President Biden has a dilemma. He was elected on a promise to “shut down the virus,” but eight months into his presidency, COVID-19 is still raging. With his approval ratings cratering, he is desperate to garner headlines for taking bold action. And so, just weeks after his deserved rebuke by the Supreme Court over his eviction moratorium, he has once again gone too far.
On Thursday, Biden announced a series of unilateral actions aimed at increasing the percentage of Americans who are vaccinated. We obviously do not dispute the idea that it would be a good thing if more people were vaccinated, as the shots have proven to be safe and highly effective at nearly eliminating the risk of hospitalization and death from COVID-19. But the issue here is not what outcomes we may prefer, but what authority Biden has as president.
As chief executive, it is one thing for Biden to require vaccination for federal workers, or even for private companies that are hired as federal contractors. But Biden’s proposal goes way beyond that by ordering all private businesses with over 100 employees to require vaccination or weekly negative tests for all their workers, under the threat of steep fines. He says the order will affect 80 million private employees.
Currently, vaccination mandates that do exist (such as the MMR shot) are requirements imposed by states or individual school districts. There is not anything akin to a sweeping vaccine mandate for private workers at the federal level. This rule imposes a significant compliance burden on employers to not only police who is vaccinated, but also to facilitate weekly testing of workers.
Though we await the full legal rationale, the Biden plan on the White House website says the order will come through the Department of Labor’s Occupational Safety and Health Administration, which will issue an Emergency Temporary Standard (ETS) to implement the requirement. In other words, the rule will be expedited to avoid the comment period that typically allows those who would be affected by a given order to weigh in. While OSHA has authority to set certain health and safety standards in the workplace, it would be stretching its authority to claim that it can be used as a means to facilitate broader public-health goals. Just this July, the Congressional Research Service updated a report on the emergency standard and noted that OSHA “has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.”
The report goes on to explain that an ETS requires that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and “that such emergency standard is necessary to protect employees from such danger.” In the case of asbestos, a federal appeals court ultimately said OSHA couldn’t sufficiently support its claim that 80 workers would die from asbestos exposure if the rule were not implemented. In Biden’s speech, he acknowledged that the risk of serious illness is extremely low for anybody who is vaccinated. That means that anybody who enters a workplace and has the choice to be vaccinated can protect themselves from grave danger. So it is unclear how such an emergency order can be justified.
In December, weeks before taking office, Biden said of vaccination, “I don’t think it should be mandatory. I wouldn’t demand it be mandatory.” After his actions today, we can’t help but be reminded of the CDC’s eviction moratorium, which he extended even after declaring that doing so would be illegal. Two weeks ago, the Supreme Court blocked that action, declaring that it “strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” We hope that the Supreme Court will be just as incredulous when it comes to Biden’s latest overreach.
I need to reassert an additional, fundamental constitutional objection — the same one I posited in connection with Biden’s illegal eviction moratorium. It is unconstitutional.
There is no general federal health-care power. The constitutional exhortation for Congress to “provide for . . . the general Welfare of the United States” (art. I, sec. 8) is not an open-ended authorization. Ours is a federalist system, the states presumptively govern their internal affairs, and Congress’s power to provide for the general welfare is cabined by its enumerated powers.
The relevant one here is the power to regulate interstate commerce. Indeed, the government presumes to regulate medical care, extensively but only indirectly, by regulating health insurance. That this is an interstate market cannot be denied, even if the government’s regulatory targeting of it is largely pretextual – i.e., progressives are more interested in dictating (and eventually rationing) medical treatment than in the insurance market.
Even under the unjustifiably wide berth the Supreme Court has given Congress’s pretextual invocations of commerce power, especially since the New Deal, the justices nevertheless declined in the 2012 Obamacare ruling to approve a mandate to buy medical insurance. That is because the Constitution only permits Congress to regulate ongoing interstate commerce, not to coerce people into engaging in such commerce.
A vaccine is not even commerce, much less interstate commerce.
As I conceded during the eviction-moratorium controversy, because of the hash the Supreme Court has made of the Commerce Clause, the core question of whether the federal government — not just the president or an executive bureaucracy, but the federal government through congressional legislation — has the regulatory power it is claiming routinely gets short shrift. But it should not.
To put it starkly, if the president may order a medical mandate because the federal government (and not the executive, mind you) is supposed to provide for the general welfare, then is there anything the federal government may not do? Is there anything left of the federalist principle that states are sovereign regarding their internal affairs? Absent the assurance of that principle’s vitality, the Constitution would never have been ratified.
The Supreme Court seemed to drift close to this principle in its eviction moratorium opinion a couple of weeks ago. Noting that the regulation of landlord-tenant transactions is traditionally a state-law matter (as is the imposition of vaccine mandates, our editorial explains), the justices asserted that when federal action “intrudes into an area that is the particular domain of state law,” Supreme Court jurisprudence requires “Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power[.]”
Again, I believe that is a second-order issue. Since we are talking in these federal mandate cases about a power Congress does not have, it shouldn’t matter how clear its language may be. Obviously, though, if Congress and the federal government had the power that Biden intends to invoke, then OSHA — to avoid administrative-law requirements — would not need to dust off the moribund Emergency Testing Standard that, as our editorial notes, has not seen the light of day in the nearly 40 years since its last rejection by the courts.
Beyond the serious legal and process issues raised by using a rarely invoked OSHA emergency authority to deputize private businesses to prod 80 million Americans into getting vaccinated, there are serious practical questions. And one of the problems with bypassing the typical regulatory process is that those tasked with implementing these requirements will have no opportunity to weigh in on the potential complications.
Just to think of a few complications, under this order, businesses will now have to set up a system for monitoring who has been vaccinated and who has not. They will also have to facilitate weekly testing for those who choose not to be vaccinated, and keep track of the negative tests. Who pays for the tests? What happens in the time that workers are waiting test results? This remains unclear as of now.
Also, what are businesses supposed to do with employees who refuse to get vaccinated and won’t submit to weekly testing? Can they fire those workers? Are they forced to fire those workers?
To take things a step further, how does OSHA intend to enforce this law? Will businesses be forced to submit weekly reports showing that all their workers are vaccinated or have tested negative? Will OSHA officials do spot checks at offices to make sure that businesses can produce records demonstrating that they are in compliance?
And what happens if the federal government comes around to the view that booster shots are required, either in response to new variants or because of waning immunity over time? Will somebody who was considered fully vaccinated at one point still be considered fully vaccinated?