New Haven Register (New Haven, CT)
Vaccination mandates clearly constitutional
A month after President Joe Biden issued his testing and vaccination mandates, accusations of unconstitutionality and dictatorship are still flying. The accusations are demonstrably wrong, but the more the mandates’ validity is in limbo, the harder it will be to get doubters vaccinated, even in the face of firings and fines. It should be clear by now that the president has that constitutional authority.
The claims of unconstitutionality are twofold: First, that the mandates violate individual rights, such as free exercise of religion or a right to bodily integrity. Second, that only states — not the federal government — may issue such mandates.
As to individual rights, the federal courts have held consistently for more than a century that vaccine mandates do not violate individual rights. In 1905, the U.S. Supreme Court, in Jacobson v. Massachusetts, upheld an order requiring smallpox vaccinations in the midst of a raging epidemic. Decades later, the court said that religion claims would not override vaccination requirements.
The other critique — I’ll call it the power argument — has two aspects. The first is a federalism issue, that the federal government has no “police power” — authority to regulate to protect the public health, welfare and safety, matters reserved to the states under our federal structure, including the 10th Amendment. The argument is valid, as far as it goes, but Biden’s executive orders do not rely on a police power. They invoke powers explicitly granted by the Constitution to the federal government: to lay and collect taxes, provide for the common defense and general welfare, regulate interstate commerce, and make rules for governing the military.
Congress has power to impose conditions on grants when it spends federal funds to provide for the general welfare. Can anyone seriously argue that halting a pandemic that has killed 700,000 Americans is not in the general welfare? This provides authority for mandating vaccinations of employees of federal contractors and educational and health establishments that receive federal funds (nearly all of them). Ordering military personnel to be vaccinated falls within the power to make rules for the land and naval forces and the president’s role as commander in chief.
The most controversial mandate does not even require vaccination, offering a testing option. It applies to workers at any company with 100 or more employees. This authority comes from Congress’ power to regulate interstate commerce, protect instrumentalities of interstate commerce and regulate activities that substantially affect interstate commerce. Surely a pandemic that has slowed the manufacture and shipment of goods through interstate commerce, and killed thousands of workers in interstate commerce with a virus that has traveled in interstate commerce, substantially affects interstate commerce.
The power argument further holds that even if the federal government may impose vaccination mandates, it has not done so, because these powers lie with Congress, not the president. The authority for anything the president does must come from either the Constitution or an act of Congress. There is no apparent authority in the Constitution for a presidential mandate to private employees, so the question becomes whether Congress authorized it.
The Occupational Safety and Health Act of 1970 requires employers to “maintain conditions or adopt practices reasonably necessary and appropriate to protect workers on the job” with the goal of assuring “safe and healthful working conditions.” OSHA, the Occupational Safety and Health Administration, created by the act, regulates workplace safety largely by promulgating rules. This involves a complex process of review and public comment that typically takes seven years, so the administration has invoked an emergency procedure in the law, which would be valid for six months. The decision to use the emergency procedure is the target of much of the criticism.
It is clear to me that the president’s orders fall within his constitutional and statutory authority. There will surely be challenges, because it is new and feelings run high, but I doubt they will ultimately succeed. If I am wrong, the task falls to Congress, whose powers are broader than the president’s, or to state governors and legislatures, whose powers are not seriously in doubt, despite occasional cries of “dictator!”
Something must be done. As long as the mandates’ validity is in doubt, anti-vaxers and doubters will be encouraged to resist, and the pandemic will continue. It should not matter whether a health and safety regulation emanates from the states or from Washington, as long as it emanates. Doing it from Washington is quicker, easier, uniform and entirely constitutional. This is why the Constitution’s framers created a national government in the first place — to deal with problems that affect the nation as a whole and are beyond the reach of the states.