The commerce clause was a GOP bogeyman. Now it’s being used to authorize pandemic liability protections.
A liability shield would indeed give businesses added security in reopening — albeit at the expense of the rights of workers. It would also make a mockery of the Republican Party’s opposition to expansive congressional power, and trespass far into the domain of traditional state authority.
Already, the pandemic has prompted some states to adopt laws granting businesses certain immunities from covid-19 liability claims. But the legislation crafted by McConnell and Sen. John Cornyn (R-Tex.) would create federal liability protections, define a federal liability standard, grant federal courts jurisdiction over injury claims and supplant the choices of many states not to grant immunity. All for a term of four years, or longer, if the public health crisis continues.
What is the source of constitutional power invoked for such a sweeping pandemic-inspired expansion of federal authority? Nothing other than what has long been the bogeyman of Republican lawmakers: the commerce clause, which empowers Congress “to regulate commerce … among the several states.”
The GOP bill declares the purpose, “To lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19.” Invoking the threat of a “tidal wave of lawsuits,” the bill emphasizes: “One of the chief impediments to the continued flow of interstate commerce as this public health crisis has unfolded is the risk of litigation.”
Consider the implications. The “insubstantial lawsuits” that Republicans seek to block are workers’ claims to safety protections, damage claims by consumers and even wrongful death actions filed by the families of employees who die after exposure to the virus at work. The bill would gut individuals’ rights to hold companies and other institutions accountable for exposing them to covid-19. Corporate immunity might preclude lawsuits seeking injunctions, such as one mounted against Smithfield Foods by consumers and workers challenging conditions at a meatpacking plant as a public nuisance or another against McDonald’s franchises by workers claiming inadequate coronavirus safeguards at Chicago restaurants.
Under the proposed legislation, none of those claims could proceed without meeting an extraordinarily high burden of proof: both non-compliance with government safety standards and gross negligence or willful misconduct — mere carelessness would be insufficient.
It is ironic, if not astonishing, for Republicans to take this position. For nearly a century, the commerce power of Congress has formed the basis for federal protection of individual rights, from New Deal-era entitlements to form unions and be paid a minimum wage to civil rights-era prohibitions against segregation and workplace discrimination.
All along, Republicans have opposed this use — misuse, in their view — of congressional power under the commerce clause, up to the dispute over the constitutionality of the Affordable Care Act. In that case, the Supreme Court ultimately found that Congress had exceeded its power to regulate commerce by requiring individuals to obtain health-care coverage, with Justice Antonin Scalia warning that the commerce clause threatened to become “a font of unlimited power,” like a “hideous monster.”
The great expansion of federal power under the commerce clause began during an economic crisis as dire as today’s — the Great Depression. At the heart of the New Deal constitutional revolution lay a new recognition, as the Supreme Court explained, that the free flow of commerce depended on the congressional protection of workplace rights as “an essential condition of industrial peace.” Those rights, the court later held, include protesting workplace conditions “too bad to have to be tolerated in a humane and civilized society.”
Today, the Republican Party and the Trump administration would deploy the commerce clause not to protect workers but to limit their rights. Meanwhile, business groups led by the U.S. Chamber of Commerce and the National Association of Manufacturers, which have long opposed commerce-based workplace rights as an infringement on both state authority and employer prerogatives, are championing the liability shield.
Whatever happened to conservatives’ belief in states’ rights? In fact, some state governments are addressing the coronavirus health crisis by expanding workers’ compensation. Among them are McConnell’s own state of Kentucky and other red and purple states, including Alaska and Missouri, which have adopted measures presuming that essential workers who contract covid-19 did so at work and are therefore entitled to workers’ compensation. Those measures would reduce litigation while encouraging employers to make workplaces safe and employees to return to work by ensuring compensation if they fall ill, instead of denying their right to sue.
Congress should refuse immunity to businesses as part of the next round of coronavirus legislation. That would heed the lessons of history, recognizing that amplifying workers’ rights helped end the Great Depression and sustain the longest period of equitably shared economic growth in our nation’s history. Otherwise, an outcome of the public health emergency may be a covid-19 constitutional revolution — one reversing an American tradition nearly a century old of using the commerce clause to protect individual rights.
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