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April 20, 2020


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YOu may be conflating Commerce Clause jurisprudence with other issues.

What about the right to refuse medical treatment, established in Cruzan, etc.?

Under what power would the FEDERAL government overcome this right?

Jeff Schmitt

Great essay Steve. However, I am not so sure that Congress could enact a social distancing law. Under Lopez, Congress could pass such a law for the workplace, but I would guess that most social interaction would not classify as "economic activity."

For forced vaccination, Congress could always use the spending power to encourage the states to comply. I think it would be easier to convince the Court to allow some flexibility on the "coercion" limitation on the spending power than to convince it to overrule the activity/inactivty distinction in the commerce clause.

More generally, though, I am a big fan of federalism, which the Court tried to protect in Sebelius. (I don't agree with how the Court ruled in that case, but I do agree with the underlying goal.) Ironically, I think the pandemic is highlighting the strengths of federalism. I say ironically because a strong federal response would be the best approach. Given the total incompetence of the White House, however, I am glad that my governor is in charge here in Ohio. I also sleep better at night knowing that federalism limits the president's ability to use the crisis to justify abusing his power.

Steve L.

Those are all good points, Jeff. Our essay was more aimed at showing the inherent flaws -- really, the implausibility -- of the action/inaction distinction, which if followed would indeed prevent Congress from taking certain steps to contain the pandemic. The availability of other measures, either as work-arounds or preferable alternatives, does not change the fact that action/inaction was a contrivance from the beginning.

(Social interaction may not be economic activity by itself, but spreading contagion certainly can affect interstate commerce.)


Speaking of the intersection of coronavirus and law professors, any thoughts on this new Richard Epstein news?

I think it's pretty clear that Epstein should probably lose his job at NYU (and Hoover too, but it's Hoover so not holding my breath).


BTW, the apparent consensus on the FL that "Roberts" was wrong (way to demonize and personalize!) in Sebelius about the Commerce Clause is simply contrary to reality: the court was 7 to 2.

It may be that Souter and Kagan traded for Roberts vote on the tax issue, but that is just off the record speculation. The truth is that these justices have more integrity than to vote for a "specious" distinction, as Lubet postulates.

The "activity/inactivity" basis to which Lubet refers seriously misunderstands the ruling. The ruling was based on engaging in, or meaningfully affecting interstate commerce. The majority rejected the argument that everyone who doesn't by health insurance is "in" the market for health insurance, and also rejected the argument that, because use of the health care system is inevitable, congress could regulate persons funding of such care.

As to the latter point, as the majority correctly noted, many items are "inevitably" purchased, and, as a separate point, financing health care is a very different matter from consuming it.

In short, the intellectual bases for the "commerce" arguments were weak, and the court -- not "Roberts" -- THE COURT held 7-2.

Trying to spin this as "Roberts" and trying to oversimplify the issue by referring to the "activity inactivity" distinction is not only wrong and misleading, but really divisive and totally unnecessary and inappropriate at this time.

Again, forced vaccinations have been addressed by the court, but you aren't even in the right line of cases!


As we all know, we have a federalist system with intentionally limited federal powers. If there is not a specific power granted the federal government under the Constitution, it cannot magically appear just because there is a virus (something that was hardly unknown to the founders).

I'm not usually a big fan of the slippery slope, but this is just the type of situation where that slope becomes problematic. If we bend the Constitution for this crisis, it will just make it easier to bend it again and again whenever public opinion decides that the limitations on federal power are dangerous or, eventually, just inconvenient. When that happens, we have pure unfettered Democracy - the type of Democracy that sentenced Socrates to death.

Once you start down the dark path, forever will it dominate your destiny; consume you it will.

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