Constitutional Law Final Exam 2020: The Next Pandemic

by Michael C. Dorf

[Following my custom, below I provide the exam I recently administered to my first-year constitutional law students. It's not as funny as usual. Actually, it's not funny at all. But I do think it covers a lot. The exam consists of one question with a 2500-word limit. Write your answers in the comments if you like. I shall not grade them, however, as I have no interest in a busman's holiday.]

The year is 2023. Thanks to effective vaccines, treatments, and public health measures, COVID-19 is no longer widespread. In order to improve preparation for any new threats, Congress enacts and the President signs the Pandemic Response Authorization Act (“PRAA”). Its key provisions, include:

Notwithstanding any other provisions of law,

     1. There shall be created a Public Health Emergency Action Commission (“PHEAC”) consisting of five medical doctors to be appointed by the Secretary of Health and Human Services (Secretary)  to serve for five-year terms at staggered one-year intervals, except that the initial members of PHEAC may be appointed simultaneously for terms of five, four, three, two, and one year respectively. A PHEA Commissioner may be removed by the Secretary and only the Secretary only “for good cause.” If the Secretary removes a Commissioner, that Commissioner may, within 60 days, file suit in the Federal District Court for the District of Columbia, which shall determine whether the firing was for good cause and may order the Commissioner’s reinstatement with or without back pay. Pending such an order of reinstatement, the Commissioner may take no official actions. A quorum for purposes of conducting business shall consist of three Commissioners.

     2. By majority vote of a quorum, the PHEAC may promulgate regulations to promote the public health, provided that such regulations, if enacted by Congress, would be a valid exercise of any enumerated power of Congress or necessary and proper to the carrying out of any such enumerated power. If they conflict, PHEAC regulations shall supersede any other provisions of law, such as the Religious Freedom Restoration Act.

     3. Violation of any regulation promulgated by the PHEAC shall be punishable by a fine of up to $5,000, imprisonment for up to one year, or both, unless the PHEAC specifies a lesser penalty.

Shortly after the enactment of the PRAA, the Secretary names Doctors Abrams, Brown, Chisolm, Dinkins, and Eldridge as PHEA Commissioners to the one-, two-, three-, four-, and five-year terms respectively. Two weeks later, the Secretary removes Commissioner Eldridge when it emerges that Eldridge had previously spread false information on social media (sharing so-called “Plandemic” videos). Dr. Eldridge immediately files a lawsuit seeking reinstatement.

While Eldridge’s lawsuit is pending, the remaining four members of the PHEAC spring into action when there emerges a new public health threat—a prion-based disease  known as Andromeda-23. An always-fatal neurological disease, Andromeda-23 is transmitted when humans or cattle eat or drink matter containing the prion.

The PHEAC issues two sets of rules. One set—not relevant here—is coordinated with the Department of Agriculture and counterpart state agencies. It concerns the raising and slaughter of cattle.

The second and relevant set of rules directly regulates civilians. Evidence strongly indicates that Andromeda-23 can spread widely when people eat or drink prion-infected material or touch prion-infected surfaces and then touch their mouths or the food or beverages they eat or drink. Studies in Australia (where Andromeda-23 was first detected) show that thorough hand washing and the wearing of thick gloves can dramatically reduce the spread of Andromeda-23. After fourteen Americans die of Andromeda-23 and with evidence indicating that the disease could soon spread widely, the PHEAC issues rules that provide in relevant part:

     Rule A. Immediately before eating or drinking, every person in the United States must wash their hands thoroughly with soap and water for at least 30 seconds. Failure to comply with this mandate shall result in a tax of $0 and imprisonment of 0 days.

     Rule B. No person may enter any restaurant, grocery store, or any other commercial establishment where food or drink is sold or consumed without wearing gloves at least one-quarter-inch thick. At restaurants and other commercial establishments where food and drinks are consumed, patrons may remove their gloves to eat or drink, so long as they wash their hands in accordance with Part A before doing so. Each violation of this rule shall be punishable by a fine of $100.

Penny Pimentel is a thirty-year-old freelance writer who lives alone in San Francisco, California. Pimentel is willing to comply with Rule A but she objects to Rule B because she is blind and needs at least one ungloved hand to be able to read the Braille labels on the shelves of a grocery store near her house where she regularly shops. The store owner has offered to provide Pimentel with a personalized shopping assistant to read labels to her, but Pimentel has long prided herself on her independence and would prefer to be excused from the glove mandate. With some difficulty, she can read Braille through thin latex or nitrile gloves but such gloves do not comply with Rule B even though, in the view of some experts, they are “nearly as effective in preventing infection with Andromeda-23 as thicker gloves.”

Pimentel has come to the law firm where you work as an associate to consider her legal options. The supervising partner asks your opinion about the federal constitutional arguments that Pimentel might be able to make.

Write the analysis and conclusion portions of a memo to the partner addressing Pimentel’s best potential constitutional arguments and how they will likely be resolved if Pimentel brings litigation. Take care to organize your answer. What you write about is up to you, but you should probably consider all of the main areas of constitutional law we studied, including justiciability, federalism, separation of powers/checks and balances, equal protection, and liberty rights.