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Opinion | The Constitution Will Survive Covid-19

The pandemic may justify extraordinary measures, but judges won’t accept the most draconian ones.

11/28/2020 3:30:00 PM

From WSJopinion: Even in an emergency, the U.S. government doesn’t wield unlimited powers; the Constitution prohibits many of the most draconian pandemic policies , write DavidRivkin and Lee A. Casey

The pandemic may justify extraordinary measures, but judges won’t accept the most draconian ones.

Nov. 27, 2020 1:46 pm ETThe Covid-19 pandemic “has served as a sort of constitutional stress test,” Justice Samuel Alito observed this month. “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” The setting underscored the point: Justice Alito made his remarks in an online speech that ordinarily would have been delivered in a cavernous hall, before a crowd of hundreds gathered for the Federalist Society’s annual dinner.

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A public-health emergency may justify curtailments of liberty that would be unacceptable in normal times. But even in an emergency, America’s government doesn’t wield unlimited powers. Measures taken to deal with this pandemic have imposed severe restrictions on the most basic rights and liberties, often with little consideration of their legal basis. The U.S. Constitution prohibits many of the most draconian measures taken or under consideration.

Joe Biden has implicitly acknowledged the point. Accepting the Democratic presidential nomination in August, the former vice president declared: “We’ll have a national mandate to wear a mask—not as a burden, but to protect each other. It’s a patriotic duty.” But his transition website promises only to “implement mask mandates nationwide by working with governors and mayors.”

A federal mask mandate is a nonstarter because it would have to be grounded in one of Congress’s constitutionally enumerated powers, all of which have limits. The go-to section to justify federal regulation is the clause granting lawmakers the power “to regulate commerce . . . among the several states.” As the Supreme Court held in

National Federation of Independent Business v. Sebelius(2012), which involved the ObamaCare mandate to buy medical insurance, individuals must be engaged in commercial activity before Congress can regulate them. Congress cannot impose requirements on the citizenry “precisely because they are doing nothing,” Chief Justice John Roberts wrote.

The same is true of other prospective federal anti-Covid measures, such as a national “stay at home” order or an overall economic lockdown. Congress does have broad authority to regulate business, which it could use to impose workplace safety rules, including mask mandates. But nationwide lockdowns are a dubious legal proposition. Congress has never attempted to eliminate all or most economic activity. Any such requirement, even if supportable under the Commerce Clause, would raise significant concerns about the constitutional rights of people prevented from earning a living.

Read more: The Wall Street Journal »

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opinion DavidRivkin When our elites decide it's time to fight another war, they have constitutional authority to kidnap you to send you to die on the other side of the planet for their interests and you call having to wear a piece of cloth draconian? opinion DavidRivkin •Universal Healthcare •Stimulus Check 2K •Groceries delivered to each household •Masks delivered to each household •Social Distance & Stay at home if sick •Mask mandate till of cases go down The constitution doesn’t prohibit any of that

opinion DavidRivkin arrest Joe opinion DavidRivkin Today France already see the end of our Freedom and Liberty with above all destruction of our economy .WE WILL NOT SURRENDER opinion DavidRivkin These lockdowns and the forced unemployment of millions is an outrageous abuse of government power, particularly when it comes to a virus with such a high survival rate.

opinion DavidRivkin It is amazing to me how many of our 'constitution rights' we were willing to give up after 9-11, with around 3000 Americans dead, but we have a deafening outcry over temporary Covid19 restrictions with almost 300000 dead. opinion DavidRivkin Why would anyone allow their minister or clergy to put their lives at risk?! I’d find a new place of worship

opinion DavidRivkin It’s sad that people don’t mind governors and other elected officials to take away their constitutional rights, this just shows how much people are willing to give up to the government opinion DavidRivkin You need to have a very blinkered view of history to think that it is a virtue for a government to not be able to address the problems of the people.

opinion DavidRivkin The constitution may survive during a pandemic, but how many of us will survive to enjoy the constitution after the pandemic is over? That is the conundrum. opinion DavidRivkin opinion DavidRivkin I don't agree with the WSJ in general, but I will note we are letting the churches off the hook by focusing on the Constitution here. Common decency demands houses of worship protect their congregations rather than putting them at risk.

opinion DavidRivkin The Constitution could 100% restrict current pandemic policies and yet those policies would still have been enacted, enforced and embraced by the most fearful among us. opinion DavidRivkin opinion DavidRivkin Clearly you are not constitutional scholars. Not worried about a toilet paper shortage when we have the

opinion DavidRivkin Is the media starting to wake up? We are killing our country and the socialist enforcing these rules are loving it. opinion DavidRivkin this is terrible news