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It seems to me that the federal law mandating masks on airplanes, as well as PCR tests before entering USA is illegal.
Under the 14th amendment, states are prohibited from denying a US citizen into its state. The law is prefaced by “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” and said statement should apply all the more so for the US to restrict entry into the country.
That said, it’s certainly illegal to prohibit entry from state to state, and should be illegal to prohibit entry into the country.
Forbidding someone without a PCR test into the country would clearly be a violation.
Mask requirements can either be prohibiting the citizen from entering unless s/he wore a mask on the plane, in which case it’s in violation of the 14th amendment, or it could be a requirement on the airlines to forbid passengers without a mask. The latter is a violation of the freedom of commerce.
So of course all Dems will shout that there’s a clear and present danger. And of course any amateur law student could deflate that argument in one breath.
The best and clearest rebuttal is that the border is open for all the illegals coming in without masks and tests; apparently the danger is neither clear nor present. (Furthermore, it’s an act of discrimination for being a citizen, being as how only citizens are targeted.)So everyone’s busy with the work vaccine mandates–which is also unconstitutional, of course, and more important, too–but why is no one working on these laws?
Am I wrong about this? Is maybe airline commerce viewed differently?
Who says that you need to fly? Just walk state to state or into the country and your rights are protected.
If an airline wants to say all passengers must wear green hats can they not do that?
OP/SDD: How is mandating masks to board a plane any different than mandating wearing pants? Where do you see a legal distinction, based on your constitutional arguments, between requiring persons to cover their mouth and nose compared to the longstanding requirement that persons cover their legs and stomach in order to board a flight?
Additionally, the airlines aren’t required to recognize people’s constitutional rights. Only the government is so required.
Feds have full authority to set rules governing interstate commerce which spans all forms of jurisdictional interstate transportation by air, rail, bus, trucking etc. The 1978 Airline Deregulation Act “deregulated” the airline industry in terms of removing federal control over such areas as fares, routes, and market entry of new airlines but the regulatory powers of the FAA to set rules governing air transportation health and safety remain intact.
It’s all insane
Are you wrong? YES
Interstate Commerce is governed by Federal not state law and this includes transportation.
Furthermore, a law cannot be illegal, actions violating a law are illegal. A law may be found to be UNCONSTITUTIONAL and struck down by the courts.Note that the issues being discussed are regulations not laws.
Mahybe you guys should start a “Jews for Covid” fund. What a shanda.
Legality aside, why the big fuss? If someone tells you to put a mask on, put up a mask, get your nose swabbed, and stop crying over it. It’s really not such a big deal that we have to involve lawyers.
rocky, ujm, and maybe others are not understanding me. An airline may impose any rule it wants. The question specifically was whether the federal law forcing the passengers to wear masks, as well as the airline to enforce said law, is unconstitutional.
Further, the question wasn’t whether it’s constitutional to set laws upon an airplane, such as requiring wearing pants. The question was whether prohibiting the travel, including entry into the country or a different state, was unconstitutional.
So the answer seems to be that airline commerce is different. Thanks, GH, CTL. I’ll research that and speak later.
@Participant
More years ago than I care to admit, I won a prize in law school for top performance in Aviation Law. I have never practiced that kind of law, but I am an aviation ‘geek’No airline exists in the USA that does not a Federal operating license. All commercial pilots licenses are Federal, not state (like your drivers license). Planes operate under FARs…Federal Aviation Rules
The FAA governs airline activity and has the power to approve, ground, fly, etc.
Thus all airline operations are subject to all Federal regulations, laws, mandates, etc.All determination of entry into the country is Federal, now Customs and Immigration is part of ICE.
One cannot be stopped from traveling from state to state by private conveyance (car, boat, walking, private plane), BUT as soon as one boards a public conveyance licensed to carry passengers to cross state lines, then due to the Interstate Commerce Clause in the Constitution all powers belong to the Federal Government.Now the carrot and the stick moshul.
In the 70s many states lowered the legal drinking age to 18 (NY was already there, but CT and most others were 21). Highway deaths among the young skyrocketed, Congress could not pass a federal minimum drinking age (it was 21 on planes and trains for the control reasons stated above), SO, the Federal Government said to the states if you don’t raise the drinking age to 21, we will cut off all federal highway funds to your state. It worked.Participant, how is it legally different for the government to regulate a requirement to cover ones legs, stomach or other body parts than to regulate covering ones mouth and nose?
There is nothing to prevent you from sneaking over the border when no one is looking (and you would probably be in a lot less trouble than aliens trying the same thing, though you can be certain that if they caught you they would assume you were up to no good).
If an alien (with or without the proper papers for entry) shows up at the airport or dock or land crossing, they are subject to the same rules as a citizen except that unlike a citizen they can be denied entrance to the United States. Under well established rules, the public health service can quarantine anyone entering the country whom they suspect is carrying a dangerous disease (n.b. I’m not discuss whether Covid is “dangerous” – that’s a different matter).
The Federal government has statutory rights to make health regulations for common carriers engaged in interstate travel. If you cross a state boundary on foot or in a car, it is up to the state government to decide what to do (Biden and Trump were told that by the courts). If you insist on flying between states without a mask, you are free to rent an airplane.
One can make an “arbitrary and capricious” argument against the Covid rules, but as both parties (i.e. Trump and Biden) have agreed that Covid justifies emergency rules (I suspect future historians will be more skeptical), it would be hard to argue that anti-Covid rules are legally valid. Note the from a legal perspective, whether a regulation is wise is not relevant – what is wise is the for politicians to decide.
To CTLawyer: I know a bit of aviation law, and you have nicely and correctly summarized it. Unfortunately, you are preaching to the unsaved, who believe what they want, whether it is correct or not.
“How is it legally different for the government to regulate a requirement to cover ones legs, stomach or other body parts than to regulate covering ones mouth and nose?”
Probably not an appropriate question for the CR but take my word that there are peer-reviewed studies showing why uncovering certain parts of the anatomy may offend pubic sensibility and decency and trigger midflight disruption more than others. Until 2 years ago, there were a few episodes ever year where flights were diverted or passengers removed from planes for “displaying” too much of their real estate. None of those, to my knowledge were either a nose or mouth. Passengers COULD be denied boarding if they openly appeared to have a contagious illness but that rarely happened. All of those rules were specified in the airlines’ filed tariffs. Conversely, the FAA’s authority to promulgate rules (using proper APA procedures were codified in its organic statute and were not changed by airline deregulation which eliminated the CAB).
Article 1, Section 8, Clause 3 of the U.S. Constitution gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes..”. The Feds use that authority, inter alia, to regulate all forms of “commerce” including all forms of interstate and international transportation. The so called “Dormant Commerce Clause” refers to the prohibition, implicit in the Commerce Clause, against individual states passing legislation that discriminates against or excessively burdens interstate commerce.
@screw
“how can the feds have jurisdiction before the plane is even in America? The entire commerce–that’s transpiring in a different country–is under their regulation?”The feds have jurisdiction because the carriers must certify they have met regulations and bear the cost to repatriate those denied entry to the port of embarkation at the carrier’s expense. This goes back to ocean travel. That is why visa and passports are checked before boarding and a passenger manifest is made at the departure point to be presented on arrival.
The carrier accepts these regulations if they want permission to operate into the US.SDD, Participant is your spouse?
CTL > Federal Government said to the states if you don’t raise the drinking age to 21, we will cut off all federal highway funds to your state.
CTL, I always wondered how this is allowed to be legal. Feds collect taxes for the enumerated powers – defense, commerce, etc. Fine. Now they are are using the power of that money to compel states to do many other things. Constitution and bill of rights were made to limit federal powers. What is the limit here? Is there anything feds can’t compel by withholding funds?
SDD, health and life and death emergencies, such as the spread of viral diseases can override constitutional rights.
@screwd….
Why is requiring the Covid Test legal for those who want to enter the USA?let’s start with the easiest:
Read the Preamble to the Constitution and when you get to “promote the General Welfare” it is game, set and match.
We have the federal system for the stated reasons in the preamble and societal health falls into the General welfare.No case citations needed.
Don’t want to take the test, don’t enter the USA, don’t want to wear a mask? Instead of buying cheap seats on Spirit or Jet Blue, try NetJets and charter.
> border is open for all the illegals
there are 80 mln international arrivals in US airports annually, this is a little higher than number of people crossing Mexican border (who also quarantine for weeks in the desert).
SCOTUS has ruled on several of the vaccine mandates. It has upheld the EOs dealing with health care workers and rejected the EO (implemented through OSHA) that created the mandate for all employers >100 employees. In both cases, the rulings were NOT based on constitutionality but the procedure through which the rules were adopted (short-circuiting the APA) or absence of underlying statutory authority for a rule of the scope contemplated (aka the blanket OSHA rule).
@Always
a quick history lesson
The Interstate Highways….those numbered I-xxx (I-95, I-80, I-678 are examples) was originally known as the National Defense Highway System. It was devised and pushed by President Eisenhower based on his horrific experience trying to move an army convoy from the west coast to the east back in the WWI era.
The width of the roads, how much must be level straightaway, etc., was determined by the needs, of tanks, troop carriers, etc. Originally none could have toll booths which were too narrow for this equipment.
Here in CT, what is now I-95 from Greenwich to Waterford was named the CT Turnpike, paid for by bonds the Turnpike authority issued in 1958 and had tolls til the 80s. The receipts could only be used to pay off the construction bonds. Road paid off, tolls gone. Then the road officially became I-95 and federal funds accepted for maintenance and improvements I-91 and I-84 were actually built with federal money and never had tolls.What’s the difference between a lawyer and a jellyfish? One is a spineless, poisonous blob. The other is a form of sea life.
CTL, thanks for history. My question is – that feds ability to extort policies by withholding money does not seem kosher to me. This essentially confirms the fears that federal government becomes too powerful. Literally, highway robbers. This is like Russia threatening to cut off gas from Europe.
Screwdriver
“A vaccine mandate for all companies with more than 100 employees was b”h ruled unconstitutional. ”
It was not.
In fact arguably it was ruled constituional.
The court ruled that OSHA as written did not allow for it. IF the federal government were to revise OSHA (or create a new law) requiring vacccines, then it may be allowed
Or to quote directly “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category”If congress DID give OSHA that power then the mandate MAY be able to proceed and may not be unconstituional( like the healthcare worker mandate)
“A vaccine mandate for all companies with more than 100 employees was b”h ruled unconstitutional…”
Screwdriver: Tighten those screws a bit and don’t credit the Ebeshter for something that didn’t happen. The Supreme Court did NOT rule that the vaccine mandate for companies with more than 100 employees was “unconstitutional”. The Court did find that OSHA, which regulates workplace safety for the Labor Department, issued the mandate under its emergency power established by Congress rather than under a notice and comment APA rulemaking (which would have required 12-18 months) The Court found that the generic vaccination rule, as a broad public health rule, did not fall within the emergency authorities granted by Congress to regulate workplace safety and a more narrowly focused rule would have to be adopted using regular APA rulemaking process.
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