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Just Say No

Jenin Younes
Litigation Counsel

September 11, 2023

A recent uptick in COVID-19 cases, accompanied by the predictable hysterical media coverage, has spurred nationwide chatter about a possible return to pandemic restrictions, from school closures to mask mandates. This is not baseless supposition, as schools, universities, and hospital systems across the nation have recently reinstituted masking and quarantine requirements. Sen. Ed Markey, D-Mass., recently reinstated a mask mandate in his Capitol Hill offices, while MSNBC pundit Mehdi Hassan has been working overtime to convince his audience that school closures did not actually harm children—a formidable task given the evidence refuting his claims.

People living in hub cities and other blue jurisdictions have reason to worry that their political leaders might turn back the clock on pandemic restrictions ahead of the 2024 election cycle. Despite scads of legal challenges from individuals and groups negatively impacted by lockdowns and vaccine requirements, the law still offers little protection. Mandates levied by state and local governments tended to survive lawsuits due to the Constitution’s allocation of police power to the states, so courts have given governors and state legislatures the green light to continue inflicting pandemic theater on their constituents. Whether or not the Biden administration will attempt to implement mandates at the federal level—as some have speculated despite the presidential proclamation ending the COVID-19 emergency this past May—is another matter. In contrast to state and local COVID-19 restrictions, most federal mandates imposed by presidential decree have not withstood legal challenges. Thus, for Americans who are more concerned about COVID-19 tyranny than the virus itself, there is reason to be hopeful that even if restrictions return, they won’t be as totalizing and intrusive as the last round.

First and foremost, President Biden’s vaccine mandates, which he instituted through executive orders in the fall of 2021, were by and large a failure (apart from the mandate for health care workers at facilities that receive federal funds). The president attempted to use federal statutes obviously meant to serve entirely different purposes to compel vaccine-hesitant Americans to get the shot. Altogether, the mandates applied to around 100 million Americans.

One of the most extensive involved the administration’s instrumentalization of the Occupational Safety and Health Act (OSHA) to force private companies that employed 100 or more people to require vaccination or frequent testing as a condition of continued employment. Preliminarily enjoining the mandate, the Supreme Court recognized that the president lacked this authority, since Congress had only authorized OSHA to regulate workplace safety, not impose “broad public health measures” that were “untethered, in any causal sense, from the workplace.”

The White House’s misuse of the Procurement Act to force all employees of federal contractors to receive a COVID-19 inoculation met a similar fate. The act’s stated purpose is to provide for the “economical and efficient” procurement of government contracts. Several United States Courts of Appeals rightly held that Congress, in enacting this statute, clearly did not intend to provide for the federal executive to impose vaccination on one-fifth of the nation’s workforce. Thus, Biden had exceeded his delegated powers. Likewise, a 10-judge majority of the 5th Circuit Court of Appeals upheld a district court’s ruling preliminarily enjoining the federal employees’ vaccine mandate. While as a technical matter the decision addressed jurisdiction, in determining that the plaintiffs could bring their case in federal court, the ruling set the groundwork for a successful challenge on the merits of the claims, and was widely seen as a victory for the plaintiffs.

Vaccine mandates were not the only pandemic restriction imposed through federal executive decree to be preliminarily enjoined. When, in July 2020, Congress failed to renew an emergency act halting evictions from properties that participated in federal assistance programs or were subject to federally backed loans, the Centers for Disease Control and Prevention (CDC), an agency within the Department of Health and Human Services (HHS), extended the moratorium and broadened it to include all residential properties nationwide. In an unprecedented move, the CDC even provided for criminal penalties for noncompliant landlords. The CDC’s dubious statutory justification for this sweeping order was its authority to “make and enforce such regulations as in [the surgeon general’s] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases[.]” According to the agency, the eviction moratorium was necessary because economic hardship during the pandemic meant many tenants could no longer afford to pay rent, and forcing them out of their homes would disseminate COVID-19.

From a practical and moral standpoint, the policy was a fiasco. Noncorporate, middle-class landlords could not afford mortgages and repairs without tenants’ rent. In many instances, tenants did not default out of necessity, but rather because they could get away with it. For example, a Washington Post article featured a Hawaii waitress who lost her job due to business closures and could not stay afloat using rent from small condos she owned since her tenants simply didn’t pay.

The Supreme Court, in Alabama Association of Realtors v. HHS, rightly found that the CDC had exceeded the authority delegated to it by Congress and struck down the moratorium. The court explained in conclusion that: “[O]ur system does not permit agencies to act unlawfully even in pursuit of desirable ends …. It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”

Similar principles came into play when the CDC was taken to court over its public transportation mask mandate. A district court judge in Florida held that the agency lacked power to compel travelers throughout the nation to wear masks on public transit. (The 11th Circuit Court of Appeals dismissed the case, dodging the merits because the government represented that the administration would not attempt to reimpose the mandate.)

Very recently, the Fifth Circuit held that the Food and Drug Administration (FDA) had unlawfully interfered with doctors’ ability to prescribe ivermectin to patients to treat COVID-19 symptoms. Three doctors had challenged FDA tweets ordering Americans to stop taking the medication, which is a commonly used anti-parasitic drug that has been met with controversy in the COVID-19 context. (Some hypothesize that vaccine companies and their allies orchestrated hostility to the drug because its efficacy threatened their profit margins.)They alleged that the FDA’s stance had caused them to suffer adverse professional consequences, including loss of admitting privileges at hospitals and positions at medical schools, as well as referrals to medical boards. The Fifth Circuit agreed, declaring that “[n]othing in the [enabling] Act’s plain text authorizes FDA to issue medical advice or recommendations … while FDA cites plenty of statutory authority allowing it to issue information, it never identifies even colorable authority allowing it to make medical recommendations (at least without notice and comment.”

All of the decisions discussed above are based on a common principle: Generally speaking, the president of the United States and his executive agencies do not have the constitutional authority to impose public health mandates through executive decree. Congressional acts are a different story, though. As the Supreme Court insinuated in Alabama Association, the same public health measures instituted properly, through the legislative process, would probably pass constitutional muster.

Thus, Americans who oppose public health tyranny would be wise to elect national representatives who not only share their concerns, but have practical plans to pass legislation that would protect Americans against future restrictions—especially given that most COVID-19 mandates proved not only useless, but harmful.

Unlike the successful challenges to federal mandates, however, efforts to block COVID restrictions at the state and local levels have been less successful. That is because state and local governments have broad authority (known as “police power” embodied in the Constitution’s 10th Amendment) to pass laws and regulations to address a perceived public health crisis. A prime culprit for the current state of affairs is a case from 1905 known as Jacobson v. Massachusetts. Henning Jacobson, a pastor in Cambridge, had defied a law requiring residents of his township to receive a smallpox vaccine during an outbreak of the disease. The Supreme Court rejected Jacobson’s due process challenge. The law was a proper exercise of Massachusetts’ 10th Amendment police power, the court explained, and did not violate Jacobson’s constitutional rights. [T]he police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and safety.”

Courts have since relied on Jacobson to justify upholding most state and local public health mandates, from vaccine requirements imposed by state employers to mask mandates to school and business closuresnot only those enacted by legislatures. Attempts to distinguish or revisit Jacobson on various salient grounds, such as the relative lethality of smallpox compared to COVID-19, evolving societal recognition of rights to bodily autonomy, or the fact that the law in question had been passed through the legislative process as opposed to executive decree, usually fail. Instead of engaging in reasoned analysis, courts reflexively apply Jacobson and wash their hands of further analysis.

There are some exceptions to this general rule, most notably in the First Amendment context (the First Amendment provides for Americans’ rights to speak and practice religion without government infringement). Having earlier denied a church’s challenge to California Gov. Newsom’s executive order restricting public gatherings, in November 2020 the Supreme Court struck down an executive order issued by former New York Gov. Andrew Cuomo severely limiting church attendance. The order violated the First Amendment’s Free Exercise Clause, the court held. In a now oft-quoted line, Justice Gorsuch opined in concurrence that “Government is not free to disregard the First Amendment in times of crisis.” In another hopeful decision, a district court judge in California preliminarily enjoined a state law prohibiting doctors from dispensing advice or treatment to patients that departs from the “contemporary scientific consensus” on COVID-19. The 9th Circuit Court of Appeals, which heard argument on the constitutionality of the law this past July, appears poised to hold that it presents due process and First Amendment problems.

The common theme underpinning these challenges to state level COVID-19 restrictions, however, is that they implicate enumerated First Amendment rights to free speech and free exercise—in other words, rights that the Constitution explicitly protects. If Americans want to safeguard other liberties, such as the rights to bodily autonomy, to decline medical treatment, and to run a business or to attend school, they should turn to the legislative process. The courts cannot be relied upon to protect our rights to leave our homes, run our businesses, send our children to school, and breathe unhindered.


Originally Published in Tablet