In some ways it’s hard to believe, as we enter April, that there are parts of the country where social distancing practices are not being mandated by law. As my esteemed fellow Verdict columnist and friend Mike Dorf wrote over two weeks ago, one of the striking (and startling) aspects of America’s response to the COVID-19 pandemic has been the absence of direct federal regulation; mandatory measures and any enforcement thereof have been left up to each state and locality. The result has been a patchwork with many holes and frayed edges. Professor Dorf’s essay urged uniform federal restrictions, and as a matter of public health, his exhortations seemed (and seem) to make good sense.
As to the federal government’s power to impose the kind of “national lockdown” Professor Dorf envisioned, however, I think the matter might be a bit more complicated. At least the conservative majority of Supreme Court justices might so conclude. Professor Dorf wrote that such a countrywide stay-in-place-and-don’t-assemble-in-groups order “would be an exercise of the power to regulate foreign and interstate commerce—here temporarily halting both in the immediate hope of saving lives and ultimately reviving our economy. Congress [can and] should exercise that power, sweeping aside state law obstacles to the participation of state and local officials in the enforcement of a national lockdown.”
Professor Dorf acknowledged that the so-called anti-commandeering doctrine (affirmed as recently as 2018 in Murphy v. NCAA) might prohibit the federal government from requiring state and local executive officials to implement or police a federal lockdown, and with this I agree. (I also think, as I have written elsewhere, that state-level prohibitions on local participation in federal enforcement must be respected and cannot be “swept aside” by federal mandate.) But I want to explore, in the space below, the prior question of whether Congress’s powers under Article I of the Constitution permit imposition of such a lockdown in the first place, putting aside the follow-on question of who would enforce such a federal policy. (For these purposes I posit that Congress would enact a lockdown statute so that the President wouldn’t be acting unilaterally and so that federal power would be at its zenith. For purposes of today’s column, I also put to one side civil liberty issues.)
The bottom line is that while I would prefer that Professor Dorf’s conclusion (that a national lockdown is a permissible exercise of Congress’s Article I powers) were accepted by all as correct (and I think it is correct), the current Supreme Court’s jurisprudence on these matters creates a great deal of doubt.
Let’s start with the Commerce Clause, the provision Professor Dorf cites and relies on. Although the coronavirus pandemic undoubtedly represents a profound threat to the nation’s economy (who could think otherwise?), significant economic effects are by themselves an insufficient basis for congressional regulation. In U.S. v. Lopez in 1995 and again in U.S. v. Morrison in 2000, a 5-4 majority of the Court held that even if a regulated activity, when aggregated across the country, has large effects on interstate markets, Congress in not generally permitted to exercise its authority over such activity unless that which is being regulated is itself “economic.” In Lopez, the Court never denied that the empirical strength of the government’s assertion that possession of guns near schools around the nation has significant implications for educational attainment and outcomes, and thus has profound effects on national economic productivity. But the Court nonetheless struck down the federal Gun Free School Zones Act largely because gun possession near schools—the conduct the statute forbade—was not itself economic activity. As the same 5-4 majority would note five years later in Morrison, in striking down the Violence Against Women Act, “a fair reading of Lopez shows that the noneconomic . . . nature of the conduct at issue was central to our decision in that case. . . . Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”
What does that mean for 2020 coronavirus-stricken America? Well, some of the activity prohibited by lockdowns around the country—for example, the operation of non-essential businesses or the transportation of employees to workplaces—constitutes economic activity and thus could be regulated by the federal government under the Commerce Clause according to Lopez/Morrison. But a national lockdown—a shelter-in-place directive, if you will—would also regulate a great deal of non-economic activity through the generic prohibition of get-togethers of, say, more than 5 people. (And any effective national lockdown would have to ban gatherings of all kinds, not just commercial gatherings.) Banning group assemblies certainly means that department stores (engaged in economic activity) can’t operate, but it also means that block parties and religious and political rallies also cannot be held. And putting aside any First Amendment issues that such prohibitions raise (and there are some), it’s not clear that congressional Commerce Clause authority extends to cover such non-economic activities in the first place. At least according to Lopez and Morrison.
Does the Court’s fixation on the economic nature of the activity Congress is regulating make any sense? Perhaps not, for two reasons. First, the definition of “economic” seems malleable. The Court held possession of a gun was not economic (in Lopez), but that possession of marijuana for home use was (in Gonzales v. Raich in 2005). It is true that pot earmarked for consumption can leach into a market and be sold instead, but so can guns near schools be sold if the possessors so choose. So the Court’s test itself seems unworkable in practice. But it also may be, to borrow a phrase from my former boss Harry Blackmun, unsound in principle. As Justice Breyer’s dissent in Morrison powerfully observed, if air pollution is causing downwind, interstate economic destruction, why should it matter whether the smoke comes from factories or home fireplaces? In 2020, if social distancing is the smartest (perhaps only) way to preserve the intermediate-term economic future of all states and the nation as a whole, why should it matter whether people who are being prevented from gathering seek to shop or merely to mingle?
America’s present situation thus calls into question the emphasis on the “economic” part of the Supreme Court’s “economic activity” litmus test. And it also calls into question the Court’s emphasis, in the famous Obamacare National Federation of Independent Business v. Sebelius case, on the other part of the formulation, the “activity” prong. In Sebelius, a majority of the Court said that Congress couldn’t dictate the private acquisition of health insurance under the Commerce Clause because that amounted to Congress creating, rather than regulating, commercial activity; Congress can regulate preexisting commercial endeavors but can’t mandate new ones. And four justices found no basis for Congress to impose the individual mandate at all and would have invalidated it outright—only Chief Justice Roberts’s reportedly late-Term change of mind a fifth vote to uphold the mandate under Congress’s taxation powers.
Sebelius’s skepticism about federal authority to create the individual mandate was unpersuasive enough in 2012 when the opinions came down. But imagine today that we had a vaccine for the novel coronavirus and that (as is plausible) the vaccine would be effective nationally only if enough people were inoculated to create meaningful American herd immunity. Shouldn’t, in the name of preserving economic stability, Congress be able to require people to get the vaccine, even if there are some states where the local leaders don’t believe in vaccination? And if Congress could mandate vaccines, why shouldn’t it be able to mandate health insurance, which makes it more likely that people would know how, when and where to obtain the vaccines?
This last observation raises yet another point: Professor Dorf’s bottom line might be correct—the federal government has broad powers here to impose a national lockdown—but the Commerce Clause power needn’t and shouldn’t be the only authority to look at or rely on. Today’s coronavirus is from all indications a natural phenomenon, but what if another super-virus—the next one—is introduced in America intentionally as a form of biological warfare? Recent headlines about the U.S. military sheltering in place remind us all that military preparedness might depend in the twenty-first century on creating—even by mandate—herd immunity, just as other forms of military preparedness throughout American history have required compulsion (e.g., selective service conscription).
In this regard, harken back to what another prominent constitutional scholar, Akhil Amar (my older brother), wrote about Obamacare in 2012:
The next terrorist attack might very well be biological. . . . And our best national defense is herd immunity, which does mean that we need a large percentage of Americans to have vaccines. They will be more likely to have such vaccines if they have insurance. And states cannot individually handle these issues well because viruses do not stop at state lines. They spill over. They create interstate externalities. McCulloch [v. Maryland] itself, [the most important and thorough early explication of congressional power] I might add, was decided on national security grounds. In the wake of the war of 1812, Marshall explained how a national bank was useful in fighting wars and supporting armies.
If the creation of a national bank reasonably promotes military readiness, why wouldn’t facilitation of herd immunity be equally if not more reasonably fit and appropriate to the same end?
Today’s crisis reveals the analytic and practical weaknesses of the Obamacare ruling, and the major federal-power precedents from the 1990s on which it purported to build, both in the crabbed understanding of national commercial authority, and the difficulty many of the justices seem to have in understanding that the ultimate question is not whether any particular provision of the Constitution supports federal action, but whether Congress enjoys federal power somewhere in our national charter to accomplish a specific goal. To paraphrase McCulloch, it is a Constitution, not a clause, we are expounding.