Emergency Powers During a Viral Pandemic
The Covid-19 pandemic has prompted an extraordinary government response. Beginning in the spring of 2020, at a time when there was no vaccine or cure, governments took emergency measures to stop the spread of a disease that has killed (at the time of this writing) more than 930,000 Americans and infected millions more. States imposed lockdowns on economic and social life, including severe restrictions on individual liberties and business activity. The federal government flooded the economy with trillions of dollars in spending and assistance, poured resources into medical care and scientific research, and regulated interstate and international travel. Initially, the courts adopted a deferential approach toward “politically accountable officials with the background, competence, and expertise to assess public health,” as Chief Justice John Roberts wrote in May 2020.
This Essay examines the constitutionality of the federal government’s emergency measures during the second year of the pandemic. By Spring 2021, vaccines funded by the federal government became widely available and treatments started to appear. The Supreme Court deployed more extensive review of state and federal policies. But most importantly, this Article will argue, the Biden Administration adopted measures designed to inhibit the virus’ spread based on weak to non-existent legal authority. Executive power that might justify emergency actions during national security or foreign policy crises does not provide similar support for expansive claims of authority over domestic affairs. With national security and foreign affairs, the Constitution vests exclusive policymaking power in the federal government, and, during emergencies, in the Presidency. With domestic affairs, such as public health, the Constitution recognizes the primary authority of the states, with Washington, D.C. playing a specialized, supporting role. The fate of the Biden Administration’s ban on evictions and nationwide vaccine mandate illustrates this fundamental difference in emergency powers.
This Essay proceeds in three parts. Part I examines the Biden Administration’s effort to ban evictions nationwide. It argues that the executive branch could not claim authority under the Public Health Services Act to pre-empt all landlord-tenant contracts throughout the United States. Even if the statute were read to do so, a moratorium could well violate the Constitution’s restriction on the federal government’s enumerated powers. Part II examines the Biden Administration’s use of the Occupational Health and Safety Act to require most employers in the United States to adopt vaccine mandates for their employees. It argues that Congress did not delegate to the executive branch the authority to pursue public health policies through a workplace safety law. And, like the eviction moratorium, if the statute did grant the executive branch such sweeping power, it could violate the limited grant of Article I powers. Part III addresses the question of emergency power. It explains why the Constitution’s recognition of a power in the Presidency to respond to crises and emergencies does not extend beyond national security and foreign affairs to domestic problems.
