability” of the law’s registration requirements to offenders, like Herman Gundy, whose crimes predated the act. Mr. Gundy, who was sentenced to 10 years in prison for failing to register, claimed this delegation was illegitimate.

The case was heard four days before Justice Brett Kavanaugh’s confirmation. Had Justice Alito dissented, the resulting 4-4 split would have upheld the lower court’s ruling against Mr. Gundy without any opinion being issued. Instead, Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.

In their quest to control governmental power and protect individual liberty, the Framers separated federal power among three branches of government. As Justice Gorsuch notes, they also “went to great lengths to make lawmaking difficult,” requiring consent of both houses of Congress and the president, or legislative supermajorities. The veto was the executive branch’s only role in the legislative process.

That was deliberate. Justice Gorsuch quotes Montesquieu, who was quoted by James Madison in Federalist No. 47: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

Read more »

Demanding Trump’s tax returns is congressional overreach

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

17 May 2019 in The Hill

Democrats in Congress long have demanded that President Trump make his tax returns public. Many promised voters that, if given the House majority in the 2018 elections, they would force public disclosure of Trump’s returns. Indeed, they’ve demanded access to the president’s returns, but Treasury Secretary Steven Mnuchin has refused to give Congress that access. He was right to refuse. His action is firmly grounded in federal statute and the Constitution.

In April, House Ways and Means Committee Chairman Richard Neal (D-Mass.) demanded Trump’s tax returns from 2013 to 2018, invoking a federal statute (26 U.S.C. § 6103) that makes federal tax returns confidential. Other statutory sections, including 26 U.S.C. § 7213, make it a felony to disclose information in federal tax returns without proper authorization.

There are narrowly drawn exceptions to the general rule of confidentiality, including one that allows congressional tax committees to demand copies of individual tax returns. That information, however, cannot be made public without the taxpayer’s written consent. Secretary Mnuchin must have a well-grounded fear that one or more members of Congress would make the president’s returns public, hiding behind the Constitution’s speech or debate clause to escape prosecution. This factor alone can preclude the release of tax information.

There are, however, even more fundamental problems with the request. The committee’s stated purpose is to investigate how the IRS enforces tax laws against sitting presidents. That is an obvious pretext. Even if the Democrats’ posturing could be ignored, the fact that only Trump’s returns are sought — and not those of former presidents — makes the game clear. Read more »

Gerrymandering Disputes Don’t Belong in Court

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution. Read more »