The Future of the Second Amendment

By: Daniel Wolf

Edited By: Rayyana Hassan and Luke Vredenburg

On November 3, 2021, the Supreme Court heard oral arguments in the case of New York State Rifle & Pistol Association (NYSRPA) v. Buren. The case is about New York State’s handgun licensing law, which has been in place since 1913. This law requires citizens to demonstrate “proper cause” in order to receive a concealed-carry license to carry their guns in public, although new York does not define “proper cause” in its law.[1] The specific question the Supreme Court will be analyzing is whether New York’s law restricting the conditions under which one may attain a concealed-carry permit violates the Second Amendment. An analysis of relevant legal issues and the history of gun laws in America illustrates that New York’s law is constitutional. Still, the Court’s conservative majority–which thus far has demonstrated a desire to revisit long-held understandings of controversial issues (see Whole Women’s Health v. Jackson)--may agree with the NYSRPA. Such an outcome could potentially unravel the precarious agreement between lower courts that have allowed many local gun restrictions to remain in place. 

It is helpful to understand relevant precedent before considering the constitutionality of New York’s law. The Second Amendment to the Constitution states that “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2] In the 2008 case of D.C. v. Heller, the Supreme Court held that the Second Amendment protects an individual’s right to keep and bear arms for “traditionally lawful purposes,” namely self-defense within one’s home, for the first time.[3] In the 2010 case of McDonald v. Chicago, the Court selectively incorporated the Second Amendment to the states. Selective incorporation is a constitutional doctrine that allows courts to extend constitutional rights to the states rather than applying constitutional rights only under federal jurisdiction.[4] The Court has not heard a major Second Amendment case since Chicago, but various lower courts have reached a tentative consensus on how to interpret the Second Amendment in the meantime.

At least ten of the thirteen federal appeals courts consistently apply a “two-step analytic framework” when hearing Second Amendment cases.[5] Under this framework, courts subject “severe burdens on Second Amendment rights” to strict scrutiny and “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core’” to the less restrictive intermediate scrutiny test.[6] If a court applies strict scrutiny when reviewing a law that potentially violates a fundamental constitutional right, the law must “further a compelling government interest” and be “narrowly tailored” to achieve that interest.[7] If a court applies intermediate scrutiny when reviewing a similar law, the law must “further an important government interest” and “must do so by means that are substantially related to that interest.”[8]

Following these criteria, both the district court that initially heard Bruen and the U.S. Court of Appeals for the Second Circuit applied intermediate scrutiny and determined that New York’s law is indeed constitutional. In Bruen, the Supreme Court should apply intermediate scrutiny as well because New York’s law falls under the “less onerous” category outlined in the two-step analytic framework.  

To explain why these lower courts applied intermediate scrutiny and why the Supreme Court should as well, we must examine the history of gun laws in the United States. There have been countless legal restrictions on carrying firearms from the common law predating 1788 to the current day. For example, shortly before America’s creation, North Carolina implemented a law that forbade “going armed at night or day ‘in fairs, markets…nor in the presence of the King’s justices..nor in no part elsewhere.”[10] Moreover, in the 19th century, Georgia and Tennessee outright banned the sale of weapons that could be concealed, and New York’s law itself is more than a century old.[11] The extensive history behind restrictions on carrying weapons is what led the Second Circuit to conclude that “state regulation of the use of firearms in public was ‘enshrined with[in] the scope’ of the Second Amendment when it was adopted.”[12] Thus, New York’s law falls under intermediate scrutiny because it regulates actions that states have regulated for centuries throughout America; it does not impose a “severe burden” on Second Amendment rights. Additionally, there is no disagreement that if the Court were to apply intermediate scrutiny New York’s law is “substantially related” to the “important government interest” of preserving public safety.[13] 

America’s federalist system of government provides more ammunition to the argument that New York’s law is constitutional. The Tenth Amendment to the Constitution states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved for the states respectively, or to the people.”[14] America has a federalist system of government in which the powers to create and enforce laws are divided between a national government and state governments because the states are incredibly different from one another. What laws work in a rural state like Montana are likely to be significantly different from the laws that work in an urban center like New York.[15] Therefore, the Tenth Amendment allows the states to write their own laws accordingly. Since the Constitution does not clarify the rules regarding concealed-carry, the states should be allowed to regulate concealed-carry laws themselves.

The abundant evidence pertaining to the legality of restrictions on concealed-carry licenses is what makes the Court’s decision to hear this case so concerning, especially after two lower courts summarily dismissed NYSRPA’s claims. Among the few judges who disagreed with the “two-step analytic framework” are current Justices Brett Kavanaugh and Amy Coney Barrett. In a dissenting opinion written in 2011, when he was still a lower court judge, Kavanaugh asserted that courts should “assess gun bans and regulations based on text, history, and tradition” and disregarded the “balancing test” between strict and intermediate scrutiny.[16] In a 2019 dissent, Justice Barrett indicated her desire to subject all gun restrictions to strict scrutiny, proclaiming that only “dangerous people” should be restricted from owning guns.[17] Justice Barrett did not consider the practical impossibility of determining who is dangerous and who is not. 

If the Court were to apply strict scrutiny and rule in favor of the NYSRPA, which is entirely possible due to its conservative majority and past opinions written by Barret and Kavanaugh, the current system of gun regulations in America could crumble. Such a decision could render the “two-step analytic framework” moot because the Court could hold that all cases involving the Second Amendment should be subject to strict scrutiny. If the analytic framework were nullified, countless gun restrictions that states have implemented under the framework would suddenly be subject to further review, possibly resulting in a cascade of legal challenges that would threaten gun laws everywhere. Thus, the Court should apply intermediate scrutiny in reviewing the law and rule against the NYSRPA to protect the already tenuous gun restrictions throughout America. 

Notes:

1. Vkimber, “New York State Rifle & Pistol Association Inc. v. Bruen,” Legal Information Institute, Legal Information Institute, October 28, 2021, https://www.law.cornell.edu/supct/cert/20-843.

2. “Second Amendment,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022,  https://www.law.cornell.edu/constitution/second_amendment.

3. "Second Amendment,” Legal Information Institute.

4. “Incorporation Doctrine,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/incorporation_doctrine.

5. Ian Millhiser, “The Supreme Court Will Hear a Major Second Amendment Case That Could Gut US Gun Laws,” Vox, Vox, April 26, 2021, https://www.vox.com/2021/4/26/22364154/supreme-court-guns-second-amendment-new-york-state-rifle-corlett-shootings-kavanaugh-barrett.

6. Millhiser, “The Supreme Court Will Hear.”

7. “Strict Scrutiny,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/strict_scrutiny.

8. “Intermediate Scrutiny,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/wex/intermediate_scrutiny.

9. Vikember, “New York State Rifle & Pistol Association.”

10. Millhiser, “The Supreme Court Will Hear.”

11. Millhiser, “The Supreme Court Will Hear.”

12. Vikember, “New York State Rifle & Pistol Association.”

13. Vikember, “New York State Rifle & Pistol Association.”

14. “Tenth Amendment,” Legal Information Institute, Legal Information Institute, Accessed February 10, 2022, https://www.law.cornell.edu/constitution/tenth_amendment.

15. Jeremy Feigenbaum, “In Our Federalist System, States Can Regulate Public Carry,” SCOTUSblog, November 2, 2021, https://www.scotusblog.com/2021/11/in-our-federalist-system-states-can-regulate-public-carry/.

16. Millhiser, “The Supreme Court Will Hear.”

17. Millhiser, “The Supreme Court Will Hear.”
    

BIBLIOGRAPHY:

Feigenbaum, Jeremy. 2021. “In Our Federalist System, States Can Regulate Public Carry.” SCOTUSblog. November 2. https://www.scotusblog.com/2021/11/in-our-federalist-system-states-can-regulate-public-carry/.

“Incorporation Doctrine.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/incorporation_doctrine.

“Intermediate Scrutiny.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/intermediate_scrutiny.

Millhiser, Ian. 2021. “The Supreme Court Will Hear a Major Second Amendment Case That Could Gut US Gun Laws.” Vox. Vox. April 26. https://www.vox.com/2021/4/26/22364154/supreme-court-guns-second-amendment-new-york-state-rifle-corlett-shootings-kavanaugh-barrett.

“Second Amendment.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/constitution/second_amendment.

“Strict Scrutiny.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/wex/strict_scrutiny.

“Tenth Amendment.” 2022. Legal Information Institute. Legal Information Institute. Accessed February 10. https://www.law.cornell.edu/constitution/tenth_amendment.

“U.S. Constitution - Second Amendment - Congress.” 2022. Accessed February 10. https://constitution.congress.gov/constitution/amendment-2/.

Vkimber. 2021. “New York State Rifle & Pistol Association Inc. v. Bruen.” Legal Information Institute. Legal Information Institute. October 28. https://www.law.cornell.edu/supct/cert/20-843.

Vkimber. 2021. “New York State Rifle & Pistol Association Inc. v. Bruen.” Legal Information Institute. Legal Information Institute. October 28. https://www.law.cornell.edu/supct/cert/20-843. 

The Future of American Administrative Law

By: Daniel Wolf

Edited By: Anna Westfall and Kiran Sheth

On February 28, 2022, the Supreme Court will hear oral arguments in the case of West Virginia v. Environmental Protection Agency. The case involves the scope of the powers delegated to the Environmental Protection Agency (EPA) under the Clean Air Act of 1963. Besides having an immense impact on Congress’ ability to pass legislation, the Court’s ruling in West Virginia could fundamentally change the modern landscape of administrative law that has existed since Franklin Delano Roosevelt’s New Deal in the 1930s. 

West Virginia is a peculiar case in that it revolves around an Obama-era regulation that is no longer in effect. In 2015, the Obama administration’s EPA under the Obama administration issued the Clean Power Plan, which created guidelines for reducing greenhouse gas emissions from power plants.[1] The foundation for the Clean Power Plan was the Clean Air Act, a 1963 law that instructed the EPA to determine “the best system of emission reduction” for various pollutants.[2] Soon after Obama announced the impending Clean Power Plan, the EPA determined that the “best system” for reducing carbon dioxide emissions would include radically changing the methods by which power plants generated power.[3] Since some coal plants would have had to shut down under the EPA’s proposed guidelines, more than 20 Republican-led states and coal companies sued the EPA. The plaintiffs argued that the Clean Power Plan could not go into effect until courts had heard all legal challenges concerning the law.[4] In February 2016, the Supreme Court agreed, issuing a stay on the implementation of the law. Notably, this was the first time the Court issued a stay on federal regulations before a lower federal appeals court heard the case.[5] 

Donald Trump’s administration quickly scrapped the Clean Power Plan before it could ever go into effect, replacing it with the Affordable Clean Energy (ACE) rule. The Trump Administration justified ACE by claiming that the EPA should never have had the authority to issue the Clean Power Plan.[6] Climate change activists were displeased with ACE, so Democrat-led states and two other groups of petitioners challenged the law. On January 19, 2020, the U.S. Court of Appeals for the D.C. Circuit overturned ACE, stating that the law was based “on a mistaken reading of the Clean Air Act.”[7] As far as the Court of Appeals was concerned, the Clean Air Act did grant the EPA broad discretionary authority in determining the “best system” for reducing emissions.[8]

The Biden Administration opted not to renew ACE and announced their intention to institute their own climate change regulations. Before the administration could write new rules, West Virginia and a host of other states and coal companies asked the Supreme Court to hear an appeal of the D.C. Circuit’s ruling.[9] At this point, neither ACE nor the Clean Power Plan was in effect, so most Supreme Court observers expected the Court to reject the petitions for appeal.[10] However, the Court unexpectedly granted the appeal in October 2020.

The central question in West Virginia is whether or not the EPA has broad authority under Section 111(d) of the Clean Air Act to implement regulations they deem to be part of the “best system” for reducing emissions.[11] Nevertheless, briefs filed by the petitioners thus far indicate their intention to seek a ruling farther-reaching than one that would cover only the scope of the EPA’s powers under the Clean Air Act. Many briefs invoke the “major questions” doctrine, an administrative law interpretation popular among conservative legal scholars.[12] The major-questions doctrine argues that an executive agency such as the EPA may issue a regulation that would have “significant political or economic ramifications” only if Congress explicitly allows them to do so.[13] Some of the briefs make even larger claims, utilizing the so-called “non-delegation” doctrine to argue that Congress should never be able to delegate its rule-making powers to other agencies. 

Both the major-questions doctrine and the non-delegation doctrine run afoul of the Chevron doctrine, which has been the prevailing approach to administrative law since the 1984 case Chevron U.S.A., Inc, v. Natural Resources Defense Council. The Chevron doctrine asserts that courts should “defer to an executive agency’s interpretation” of a given statute so long as that interpretation is “reasonable.”[14] This doctrine has come to form the foundation of contemporary administrative law. Almost all government regulations today rely on the doctrine, from rules regarding worker safety to air quality.[15]

The Supreme Court’s decision to hear West Virginia despite the “absence of a rule to review” suggests that some of the Court’s conservative justices are interested in issuing a wide-ranging ruling concerning the state of American administrative law.[16] Moreover, Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas have recently indicated their desire to revive the major-questions doctrine, which has been effectively out of use in jurisprudence since the New Deal.[17] The effects would be unimaginable if the Court decides to issue a ruling that replaces the current Chevron doctrine with the major-questions or non-delegation doctrine. In 2019, Justice Elena Kagan noted that replacing the Chevron doctrine could render most contemporary governance unconstitutional because Congress is “dependent…on the need to give discretion to executive officials to implement its program.”[18]

People outside the legal community should begin to pay closer attention to West Virginia. If the Court were to replace the Chevron doctrine with the major-questions or non-delegation doctrine, there would be endless litigation over the countless government regulations that currently rely on the Chevron doctrine. Additionally, there are practical concerns regarding the government’s ability to pass new legislation in the future. It is already difficult enough for our legislature to pass laws today. If Congress had to detail all of their intentions when writing new regulations explicitly, it is exceedingly likely that both parties would agree even less than they already do. 

NOTES:

1. “West Virginia V. Environmental Protection Agency.” 2022. Ballotpedia. Accessed January 30. https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency. 

2. Elizabeth Kolbert. 2022. “The Supreme Court Case That Could Upend Efforts to Protect the Environment.” The New Yorker. January 10. https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment.

3. “The Supreme Court Case.” The New Yorker.

4. Courtney Scobie. 2022. “Supreme Court Stays EPA's Clean Power Plan.” Americanbar.org. Accessed January 30. https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2016/021716-energy-supreme-court-stays-epas-clean-power-plan/.

5. “Supreme Court stays EPA.” Americanbar.org

6. “The Supreme Court Case.” The New Yorker.

7. “DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan.” 2022. JD Supra. Accessed January 30. https://www.jdsupra.com/legalnews/dc-circuit-vacates-affordable-clean-5784638/.

8. “The Supreme Court Case.” The New Yorker.

9. “The Supreme Court Case.” The New Yorker.

10. “The Supreme Court Case.” The New Yorker.

11. “West Virginia V. Environmental Protection Agency.” Ballotpedia.

12. Karen C. Sokol. 2022. “The Supreme Court's Plan to Block Climate Action We Haven't Even Taken Yet.” Slate Magazine. Slate. January 25. https://slate.com/news-and-politics/2022/01/supreme-court-wv-epa-climate-doom.html. 

13. “The Supreme Court’s Plan.” Slate.

14. “The Supreme Court Case.” The New Yorker.

15. “The Supreme Court Case.” The New Yorker.

16. “The Supreme Court’s Plan.” Slate.

17. “The Supreme Court’s Plan.” Slate.

18. Gundy v. United States, 588 U.S. 17 (2019)

BIBLIOGRAPHY:

“DC Circuit Vacates Affordable Clean Energy Rule, Revives Clean Power Plan.” 2022. JD Supra. Accessed January 30. https://www.jdsupra.com/legalnews/dc-circuit-vacates-affordable-clean-5784638/.

Gundy v. United States, 588 U.S. (2019)

Kolbert, Elizabeth. 2022. “The Supreme Court Case That Could Upend Efforts to Protect the Environment.” The New Yorker. January 10. https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment.

Scobie, Courtney. 2022. “Supreme Court Stays EPA's Clean Power Plan.” Americanbar.org. Accessed January 30. https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2016/021716-energy-supreme-court-stays-epas-clean-power-plan/.

Sokol, Karen C. 2022. “The Supreme Court's Plan to Block Climate Action We Haven't Even Taken Yet.” Slate Magazine. Slate. January 25. https://slate.com/news-and-politics/2022/01/supreme-court-wv-epa-climate-doom.html.

“West Virginia V. Environmental Protection Agency.” 2022. Ballotpedia. Accessed January 30. https://ballotpedia.org/West_Virginia_v._Environmental_Protection_Agency. 

World Anti-Doping Agency Code

By: Elizabeth Bulat

Edited By: Rayyana Hassan and Kirsten Huh

Before the 2021 Olympics, 20 athletes failed to meet anti-doping guidelines and had to forfeit their eligibility to compete in the summer games. [1] The issue of doping in sport has been managed by the Athletes Integrity Unit to ensure that athletes don’t have an unfair advantage while competing. Their guidelines follow the World Anti-Doping Code (WADA) that adheres to specific procedures, testing, and education resources to maintain a standard for athletes around the world. [2]

WADA outlines criteria for all substances to meet on the Prohibited List to ensure clarity. According to the WADA Code, a substance is added to the Prohibited List if it fits within at least two of the following: (1) poses a health risk to an athlete, (2) has the potential to enhance an athlete’s performance, or (3) violates the spirit of the game.

The WADA Prohibited List includes cannabinoid forms CBT, CBG, CBN, CBND, CBE, and CBL. In 2018, cannabidiol, or CDB, was removed from the Prohibited List since it doesn’t have the properties of intoxication or euphoria that arguably, “violate the spirit of the game.” The 2021 Tokyo Olympics were the first games where athletes were allowed to use CBD to enhance their recovery. [3]

Marijuana is currently illegal under federal law, however, 19 states and the District of Columbia have legalized the use of recreational Marijuana. [4] Despite the legal pluralism that protects individuals in a state, the additional level of surveillance by the WADA and Athletes Integrity Unite again prohibits its use.

Critics claim that the research behind the first and second criteria for the WADA Prohibited List is contradictory. A published paper by WADA argues that marijuana can pose a health risk to athletes since the drug slows their reaction times and cognitive function. [5] Therefore, according to this claim, the second point wouldn't necessarily enhance the athlete’s performance since their physical response to the drug isn’t favorable for sport. 

Furthermore, to determine whether or not marijuana is indeed performance-enhancing, many studies have taken place. The Clinical Journal of Sports Medicine conducted a study and review that concluded, “there is no evidence for cannabis use as a performance-enhancing drug.” [6] Meanwhile, the study’s findings also suggest that cannabis products, CBD included, could potentially enhance an athlete's recovery in terms of pain reduction, anxiety management, and sleep improvement. 

However, since other prescription and over-the-counter drugs can help an athlete achieve these same “performance-enhancing” qualities, it is debated reasoning to prove that cannabis is a justly violated substance. Jordan Tishler, M.D., a cannabis specialist explained in a Runner’s World interview that cannabis will only impact an athlete’s performance when they are under the influence. [7] Furthermore, the side effects of weed would be harmful to athletic performance if this were to be the case. Therefore, Tishler and other experts agree that cannabis can provide athletes with enhanced recovery, not enhanced performance. 

The third criterion for the WADA Prohibited List is perhaps the most difficult to establish. Multiple media outlets, including NPR, have reached out to WADA in hopes of obtaining a more clear and measurable definition for this point. [8] None have received a concrete response from WADA, leaving the public to assume that the spirit of the game boils down to the fact that athletes are role models for the future of the sport. Athletes, spectators, and research have suggested the hypocrisy of alcohol being permitted under this clause if drugs are excluded. 

The Drug Policy Alliance is working to remove all forms of cannabis from the WADA Prohibited List in addition to legalizing it across the United States. The Drug Policy Alliance released in a statement that, "drug testing does nothing to show current impairment. The USADA must undo this archaic, inhumane, and unscientific policy.” [9]

A particular athlete whose WADA suspension caught the media’s attention was sprinter Sha’Carri Richardson. Soon after she qualified for the Olympics in the 100-meter dash at the US Team Trials, Richardson failed a routine drug test that revealed she had levels of THC in her system. [10] Despite her dominance at the Trials, she was suspended for a month which overlapped with her Olympic race date. 

Contrary to the public’s typical response to a doping athlete, much of the fan and media coverage of Richardson was compassionate. In addition to sympathy being expressed for Richardson, the public began to question the US Anti-Doping Association’s ruling regarding marijuana. The major argument concerned CBD being allowed, and sometimes even encouraged, in the athletic world while the similar in theory but different biological compound, THC, is a suspendable substance.

As Richardson sat out of the Olympic games for using marijuana, US women’s soccer team forward, Megan Rapinoe, not only openly uses CBD but has her line of CBD products, Mendi. Rapinoe was featured in Forbes and celebrated by the athletic community for her and Mendi’s efforts to promote recovery and mental health. Ironically, this feature was published the same month Richardson was suspended for her use of THC. 

Supporters of Richardson and some skeptics interpreted this as not only hypocritical but also a moral issue. Twitter was flooded with opinions justifying that Rapino has played by the WADA rules while Richardson was well aware that her actions were punishable by the Athletic Integrity Unit. Other Tweets, including, “Rapinoe gets CBD brand deals while Richardson gets suspended. Sounds about WHITE,” suggest that this disproportionate response to a similar compound reflects racial injustice. Another Twitter user compared the THC and CBD discrepancies to crack cocaine being more criminalized than powder cocaine, leading to disproportionate incarceration rates by income. This comparison is rooted in the accessibility and popularity of the drug’s variations within different demographics.

WADA, the Athletic Integrity Unit, and the Olympic Committee have yet to comment or make policy changes since these points have been brought up. However, there is currently a bill in Congress to legalize marijuana in the United States. Since CBD is currently approved by the Food and Drug Administration and permitted under WADA, there are implications that it is difficult to prohibit an FDA-approved substance. Alcohol is another example of this. 

Marijuana and sport have a dynamic relationship in both policy and public opinion. Laws for Olympic competition are contingent upon WADA judgments that will likely waiver as further legislation and studies advance. Although CBD is an allowed substance, the products can contain trace amounts of other cannabis compounds that are flagged in drug tests. Therefore, until all marijuana forms are approved by WADA, no particular cannabinoid is truly safe to use in sport considering the risk involved. 

NOTES:

1. Tori Powell. “20 Olympic Athletes Ineligible to Compete after Failing to Meet Anti-Doping Guidelines.” CBS News, CBS Interactive, 29 July 2021, www.cbsnews.com/news/20-olympic-athletes-ineligible-to-compete-failing-anti-doping/ 

2. Fifth World Conference on Doping in Sport. “2021 CODE AND STANDARDS DOCUMENTS.” World Anti-Doping Agency, WADA's Mission Is to Lead a Collaborative Worldwide Movement for Doping-Free Sport., 1 Jan. 2021, www.wada-ama.org/en/resources/search?f%5B0%5D=field_resource_collections%3A228 

3. Griffin Lynch. “Summer Olympics 2021: Athletes Can Use CBD.” BATCH, BATCH, 10 Oct. 2021, https://hellobatch.com/blogs/cbd-blog/summer-olympics-2021-athletes-can-use-cbd 

4. Claire Hansen, Horus Alas, and Elliot Davis Jr. “Where Is Marijuana Legal? A Guide to Marijuana ...” US News, www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization 

5. Kelly Malcom. “An Olympic Controversy: Do Marijuana and Athletics Mix?” Health & Wellness Topics, Health Tips & Disease Prevention, 22 July 2021, https://healthblog.uofmhealth.org/bones-muscles-joints/an-olympic-controversy-do-marijuana-and-athletics-mix 

6. Alan Edwards. “Cannabis and the Health and Performance of the Elite Athlete : Clinical Journal of Sport Medicine.” LWW, https://journals.lww.com/cjsportsmed/Fulltext/2018/09000/Cannabis_and_the_Health_and_Performance_of_the.9.aspx 

7. Ashley Mateo. “Peak Performance Is Not Likely to Happen When You're Using Cannabis, Experts Say.” Runner's World, Runner's World, 2 Nov. 2021, www.runnersworld.com/health-injuries/a37350981/is-marijuana-performance-enhancing/ 

8. Vanessa Romo. “As Megan Rapinoe Promotes CBD Use, Sha'carri Richardson Sits out the Olympics.” NPR, NPR, 28 July 2021, www.npr.org/sections/tokyo-olympics-live-updates/2021/07/28/1021545034/megan-rapinoe-cbd-shacarri-richardson-tokyo-olympics  

9. “Marijuana Legalization and Regulation.” Drug Policy Alliance, http://drugpolicy.org/issues/marijuana-legalization-and-regulation  

10. Elisha Fieldstadt. “U.S. Sprinter Sha'carri Richardson Suspended for One Month after Failed Drug Test.” NBCNews.com, NBCUniversal News Group, 14 July 2021, www.nbcnews.com/news/sports/sha-carri-richardson-could-miss-olympics-after-failed-drug-test-n1272960 

BIBLIOGRAPHY:

Costa, Jean-Paul. Legal Opinion 2019 (Expert Opinion) on the World Anti-Doping Code. WADA, 28 Oct. 2019, www.wada-ama.org/sites/default/files/resources/files/avis_2019_code_mondial_en.pdf  

Edwards, Alan. “Cannabis and the Health and Performance of the Elite Athlete : Clinical Journal of Sport Medicine.” LWW, https://journals.lww.com/cjsportsmed/Fulltext/2018/09000/Cannabis_and_the_Health_and_Performance_of_the.9.aspx 

Fifth World Conference on Doping in Sport. “2021 CODE AND STANDARDS DOCUMENTS.” World Anti-Doping Agency, WADA's Mission Is to Lead a Collaborative Worldwide Movement for Doping-Free Sport., 1 Jan. 2021, www.wada-ama.org/en/resources/search?f%5B0%5D=field_resource_collections%3A228 

Hansen, Claire, et al. “Where Is Marijuana Legal? A Guide to Marijuana ...” US News, www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization 

Lynch, Griffin. “Summer Olympics 2021: Athletes Can Use CBD.” BATCH, BATCH, 10 Oct. 2021, https://hellobatch.com/blogs/cbd-blog/summer-olympics-2021-athletes-can-use-cbd 

Malcom, Kelly. “An Olympic Controversy: Do Marijuana and Athletics Mix?” Health & Wellness Topics, Health Tips & Disease Prevention, 22 July 2021, https://healthblog.uofmhealth.org/bones-muscles-joints/an-olympic-controversy-do-marijuana-and-athletics-mix 

“Marijuana Legalization and Regulation.” Drug Policy Alliance, http://drugpolicy.org/issues/marijuana-legalization-and-regulation  

Mateo, Ashley. “Peak Performance Is Not Likely to Happen When You're Using Cannabis, Experts Say.” Runner's World, Runner's World, 2 Nov. 2021, www.runnersworld.com/health-injuries/a37350981/is-marijuana-performance-enhancing/ 

Perishable. “Marijuana FAQ.” U.S. Anti-Doping Agency (USADA), 29 Sept. 2021, www.usada.org/athletes/substances/marijuana-faq/ 

Romo, Vanessa. “As Megan Rapinoe Promotes CBD Use, Sha'carri Richardson Sits out the Olympics.” NPR, NPR, 28 July 2021, www.npr.org/sections/tokyo-olympics-live-updates/2021/07/28/1021545034/megan-rapinoe-cbd-shacarri-richardson-tokyo-olympics  

Tori, Tori. “20 Olympic Athletes Ineligible to Compete after Failing to Meet Anti-Doping Guidelines.” CBS News, CBS Interactive, 29 July 2021, www.cbsnews.com/news/20-olympic-athletes-ineligible-to-compete-failing-anti-doping/ 

“U.S. Sprinter Sha'carri Richardson Suspended for One Month after Failed Drug Test.” NBCNews.com, NBCUniversal News Group, 14 July 2021, www.nbcnews.com/news/sports/sha-carri-richardson-could-miss-olympics-after-failed-drug-test-n1272960

Vaccine Mandates: The Supreme Court’s Decisions on the Future of Public Health

By: Mia Xia

Edited By: Katherine Ferreira O'Connor and Luke Vredenburg

        As COVID-19 has taken the United States by storm, resistance against mask and vaccine mandates has quickly followed. With anti-vaccine marches across Washington D.C, thousands of Americans have made their stance on the vaccine clear [1]. Federal judges have also rejected immunization requirements for federal workers, and the legality of vaccination mandates is making headway into the Supreme Court [2]. The Court’s most recent decisions blocked the Biden Administration’s attempt to institute vaccine mandates for businesses with more than 100 employees but provided an exception allowing mandates for healthcare workers at hospitals receiving federal money, prompting greater questions regarding where the lines for vaccination mandates are drawn [3]. Though federal vaccination mandates have been employed in past efforts to combat novel diseases, the Biden Administration has faced resistance from the courts in its attempts to implement similar policies. 

        In America, most vaccination mandates come into effect during childhood. For diseases like Hepatitis A and B, Tuberculosis, Polio, and Meningococcal ACWY, many states have implemented vaccine mandates as a prerequisite to enrolling in K-12 schools, both public and private [4]. Oftentimes, if families have not stated religious or medical reasons for opting out of immunization, children will not be allowed to enroll in daycares or attend school [5]. Some states have specific vaccine requirements – in New York and Rhode Island, all healthcare workers must be vaccinated against measles and rubella, with Rhode Island workers also being mandated to get the annual flu shot [6]. In many American universities, both public and private, vaccine mandates for diseases like Human Papillomavirus (HPV) are common, and COVID-19 vaccine requirements have become prevalent as well [7]. Thus, if immunization requirements are not abnormal in American society, what are the legal grounds for blocking legislation supporting COVID-19 vaccination mandates?

        In the recent decision concerning National Federation of Independent Business v. OSHA, the Supreme Court voted 6-3 against vaccination mandates for large, private businesses, with the majority reasoning that Congress does not have the power to regulate public health [8]. The dissenting opinion from Justices Breyer, Sotomayor, and Kagan wrote that the majority overruled legislative and executive powers without a proper legal basis [9]. For the majority to undermine the Occupational Safety and Health Administration’s (OSHA) jurisdiction to protect public safety, the minority argued, a greater burden would be placed on healthcare workers and future economic opportunities [10]. It is worth noting that within the clauses of OSHA’s Enabling Act, Congress grants the agency the ability to set an emergency standard if it believes workplace safety is at grave risk of toxic or physical harm [11]. In this regard, even with the OSHA reporting that blocking a vaccination mandate would mean “6,500 deaths and 250,000 preventable COVID cases,” the majority came to the conclusion that the OSHA had overexerted its powers to enact rules to protect workers [12]. However, considering the measurable steps OSHA took to define the public health risk and propose a vaccination mandate in response, the agency appears to make constitutional decisions and still remain within the bounds of its granted powers. The majority decision appears to have prioritized personal liberties and individual agency, where workers ought to have a say over their vaccination status. Meanwhile, the dissenting opinion’s interpretation regards vaccination mandates as a means of protecting public health, following the precedent of the use of previously enforced vaccination mandates for previous public health risks as the basis of their dissent. 

        In a similar case ruled alongside National Federation of Independent Business v. OSHA, the 5-4 decision made in favor of vaccine mandates in Missouri v. Biden contradicts the majority decision of OSHA. With Justices Roberts and Kavanaugh joining the liberal Justices in a majority decision, the Supreme court ruled that healthcare providers who are employed at facilities that accept Medicare and Medicaid are required to abide by a vaccination mandate for COVID-19 [13]. In the Congressional statute defining the Secretary of Health and Human Services abilities, the Secretary is allowed to issue regulations that ensure proper administration of federal healthcare programs like Medicare and Medicaid and ultimately, protect the health and safety of constituents [14]. In this decision, the majority argued that mandates enforced by current Secretary Alex Azar were made within the bounds of authority Congress had granted him [15]. The dissenting opinion instead regarded these statutes as “scattered provisions” that did not justify a vaccination mandate, employing a similar argument from the OSHA case that healthcare workers ought not to be subjected to procedures against their will [16]. 

        Vaccines and masks are the answer to the public health crisis that continues to ravage this nation [17]. However, in the Court’s divisive rulings which favor the interests of private industries, the lines drawn between public and private institutions have been made extremely clear. On one hand, the Court has allowed for private entities to function under the radar of public health expectations, opting for the prioritization of individual liberties and choice. Meanwhile, for federally supported health care facilities already burdened with the increasing number of COVID cases and extreme fatigue, the Court has recognized the cruciality of vaccination mandates to protect both workers and patients. Vaccination mandates are essential for individuals to not only preserve their own health and wellbeing but also to protect those around them who may be in a more vulnerable position. There exists a historical precedent for federal vaccination mandates, yet questions of constitutionality still linger. Vaccine and mask mandates are the best solutions to protect the collective health of a community, and the race against time to prevent further deaths is limited. Taking the necessary steps to stop the spread is key to ending the pandemic once and for all. 

NOTES:

1. Katie Mettler et al, Anti-Vaccine Activists March in D.C. - a City That Mandates Coronavirus Vaccination - to Protest Mandates, (The Washington Post, 24 Jan. 2022), https://www.washingtonpost.com/dc-md-va/2022/01/23/dc-anti-vaccine-rally-mandates-protest/. 

2. Peter Sullivan, Federal Judge in Texas Blocks Biden's Vaccine Mandate for Federal Workers, (The Hill, 21 Jan. 2022), https://thehill.com/policy/healthcare/590797-federal-judge-in-texas-blocks-bidens-vaccine-mandate-for-federal-workers. 

3. Adam Liptak, Supreme Court Blocks Biden's Virus Mandate for Large Employers, (The New York Times, 13 Jan. 2022), https://www.nytimes.com/2022/01/13/us/politics/supreme-court-biden-vaccine-mandate.html. 

4. Drew DeSilver, States Have Mandated Vaccinations since Long before COVID-19, (Pew Research Center, 8 Oct. 2021), https://www.pewresearch.org/fact-tank/2021/10/08/states-have-mandated-vaccinations-since-long-before-covid-19/. 

5. Drew DeSilver, States Have Mandated Vaccinations since Long before COVID-19.

6. Ibid.

7. Ibid.

8. Kevin Breuninger and Spencer Kimball, Supreme Court Blocks Biden Covid Vaccine Mandate for Businesses, Allows Health-Care Worker Rule (CNBC, 14 Jan. 2022), https://www.cnbc.com/2022/01/13/supreme-court-ruling-biden-covid-vaccine-mandates.html. 

9. Breuninger and Kimball, Supreme Court Blocks Biden Covid Vaccine Mandate for Businesses, Allows Health-Care Worker Rule. 

10. Richard Lempert, The Vaccine Mandate Cases, Polarization, and Jurisprudential Norms, (Brookings Institute, 15 Jan. 2022), https://www.brookings.edu/blog/fixgov/2022/01/15/the-vaccine-mandate-cases-polarization-and-jurisprudential-norms/. 

11. Lempert, The Vaccine Mandate Cases, Polarization, and Jurisprudential Norms.

12. Ibid. 

13. Liptak, Supreme Court Blocks Biden's Virus Mandate for Large Employers. 

14. Ibid. 

15. Ibid. 

16. Ibid. 

17. Lindsay Kalter, Why Vaccine and Mask Mandates Hold up in Court, (WebMD, 12 Oct. 2021), www.webmd.com/vaccines/covid-19-vaccine/news/20211012/why-mandates-hold-up-in-court. 

Bibliography:

Breuninger, Kevin, and Spencer Kimball. “Supreme Court Blocks Biden Covid Vaccine Mandate for Businesses, Allows Health-Care Worker Rule.” CNBC, 14 Jan. 2022, https://www.cnbc.com/2022/01/13/supreme-court-ruling-biden-covid-vaccine-mandates.html. 

DeSilver, Drew. “States Have Mandated Vaccinations since Long before COVID-19.” Pew Research Center, 8 Oct. 2021, https://www.pewresearch.org/fact-tank/2021/10/08/states-have-mandated-vaccinations-since-long-before-covid-19/. 

Kalter, Lindsay. “Why Vaccine and Mask Mandates Hold up in Court.” WebMD, 12 Oct. 2021, www.webmd.com/vaccines/covid-19-vaccine/news/20211012/why-mandates-hold-up-in-court. 

Lempert, Richard. “The Vaccine Mandate Cases, Polarization, and Jurisprudential Norms.” Brookings Institute, 15 Jan. 2022, https://www.brookings.edu/blog/fixgov/2022/01/15/the-vaccine-mandate-cases-polarization-and-jurisprudential-norms/. 

Liptak, Adam. “Supreme Court Blocks Biden's Virus Mandate for Large Employers.” The New York Times, 13 Jan. 2022, https://www.nytimes.com/2022/01/13/us/politics/supreme-court-biden-vaccine-mandate.html. 

Mettler, Katie, et al. “Anti-Vaccine Activists March in D.C. - a City That Mandates Coronavirus Vaccination - to Protest Mandates.” The Washington Post, 24 Jan. 2022, https://www.washingtonpost.com/dc-md-va/2022/01/23/dc-anti-vaccine-rally-mandates-protest/. 

Sullivan, Peter. “Federal Judge in Texas Blocks Biden's Vaccine Mandate for Federal Workers.” The Hill, 21 Jan. 2022, https://thehill.com/policy/healthcare/590797-federal-judge-in-texas-blocks-bidens-vaccine-mandate-for-federal-workers.