This Essay examines the constitutionality of the federal government’s emergency measures during the second year of the Covid-19 pandemic. By Spring 2021, the Supreme Court deployed more extensive review of state and federal policies. But most importantly, the Biden Administration adopted measures designed to inhibit the virus’ spread based on weak to non-existent legal authority. Executive power that might justify emergency actions during national security or foreign policy crises does not provide similar support for expansive claims of authority over domestic affairs. With national security and foreign affairs, the Constitution vests exclusive policymaking power in the federal government, and, during emergencies, in the Presidency. With domestic affairs, such as public health, the Constitution recognizes the primary authority of the states, with Washington, D.C. playing a specialized, supporting role. The fate of the Biden Administration’s ban on evictions and nationwide vaccine mandate illustrates this fundamental difference in emergency powers.
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