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COVID-19 and the Law

Updated: Oct 20

The constitutional origins of federal control.

"The Congress shall have Power To ... regulate Commerce ... among the several States..." U.S. Constitution, Article I, Section 8, Clause 3.


The history of the commerce clause is long, with many courts and cases striving to understand what "commerce" means. The scope of authority expanded drastically with two cases. In the first case, NLRB v. Jones & Laughlin Steel Corp (1937), the Supreme Court upheld the National Labor Relations Board's authority to regulate working conditions because they had a "close and intimate effect" on commerce. In other words, the federal government not only regulates commerce, they regulate things that affect commerce.


In the second case, Wickard v. Filburn (1942), the Supreme Court listened to a case out of Ohio involving a small family farm and the Agricultural Adjustment Act of 1938. On the national level, we were dealing with the Great Depression, the Great Plow-Up, a big drop in wheat prices and an aggressive New Deal agenda. For the farmer, it meant he was "allotted" only 11 acres for wheat. He planted 23. He argued that he only sold 11 acres worth, and the remaining wheat was for personal use as feed for his livestock or food for his family. In other words, not one grain more than the 11 acre allotment left his farm. More importantly, he argued that his little plot for home use certainly didn't have a "close and intimate effect" on commerce; his extra wheat was simply too little to worry about. The Court disagreed, and announced for the first that activities could be aggregated (i.e. if all farmers did this...) and regulated.


Today, there are a number of federal agencies regulating commerce and employment, like the NLRB and the Occupational Safety and Health Administration (OSHA).


Until President Biden announced the new vaccine mandates for employers with more than 100 employees, the federal government has been hesitant to issue hard requirements for health policy and private enterprise.


In the early 90's the Supreme Court decided a case involving a federal law regulating firearms in school zones. The law claimed authority to regulate school violence because, in the aggregate, it had an effect on interstate commerce. Some feared that this argument would end federalism because any activity could be grouped together with an effect on commerce. This time, the Court refused to go along announcing that aggregated activities need to be economic in nature.


This last case, U.S. v. Lopez, serves as a cautionary tale for the federal government. Consider that just this last year, the federal Department of Health issued a nationwide eviction moratorium that was struck down as unconstitutional. It is possible that a nationwide vaccine mandate could be struck down, too, once again expressly limiting the federal government's authority to respond by mandate to a national health crisis. The question is, is a jab "economic"? Can a vaccine be aggregated?


Talk of a nationwide mandate raised other concerns for the federal government. If you're interested in doing your own research, look up the "Chevron doctrine." There are commentators that see a pathway to limiting or even overturning this case, which gives much of the federal agency structure its power. In all, there are plenty of governmental reasons for the federal government to NOT impose a nationwide mandate.


This post focused on the federal government. The next post will focus on private employers, what they can and cannot do, plus the all important "reasonable accommodation."


Copyright © 2021 Pilcher Law Firm, Prof. L.L.C.






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