On September 9, President Joe Biden unveiled his Covid-19 Action Plan, “a six-pronged, comprehensive national strategy” to combat the pandemic. The most controversial provision, covering some 80 million Americans, mandates that all employers with 100 or more employees must ensure that each worker is either fully vaccinated or provides weekly negative Covid test results.
Republican governors were quick to condemn the mandate, with some vowing legal challenges. “@JoeBiden see you in court,” South Dakota governor Kristi Noem tweeted. Governor Henry McMaster of South Carolina wrote that he would fight Biden “to the gates of hell.” He won’t have to go that far: the courts are likely to strike down Biden’s mandate as a clear violation of the Constitution’s principles of federalism and separation of powers.
Leaving aside the merits of a vaccine mandate, such decisions properly belong to the states, not the federal government. Supreme Court precedents on the validity of vaccine mandates—Jacobson v. Massachusetts (1905) and Zucht v. King (1922), both involving smallpox vaccination—involve state, not federal, laws. The Court has never suggested that Congress could adopt such a mandate, and for good reason. In our federal system, states enjoy broad “police powers” to enact laws designed to protect the health and safety of their citizens, whereas the central government has only those powers enumerated in the Constitution. The Tenth Amendment further guarantees that states retain the powers not specifically delegated to the federal government.
None of this was considered controversial a mere 17 months ago. When Donald Trump declared in April 2020 that the president possesses “total authority” over coronavirus restrictions, the mainstream media was quick to criticize him. An NPR “fact check” featured criticism of Trump by various legal scholars, including Cornell Law’s Kathleen Bergin, who observed that coronavirus measures such as social distancing or the decision to open schools or businesses are “matters for states to decide under their power to promote public health and welfare, a power guaranteed by the 10th Amendment to the Constitution.” A CNN fact check noted that “there is no legislation that explicitly gives the President the power to override states’ public health measures.” Democratic governors jealously guarded their prerogatives. Then-governor Andrew Cuomo of New York rebuked Trump: “We have a Constitution. We don’t have a king.”
Assertions of federal authority must be grounded in some constitutional grant of power. The most common basis for federal intervention in private affairs is the Constitution’s Commerce Clause, which empowers Congress “to regulate commerce . . . among the several states.” The administration, however, will not be able to shoehorn the vaccine mandate into the Commerce Clause. In NFIB v. Sebelius (2011), the Supreme Court held that the Commerce Clause cannot be used to compel individuals to engage in activity, even when such activity has an impact on interstate commerce. In NFIB, the compelled activity was purchasing health insurance, but the logic applies with equal force to a federal mandate to get an injection or submit to a weekly test. Writing for the majority, Chief Justice John Roberts rejected an interpretation of the Commerce Clause that would allow, for example, Congress to pass a law requiring individuals to buy vegetables to promote healthier eating habits.
Even if one could find a basis for a national vaccine mandate, Biden’s order would still fail to pass constitutional muster, because Congress has not enacted such a mandate. Article II of the Constitution empowers the president to ensure that the laws passed by Congress “be faithfully executed.” It does not allow the president to invent new laws. Time and again, the Supreme Court has held that there must be clear authorization from Congress for powers of “vast economic and political significance.”
In April 2021, a report by the nonpartisan Congressional Research Service concluded that there is no existing federal law that clearly authorizes the imposition of a national vaccine mandate. The most plausible basis for a targeted mandate, the report speculated, would be a “broad construction” of the Public Health Service Act (PHSA). But four months later, the Supreme Court rejected a “broad construction” of the PHSA when it struck down the CDC’s eviction moratorium.
Biden’s plan relies on the 1970 Occupational Safety and Health Act, which grants the Occupational Safety and Health Administration (OSHA) the power to issue “emergency test standards” (ETS) to protect workers against “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” But nothing in the law even hints at the sweeping powers the president has claimed. On the contrary, the law’s reference to “substances or agents” strongly suggests that the ETS power is meant to target workplace hazards like dangerous chemicals, not naturally occurring hazards like viruses.
In attempting to usurp the powers of Congress and the states, Biden is claiming the same king-like powers that Trump asserted in 2020. Yet 2020’s vigilant fact-checkers have fallen silent. On NPR’s All Things Considered, for example, host Scott Detrow noted the broad scope of the mandate and asked White House correspondent Tamara Keith, “Does the federal government have this power?” “It does,” replied Keith. “I spoke with Brett Coburn, a labor and employment attorney in Atlanta. He said companies do take orders from OSHA like this seriously.” In other words, the federal government has the authority to issue orders whenever the targets of such orders are likely to comply—a boot-strapping justification if ever there were one.
The courts, one hopes, will scrutinize the Biden plan more carefully than the media. If constitutional principles are properly applied, the vaccine mandate will be quickly struck down.
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