The Coronavirus and the Commerce Clause
Originally published on Legal Planet. Reprinted with permission.
If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”
What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.
The 2012 oral argument in the Supreme Court
JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal Government doesn’t have the power to get people inoculated, to require them to be inoculated, because that’s just statistical.
CARVIN [the lawyer]: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against –
JUSTICE BREYER: Is your answer to that yes or no …
Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress – a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration's top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our key democratic institutions; it could also serve as a crucial first step toward strengthening our system of regulatory safeguards.
Though the actual language of H.R. 1 has not been released, the bill is expected to consist of three sections. First, it would introduce a number of ethics reforms aimed at high-ranking executive branch officials and members of Congress, including requiring presidential candidates to disclose their taxes …
