Moving Beyond NFIB V. OSHA: Vaccine Mandates Under TheCommerce Clause

Moving Beyond NFIB V. OSHA: Vaccine Mandates Under The Commerce Clause

Joshua Cenzano Edited by Reena Khanna

Joshua is a second-year History and Russian major at UC Santa Barbara. He is from Port Hueneme, California, and wants to attend law school after finishing university. He is also currently the co-president of the Moot Court team at UCSB, which is what piqued his interest in constitutional law.

ABSTRACT

The Supreme Court in National Federation of Independent Business v. Occupational Safety and Health Administrationrecently found OSHA’s Emergency Temporary Standard mandating COVID-19 vaccination or weekly testing to all employees in businesses of more than 100 employees to be outside the statutory regulatory authority of the agency as prescribed by Congress. While the executive branch may not currently possess the authority to mandate vaccinations as an occupational safety regulation, this Article will examine whether Congress may regulate the vaccination of private citizens under its Commerce Clause authority instead. Twentieth-century Commerce Clause jurisprudence permitted fairly broad applications of regulation, including acts that affected the production of wheat and marijuana intended for private consumption as well as acts to ban racial discrimination in places of public accommodation. The Court has recognized these applications as legitimate and generally deferred to Congress’ commerce power, scrutinizing laws with the most deferential standard of review.

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However, the Court in recent decades has also implemented some limitations on Congress’ commerce power in landmark cases United States v. Lopezand United States v. Morrison. The Court in National Federation of Independent Business v. Sebeliusalso addressed Congress’ ability to compel commercial activity and again limited its authority. While the general governmental authority to mandate vaccinations has been recognized by the Court since Jacobson v. Massachusetts, the central question to be examined is whether there exists a provision in the Constitution thataffords Congress itself the authority to mitigate one of the most potent public health threats to the nation in recent memory, and specifically whether that power is included under Congress’ general authority to regulate those subjects which “substantially affect commerce.” In light of business closures and labor shortages, this Article argues that Congress’ sinterest in protecting the economy affords it the authority under its commerce power to mandate vaccinations.

INTRODUCTION

On January 13 of this year, the Supreme Court ruled in National Federation of Independent Business v. Occupational Safety and Health Administration, holding that the Emergency Temporary Standard (ETS) adopted by the Occupational Safety and Health Administration (OSHA) which, interalia, mandated that most workers in the United States receive vaccination against COVID-19 fell outside its statutory authority as set by Congress.1 Preempting contrary state laws, OSHA attempted to use its existing authority to regulate workplace safetyand issued an order which would have applied to “roughly 84 million workers, covering virtually all employers with at least 100 employees.”2 While OSHA has been granted discretionary authority to

1 Nat’l Fed’n of Indep. Bus. v. Occupational Safety and Health Admin., No. 21A244 (U.S. Jan. 13, 2022) [hereinafter NFIB v. OSHA] (per curiam). 2 Id., slip op. at 1.

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regulate workplace conditions, its use of Emergency Temporary Standards is somewhat limited. To enact a permissible ETS, the Secretary of Labor must show “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and that the “emergency standard is necessary to protect employees from such danger.”3 This authority had only been exercised nine times previously, and of those only one was fully upheld by a court.4 The Court in NFIB v. OSHAcharacterized the ETS as a “blunt instrument” that draws “no distinctions based on industry or risk of exposure to COVID19.”5 The Court maintained that “the [Occupational Safety and Health] Act empower[ed] the Secretary to set workplace safety standards, not broad public health measures.”6 While COVID-19 posed a threat to many in the population, the Court made the following distinction concerning the ETS: [I]t is not an occupationalhazard in most [workplaces]. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-today dangers that all face from crime, air pollution, or any number of communicable diseases.7 In other words, since the threat of getting sick from COVID-19 doesnot stem from one’s occupation in most sectors, the ETS fell beyond the authority of OSHA and the Secretary of Labor to enact. That is not to say, however, that OSHA lacked the authority to mandate vaccination in any occupation whatsoever. As the Court noted, the Administration’s statutory authority does reach as far as those professions or situations where infection from COVID-19 is inherently related to the nature of the job (such as researchers who work with the virus or workers in

3 Occupational Safety and Health (OSH) Act, 29 U.S.C. § 655 (1970). 4 NFIB v. OSHA, slip op. at 2–3. 5 Id. at 3. 6 Id. at 6. 7 Id. at 6–7.

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environments with particularly dense crowds of people) but does not permit a broad blanket mandate simply because COVID-19 is a ubiquitous threat that working people face.8 While OSHA and the Department of Labor were unable to advance a sweeping federal vaccine mandate in theface of a deadly pandemic, the Court only struck down the ETS as outside OSHA’s statutory authority as granted to it by Congress.9 It did not address the issue, however, of whether the authority to mandate vaccines federally falls within the constitutional authority of Congress. While Congress is limited to only those powers enumerated in Article I of the Constitution, its authority under the Commerce Clause has been used to justify regulations of broadly defined activities. While recent Commerce Clause jurisprudence has established limits on the generally broad authority afforded to Congress by the Constitution during the mid-twentieth century, an analysis of Commerce Clause jurisprudence illustrates that a federal vaccine mandate remains nonetheless consistent with existing precedent and could be enacted as an application of Congress’ existing power to “regulate commerce”10 as it has been understood by the Court.11

8 Id. at 7. 9 See also Health Freedom Def. Fund, Inc. v. Biden, No. 8:21-cv-1693-KKMAEP (M.D. Fla. Apr. 18, 2022) (holding that a federal mask mandate was similarly outside the statutory authority of the Centers for Diseases Control and Prevention (CDC) as afforded to it by Congress). While not addressed in this Article, a similar argument could be made for the federal implementation of a mask mandate under Article I instead of under the authority of the CDC. 10 U.S. CONST. art. I, § 8, cl. 3. 11 An important caveat to note, however, is not simply whether Congress has the enumerated power to mandate vaccines, but also whether citizens have a right to refuse vaccination. While the Commerce Clause issue remains unclear and open to interpretation, the substantive due process argument against vaccine mandates has been relatively foreclosed by long-standing precedent and does not merit extensive consideration. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court declined to recognize an inherent right against vaccination during a public health crisis. Furthermore, the Court in Zucht v. King, 260 U.S. 174 (1922),

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I. ENUMERATED POWERS AND STATUTORY

AUTHORITY

The power of Congress stems from the specific enumeration of powers within the provisions of the Constitution.12 A key component of this Article’s argument relies on the distinction between the enumerated powers of Congress and the statutory authority of executive agencies. While the federal government’s authority ultimately stems from Congress, the legislature commonly uses its enumerated powers to create and modify regulatory agencies and grants them authority by statute. In this case, a vaccine mandate was found to lie beyond the regulatory authority of OSHA, but only under consideration of the statutes written by Congress which defined its authority. Congress created OSHA because it found that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.”13 While the power to regulate workplaces fell under Congress’ commerce power in creating OSHA, that particular application did not also encompass the power to mandate vaccinations, as the Court held in NFIB v. OSHA. However, this does not preclude the

further affirmed this principle, upholding Jacobson as binding precedent and noting that the Court “had settled that it is within the police power of a state to provide for compulsory vaccination.” Id. at 176; see also Boone v. Boozman, 217 F. Supp. 2d 938 (E.D. Ark. 2002) (declining to recognize a fundamental right to refuse vaccination under modern strict scrutiny analysis, citing Jacobson as precedent). Thus, while the Court in these cases did not establish the enumerated power for the federal government to mandate vaccines, it held that compulsory vaccines in the interest of public health are not a violation of a citizen’s right to substantive due process under the Fifth or Fourteenth Amendments. As such, the primary hurdle to overcome in passing a federal vaccine mandate is whether the Constitution’s enumeration of power over commerce includes mandating vaccinations. 12 U.S. CONST. amend. X. 13 29 U.S.C. § 651.

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possibility that the Commerce Clause, and not the statutes under which OSHA operates, is itself an enumeration of Congress’ authority to mandate vaccination.

II. EARLY APPLICATIONS OF THE COMMERCE CLAUSE

Initial applications of Commerce Clause authority in history took on a markedly different character than presently. Most regulations were explicitly commercial (as opposed to more recent examples, as will be seen later), relating to interstate trade tariffs, regulation of debtors, and creation of international commercial trade agreements, inter alia. Most cases dealt with whether Congress could encroach upon state laws under its commerce authority, with the Court hewing to a much stricter interpretation of what it meant to regulate commerce.14 Only during the Great Depression in the 1930s did Congress begin expanding its interpretation of how it may regulate commerce. For example, during the later years of the Depression, Congress passed the revised Agricultural Adjustment Act of 1938 which, inter alia, imposed a maximum allowable quantity that wheat farmers were allowed to grow and sell,15 arguing that the regulation of the price and supply of the interstate wheat market fell under Commerce Clause authority.The constitutionality of this act under the Commerce Clause was brought to

14 Mark R. Killenbeck, A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States, 38 J.SUP. CT. HIST. 281, 294–98 (2013); see also, e.g., Kidd v. Pearson, 128 U.S. 1 (1888) (distinguishing between manufacture and commerce, thereby holding that the power to regulate manufacturing is distinct from Congress’ authority to regulate commerce); Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding that Congress does not have the authority to regulate working conditions simply because the products of a certain company cross state lines), overruled by United States v. Darby Lumber Co., 312 U.S. 100 (1941); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding that Congress could not regulate the coal industry at the production stage solely because coal companies intended their products to move in interstate commerce in the future). 15 7 U.S.C. §§ 1281–1393.

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before the Court in Wickard v. Filburn, one of the first cases marking the expansion of Congress’ power over commerce.16 Roscoe Filburn, a farmer from Ohio, had grown wheat beyond that which was allowable under the act and was consequently forced to pay a fine. He argued, however, that the wheat that he had grown in excess of the limit was only used for his personal consumption and that of his animals, and therefore could not have had an impact on interstate commerce, making enforcement of the act unconstitutional as applied to him.17 The Court disagreed, citing as precedent United States v. Wrightwood Dairy Co. :

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.18

To that end, the Court held that Filburn’s excess wheat, even if grown for his own personal use, affected the supply and demand of the interstate wheat market when considered in tandem with the aggregate of other farmers like him and therefore constituted an intrastate activity that affected interstate commerce.19 With that distinction, the Court found that the Agricultural Adjustment Act as applied to Filburn was constitutional, significantly broadening the understanding of federal commerce power in so doing. Under this precedent and other contemporaneous cases, the Court established the notion that Congress could regulate those things which substantially affect

16 317 U.S. 111 (1942). 17 Id. at 114–16. 18 United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942). 19 Wickard, 317 U.S. at 128–29.

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interstate commerce,20 a standard that would be formalized with that language a few decades later.21

III. COMMERCE POWER AND “SUBSTANTIAL EFFECTS”

This “substantial effects” doctrine paved the way for the expansive interpretation of the Commerce Clause that Congress adopted in the midtwentieth century. The Court’s decision in Wickardand similar cases during the New Deal changed the central understanding of the Commerce Clause and was reminiscent of Chief Justice Marshall’s similarly expansive interpretation in Gibbons v. Ogden . 22 With the idea of substantial effects established, a number of future cases allowed for the regulation of things that were seemingly more detached from interstate commerce.23

20 See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (holding that Congress could regulate employers that were intrastate in character if their operations were closely and substantially related to interstate commerce); United States v. Darby Lumber Co., 312 U.S. 100 (1941) (upholding the Fair Labor Standards Act of 1938 and finding that Congress could regulate employment conditions even in companies that operate within one state); Wrightwood, 315 U.S. 110 (holding that the price of milk was regulable under the Commerce Clause even in intrastate markets if it affected interstate commerce). 21 E.g., Perez v. United States, 402 U.S. 146, 150 (1971). 22 22 U.S. 1, 189–90 (1824) (“The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”). 23 Detached only in the sense that the regulations in the following cases might have been optically considered as less commercial in nature than a regulation of trade tariffs. The judicial distinction of whether an activity has a direct or indirect

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For example, in Heart of Atlanta Motel, Inc. v. United States24 and Katzenbach v.McClung , 25 the Court found that racial discrimination in hotels and restaurants that were engaged in interstate commerce was regulable by the Civil Rights Act of 1964 under Commerce Clause authority. In the decades preceding those cases, it had been common in certain regions for hotels, restaurants, and other places of public accommodation to segregate White and Black customers. Amid the political movement for civil rights in the 1950s and 1960s, Congress tried to federally ban racial discrimination and invoked its authority to regulate interstate commerce as the source of its power to do so.26 The Court in Heart of Atlantaheld that since racial discrimination posed an appreciable threat to interstate travel and since “[t]he interstate movement of persons is ‘commerce’ which concerns more than one State,” then “Congress ha[s] power to enact appropriate legislation . . . even if it is assumed to be of a purely ‘local’ character, as Congress’ spower over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce.”27 This understanding was mirrored in the companion case Katzenbach . 28

effect on interstate commerce is a separate issue and is addressed later. See infra “Noneconomic Activities and Attenuated Links to Interstate Commerce.” 24 379 U.S. 241 (1964). 25 379 U.S. 294 (1964).

26 See generally, MARK NEWMAN, THE CIVIL RIGHTS MOVEMENT (2004). 27 Heart of Atlanta, 379 U.S. at 255–56, 258; see also Daniel v. Paul, 395 U.S. 298 (1969) (holding that the federal government could regulate nondiscrimination in a private club that advertised to interstate travelers and sold food bought in interstate commerce). 28 See Katzenbach, 379 U.S. at 302 (“This Court has held time and again that this power extends to activities of retail establishments, including restaurants, which directly or indirectly burden or obstruct interstate commerce. We have detailed the cases in Heart of Atlanta Motel, and will not repeat them here. Nor are the cases holding that interstate commerce ends when goods come to rest in the State of destination apposite here. That line of cases has been applied with reference to state taxation or regulation, but not in the field of federal regulation.”).

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The Court in the mid-twentieth century continued sustaining pieces of local regulation under broader Commerce Clause authority, such as in the final example case Perez v. the United States . 29 In that case, the Court upheld congressional regulation of local loansharking activities since it had found that loan sharkswho use extortionate means to collect payments on loans are in a class largely facilitated by organized crime with a substantially adverse effect on interstate commerce.30 This finding legitimized the federal regulation of local loansharking under this same idea of regulating things that affect commerce (while not necessarily regulating commerce itself), which Justice Douglas formally codified in his opinion for the majority with three categories:

The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods (18 U.S.C. §§ 2312–2315) or of persons who have been kidnaped (18 U.S.C. § 1201). Second, protection of the instrumentalities of interstate commerce, as, for example, the destruction of an aircraft (18 U.S.C. § 32), or persons or things in commerce, as, for example, thefts from interstate shipments (18 U.S.C. § 659). Third, those activities affecting commerce. It is with this last category that we are here concerned.31

This third category as defined by the Court was the pertinent category in Perezand the other foregoing example cases, just as it will be in considering whether Congress can mandate vaccination federally. Under this standard in isolation, Congress would merely have to demonstrate that an unvaccinated citizen, considered in conjunction with the actions of all those like him (following the logic of Wickard), affects interstate commerce.

29 402 U.S. 146 (1971). 30 Id. 31 Id. at 150.

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It is hard to deny that the virus itself left lasting effects on the national economy.32 For the sake of analyzing the constitutional issue, this Article will assumethat COVID-19 sufficiently and substantially affected the national economy. The question that remains then is whether the unvaccinated population affects interstate commerce such that it can satisfy the Court’s third category in Perez. One recent study detailed the effectiveness of vaccination in Israel, England, Scotland, Sweden, and the United States from three different vaccines, all readily available in each of those countries.33 A wide body of medical data exists pertaining to this issue, but in the interest of resolving the judicial question, it is reasonable to accept as true the propositions that vaccines are effective in preventing the spread of COVID-19 and that those who are unvaccinated are (or were) a significant and preventable source of COVID-19 transmission.34 Therefore, under the standard described so far, a

32 See, e.g., Oversight of the Export-Import Bank of the United States: Hearing on Examining the Export-Import Bank’s Recent Activities and Operations, the 7-Year Reauthorization Legislation, and the Effect of the Disruption COVID–19 Has Had on the U.S. Economy and its Impact on U.S. Exporters Before the S. Comm. on Banking, Hous., and Urb. Affs., 116th Cong. (2020) (statement of Kimberly Reed, President and Chairman, Bd. of Dirs., Exp.-Imp. Bank of the U.S.). 33 David A. Henry et al., Effectiveness of COVID-19 Vaccines: Findings from Real World Studies, 215 MED. J. OF AUSTL. 149, 149–51 (2021); accord Gabriella Marfe et al., Effectiveness of COVID-19 Vaccines and Their Challenges (Review), 22 EXPERIMENTAL AND THERAPEUTIC MED. 1407, 1409–11 (2021); Heidi L. Moline et al., Effectiveness of COVID-19 Vaccines in Preventing Hospitalization among Adults Aged ≥65 Years—COVID-NET, 13 States, February–April 2021, 70 MORBIDITY AND MORTALITY WKLY. REP. 1088,1088–93(2021). 34 When new medical data arise indicating either that unvaccinated people pose little risk of transmission or infection or that vaccines are no longer effective, then a vaccine mandate would lose constitutional legitimacy in that it would no longer have an appreciable effect on commerce. It is only reasonable to argue that a vaccine mandate is constitutional if it is implemented in response to an ongoing threat. For the sake of the constitutional argument, it is assumed that COVID-19 is or was an ongoing threat.

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vaccine mandate would surely regulate that which affects interstate commerce, which legitimizes it under the standard set by the Court in Perez and preceding cases.

IV. NONECONOMIC ACTIVITIES AND ATTENUATED LINKS TO INTERSTATE COMMERCE

However, during the 1990s and beyond, the Court imposed a number of limitations onCongress’ Commerce Clause power. Two types of limitations arose, the first scrutinizing the link between the regulated activity and interstate commerce, and the second scrutinizing the distinction between activity and inactivity. The latter limitation is particularly crucial to the consideration of a vaccine mandate, but it is also pertinent to address the former. In two cases before the Court, United States v. Lopez35 and United States v. Morrison ,

36 the Court faced similar issues of tenuous links between intended targets of regulation and interstate commerce. In Lopez, Congress had passed the Gun-Free School Zones Act (GFSZA) of 1990, which proscribed possession of a handgunwithin 1000 feet of a school.37 Alfonso Lopez, Jr., who had been caught in possession of a gun in a Texas high school, appealed his conviction claiming the act was unconstitutional on its face and the Court ultimately agreed. Chief Justice Rehnquist, writing for the majority, held that since the act did not regulate any kind of economic activity that could, through repetition elsewhere, substantially affect interstate commerce that the act was an impermissible application of Commerce Clause authority.38 InMorrison, Christy Brzonkala sought to standin federal court to seek a civil remedy under the provisions of the Violence Against Women Act (VAWA)

35 514 U.S. 549 (1995). 36 529 U.S. 598 (2000). 37 18 U.S.C. § 922(q), invalidated by Lopez. 38 Lopez, 514 U.S. at 561.

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of 199439 from two of her classmates after they sexually assaulted her. Antonio Morrison and James Crawford, the two men accused of assaulting her, appealed in federal court, arguing that the civil remedy provision was unconstitutional, and the Court similarly agreed. Chief Justice Rehnquist held for the majority that the VAWA was also not a regulation of an economic activity that could affect commerce directly.40 Furthermore, the Court wrote that in order to connect violence against women to interstate commerce, itwould have to accept a tenuous chain of inferences linking the two, since a direct nexus to interstate commerce was absent.41 With these two landmark cases, the Court established that it would look upon noneconomic regulations under Commerce Clause authority with scrutiny, requiring more than an attenuated link to interstate commerce to legitimize such regulations. A federal vaccine mandate, however, would not fall victim to the same pitfalls as the GFSZA or the VAWA. While a vaccine mandate is likewise not a regulation of economic activity, the distinction lies in the fact that a vaccine mandate involves a direct link between the regulation in question and interstate commerce in a way that the GFSZA and the VAWA do not. Justice Breyer, in his dissenting opinion in Lopez(which was joined by three other justices), argued that guns in schools affected interstate commerce in that they worsen the quality of education, which is “inextricably intertwined with the Nation’s economy.”42 This causal chain was rejected by the majority, but no such chain is required to establish a nexus between a vaccine mandate and interstate commerce. COVID-19 and those the virus infects threaten the economy (as evidenced by the aforementioned data) and vaccines would directly mitigate that threat.43 There would be no need to adopt an inferential

39 42 U.S.C. § 13981, invalidated by Morrison. 40 Morrison, 529 U.S. at 610. 41 Id. at 612–13. 42 Lopez, 514 U.S. at 620 (joint opinion of Breyer, Stevens, Souter, & Ginsburg, JJ., dissenting). 43 See supra notes 32 and 33.

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chain of causation to legitimize the regulation. Additionally, the mere fact that vaccines are noneconomic is not dispositive. While the Court in both Lopez and Morrisonnoted that the regulations in question were not economic, it also identified additional constitutional problems that would not exist in the case of a vaccine mandate,44 and even affirmatively clarified that noneconomic regulations are not categorically unconstitutional.45 Thus, a federal vaccine mandate would be a constitutional application of commerce authority in ways that the GFSZA and the VAWA were not.

V. COMPULSION OF ACTIVITY UNDER COMMERCE POWER

The most relevant Supreme Court precedent, however, lies in National Federation of Independent Business v. Sebelius, where the Court in a complicated series of opinions upheld parts of the Patient Protection and Affordable Care Act (ACA) of 2010, colloquially known as Obamacare.46 The relevant issue in this case was whether the minimum coverage provision of the ACA, which compelled citizens to purchase health insurance,47 was a constitutional exercise of Commerce Clause authority. The Court ultimately upheld the provision as an application of Congress’ power to tax instead, with five justices (albeit in separate opinions) agreeing that the minimum coverage

44 See, e.g., Morrison, 529 U.S. at 610–13 (recognizing four reasons the Court found the GFSZA unconstitutional in Lopez, which were: the noneconomic nature of the act, the lack of a jurisdictional element limiting the scope of the act to interstate commerce, the lack of congressional findings linking the act with an effect on commerce, and the existence of an attenuated inferential chain between the gun possession and interstate commerce). 45 Id. at 613 (“While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”). 46 567 U.S. 519 (2012). 47 26 U.S.C. § 5000A.

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provision was not a permissible use of commerce power. The Government relied on substantial effects arguments to legitimize the provision under the Commerce Clause, demonstrating through congressional findings that a bloc of uninsured citizens adversely affected the health insurance market for all citizens: Congress had far more than a rational basis for concluding that the practices of “forego[ing] health insurance” and “attempt[ing] to self-insure” has a substantial and deleterious effect on interstate commerce. Congress, therefore,had the power under the Commerce Clause to regulate those practices. As a class, the uninsured actively participate in the health care market, but they pay only a fraction of the cost of the services they consume. Congress found that the cost of tens of billions of dollars in uncompensated care provided to the uninsured is passed on to insured consumers,raising average annual family premiums by more than $1000. The minimum coverage provision addresses those defects in the health care market. It creates a financial incentive (by means of a tax penalty) for uninsured participants in the health care marketto internalize their own risks and costs, rather than externalizing them to others. This constitutes classic economic regulation under the commerce power.48 Chief Justice Roberts rejected the Commerce Clause interpretation himself and, writing for the Court, upheld the minimum coverage provision of the ACA instead because its “requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”49

48 Brief for Petitioner at 33–34, Dep’t of Health & Hum. Servs. v. Florida, No. 11-398 (U.S. Jan. 6, 2012) [hereinafter HHS v. Florida] (citations omitted), decided sub nom. Sebelius, 567 U.S. 519. 49 Sebelius, 567 U.S. at 574.

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In rejecting the Government’s argument that uninsured citizens, when aggregated nationally, substantially affected interstate commerce, Chief Justice Roberts introduced a new standard when considering legislation under the Commerce Clause. This does not imply, however, that the Court necessarily found the Government’s conclusions to beuntrue, only that they were not sufficient for the minimum coverage provision to pass constitutional muster under the Commerce Clause. Although the part of the Chief Justice’s majority opinion that upheld the provision as a constitutional application of the Taxing and Spending Clause50 was joined by five justices, the part of his opinion that rejected the Government’s Commerce Clause interpretation was not joined by any other justice.51 In his opinion, his main distinction was that Congress cannot regulateinactivity or compel action from citizens, and the majority held that “our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity,” highlighting the fact that the ACA sought to regulate

50 U.S. CONST. art. I, § 8, cl. 1. 51 In Marks v. United States, 430 U.S. 188 (1977), the Court explained how its holdings should be understood when there is no majority of justices supporting an opinion. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgements on the narrowest grounds.’ ” Id. at 193 (citation omitted). In Sebelius, although five justices agreed that the minimum coverage provision was constitutional under the Taxing and Spending Clause, they disagreed as to whether it was constitutional under the Commerce Clause. As already noted, Chief Justice Roberts authored an opinion arguing that it was impermissible under commerce power. 567 U.S. at 546–62 (opinion of Roberts, C.J.). Four justices disagreed on this point and asserted that the minimum coverage provision was constitutional under either commerce power or taxing power. Id. at 589–619 (joint opinion of Ginsburg, Sotomayor, Breyer, & Kagan, JJ., concurring in part, concurring in the judgement in part, and dissenting in part). Since Chief Justice Roberts’ opinion upheld the minimum coverage provision on narrower grounds than the other four justices (having only recognized it as legitimate as a tax), under the Marks rule, his opinion is considered the holding of the Court. Therefore, the Court held that the minimum coverage provision is beyond Congress’ commerce power.

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those inactivein the health care market.52 Distinguishing this case from previous examples of relatively broad applications of commerce power such as in Wickard, Perez, and Gonzales v. Raich , 53 Chief Justice Roberts noted that in all previous cases Congress sought to regulate commercial activity, whereas in this case it sought to compel that activity, and from this distinction,he drew the source of the mandate’s unconstitutionality under the Commerce Clause.54 This rationale was echoed in the dissenting opinion of Justices Scalia, Kennedy, Thomas, and Alito, which, inter alia, argued against the Commerce Clause construction for similar reasons, agreeing in principle with the Chief Justice.55

VI. VACCINE MANDATES AND SEBELIUS: A COMPARISON

Based on this precedent, it can be reasonably argued that a federal vaccine mandate would not pass constitutional muster as a similar regulation of inactivity, since it would only affect those who elect not to vaccinate. However, this argument can be dispelled for three reasons. First, in passing a federal vaccine mandate, Congress could define the scope of its regulation not as affecting those who fail to vaccinate themselves, but as affecting those who engage in interstate commerce while unvaccinated. This construction, while broad, clearly identifies an activity that involves and affects interstate commerce, accomplishes virtually the same objective, and avoids the constitutional pitfalls that the Court established regarding the compulsion of activity. The Court sustained a similar construction in Darby, where it

52 Sebelius, 567 U.S. at 572. 53 545 U.S. 1 (2005) (holding that Congress could regulate local possession of marijuana as part of a larger regulatory scheme that affected interstate commerce). 54 Sebelius, 567 U.S. at 555 (opinion of Roberts, C.J.). 55 Id. at 649–60 (joint opinion of Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

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upheld employment condition regulations as applied to all businesses producing goods for interstate commerce.56 Among the most salient objections to this construction is the possibility of distinguishing a vaccine mandate from the ACA with this added provision. In other words, whether Congress having made the ACA only apply to those engaged in interstate commerce would have saved the act, or if vaccines are uniquely suited for this construction. The answer lies in the nature of the two regulations—the ACA regulated the health care market and the cost-shifting problem that arose when uninsured people were treated, a problem that is detached from citizens’ engagement in interstate commerce. On the other hand, the objective of a vaccine mandate is intimately connected with citizens’ engagement in interstate commerce—their engagement in commerce is conceivably one of the principal means of viral transmission. Therefore, Congress could avoid many of the constitutional problems that were presented in Lopez, Morrison, or Sebelius . Second, there is a distinction to be made between commercial and noncommercial inactivity. In his opinion, Chief Justice Roberts rejected Congress’ authority to regulate commercial inactivity specifically: The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.57 In his opinion, he warned against the possibility of Congress creating a market and subsequently regulating or compelling activity in that market.58 A

56 United States v. Darby Lumber Co., 312 U.S. 100, 117 (1941) (“Section 15(a)(2) and §§ 6 and 7 require employers to conform to the wage and hour provisions with respect to all employees engaged in the production of goods for interstate commerce.”). 57 Sebelius, 567 U.S. at 552 (opinion of Roberts, C.J.). 58 Id. at 552–54.

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vaccine mandate, however, is not in any sense a regulation of commercial inactivity. Since vaccines are readily available and effective,59 it is reasonable to assume that a vaccine mandate would not place a commercial burden on anyone, and therefore not fall victim to the same constitutional problem that Chief Justice Roberts identified. His opinion only addressed commercial inactivity; it would be an undue extrapolation to summarily assume that noncommercial inactivity is similarly unconstitutional as there is a key difference between the two: the mandated exchange of money for commodities, or lack thereof. A vaccine mandate is therefore distinct from the concerns that the Chief Justice raised in Sebelius . Third, that Chief Justice Roberts authored the opinion regarding the unconstitutionality of the minimum coverage provision under the Commerce Clause with such broad implications is significant per se. Since the extent of his reasoning was not necessary to uphold the minimum coverage provision under the Taxing and Spending Clause, it is considered dicta and therefore only persuasive. In general, any holdings of a judge that are superfluous to answering the question before the court are considered to be obiter dicta and only persuasive authority. In Sebelius, several issues were presented, but the relevant question presented to the Court in this case was “whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”60 The question presented to the Court did not specifically require consideration of the provision under the Commerce Clause, but the Court naturally considered the Commerce Clause arguments since they were presented by both sides. However, the extent of Chief Justice Roberts’ broad repudiation of any compulsion of activity whatsoever under the commerce power exceeded the scope of the question presented,having gone beyond simply ruling the minimum coverage provision to be outside the purview of the Commerce Clause and instead ruling that all commercial

59 See supra note 33 and accompanying text. 60 Question Presented, HHS v. Florida, No. 11-398.

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inactivity is similarly beyond Congress’ authority.61 Chief Justice Roberts, upon deciding that the minimum coverage provision fell outside of commerce power, eventually moved to the Taxing and Spending Clause to save the provision.62 Since he did not simply stop at finding the ACA outside Congress’ commerce authority and move to the Taxing and Spending Clause issue—where he was joined by a majority of justices—but instead wrote a section of his opinion reasoning that any compulsion of activity is unconstitutional, this section (pertaining specifically to the unconstitutionality of the compulsion of activityin general) is dicta and nonbinding. Since this section would constitute the relevant reasoning from Sebeliusin striking down a federal vaccine mandate, its being only persuasive is particularly relevant to the vaccine mandate discussion. Thus, the constitutionality of a vaccine mandate is not foreclosed by Sebeliusfor the foregoing three reasons.

61 Sebelius, 567 U.S. at 552–55 (opinion of Roberts, C.J.); see also United States v. Henry, 688 F.3d 637, 641 n.5 (9th Cir. 2012) (recognizing the possibility that parts of Chief Justice Roberts’ opinion in Sebelius were dicta: “Two days after oral argument in this appeal, the Supreme Court decided National Federation of Independent Business v. Sebelius, which held that the federal statute requiring individuals to purchase health insurance is a valid exercise of Congress’s tax power. Five justices also agreed that the Commerce Clause did not authorize this statute. There has been considerable debate about whether the statements about the Commerce Clause are dicta or binding precedent.”). 62 This “saving construction” was a way for the Court to save the ACA under any constitutional provision it could find. For further discussion, see Josh Blackman, The Saving Construction at 5 Years, 11 UNIV. ST. THOMAS J. L. & PUB. POL’Y 72, 83 (2017) (“The general idea is that even though Congress did not actually enact this law as an exercise of its commerce power, to save the law [the Court] will treat it as if Congress had enacted a law pursuant to its taxing power.”).

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CONCLUSION

Commerce Clause jurisprudence has emphasized the importance of expanding the understanding from simple trade or tariff agreements when defining Congress’ power to regulate commerce. As the Court emblematically held in Lopez, “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.”63 Medical data and common experience have shown that COVID-19 substantially affected the national economy and that vaccines are an effective method to mitigate that threat. Under a similar vein, a federal vaccine mandate, while evidently not within OSHA’s statutory authority (as found by the Court in NFIB v. OSHA), is within Congress’ authority under the powers enumerated to it in Article I, Section 8 of the Constitution.

63 Lopez, 514 U.S. at 560.

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