President Trump’s Misguided Effort to Take Down the Affordable Care Act

President Trump announced last week that his Administration would redouble its efforts to dismantle the entire Affordable Care Act at the Supreme Court next Term. The President’s statement was stunning, especially in the midst of a global health crisis. That’s because a win for the Administration would leave millions without affordable health care and other protections in the ACA, including protections that enjoy wide, bipartisan support.

The statement was stunning for another reason, too: the shockingly flimsy legal argument that supports it. The Administration’s bold move to undo the entire ACA is based on nothing more than a barefaced bait-and-switch that confuses the standard for congressional authority with the standard for severability. The Court should see right through this and uphold the bulk of the ACA, even if it strikes the single provision at issue.

The case, California v. Texas, tests the continuing constitutionality of the ACA’s “individual mandate,” the provision that requires us all to have health insurance. Recall that the Court upheld the mandate in NFIB v. Sebelius under Congress’s power to tax. The ruling noted that the ACA imposed a financial penalty on individuals who failed to obtain insurance, and that this penalty operated like a tax. The Court ruled that Congress therefore had authority to impose the mandate under its taxing power, as a tax penalty. 

In 2017, Congress “repealed” the mandate. But Congress didn’t strike the mandate from the books. Instead, it merely set the tax penalty for noncompliance at $0. This meant that individuals could go without health insurance with impunity. 

Several states and individuals then sued the government, arguing that after the 2017 change, the mandate was invalid, because Congress no longer had authority to enact it. The plaintiffs claimed that because Congress set the tax-penalty at $0, the mandate could no longer generate revenue for the government. And because it could no longer generate revenue, they said, it could no longer stand as an exercise of Congress’s power to tax. 

The plaintiffs then went a giant step further. They claimed that because the mandate was an essential part of the ACA, it could not be “severed” from the other provisions of the Act. According to the plaintiffs, this meant that the rest of the ACA must be invalid, too. The district court agreed. The government supported the district court’s ruling at the Fifth Circuit, and now, with President Trump’s statement, at the Supreme Court.

But the argument is spurious, and even dangerous. It’s spurious because it deliberately confuses the standard for congressional authority with the standard for severability. To see this, go back to one of the key Obama Administration arguments in support of the individual mandate. The Administration argued that the individual mandate was an essential part of the ACA—one leg of a three-legged stool. In particular, the Administration claimed that the guaranteed-issue and community-rating provisions—which prohibited insurers from denying coverage based on pre-existing conditions and from charging more to sick people, respectively—would drive insurance rates up. This, in turn, would mean that fewer healthy people would buy insurance. And this, in turn, would drive rates even higher, resulting in the infamous “death spiral.” The Administration claimed that requiring healthy people to buy-in to the insurance pool would keep rates affordable for everyone.

But this wasn’t just an economic argument; it was also a constitutional one. The Administration claimed that the individual mandate, as an essential part of the ACA, was justified under Congress’s Commerce Clause and Necessary and Proper Clause powers. According to the Obama Administration, that was because it was a necessary part of the congressional effort to regulate the interstate effects of the health insurance market. The Supreme Court rejected this reasoning in support of congressional authority to enact the individual mandate.

But now the Trump Administration has coopted this reasoning and mis-applied it in support of non-severability. The Trump Administration argues that the essential role that the individual mandate played in the original ACA is now the reason why the Court can’t sever it from the rest of the ACA—and why the entire ACA therefore must fail. In other words, the Trump Administration transparently baits the Court with the original justification for the individual mandate, but switches to use it for its severability argument. 

But this conflates the standard for congressional authority with the standard for severability. In contrast to congressional authority, severability asks whether Congress wants the rest of the ACA to stand, even if the Court strikes the individual mandate. All indications say yes. For one, Congress in 2017 only set the tax-penalty to $0; it did not write the mandate out of the ACA, and it certainly did not write out any other provision of the ACA. For another, insurance markets have demonstrated now that they can work (without a death spiral) with operative guaranteed-issue and community-rating provisions, even without an effective individual mandate. For a third, the guaranteed-issue and community-rating provisions enjoy widespread, bipartisan support. So do the many other provisions in the ACA.

And that’s where the Trump Administration position is outright dangerous. The argument threatens the many other provisions of the ACA that benefit nearly everyone. Examples run from the insurance exchanges, to tax credits, to requirements to cover dependent children, to restrictions on high-cost insurance plans, and more. The Trump Administration’s position threatens all of these. 

The Court should see right through the Trump Administration’s bait and switch when it hears the case next Term, and flatly rejected this mis-guided attempt to take down the entire ACA.

We Need to Provide Resources for COVID-19 Victims, Not Tort Immunity for Businesses

Tort law makes it unlikely businesses would be found liable for the costs of COVID-19 infection among workers and consumers, yet American businesses are lobbying hard for immunity from suit. How to make sense of this? The best explanation is that businesses and their liability insurers anticipate massive rates of illness and death upon reopening the economy. Faced with medical expenses and lost wages, desperate claimants might file suits in hopes of prompting settlements even from prudent businesses who have taken precautions against exacerbating the rate and amount of infection. In other words, the push for “liability shields” rests on a recognition that reopening the economy is going to make a lot of people very ill and facing large expenses, rather than the stated concern that cautious businesses would not be able to successfully defend against tort claims. If many people are going to be devastated by disease, we should not  be providing business with tort immunity. Instead, we should be planning to provide resources to the millions who will fall ill and families whose members die. If we do this, businesses will be far less likely to face great waves of claims, and we can leave the tort system to impose liability on those actors who fail to take reasonable, prudent precautions against workplace infections.

American tort law makes it challenging for individuals to recover damages from those who may well have injured them. An injury victim generally bears the burden of proof on every element of a tort action, so that to recover in a negligence suit, for example, the plaintiff must convince a factfinder that it is more likely than not that a defendant was careless, this carelessness empirically caused injury and played a significant causal role, and that injury inflicted specific losses. Furthermore, the plaintiff’s case can be countered by a defendant who can successfully persuade the factfinder that the plaintiff’s own conduct was, more likely than not, careless and played a significant causal role in bringing about the losses alleged.

Picture a situation where a warehouse or factory worker comes down with COVID-19. That person won’t have a ready tort claim against their employer in any event as he or she will have to turn first to workers compensation. But assume that the worker’s spouse also contracts COVID-19, with grave consequences. It is very hard to see how the spouse would have a viable claim against the warehouse or factory owner.

The spouse would have to show the warehouse or factory owner omitted precautions a reasonable, ordinarily prudent person would have taken to protect people’s safety. Unless we are talking about an enterprise that was operating without social distancing, appropriate ventilation, gloves and masks, and cleaning and disinfecting and so forth, this would be hard to establish. Tort law does not expect those who create risk of personal injury to take superhuman or even supererogatory precautions; to avoid being legally at fault, a business need only take reasonable, ordinarily prudent, duly considerate measures to limit the risks of injury they impose on others.

Additionally, to win a lawsuit, the spouse would have to show that the conduct of even a legally careless factory or warehouse owner was, more likely than not, a source of his or her COVID-19 and a significant causal factor in his or her case. Since the very problem with COVID-19 is that it is caused by a highly contagious, pervasive virus and since we are assuming the spouse contracted the disease upon reopening, there will be many ways in which the worker and the worker’s spouse could have been exposed to the virus. Showing that, more probably than not, it was the worker’s exposure at the factory or warehouse that caused the spouse’s particular illness and also that the workplace exposure more probably than not directly caused the spouse’s COVID-19 would be daunting.

Even if the spouse could make out legal carelessness and causation, the warehouse or factory owner would be able to argue for a reduction in its responsibility for damages if it can show that the spouse engaged in legally careless conduct that exposed him or her to the virus and that this exposure played a significant causal role in the spouse’s illness. Any inattentiveness to handwashing, mask-wearing, or social distancing by the spouse would ground this sort of defense. The more instances of legal carelessness by the spouse, the more likely that his or her own conduct swamped any causal role played by his or her partner’s workplace exposure.

As this example illustrates, between being able to rebut claims of carelessness and causation and citing victim’s own conduct as a source of their illnesses, businesses stand a good chance of prevailing in COVID-19 tort suits brought against them. Typically, that means would-be plaintiffs would find it difficult to find lawyers to bring such suits. Plaintiffs’ attorneys litigating personal injury cases generally only get paid if their client wins the suit, so attorneys decline improbable claims.

If, however, millions of Americans have no place to turn for assistance in bearing the costs of sickness and death from COVID-19, some attorneys might bring suit, hoping the sheer number of sick and ill plaintiffs will encourage liability insurers to settle rather than pay the costs of defending in court. Unlike litigation, settlement would not differentiate those employers and businesses whose careless conduct causes extra infections from employers and businesses acting prudently and safeguarding against enhanced rates of disease.

In this way, even cautious businesses could end up bearing the medical expenses, lost wages, and pain and suffering of ill and deceased workers and consumers.

Ordinarily, businesses deal with the prospect of litigation and settlement by reducing the risks they create or by raising their prices to cover liability insurance premiums. The drive for immunity suggests: American businesses recognize that they cannot do much to reduce the incidence of COVID-19 as the economy reopens; they anticipate large scale serious illness; and they do not think they can simply pass along the costs of liability insurance to consumers, presumably because the threat of illness-driven claims is making liability insurance expensive.

We should be sensitive to businesses’ push for liability immunity when tort law does not actually warrant fear of liability. The push tells us that businesses do fear claims. Science tells us that millions of Americans will suffer illness and death from COVID-19 in the coming months. However, neither factor justifies liability immunity for businesses. If we cannot or will not cover the costs of a pandemic by paying higher prices for goods and services nor limit costs by staying home, and if we do not want to leave COVID-19 victims without funds for medical care and living expenses,  we need systematic social welfare funds to meet the needs of the sick and the dependents of those who die.

The Enduring Problem of the Race-Blind Reasonable Person

It is not without a sense of irony that one of the most pressing internal challenges facing the administration of justice today is its capacity to effectuate equal application and protection of the law based on one its most fundamental historical pillars–i.e., reasonableness as manifested in the reasonable person. In the context of constitutional law, and especially the Fourth Amendment, the conceptualization of reasonableness is  a lynch pin for the functioning of law as a process, yet it also has the potential to be the most insidious form of injustice for people of color and other marginalized communities. A recent Fourth Amendment case in South Carolina, State v. Spears, reflects the contentious relationship between reasonableness, the reasonable person, the criminal law, and race.[1]  South Carolina Supreme Court Chief Justice Donald Beatty’s dissent in Spears identifies the highly problematic nature of the foregoing vis-à-vis the legal process. The Chief Justice’s observations resonate with an overarching problem that reasonableness and the reasonable person pose in the criminal law, the legal process, and the equal administration of justice.

Pitfalls of a “Reasonable Person” Analysis

In Spears, Eric Terrell Spears was indicted for trafficking crack cocaine. The trial court denied Spears’ motion to suppress the evidence of the drugs seized by police on Fourth Amendment grounds and he was subsequently convicted.[2] On review, the Supreme Court of South Carolina held that there was sufficient evidence to support the trial court's finding that Spears engaged in a consensual encounter with law enforcement, and that Spears' subsequent actions created a reasonable suspicion that he may have been armed and dangerous—justifying law enforcement's Terry frisk that led to the discovery of the offending crack cocaine on Spears' person.

Chief Justice Beatty dissented, arguing that Spears was seized in violation of the Fourth Amendment at the beginning of his interaction with the police officers, because a reasonable person would not have felt free to terminate the encounter with law enforcement. Furthermore, law enforcement did not have reasonable suspicion to justify the seizure.

The threshold question of  “whether Spears was seized . . . . hinge[d] on how a reasonable person would perceive the encounter with law enforcement.”[3] While Chief Justice Beatty acknowledged  that Fourth Amendment jurisprudence does not take into account explicitly “personal” characteristics such as race, sex, age, disability, and so forth, when making this determination, he nonetheless states that “a true consideration of the totality of the circumstances cannot ignore how an individual's personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.”[4] The Chief Justice points out that, “Scholars have examined ad nauseam the dynamics between marginalized groups—particularly African-Americans—and law enforcement (Spears is an African-American male).”[5] This context is indispensable to having a complete understanding to the “totality of circumstances” for Fourth Amendment consideration. The Chief Justice goes further to explain that, “‘For many members of minority communities . . . the sight of an officer in uniform evokes a sense of fear and trepidation, rather than security.’ Moreover, ‘[g]iven the mistrust by certain racial, ethnic, and socioeconomic groups, an individual who has observed or experienced police brutality and disrespect will react differently to inquiries from law enforcement officers . . . .’ Unfortunately, under our existing framework, this can result in the evisceration of Fourth Amendment protections for many people of color.”[6]

The Chief Justice also references a similar discussion by United States Supreme Court Justice Sonia Sotomayor: “But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.”[7] Chief Justice Beatty also considers the current Fourth Amendment jurisprudence in light of these concerns, stating that “In spite of these academic findings and judicial observations, our current framework fails to meaningfully consider the ways in which a person's race can influence their experience with law enforcement. As a result, I fear minority groups are not always afforded the full protections of the Fourth Amendment. Given the interests at stake, one would expect our criminal justice system to forcefully resist marginalizing the experiences of people of color by insisting on a ‘color-blind’ reasonable person standard.”[8]

Revisiting Reasonableness & the Reasonable Person

In the singular context of this case, the Chief Justice’s dissent highlights the potential of legal reasonableness and the reasonable person analysis to exacerbate the administration of injustice. His analysis reveals how the historical conception of a “reasonable person” employed by the law becomes a means of perpetuating a politics of racial/ethnic exclusion of the “Other,” i.e., a non-white racial/ethnic subject. The Other is required to comport themselves as a reasonable person that bears very little resemblance to their lived reality. This results in the “Other” being constrained within a concept that excludes them by imposing the worldview, norms, values, etc., of a rendition of the reasonable person that is not reflective of their world. Spears demonstrates that this is not merely an esoteric observation with scant applicability in the empirical world. Historically, police signify a very different state of affairs for the “minority” subject than other racial/ethnic subjects, which has a direct and indelible impact on what constitutes a reasonable person in those communities.

Most concerning is the way in which cultural clashes fuel excessive verdicts and sentencing by the very fact that the current rehabilitative justice model cannot readily incorporate non-Anglo and non-Western European cultural, political, economic, and social norms and values, which correlate, in large part, with the present day application of a non-representative reasonable person. This is observed by Chief Justice Beatty when he states: “[s]pecifically, [Spears] contended a seizure occurred because a reasonable person would not have felt free to walk away from the initial encounter. Spears also contended the agents did not have a reasonable suspicion to stop him. The State argued the encounter . . . was consensual and the agents therefore did not need a reasonable suspicion to initiate the stop.”[9] Reason, reasonableness, and the reasonable person are thus fraught with subjectivity and internal fragmentation.

In light of the changes that have transpired vis-à-vis the “People,” the question becomes whether the concept of the reasonable person retains truth-value in the present time.[10] Emerging segments of the population that were previously silenced and marginalized—silence informed and defined, for example, by race, ethnicity, economic status, immigrant status, and gender—have prompted a need to comprehensively reconsider the reasonable person and, by extension, reasonableness within the law.[11] The “repressive” nature of the traditional reasonable person ablates the subjective—the cultural traditions and histories that are not comprehended by the reasonable person’s notion of reasonableness either drop out or are appropriated and redefined by the dominant standard of reasonableness. Is the reasonable person simply “Everyman, an individual without race, class, gender, or any other non-universal characteristics? Or is the reasonable person someone who resembles the defendant herself, possessing some or all of the defendant's characteristics?”[12]

The reasonable person requires reevaluation because of its significant disconnect from the human communities that are emplaced into the legal process. Examples of identity and experience that muddy notions of reasonableness include: the relationship between police and certain racial groups; the relationship and dynamic between male and female perspectives; the relationship between transgender or gender nonconforming and cisgender identities; and the interplay between religious and secular perceptions on values and norms.

If law’s purpose is to serve the People, the reasonable person in its present manifestation, becomes less reflective of the population (particularly as demographic trends suggest Latinos will become the numerical majority) and less legitimate.[13] The cultural superstructure upon which the necessary illusion of reasonableness and the reasonable person rest is being divested of the “universal” and “objective” (selective) scaffolding supporting a supposedly objective interpretation of reasonableness. For example, as a society we are now more cognizant that an undocumented community’s relationship with law enforcement creates a completely distinct sense of reasonableness when analyzing Fourth Amendment searches and seizures than the reasonableness of the same searches and seizures in an affluent, predominantly white suburban community.[14]

Jurisprudence, however, has been slow to keep up. In United States v. Smith, the defendant argued, in asserting a Fourth Amendment claim, that "no reasonable person in his 'position'—as a young black male confronted in a high-crime, high-poverty, minority-dominated urban area where police-citizen relations are strained—would have felt free to walk away from the encounter" with law enforcement officers. 794 F.3d 681, 687-88 (7th Cir. 2015). The Seventh Circuit Court of Appeals acknowledged the relevance of race, “racial profiling, police brutality, and other racial disparity in the criminal justice system . . . to the question of whether a seizure happened” but concluded that such considerations were not dispositive.  Id. at 688. The Tenth Circuit Court of Appeals has concluded, contrarily, that race is an inappropriate consideration in the reasonable person analysis, stating “there is no uniform way to apply a reasonable person test that adequately accounts for racial differences consistent with an objective standard for Fourth Amendment seizures” and therefore refusing to engage the entire enterprise. See United States v. Easley, 911 F.3d 1074, 1081-82 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

It is thus the case that the reasonable person, in its present manifestation, simulates and disseminates an antiquated legal and sociocultural construct that acts to suppress the sociocultural dynamics that stem from the configuration of the People as they are presently constituted. The reasonableness of judgment and legality are divested of relevance in the present. The continued use of the traditional reasonable person and its notion of reasonableness are part of an ever-present past. The consequences are significant for the majority of legal subjects that do not fit into the sociocultural basis of the traditional reasonable person.

[1] State v. Spears, 839 S.E.2d 450 (S.C. 2020).Id.at 454.

[2] Id.at 454.

[3] Id. at 463.

[4] Id.

[5] Id. (citations omitted).

[6] Id. 463-64 (citations omitted).

[7] Id. at 464 (citing Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (internal citations omitted); see also Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (finding the City of New York liable for the New York Police Department's stop-and-frisk policy, which violated plaintiffs' constitutional rights, and noting the racial disparities in the policy's implementation)).

[8] See Robert V. Ward, Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No Place for a “Reasonable Person,” 36 How. L.J. 239, 241 (1993) ("Because the reasonable person test assumes that a person's interactions with the police is a generic experience, the test is biased.").

[9] Spears, 839 S.E.2d at 453.

[10] Symposium, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1234 (2010).

[11] See e.g., Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stanford L. Rev. 1241 (1991).

[12] See Kevin Jon Heller, Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 Am. J. Crim. L. 4 (1998-1999).

[13] Symposium, supra note 17, at 1259-61. Similar concerns have arisen in the context of race. For example, the New Jersey Supreme Court noted in Taylor v. Metzger: “Some courts have found that a particularly offensive remark, if not repeated, will not be sufficient to establish a hostile work environment.” 706 A.2d 685 (N.J. 1998); see e.g., Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding a co-worker’s one time use of a racial epithet insufficiently severe to establish a hostile work environment), aff’d, 58 F.3d 640 (11th Cir. 1995); Reese v. Goodyear Tire & Rubber Co., 859 F. Supp. 1381, 1385, 1387 (D. Kan. 1994) (holding a manager insinuating that all black people abused drugs insufficiently severe to establish a hostile work environment); Bennett v. N.Y.C. Dep’t of Corrs., 705 F. Supp. 979, 983 (S.D.N.Y. 1989) (concluding that corrections officer’s remark, “hey black [expletive], open the . . . gate,” to another officer did not amount “to more than a mere episodic event of racial antipathy” and was thus insufficient to sustain a claim of a racially hostile work environment); McCray v. DPC Indus., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (holding sporadic racial slurs by co-workers insufficiently severe to establish a hostile work environment). Nevertheless, a single utterance of an epithet can, under particular circumstances, create a hostile work environment. See e.g., Taylor, 706 A.2d 685. (RP 211-212)

[14] See Ward, supra note 10, at 240-41.

Wisconsin’s “Safer at Home” Order Isn’t a Quarantine—But that Doesn’t Mean it Isn’t Necessary to Control the Spread of Coronavirus

The Wisconsin Supreme Court will decide the fate of the state’s “Safer at Home” order any moment now. In doing so, the court is considering the legislature’s argument that the mandate to stay at home (with broad exceptions), prohibition on nonessential travel and gatherings in private spaces, and closure of nonessential businesses amount to a legal “quarantine” and are therefore subject to specific statutory requirements. Department of Health Services (DHS) Secretary-Designee Andrea Palm counters that the department’s quarantine powers “have no relationship” to the Safer-at-Home order, which “quarantines no one.” Palm argues her order, which is scheduled to remain in effect until May 26, is authorized by a broader grant of power to “implement all emergency measures necessary to control communicable diseases.”

Most people had never heard of “social distancing” prior to 2020. “Quarantine” (a much older term used in state and federal statutes to describe isolation of infectious patients and quarantine of their exposed contacts during the incubation period or—more rarely—border controls prohibiting people from entering or leaving an affected facility or community) and “lockdown” (a media invention with no legal meaning) are commonly used to describe the layered interventions that are slowing the spread of infection. But social distancing is distinct from quarantine in the legal sense of the term. Many social distancing interventions do not fall neatly within specific statutory provisions the way quarantine does. Instead, most state and local officials are relying on broad grants of authority to “control communicable diseases.” 

The basic strategy of closing schools and other places where people tend to gather dates back at least as far as the 1918-19 influenza pandemic. As described in a study of archival records by Howard Markel and his coauthors, “nonpharmaceutical interventions were legally enforced and affected large segments of [a] city’s population” for a period of one to ten weeks. The study documented mandatory “[i]solation of ill persons and quarantine of those suspected of having contact with ill persons” as distinct from public school closures and bans on public gatherings ordered by city officials. “Public gathering bans typically meant the closure of saloons, public entertainment venues, sporting events, and indoor gatherings were banned or moved outdoors; outdoor gatherings were not always canceled during this period (eg, Liberty bond parades); there were no recorded bans on shopping in grocery and drug stores.”

The term “social distancing” first appeared in post-9/11 preparedness plans. In the decade following the airliner and anthrax attacks of 2001, federal, state, and local governments invested considerable resources in preparedness. At least one post-9/11 pandemic plan described more extreme forms of social distancing than were used in 1918-19. A 2004 CDC plan for possible resurgence of SARS, which had a case fatality rate of a little under 10 percent and no vaccine, recommended “community-wide measures to increase social distance,” as a strategy distinct from isolation of the infected and quarantine of the exposed. Social distancing was designed to apply to “[a]ll members of a community in which 1) extensive transmission … is occurring, 2) a significant number of cases lack clearly identifiable epidemiologic links at the time of evaluation, and 3) restrictions on persons known to have been exposed [i.e., quarantines] are considered insufficient to prevent further spread.” 

A 2005 Homeland Security Council strategy for pandemic influenza similarly addressed social distancing as a measure distinct from “quarantine authority.” The strategy advised that individuals and families should be prepared for “limitation of attendance at public gatherings and nonessential travel for several days or weeks.” A 2007 CDC plan for pandemic influenza, assuming a case fatality rate of 2 percent or higher and the ability to develop a strain-specific vaccine within about 20 weeks, similarly advised social distancing strategies more in line with those used in the 1918-19 pandemic. The pandemic flu plan advised that “[s]ocial distancing measures can be implemented in a range of community settings, including educational facilities, workplaces, and public places where people gather (e.g., parks, religious institutions, theaters, and sports arenas).”

During the same post-9/11 time frame, many states modernized their public health emergency and infectious disease control statutes. In some states, statutory frameworks give the governor power to issue detailed emergency orders in response to a public health emergency. In Wisconsin, the emergency management statute (Wis. Stat. § 323.10) indicates that the governor, upon declaring a public health emergency, “may designate the department of health services as the lead state agency to respond to that emergency.” The statute defining the scope of the health department’s powers includes an umbrella provision (Wis. Stat. § 252.02(6)) granting power to “authorize and implement all emergency measures necessary to control communicable diseases.” A second broad provision (Wis. Stat. § 252.02(4)) gives the department authority to “issue orders … for the control and suppression of communicable diseases.”

The breadth of these provisions would appear to accommodate any emergency measure deemed “necessary” in a communicable disease outbreak to control the emergency, including the multi-layered social distancing measures adopted by Palm in her “Safer at Home” Order. Of course, in addition to being authorized by statute, these measures must also respect constitutional limits based on civil liberties and the separation of powers. 

Palm’s order, issued with the blessing of Democratic Governor Tony Evers, has been criticized by several members of the state’s Republican-controlled legislature and some justices of the conservative-majority state supreme court. Now the future of the “Safer at Home” order appears to be in jeopardy, following a live-broadcast oral argument held via video conference in which multiple justices expressed disdain for the order.

The first issue on which the court granted the legislature’s petition for original action in Wisconsin Legislature v. Palm raises separation of powers and rulemaking requirements. The second raises the statutory scope of the state health department’s power to respond to the coronavirus pandemic. Civil liberties claims were not raised in the petition, but they did appear to be on the justices’ minds during oral argument.

On the statutory scope of powers issue, the legislature relies on the specific/general canon to argue that the grant of certain specific communicable disease control authorities to the Department of Health Services (DHS) should be read to bar the use of more general authorities to achieve similar purposes. Mandatory orders for the general public to stay at home are not specifically addressed in the statute, but “isolation of a patient” and “quarantine of contacts” are addressed in Wis. Stat. § 252.06. Prohibitions on private gatherings in people’s homes and nonessential business operations are not specifically addressed in the statute, but school closures and prohibitions on “public gatherings in schools, churches, and other places” are addressed in Wis. Stat. § 252.02(3). The legislature’s petition argues that Secretary-Designee Palm’s orders fall outside of the scope of these specific grants of authority and therefore cannot be authorized by separate, broader grants of authority.

Secretary-Designee Palm argues that the section authorizing isolation of patients and quarantine of their contacts “is irrelevant.” Quarantine and isolation powers permit the confinement of an individual to a designated location at all times, with no exceptions for meeting essential needs. Palm describes these measures as “highly restrictive” and “applicable only under special circumstances to a particular individual.” Palm argues the quarantine and isolation statute “says nothing about individuals who have not been diagnosed with a communicable disease, and Safer-at-Home says nothing about imposing those kinds of measures.” As a matter of statutory construction, she has the better argument. Moreover, the broader grants of statutory authority in § 252.02(4) and (6) appear to grant discretion to DHS to determine whether any given emergency measure is “necessary.” The court should recognize the Safer at Home order as falling within the department’s statutory authority, though the justice’s comments at oral argument seem to hint at a more dire outcome. 

Pre-pandemic plans, such as the 2004 plan for SARS resurgence, caution that the most extreme disease control measures “[m]ay be controversial because of infringement on personal liberties,” and that it “[m]ay be difficult to solicit cooperation for extended periods, particularly if the rationale is not readily apparent or was not clearly explained.” They recommend that implementation “[r]equires excellent communication mechanisms to inform affected persons and to maintain public confidence in the appropriateness of the chosen course of action; [m]ay need to provide replacements for affected activities (e.g., school, essential service providers); and [m]ust address mental health and financial support for affected population.” Elected and appointed officials would do well to keep this advice in mind as they navigate the challenges ahead. Clear communication of goals and supports to enable compliance and minimize secondary harms are critical. The public’s trust is a scarce and precious resource in a pandemic and the worst of this crisis may yet be ahead of us. Ultimately, the time may have come for the legislature to weigh in on the next steps in the state’s pandemic response, but lifting executive-branch orders in the meantime via judicial decree would be the wrong approach to that transition. 

The National Defense of Hamburgers

View all of ACS's COVID-19 resources.

Donald Trump likes to eat hamburgers while watching Fox news. When the nation’s meat packing plants started to shut down to avoid further spread of the novel coronavirus, he sprang into action. The President invoked the Defense Production Act (DPA) to keep the hamburgers coming. The DPA empowers the President to prioritize contracts that “he deems necessary or appropriate to promote the national defense.” The President can control the distribution of goods in civilian markets only after finding that (1) the material is “scarce” and “essential to the national defense” and (2) satisfying the defense needs for the material would “create appreciable hardship” for civilians. Trump minced words by stating merely that “meat and poultry in the food supply chain meet the criteria specified in” the DPA.

When the Secretary of Agriculture implements Trump’s Hamburger Order, he will (or at least would be well advised to) publish notice of his proposed policy, solicit and consider public input, and explain his decision fully so that it may survive judicial review. Those requirements are codified in the Administrative Procedure Act (APA) and have become part of the fabric of our government. We expect federal administrative agencies to comply with these fundamental precepts of thoughtfulness and fair play.

In contrast, the “Hamberder” President can act unilaterally and without consideration because the Supreme Court held in Franklin v. Massachusetts that the President isn’t an “agency” under the APA. Following Franklin, the President doesn’t have to comply with the APA even when acting solely under authority delegated from Congress in statutes, just like the Secretary of Agriculture. Thanks to Franklin, the President can take all sorts of actions that have enormous impacts on the nation—close the borders to immigrants, redirect billions of dollars to build a wall on our southern border, and keep the hamburger supply chain intact—without the notice, deliberation, explanation, or judicial oversight we usually demand from the federal government.

Franklin was wrong. The APA plainly includes the President in the definition of “agency,” but the Court declined to implement the text because it thought that doing so raised separation-of-powers concerns. The case involved the decennial census, so the litigation schedule was compressed; the Court had only two months to mull the issues. Had the Court taken the time this issue deserved, it might have realized that NOT subjecting the President to the APA is deeply problematic.

In the New Deal era, Congress created new administrative approaches to solving the nation’s problems. Eventually, the Supreme Court accepted congressional delegations of policymaking authority to Executive Branch agencies, but only on the conditions that the statutes provide procedural safeguards and the courts retain an oversight role. That inter-branch quid pro quo is embodied in the APA of 1946. The APA requires agency policymaking to proceed along a defined procedural course ending with the possibility of judicial review. Presidential exercises of policymaking power without those policymaking constraints undermine the APA’s fundamental bargain, raising significant separation-of-powers concerns.

The APA’s procedural requirements also reflect values that have become entrenched in U.S. law: public participation, political accountability, transparency, deliberation, and judicial review. To retain our commitment to those values, the President should be treated like any other officer when exercising congressionally delegated authority. Before making a pronouncement that is binding on the public, the President should publish notice of the proposed policy and accept and consider public comments, then publish the final policy with an explanation and face judicial oversight.

Since the Supreme Court decided Franklin in 1992, Presidents of both political parties have assumed increasing power. That power must be constrained.

One might object that subjecting the President to the APA would impose too much of a burden on the office. Nonsense. Interpreted correctly, the APA imposes only modest procedural requirements. The President’s minions would take care of the procedure, leaving the President with the reasonable obligations to deliberate and explain the final decision. Moreover, the APA provides plenty of wiggle room for any federal officer to act quickly when necessary. For example, in an emergency as dire as the potential interruption of the hamburger supply, the President could dispense with publishing notice of his proposed policy if he determines that doing so would be “impracticable, unnecessary, or contrary to the public interest.”

The time has come to rein in the President. When acting solely pursuant to statutory authority, the President should satisfy the same constraints as any other congressional delegate. Before deciding that hamburgers are essential for the national defense, closing the nation’s borders, or diverting billions of dollars to build a “wall” on the U.S.-Mexico border the President should be legally required to think.

 

Trump's New Immigration Ban Is Potentially More Dangerous, and More Legally Vulnerable, Than You Might Think

When faced with criticism for his responses to the coronavirus pandemic, President Trump has reacted almost reflexively by touting his administration’s immigration restrictions as the centerpiece of its efforts. But long before the pandemic, Trump had amassed a considerable record of manufacturing “bogus emergencies” to pursue longer-term immigration policy goals. His latest immigration order might be his most brazenly disingenuous, using a pretextual response to a genuine crisis to hack away at basic features of the immigration system that Congress established decades ago, and to impose his own policy preferences in their place by executive decree.

Last week, after officials scrambled to finalize the details, Trump signed a sweeping proclamation making good on his pledge on Twitter two days earlier to “temporarily suspend immigration into the United States” because of the pandemic. The order bans most noncitizens from entering the United States to become permanent residents—initially for sixty days, but potentially for longer.

In its stated rationale, its potential consequences, and its probable longevity, the new directive is different in kind from Trump’s other immigration-related measures during the outbreak. Those differences make it particularly dangerous—but also make it vulnerable to legal challenges.

Trump’s decree strikes at the heart of the immigration system

Trump’s new order does not, to be sure, ban every last noncitizen from entering the United States. However, it does aggressively and in large numbers target individuals at the core of the immigration system: those individuals legally eligible to become permanent residents. Many fewer people are admitted to the United States as permanent residents than on temporary, nonimmigrant visas for tourists, students, business visitors, temporary workers, and many others.

But despite being fewer in number, permanent residents are not a sideshow in the immigration system, as much of the reporting on Trump’s new order has implied when downplaying the reach of the decree. To the contrary, they are at the very heart of the immigration system, the individuals welcomed and integrated into American society most expansively under the immigration laws. Once admitted, they acquire many of the rights, benefits, and obligations held by U.S. citizens, including the ability to live and work in the United States indefinitely. Eventually, they may seek to become citizens themselves.

Trump’s decree imposes no new restrictions on temporary visas, reportedly due to pushback from the business community. Nor does it ban individuals already within the United States from becoming permanent residents—likely because the provision invoked as its legal basis only authorizes suspension of “entry” into the United States. (That said, officials nevertheless do appear to be creating other bureaucratic roadblocks to inhibit those individuals from becoming permanent residents, yet another brick in the “invisible wall” that the Trump presidency has quietly been erecting in the shadows of the immigration system.)

However, the order bans most individuals outside the United States from becoming permanent residents. These immigrants constitute almost half of all individuals granted permanent resident status and disproportionately come from Asia, Latin America, Africa, and Eastern Europe. In 2019, roughly 315,000 individuals were admitted as permanent residents in categories now banned by Trump’s decree. The directive strikes especially hard against individuals eligible to immigrate based on family ties, who comprise over 80 percent of permanent residents admitted from abroad. In 2019, roughly 140,000 parents of U.S. citizens became permanent residents. Nearly half would have been banned under Trump’s order. Individuals eligible for other family-sponsored visa categories are even more severely affected, with upwards of 90 percent now banned from immigrating.

The order also has a highly disproportionate effect on individuals eligible for permanent resident status under the diversity visa program, a program that Trump hates and about which he routinely lies. Under the diversity visa program, Congress has made 50,000 permanent resident visas available each year to qualifying individuals from countries from which there would otherwise be low immigrant admissions. Since almost all diversity-based immigrants are admitted from outside the United States, Trump’s order effectively suspends the diversity visa program in its entirety.

While the order includes some exemptions—for spouses and children of U.S. citizens, business investors, health care professionals, and others—they likely cover less than a third of individuals legally eligible to become permanent residents from abroad. Nor is it clear how those exemptions will be implemented. The proclamation also signals that its restrictions may be extended beyond sixty days, and eventually expanded to cover temporary visas.

The immigration ban’s rationale is not health-based—which makes it likely Trump will try to extend the ban beyond the public health crisis

From a public health perspective, it may be tempting to regard Trump’s emphasis on immigration as nothing more than a distraction, a deflection of attention from deeper failures in the Trump presidency’s responses to the crisis. The immediate effects of Trump’s directive may be limited, since in the short term, there likely will be very little immigration to restrict. Visa processing already has been mostly suspended during the pandemic, and migration and travel have been greatly curtailed.

However, Trump and his immigration restrictionist allies are candid about their longer-term designs. Indeed, the arguments that the Trump presidency makes to justify its immigration ban are not tied to the immediate crisis in any meaningful way. His other recent immigration directives in response to the pandemic have been justified exclusively as measures to contain and mitigate transmission of the coronavirus. Experts have disputed the effectiveness and legality of those orders, but as the pandemic is brought under greater global control, then the strength of justifications for broad restrictions on migration and travel will evolve and, in fits and starts, may subside over time.

By contrast, the rationale for Trump’s new order is more open-ended, malleable, and disingenuous. The order posits that because aggressive public health measures have reduced labor demand and increased unemployment, immigration restrictions are necessary to protect U.S. workers from competition for scarce jobs. But when will those claimed labor market effects—which, it must be emphasized, are sharply disputed by many experts—have sufficiently subsided for Trump to lift those restrictions? And based on what criteria?

For Trump, no changes in economic circumstances would likely ever be enough. For years, he and other immigration restrictionists have advanced exactly the same arguments about labor market competition—during non-crisis moments, with unemployment at record lows—to justify proposals to slash immigration levels and rewrite eligibility criteria for permanent residence. The pretextual rationale invoked in support of the new restrictions is a xenophobic evergreen, not a genuine response to the pandemic.

Trump’s order seeks to impose by executive decree the immigration policy preferences he has failed to persuade Congress to establish by legislation

The immigration system established by Congress fifty years ago, under the landmark Immigration Act of 1965, balances a variety of different priorities—including labor market concerns, but also family reunification, the needs of employers, the desire to encourage immigration from a variety of countries, humanitarian protection, and fundamental rights. However, Trump’s new directive upends that congressionally established balance and seeks to impose a different, more restrictive set of priorities by executive decree.

For some employment-based visa categories, the law already requires employers to obtain government certification verifying that hiring immigrants will not have negative labor market effects. However, instead of respecting that congressionally-mandated process, Trump’s order instead concludes that labor certification is categorically insufficient, essentially writing that process out of the statute altogether. For other visa categories—including some employment-based immigrants, all family-sponsored immigrants, and the diversity visa program—Trump’s decree requires consideration of labor market concerns where Congress has expressly chosen to let other policy priorities take precedence. For example, while the law does not require labor certification for immigrants deemed to have “extraordinary ability,” Trump’s order nevertheless bans those immigrants based on the same supposed labor market concerns that Congress has decided are not concerns at all.

The order’s effects on family-sponsored immigration perhaps most vividly illustrate the ways in which the order directly conflicts with congressional priorities. Family reunification policies are the “bedrock” of immigration law, permitting citizens and permanent residents to sponsor spouses, children, parents, adult sons and daughters, and siblings as immigrants. Trump and other restrictionists have long disagreed with these provisions, assailing Congress’s existing priorities for facilitating what they disparage as “chain migration” and proposing legislation to curtail and limit family-based immigration to “nuclear” family members.

While Trump’s order does exempt some family members, that exemption is narrowly drawn to include only the spouses and children of U.S. citizens—the same preference for “nuclear” family members that restrictionists have failed to achieve through legislation. The proclamation makes no attempt to justify its selective family-based exemption based on labor market concerns or any other considerations. Indeed, the proclamation makes no specific findings about the supposed labor market effects of any particular category of permanent resident visas at all.

Ultimately, the Trump presidency’s latest immigration ban reads pretty clearly as an attempt to impose its restrictionist vision for the legal immigration system—lower overall numbers, different categories of immigrants—by executive decree, rather than through legislation. In fact, when one considers the order’s restrictions together with its exemptions, the overall immigration patterns that it would create closely resemble the contours of Trump-backed legislative proposals, such as the RAISE Act, that Congress has decisively rejected. Trump may believe that the president has “total authority,” but he most certainly does not have authority to supersede and rewrite the immigration laws that Congress has enacted just because he dislikes them.

Trump’s latest immigration ban will face strong legal challenges

The Trump presidency’s lawyers undoubtedly believe that its new directive will be validated when it is inevitably challenged in the federal courts, which Trump and Senate Republican Leader Mitch McConnell have been rapidly filling with reliably conservative loyalists. The Supreme Court’s decision in Trump v. Hawaii, which gave a green light to the Trump presidency’s third executive decree banning immigration from several predominantly Muslim countries, provides them with an additional basis for that confidence. In that case, Chief Justice John Roberts rested his opinion validating Trump’s Muslim exclusion order on a remarkably broad interpretation of the same provision that is also invoked as legal authority for Trump’s new order, concluding that the provision “exudes deference to the President in every clause.”

However, there are substantial reasons to conclude that Trump’s new order exceeds his legal authority. Roberts’s opinion in Trump v. Hawaii itself suggests that even under his expansive interpretation of the statute, the president does not have authority to “countermand Congress’s considered policy judgments” or to “override particular provisions” of the immigration laws. By ordering his own contested claims about the labor market effects of immigration to categorically supersede all of the other immigration policy priorities that Congress has enacted into law, Trump appears to have done precisely that.

In the years since Trump v. Hawaii was decided, Trump and his administration have been emboldened to invoke that same statutory provision to impose even more immigration restrictions, including a ban on individuals applying for asylum and a sweeping requirement that immigrants prove that they can obtain adequate health insurance coverage within thirty days. But despite the Supreme Court’s decision, lower federal courts have continued to respond to these directives with some skepticism.

While courts might be reluctant to second-guess executive actions during a genuine public health crisis, Trump’s immigration ban will undoubtedly appear to some judges more as an opportunistic effort to capitalize on that crisis than as a genuine crisis response. Administration officials themselves have not exactly tried to conceal the true reasons for their directive, openly telling reporters that Trump decided to issue the order to “pleas[e] his political base” and because polls “show[] him sliding in some swing states.” The two officials spearheading Trump’s immigration agenda, Stephen Miller and Ken Cuccinelli, have been even more direct in communicating the administration’s true intentions, candidly telling Trump surrogates last Thursday that the order should be understood as designed to pursue longer-term immigration policy goals, not as a temporary crisis response.

In that context, the Supreme Court might very well prefer not to become enmeshed with and tied to the election-year politics of Trump’s immigration agenda at all. As with Trump’s Muslim exclusion orders, it may find itself unable or unwilling to avoid doing so.