Sotomayor is wrong on the merits, but her argument is not frivolous and must be confronted on its own terms.
I happen to believe Sotomayor is wrong on the merits. Nevertheless, her argument is not frivolous.
I don’t agree with Justice Sonia Sotomayor on much, but I cut her lots of slack on the “police powers” debate she had with Ohio solicitor general Ben Flowers. As our Isaac Schorr reported, this came up during Friday’s oral argument on President Biden’s vaccine mandates. Specifically, it arose in the first of the two cases argued, which centered on the Occupational Safety and Health Administration (OSHA) mandate, though it is equally relevant to the second, consolidated case, involving the Health and Human Services (HHS) mandate. (The audio and transcript of the OSHA argument are here and here, and for the HHS argument here and here.)
Critics contending that Justice Sotomayor, the Court’s most extreme progressive, is either conceptually confused or constitutionally illiterate, are relying on this exchange with SG Flowers (here, p. 54–56):
Sotomayor: So, if it’s within the police power to protect the health and safety of workers, you seem to be saying the states can do it, but you’re saying the federal government can’t even though it’s facing the same crisis in interstate commerce that states are facing within their own borders. I’m not sure I understand the distinction why the states would have the power but the federal government wouldn’t.
Flowers: The federal government has no police power if we’re asking about that.
Sotomayor: Oh, it does have power with respect to protecting the health and safety of workers. We have — we have accept [sic] the constitutionality of OSHA. [ACM: I believe she meant, and may even have said, “accepted”.]
Flowers: Yes. I took you to be asking if they had a police power to protect public health. They — they absolutely have the —
Sotomayor: No, they have a police power to protect workers.
Flowers: I would not call it a police power. I think the Commerce Clause power allows them to address health . . . in the context of the workplace.
Sotomayor: Exactly.
It is not that Sotomayor is confused about what “police powers” are, or about the fact that, as originally understood, they are state powers — i.e., the federal government did not have any general regulatory authority over public health, safety, and morals. Sotomayor is saying that in modern times, given how the federal government, including the Court, has expanded federal power via the Commerce Clause, it is anachronistic to refer to “police powers” as if only the states had them, and thus to complain as if the federal issuance of a medical mandate to promote workplace safety or public health is a radical notion.
As Isaac elaborates, the Tenth Amendment illustrates the Framers’ conception, which reserved to the states those powers the Constitution does not explicitly delegate to the federal government. Nothing in the enumeration of Congress’s law-making powers in Section 8 of Article I endows the federal government with authority to regulate public health and safety — at least not directly. (I won’t divert us with a discussion of how Section 8’s Necessary and Proper Clause potentially inflates the enumerated powers.)
Another way of looking at this involves the Framers’ distinction of continued state sovereignty over matters of “internal order” from control by the newly formed central government over interstate and international matters. As Madison explained in Federalist No. 45:
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.
Justice Sotomayor, to the contrary, was making the “Hasn’t that ship sailed?” point I tried to flesh out in my Friday evening post analyzing the oral argument:
One of the main complaints of the Court’s three progressives (Justices Sotomayor, Elena Kagan, and Stephen Breyer) was that we have long been living in a world in which Congress grants administrative agencies capacious powers, and the agencies routinely use them to regulate commerce in an extensive (I would say intrusive) manner. Moreover, the federal government is a huge player in the economy, and therefore a great deal of commerce that may once have been the realm of private action is now subject to government regulation because it involves taking public money and benefits. So, the progressives ask, why do we suddenly have to justify the way things have been done for decades? Why are we suddenly fretting over federalism, separation of powers, delegation of legislative authority, and so on?
To illustrate, here is Sotomayor during the argument over the HHS mandate (pp. 29–30):
I dare say that I looked at some of the regulations at issue here, not the ones [the Biden administration] passed with respect to Covid but other regulations. Is it fair to say that the vast majority of the regulations across all facilities [that have some involvement with Medicare and Medicaid] relate to health and safety? [A question to which the Justice Department lawyer answered, “I think that’s fair, yes.”]
And later, grilling an opponent of the HHS mandate (pp. 65–67):
In terms of clear rules, I’m having a hard time understanding how you can say, yes, they could pass a rule that requires people to wear gloves or they can pass a rule that requires them to isolate individuals who are . . . infected by something, but they can’t pass this rule. . . . If it’s clear enough that they can consider safety and health regulations, why is this particular rule subject to us saying no?
And (pp. 83–84):
I’m having a hard time understanding how and why a rule like this is so substantially different than the volumes of rules that CMS [i.e., the federal Centers for Medicare and Medicaid Services] has with respect to so many issues involving health and welfare. They tell you how high the bed has to be. They tell you how close the hand sanitizers have to be. This is before Covid. They have so many different rules that one could arguably say belonged within the state’s rights[. . . .]
The essence of Justice Sotomayor’s argument is that, whatever “police powers” may have meant in 1787, it would be laughable to suggest that the federal government does not both have and routinely exercise regulatory authority over public-health and safety matters. So laughable that no one challenging the Biden mandates dares say otherwise. Ergo, she observes, those who object to the mandates are left to argue that requiring vaccination during a pandemic is somehow a bridge too far — even though it seems demonstrably more essential than the hundreds of health and safety mandates the government has issued over the last five decades or so, seemingly without controversy.
Now, I happen to believe Sotomayor is wrong on the merits. Nevertheless, her argument is not frivolous, especially if one accepts the reality that the Supreme Court has to grapple with its jurisprudence (particularly on the Commerce Clause and administrative law), as opposed to simply and suddenly announcing, “This is how things must henceforth be done, for the greater good of fidelity to the Framers’ vision of state sovereignty and limited federal power.”
To be clear, I am not speaking here about Sotomayor’s disturbing, thinly veiled political demagoguery about the number of children supposedly suffering serious illness due to Covid, or about the other progressive justices’ similar (though less crude) exaggerations about the degree of danger we currently face and the degree to which the Biden mandates could meaningfully ameliorate it.
What I am saying is that Justice Sotomayor’s theory has force and must be confronted on its own terms. She is contending that, at this stage of our history, after nearly a century of precedent supporting progressive governance, it is constitutionally legitimate for the federal government to exercise what were originally known as police powers. That claim can’t be smirked away with eyes rolling as if the justice has no idea what she’s talking about.