Sunday, June 28, 2020

Mask Mandates and Broccoli Mandates

By Josh Blackman - June 28, 2020 at 11:19PM

One of the most enduring images of the constitutional challenge to Obamacare was broccoli. Indeed, I briefly considered (and thankfully rejected) the idea of putting broccoli on the front cover of Unprecedented. Could the government force you to buy broccoli, the argument went? Of course, NFIB v. Sebelius was not about broccoli mandates. The litigation asserted that Congress lacked the enumerated powers to require people to purchase insurance. But the image of making people purchase broccoli resonated.

And, to be frank, most people simply assumed the analogy was making people eat broccoli. The public at large didn't really understand, or care, about the subtle distinction between purchasing it and buying it. Intrinsically, people understood there was a difference between forced not to do something, and being forced to do something. The former was common enough. The latter was thankfully rare. And this concept permeated all aspects of society.

I see shades of the broccoli-mandate in debates over mask-mandates. There are some similarities. Forcing people to eat broccoli will make them healthier, and in turn, improve the public's health, thereby helping the health care system. Forcing people to wear masks will make them healthier, and in turn, improve the public's health, thereby helping the health care system. The parallels are not perfect, but they are close enough.

This sort of constitutional challenge would sound in Due Process. (David Super speculates about this question at Balkinzation). Even the most ardent critic of substantive due process would agree that forcing people to put something on, or in their body, triggers heightened scrutiny.

Would a constitutional challenge to a mask-mandate challenge be viable? Under Jacobson v. Massachusetts the answer is no. Is Jacobson consistent with a century of Due Process Clause jurisprudence? No. Several judges have already begun to cast doubt on that precedent.

This issue is largely academic for now because the mask-mandates are not actually being enforced. I am not aware of the states fining or arresting people who refuse to wear masks. The rubber will meet the road when states begin to mandate vaccinations to develop herd immunity to COVID-19. Courts will be happy to rely on Jacobson.

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