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 …
- 1 (current)
