Abortions, Vaccines, and “Commerce”: Could NFIB v Sibelius’ “Great Powers” Doctrine Support a Bipartisan Federalism Compromise?

The Sixth Circuit’s dissenting opinions on OSHA’s power to issue an emergency vaccine mandate (panel opinion here, denial of en banc review here) point to what I shall call a “bipartisan federalism compromise” (BFC, for convenience’s sake) on abortion. The reason is that the judges’ arguments against mandated vaccination apply pretty much as well to mandated childbirth: If forcing someone to get vaccinated is the exercise of a “great power” not to be inferred from the Necessary & Proper clause under NFIB v Sebelius, then surely forcing someone to carry a pregnancy to term is equally “great” and in the same way: Both mandates are plausibly construed as unprecedented “affirmative” requirements that regulated persons engage in non-commercial activities.

Exactly how plausible are these arguments? As I discuss after the jump, from one doctrinal point of view, the arguments against forced vaccination and forced childbirth are equally false; from another, equally true. From the viewpoint of practical federalism, however, they are both equally useful. They promote a BFC over mandates intruding on citizens’ bodily autonomy. Red and Blue states fiercely disagree over how much to trust the government in controlling certain types of medical decisions: The Blues like vaccine mandates but reject anti-abortion laws, the Reds distrust mandated vaccines but are happy to intrude on decisions about childbirth. Why not, then, devolve both decisions to jurisdictions in which each side can have its fair share of a say and where the stakes are smaller “winner-take-some” subnational struggles rather than the federal “winner-take-all” sweepstakes that could provoke a civil war?

The doctrinal basis for such a BFC, alas, is less plain than its practical benefits. That doctrinal ambiguity springs from the arbitrariness of NFIB v Sebelius’s distinction between regulatory prohibitions and mandated action. That distinction, is normatively empty and analytically manipulable, allows judges to turn on and off the Sebelius spigot at will. (If one simply ignores Sebelius' "great powers" idea entirely, then both federal vaccine mandate and anti-abortion laws would likely be upheld under Raich, as Ilya Somin nicely explains here w.r.t. latter). After the jump, I will argue that there is a better doctrinal route to a sensible BFC: The SCOTUS could give heightened scrutiny to federal laws intruding into what Richard Primus and I call “suspect spheres” -- areas where there are special reasons to distrust federal regulation. It might be that mandates for vaccination and prohibitions on abortion both fall within such a suspect sphere, because they raise anxieties about bodily autonomy best addressed subnational governments. In any case, the argument for blocking Congress’ mandating childbirth and vaccines stand or fall together, which should provide some comfort to the opponents of either to the federal threat of mandating both.

1. Do federal vaccination mandates and federal anti-abortion laws both regulate “non-commercial inactivity” under NFIB v Sebelius?

First, consider the argument that Congress cannot mandate workers to be vaccinated. Judge Bush’s Sixth Circuit dissent and Judge Duncan’s Fifth Circuit concurrence outline one theory that such mandates are a “great power” that falls outside the Congress’ Necessary and Proper implied powers to regulate commerce. The argument relies on an analogy to NFIB v Sibelius’ case against mandated purchases of health insurance: Forcing a worker to get vaccinated is the federal regulation of the non-commercial inactivity – the inactivity of refraining from getting a vaccine – just as the ACA’s individual mandate regulated the non-commercial inactivity of not purchasing health insurance. As Judge Bush put it in his Sixth Circuit dissent, “[i]f Congress cannot solve a perceived commercial problem with a ‘mandatory purchase,’ then how can it possess the authority… to solve a perceived commercial problem by mandating that Americans engage in a non-commercial activity?”

Whatever the merits or demerits of this argument (and I will address some obvious weaknesses below), it seems to apply a fortiori to a federal law prohibiting clinics from providing abortions. After all, by prohibiting clinics from providing abortions, such a federal statute would force women to carry pregnancies to term. The prohibition on the clinics is, therefore, a prohibition on women’s engage in the “non-commercial inactivity” of refusing to give birth to babies. If a mandatory purchase falls outside what is necessary and proper for protecting interstate commerce, then surely mandated childbirth does as well.

2. Are conditional mandates to get vaccinations or carry pregnancies to term exempt from NFIB v Sebelius?

The obvious difficulty with this argument against a federal anti-abortion law is that a prohibition on clinics’ performing abortions does not directly force anyone to do anything: It merely prohibits a clinic from selling a particular medical service to consumers. Prohibiting the sale of services looks like regulation of a commercial activity, not non-commercial inactivity. One might also argue that, unlike the ACA’s unconditional mandate to buy insurance, an anti-abortion law does not unconditionally mandate that any woman carry a pregnancy to term. Such a law merely imposes a condition on an activity: If a woman becomes pregnant, then she must not purchase an abortion. Again, the federal anti-abortion law could be re-characterized as a ban on a commercial activity, not a mandate to cease non-commercial inactivity.

Judge Bush’s case against a federal vaccine mandate, however, is vulnerable to precisely the same riposte. As a formal matter, the vaccine mandate is merely a conditional prohibition, barring employers from retaining or hiring unvaccinated (or untested, etc) workers. Employing people for wages is commercial activity, not non-commercial inactivity. As Judge Stranch noted in her opinion for the majority of the Sixth Circuit panel, “[t]he ETS regulates employers with more than 100 employees, not individuals. It is indisputable that those employers are engaged in commercial activity that Congress has the power to regulate when hiring employees, producing, selling and buying goods, etc.”

To hammer home the weakness of Judge Bush’s argument against vaccines, one could further note that extending NFIB v Sebelius’s anti-mandate rule to cover such conditions on employment would threaten a lot of ordinary workplace regulations. The law routinely mandates that employees ordinarily undertake a lot of onerous actions as conditions of being employed, from meeting expensive licensing criteria like bar exams to washing their hands when working in food preparation. It is difficult to believe that any court would be willing to attack all of these “mandates” under Sebelius.

3. Do federal vaccination mandates and anti-abortion laws both lack a non-pretextual commercial purpose?

Judge Bush, however, has a response to Judge Stranch’s characterization of OSHA’s vaccination rule as regulation of the commercial activity of employing workers: He argues that OSHA is not really regulating the workplace at all, because OSHA’s rule is note directed at workplace hazards. According to Judge Bush, “OSHA has…pretextually redefined what is at this point a hazard of life in the United States and throughout the world—COVID-19—as a hazard of the workplace.” Although Judge Bush does not elaborate on this “pretextual” characterization of OSHA’s motives, it is not difficult to fill in the gaps. Vaccination takes place outside the workplace, generates most of its benefits away from the workplace, and does not tailor those benefits to the dangerousness of particular workplaces. As Judge Sutton noted in his dissent, one does not doff and don vaccines like protective equipment when one clocks in and clocks out of one’s place of employment. Nor are the benefits of vaccination well-tailored to particular workplace risks: Unvaccinated young people who work in relative isolation at well-ventilated offices around mostly voluntarily vaccinated co-workers are likely in less danger at work than, say, in eating at a restaurant or shopping in a grocery store. It is plausible albeit not necessary inference, therefore, that the Biden Administration opportunistically imposed the vaccination mandate as a condition of employment merely to leverage Americans’ need for a job into pressure to get vaccinated.

On this account of OSHA’s motives, the true purpose of the vaccination mandate is to regulate citizens’ non-commercial inactivity of failing to get vaccinated. Focusing this mandate on the workplace is merely a convenient way to get leverage over this non-commercial inactivity. The Biden Administration simply wanted to force as many citizens as possible to obtain vaccinations by holding their jobs hostage.

Again, whatever the force of this “pretext” argument, it applies a fortiori just as well to a federal anti-abortion statute targeting abortion clinics. Although the immediate target of such a law might be businesses that perform fee-based medical services, the point of the law is to stop all abortions and thereby force women to carry their pregnancies to term. The pro-life movement would hardly be placated, after all, by clinics that performed services for free: It is the desire to stop the termination of pregnancies that is the point of the law, not the regulation of commercial exchange.

4. Is a pretextual commercial purpose insufficient to justify a federal law?

Here, a digression is in order to address a response to both of these anti-mandate arguments: Should the pretextually “commercial” character of a regulation matter if the regulation is actually imposed on an economic enterprise? SCOTUS has never really decided the question, but the logic of the necessary and proper clause suggests that Congress’ purpose ought to matter.

Sometimes United States v Darby is mistakenly cited for the proposition that the “motive or purpose” of Congress is irrelevant to the scope of Congress’ powers. That language from Darby, however, concerned neither the Necessary & proper clause nor the “substantial effects” test. It concerned instead Congress’ power to block the movement of goods and people across state lines. That commerce-blocking power is not an implied “necessary and proper” power to execute an express power: It is itself an expressly enumerated power. There is no need, therefore, to show a nexus between the blocking of interstate commerce and some other commercial end: The commerce-blocking regulation itself is precisely what is enumerated in Article I.

By contrast, intrastate regulations of workplaces are justifiable only as laws necessary and proper to control substantial effects on commerce. Some sort of nexus between the intrastate regulation and that interstate commerce, therefore, is required. Congress’ good-faith belief in a nexus between the two arguably supplies that nexus. The famous passage in McCulloch describing the SCOTUS’s duty to strike down laws enacted on the pretext of pursuing an “object” enumerated by Article I is best explained by this distinction between express and implied powers: It is Congress’ good-faith belief that a federal law is “really calculated” to advance an “object” enumerated by Article I that brings the law, otherwise outside the enumeration, into the enumeration’s gravitational pull. McCulloch’s use of the word “end” (“let the end be legitimate”) suggests the centrality of purpose to the “necessary and proper” inquiry: The “end” of a law is, in ordinary usage, the purpose that the lawmaker seeks to achieve with the law. An “end” cannot “be legitimate,” unless that end is actually on the list of ends permitted by Article I.

5. The vacuity of NFIB v Sebelius’ action/inaction distinction.

The real difficulty with Judge Bush’s pretext-based argument against vaccination mandate’s commercial character is not that pretext should never matter. The problem is that courts ordinarily defer to Congress’ (and OSHA’s) description of a federal law’s purpose. That deference is the whole point of the “rational basis” test in cases like Katzenbach v. McClung. Why, then, not defer here to OSHA’s attribution of a commercial purpose to the vaccination mandate just as SCOTUS deferred to the congressional attribution of a commercial character of Title II of the 1964 Civil Rights Act?

The lack of judicial deference cannot be explained by the distinction between laws that target commercial activity and laws that regulate non-commercial inactivity, because that distinction rests on a question-begging attribution of statutory purpose. If the laws are best understood as targeted at workers’ or women’s refusal to undertake an action (get a vaccine, give birth to a child), then they are mandates for action. If they are best understood as prohibitions on business practices (employing workers, selling medical services), then they are just ordinary commercial regulations. Why not presume the latter rather than the former purpose? Nothing in NFIB v Sebelius can answer this question. Chief Justice Roberts gruffly asserted that the significance of the action/inaction distinction “would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.” Roberts, however, just assumed rather than explained the reasons for this practical significance that the framers allegedly recognized, so it is impossible to use those non-existent reasons to figure out how how to characterize federal laws that sit on the border of forcing and forbidding actions.

6. Heightened “Necessary & Proper” Scrutiny for Laws that Encroach on Important Liberty Interests about which the National is Regionally Polarized?

Rather than engage in the verbal shell game of figuring out whether some law forces or forbids action, one might instead ask whether a federal law raises a “major question” in a less legalistic, more practical way. Richard Primus and I have argued that judicial scrutiny of whether a federal law exceeds Congress’ enumerated powers ought to turn on whether a federal law encroaches into a “suspect sphere.” By “suspect spheres,” we mean areas where there are special reasons to think that the federal law-making process suffers from pathologies that are reduced at the subnational level.

As we explained in our article, this is how “great power” arguments worked in the past: Such arguments ignored Article I’s text and instead relied on unwritten traditions of suspicion about centralized government. Madison’s original argument for suspicion towards federal laws chartering private corporations, for instance, invoked a century-old suspicion of private corporations as vehicles or elite enrichment. In Madison’s words, the First BUS’s charter “involves a monopoly, which affects the equal rights of every citizen”: He compared the Bank of the United States to the East India and South Sea Companies, both of which were regarded by American revolutionaries as imperial vehicles of special privileges to financial insiders. To Madison and the Democratic-Republicans, Congress was peculiarly vulnerable to capture by the “monied interest,” because the heterogeneity of Congress’ constituents made their coordinating against elites difficult. By contrast, state governments were regarded as less vulnerable to corruption by financial elites because the states’ electoral districts were small enough for practical control by farmers and artisans.

If one focuses on law-making pathologies of centralized legislatures, then it is easy to see why both vaccination mandates and abortion enter a suspect sphere where federal law ought to be disfavored. In both cases, the regulations intrude into what Judge Sutton’s dissent called “highly personal medical decisions” support for which vary intensely by region. Forcing workers to inject a substance into their bodies might be good public health policy, but, to those distrustful of medical expertise in Red States, it also is an invasion of bodily privacy. The same goes for laws banning abortions: To women fearful of Christian patriarchy, anti-abortion laws look less like a good-faith effort to protect unborn children from harm and more like an effort to convert women into baby-making machines. This widespread suspicion of both sorts of bodily intrusion might explain why the federal government has never before attempted to impose these sorts of regulatory burdens on bodily autonomy through its regulatory power: The nation is simply too heterogeneous for a majority of Congress to reach consensus on such culturally contentious issues. As Judge Sutton phrased it, “[a] national vaccinate-or-test mandate…is unprecedented, whether with respect to OSHA or any other federal agency, presumably because the intrusion on individual liberty is serious….” Judge Bush’s lengthy description of federal involvement in vaccination likewise stresses that long history of epidemics in which the federal government has refrained from imposing vaccines on citizens. All these historical and privacy-based arguments are equally good reasons to be suspicious of federal mandates that pregnant women carry their pregnancies to term.

The “suspect spheres” approach to Congress’ enumerated powers, in sum, tends to mimic substantive due process in relying on unwritten tradition rather than constitutional text to define areas of heightened judicial scrutiny of federal statutes. For those who are distrustful of courts, this reliance on tradition makes federalism doctrine just as mushy and juristocratic as substantive due process. For those like Richard and me who believe that NFIB v Sebelius’ “great powers” doctrine is already a judicial invention untethered to any constitutional text, the focus on culture heterogeneity and tradition at least grounds heightened scrutiny in some intelligible and normatively attractive principle rather than some incoherent effort to distinguish mandated from prohibited action.

Regardless of whether or not you accept our “suspect spheres” approach to defining “great powers,” however, you’ll find it difficult to distinguish vaccine mandates from anti-abortion laws. Congress’ imposition of either exceeds what the federal government has traditionally imposed through regulation, and such impositions at the national level are equally likely to inflame partisan polarization. For what it is worth (not much in Richard’s and my view), either could be characterized as “mandated action.” If one sort of mandate is forbidden to the federal government, therefore, then the other ought to be equally forbidden. By forbidding both, courts might be adopting an activist stance – but at least it would be a more even-handed activism, with something for both Red and Blue states to embrace.