Coronavirus and the Constitution

Kim Wehle at The Bulwark:

In general, individual states have the power to make quarantine decisions affecting movements within their borders, pursuant to the Tenth Amendment to the Constitution, which leaves to the states “the powers not delegated to the United States.” Such residual powers include what’s generically known as the “police power”—that is, the power to establish laws protecting the health, safety, and welfare of the public. Every state has laws on the books permitting authorities—sometimes the governor, sometimes public health officials, sometimes both—to enact and enforce quarantine and isolation.

Meanwhile, the federal government derives its constitutional authority to quarantine people from the Commerce Clause, which gives Congress the power “to regulate Commerce with foreign Nations, and among the several States.” Thus, the federal government’s quarantine power applies most clearly at the U.S. border and for purposes of preventing the movement of infected people from state to state.

Under its Commerce Clause authority, Congress in 1944 passed the Public Health Service Act, which gave the executive branch power to enforce quarantines. The statute remains in effect today, although it has been amended several times, and although the relevant executive-branch agencies have been repeatedly reorganized and renamed. As it reads now, it gives the surgeon general, with the approval of the secretary of health and human services, the authority to take steps “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into another State or possession.” The statute also allows the president, via executive order and upon the recommendation of the HHS secretary, to issue regulations that “provide for the apprehension, detention, or conditional release of individuals . . . for the purpose of preventing” the spread of disease.

Sanctuary Cities and the Tenth Amendment

First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!

— Donald J. Trump (@realDonaldTrump) April 26, 2017

At The Atlantic, Garrett Epps writes that Trump has alienated the courts.

The latest Trump defeat came Monday in the U.S. District Court for the Northern District of California. That case, County of Santa Clara v. Trump, has now produced a nationwide injunction against another Trump executive order: “Enhancing Public Safety in the Interior of the United States,” issued on January 25. On Tuesday, federal district judge William Orrick of the Northern District of California, blocked section 9(a) of the order. That’s the enforcement mechanism of the order’s ill-defined attack on “sanctuary” cities and counties that refuse to take orders from the Department of Homeland Security.

To a degree unusual in public law litigation, Trump’s legal setbacks flow from his personal flaws: constitutional illiteracy, governmental inexperience, contempt for law and lawyers, lust for executive power, and—most of all—simple inability to keep his mouth shut.

Henry Grabar at Slate:

We've known for months that the section of the president's January order making sanctuary jurisdictions "not eligible to receive federal grants" would be unlikely to stand up in court, for a few reasons that Judge William Orrick III, an Obama appointee presiding over the U.S. District Court for the Northern District of California, laid out on Tuesday:

The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.

War, Taxes, and Limited Government

George Will says that metaphorical "wars" on vice can hurt the cause of limited government as much as literal military conflicts.

So argue David B. Kopel and Trevor Burrusin their essay “Sex, Drugs, Alcohol, Gambling and Guns: The Synergistic Constitutional Effects.”

Kopel and Burrus, both associated with Washington’s libertarian Cato Institute, cite the 1914 Harrison Narcotics Act, which taxed dealings involving opium or coca leaves, as an early example of morals legislation passed using Congress’s enumerated taxing power as a pretext. In 1919, the Supreme Court held that the law “may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue.”

Its “effect”? The effect of suppressing the drug business obviously was its purpose. Nevertheless, the court held that even if “motives” other than raising revenue really explained Congress’s exercise of its enumerated power, the law still could not be invalidated “because of the supposed motives which induced it.”

“Supposed”? The court’s refusal to reach a reasonable conclusion about the pretext Congress used in this case for trespassing on territory reserved to the states enabled the federal government to begin slipping its constitutional leash. In 1922, Chief Justice William Howard Taft warned that Congress could seize control of “the great number of subjects” reserved to the states by the 10th Amendment by imposing a “so-called tax” on any behavior it disapproved of: “To give such magic to the word ‘tax’ would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the states.”

An Odd Comment about the Constitution

In a Time article on the Constitution, Richard Stengel writes: "If the Constitution was intended to limit the federal government, it sure doesn't say so."

Yes, it does. The Tenth Amendment says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Even before the adoption of the Bill of Rights, James Madison explained the original understanding of the document in Federalist 45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

Views of Federalism

The Progressive States Network argues that a very activist federal government is consistent with the Constitution. The American Constitution Society specifically defends the health care law against the argument that it unconstitutionally extends the federal government's power:

Highly politicized efforts to repeal the landmark health care law have led a group of more than 100 leading legal scholars from across the country to join together in a statement reaffirming the constitutionality of the Affordable Care Act and calling attention to the dangers of "throwing out nearly two centuries of settled law."

"I've never seen such an outpouring of support among law professors before," UCLA School of Law professor Adam Winkler said during a press call today hosted by the American Constitution Society and the Center for American Progress. "Legal experts nationwide are worried about the bald-faced judicial activism of the lower court in Virginia."

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Read the letter signed by over 100 law professors here, and listen to this morning's press call here.

Former Texas Solicitor General Ted Cruz and Mario Loyola of the Texas Public Policy Foundation write:

The Tenth Amendment is more than a legal construct. It is an expression of the American tradition of self-governance. The propensity to self-organize spontaneously at the local level to solve problems that had been observed by Alexis de Toqueville—and felt so painfully by the British Army—was essential to American democracy. The Constitution had been designed to protect it, not supplant it. And while a respect and deference to state authority both predated and was implied in the Constitution itself, in the end the Tenth Amendment was deemed necessary to ensure that self-governance would never give way to tyranny.

In this sense, the Tenth Amendment, coming at the end of the Bill of Rights, was something of a summation of the Framers’ whole notion of American democracy—and a salutary warning that those powers granted to the federal government needed to be kept strictly limited within the Constitution’s constraints, or else the States and individuals who formed the Union, and the Union itself, would be imperiled. That is why the Tenth Amendment matters.