COVID and Constitution focus of Constitution Day Presentation
Posted Sep 21, 2021
As part of the university's Constitution Day activities, Dr. Evans led a discussion with the aid of Dr. Baker on our constitutional rights in the age of COVID. The pandemic has raised constitutional questions and challenges that most people had not imagined whether it relates to quarantines, eviction moratoriums, mask and vaccine mandates, and more.
Dr. Evans started the discussion by noting how most discussions of our rights in a pandemic revolve around Isaiah Berlin's two notions of freedom. Negative liberty is freedom from external constraints, primarily government. Opponents of the more intrusive governmental actions focus on this conception of liberty. Proponents of more activist goverment focus on positive liberty or the ability to choose one's pursuits which leads one to focus on inhibitions that prohibit someone from doing as they please. In this regard, individuals claim that the concern with catching COVID due to the poor choices of others is preventing people from living their life as they please.
Next, Dr. Evans discussed the powers of the state and federal governments. Under our system of government, states have the primary authority to deal with a pandemic under its police powers to preserve health, safetly, morals, and the general welfare. These police powers original from the English common law system that colonists brought with them to the colonies and are part of the powers reserved to the states under the Tenth Amendment. The state power to deal with a pandemic is limited only by arbitrary and capricious actions in violation of the U.S. Constitution, the state constitution, and decisions by the governor and state legislature. The federal government is limited to actions that involve interstate and foreign commerce. While some interpretations of Congressional power under decisions by the New Deal Court would potentially justify a larger federal government role, the federal government, up to this point, has not exercised that power believing states greater police power, greater knowledge, and need to adapt to changing circumstances.
Dr. Evans then turned to the constitutionality of lock down orders. These state orders are constitutional and recognized under the Constitution is Gibbons v Ogden (1824) and Campagne Francaise de Navigation a Vapeur v Lousiana Board of Health (1902). These government measures must only be rationally related to a legitimate state interest which is a low level of scrutiny.
Turning to the eviction moratoriums, federal moratoriums, but not state moratoriums, are constitutionally dubious. The first moratorium on evictions came from the CARES Act but the moratorium expired in the Summer of 2020. Since Congress authorized it, the moratorium was valid under Alabama Association of Realtors v Department of Health (2021). However, President Trump ordered the CDC to extend it. Realtors in Alabama thought that this extension went beyond the statutory authority of the CDC. The CDC justified its decision on the basis that mass evictions would exacerbate the spread of COVID. The Court in a split decision agreed as five justices thought it was unconstitutional but 5 justices were willing to let it expire at the end of the month for a more orderly process. When the Court ruled, Democrats pressured Biden to order an extension but he argued that he lacked the authority under the Constitution but eventually submitted to the pressure and ordered the CDC to extend the ban. Federal courts have already issued an injunction against the order and it is unlikely to survive constitutionally.
Regarding religious, state orders to shut down churches were valid under Employment Division v Smith which held that neutral laws of general applicability restricting religion are permissible. Since states were closing down other businesses, the courts upheld these bans. However when states started treating churches differently than other similar situated organizations, like businesses, the Court would apply strict scrutiny which requires a compelling state interest that is narrowly tailored to the discrminatory end. While controlling a pandemic is a compelling interest, using different standards for businesses and other groups in buildings of a similar size means that the law was not narrowly tailored and struck down (e.g., Roman Catholic Diocese of Brooklyn v Cuomo 2020).
Finally, the discussion turned to vaccine mandates. While state vaccine mandates are clearly within the state police power (Jacobson v MA 1905), a federal mandate is more complicated. Biden's order for a vaccine mandate for federal employees, nursing home workers receiving Medicare or Medicaid funds, and federal contractors would probably be sustained because courts have upheld the president's ability to require actions by these groups in the past. The proposed vaccine mandate for individuals in companies that employ more than 100 people is more questionable. This mandate would require OSHA to use its Emergency Treatment Standard power to order the vaccine. The language providing for this order is rather broad and the rationale for it would be reasonably related to the government interest of containing COVID and getting the economy moving again. However, the counterargument is that Biden is stretching the law beyond what Congress intended, OSHA regulations usually focus on things such as hazardous waste, slippery floors, unstable stairs, etc., vaccine taking may be considered a non-economic activity that Congress cannot regulate (Brzonkala v Morrison 2000) and if Congress cannot force someone to engage in commerce (NFIB v Sebelius 2012), its ability to require a vaccine is questionable.