Is the Roberts Court Going to Let Coronavirus Kill Us?

It is looking increasingly as though a nationwide program of testing, and hopefully vaccination, may be the only way to stop the spread of the novel coronavirus and bring back the U.S. economy. Unfortunately, the U.S. Supreme Court’s 2012 Obamacare decision may actually stand in the way of effective congressional action just when it is most needed.

In the Obamacare case, NFIB v. Sebelius, Chief Justice John Roberts declared that Congress could not constitutionally require people to obtain health insurance, relying on a novel distinction between activity and inactivity. “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 (emphasis in original).”

The control of COVID-19 might well depend on extensive testing for the disease and for antibodies. As many as half of transmissions come from infected people without symptoms, according to the current evidence. Unless asymptomatic individuals are tested, they won’t know that they should quarantine themselves, and officials won’t know where the next outbreak will happen. If a vaccine is developed, compulsory vaccination may also be necessary both to achieve herd immunity, and to keep asymptomatic people from spreading the disease. Such efforts will be most effective if they are centralized and, if necessary, somewhat coercive. (Anti-vaccine activists have already begun agitating against a coronavirus vaccine, and the medical literature has begun discussing options for forms of mandatory testing.)

So far, COVID-19 control measures have been left to the states, which have  adopted various and conflicting regulations, while some governors have been remarkably cavalier about protecting their citizens. Viruses, however, do not respect borders, and people will continue interstate travel even in an age of social distancing. Thus, the federal government may have to impose nationwide health regulations, which would inevitably apply to people who are otherwise “doing nothing.”

Roberts, however, was concerned in the Obamacare case about Congress dragooning the unwilling and inactive, whom he called “healthy, often young adults who are less likely to need significant health care and have other priorities for spending their money.” If that sounds familiar, it may be because it also describes the spring breakers who recently crowded beaches from Florida to Texas, despite warnings that they could spread contagion after getting back home. Justices Scalia, Kennedy, Thomas, and Alito similarly emphasized the liberties of those who “have no intention of purchasing most or even any [health care] goods or services and thus no need to buy insurance for those purchases.” (The Trump-appointed Justices Gorsuch and Kavanaugh are equally conservative, but they have not yet weighed in.)

By this scary logic, Congress could enact social distancing legislation (forbidding certain actions), but it could not require testing and vaccination (legislating against inaction), even if the latter measures were less restrictive and more effective. People who don’t want to participate in a federal COVID-19 testing or vaccination program would simply be entitled to stay out of it, no matter the consequences.

Like anyone else, people refusing testing and vaccination might be infected. They also might be among those who feel so self-sufficient, or foolishly invulnerable, that they want nothing to do with the health care system – the precise people for whom the anti-Obamacare justices were so solicitous. In Roberts’s words, since they “are not currently engaged in any commercial activity involving health care,” Congress could not regulate them under its commerce power.

It is tempting – and accurate – to say that the Court’s 2012 decision, which also limited the expansion of Medicaid, could kill people, but that’s old news. The application of the decision’s logic to the present pandemic would extend its destructiveness from its original victims, the poor and disorganized, to pretty much everyone.

Perhaps the urgency of the pandemic would lead at least one of the conservative justices to see things differently, but that is a risky bet and cold comfort if it comes too late. The “Congress can never regulate inaction” principle played a crucial role in the Obamacare case, which means that the decision is not ancient history. It would take only one district court judge to enjoin a congressional vaccination program on the theory that it violates the “right to do nothing.” Even if that ruling is later overturned – as it should be – the delay alone would sacrifice lives.

The action/inaction distinction never made any sense. It was patently tailored to bring about a desired result in a politically charged case, but a national government that lacks the power to mandate health insurance may also lack the authority to require individual vaccination. The Obamacare justices don’t seem to have been thinking about the future in any coherent way. Now the future is here, and the decision looks worse, and even more dangerous, than it did at the time. It would be reckless to take off the menu of options – solely for the sake of limited government – policies that have succeeded in other countries.

The idea of an individual right to veto universal healthcare was a conservative fantasy, but it will become a nightmare if judges apply it to congressional action against a worldwide pandemic. Unfortunately, it is still with us. So are its bizarre libertarian priorities: pathological fear of government combined with blithe indifference to the prospect of people dying of preventable disease. That could very well kill you or people you love.

Image: U.S. Air Force photo by Senior Airman Pedro Tenorio

 

About the Author(s)

Andrew Koppelman

John Paul Stevens Professor at the Northwestern University Pritzker School of Law. Follow him on Twitter (@AndrewKoppelman).

Steven Lubet

Williams Memorial Professor and Director of the Bartlit Center on Trial Advocacy at the Northwestern University Pritzker School of Law.