Stamford Advocate

Vaccinatio­n mandates clearly constituti­onal

- By William V. Dunlap William V. Dunlap is a professor of constituti­onal law at the Quinnipiac University School of Law.

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.

 ?? Associated Press ?? President Joe Biden walks to board Marine One for a trip to Illinois to talk about vaccine requiremen­ts on Thursday.
Associated Press President Joe Biden walks to board Marine One for a trip to Illinois to talk about vaccine requiremen­ts on Thursday.

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