Masking the Constitution

 Back in April, Steve Lubet and I suggested that the Supreme Court’s decision in NFIB v. Sebelius could seriously hamstring the efforts of the federal government to control Covid-19.  At the time, the question was almost purely theoretical, given President Trump’s lack of interest in controlling the disease.  It is now urgently relevant, because increasing numbers of Americans understand that Mr. Trump’s desire for a second term is a mortal danger to themselves and their families, and Joe Biden is likely to replace him.  And Biden is contemplating aggressive measures to control the virus, such as a nationwide mask mandate.

So, predictably, conservative legal academics Josh Blackman, James Phillips, and John Yoo have responded by asserting that neither the President nor Congress have the power to take such measures.  And they are making exactly the arguments that Lubet and I anticipated.

If they are right, then if some states allow themselves to become petri dishes of disease, their residents will be free to bring the disease to other states, neither those states nor the federal government will be able to control its spread.

The trouble with these arguments is that they turn on the limitations on the commerce power that the Court invented in NFIB v. Sebelius, and those limitations have no basis in the Constitution, as I have argued extensively.

You might think that this argument comes at an inopportune time.  What sane person insists on inventing new limitations on government power, limitations that constrain its capacity to deal with a pandemic, when a thousand people are dying every day?  But that line was already crossed in the Obamacare case.  This is just more of the same.