Last week, President BidenJoe BidenManchin to vote to nix Biden's vaccine mandate for larger businesses Congress averts shutdown after vaccine mandate fight Senate cuts deal to clear government funding bill MORE announced that the Occupational Safety and Health Administration (OSHA) soon will require all private employers with more than 100 employees to require workers to become vaccinated or submit to weekly COVID-19 tests. Whatever you think of vaccines or vaccine mandates, if you care about constitutional government, you should oppose this action.
Let’s get this out of the way up front: Vaccines are a brilliant, lifesaving innovation. That’s doubly true of the COVID-19 vaccines, which were developed in record time and have allowed Americans to return to some semblance of normalcy during the pandemic. If you aren’t fully vaccinated, you probably should be.
But not every good idea should be mandated by law. Indeed, in a free society, we all have the right to make important decisions about our lives and we must bear the consequences of those decisions. Governments exist, as the Declaration of Independence puts it, to protect our rights, not to force us to make good choices.
True, no one has the right to infect another person with a deadly virus. But how the government should police that is a knotty question that we’ve been grappling with throughout the pandemic. At this point, though, those who are primarily at risk are people who have chosen not to get vaccinated. We should all be free not to associate with them — which means employers have every right to require workers to get vaccinated or quit — but I’m skeptical that governments should force them to get vaccinated.
Whatever you think about these issues, though, if we are going to have a national vaccine mandate, it must come from Congress, not the president or unelected bureaucrats at OSHA.
Under our Constitution, only Congress has the power to make law. The job of the executive branch — including agencies such as OSHA — is to enforce the laws written by Congress. Unfortunately, over the past century or so, Congress has handed much of its lawmaking power over to the executive, typically by authorizing agencies to pass rules that have the force of law.
OSHA is a good example. Congress gave it the broad, undefined power to establish workplace safety standards that are “reasonably necessary or appropriate.” In an emergency, OSHA can pass temporary rules that are necessary to prevent a “grave threat” from toxic or physically harmful “substances or agents,” or from “new hazards.” These standards give the agency incredibly broad discretion to mandate the safety protocols for virtually every workplace in the nation. Simply put, like most regulatory agencies today, OSHA makes law. And Congress rarely has anything to do with it.
This is a serious threat to constitutional government. The separation of powers exists to ensure that, as John Adams put it, we have “a government of laws and not of men.” Imagine if the police and prosecutors not only enforced the laws against you but also wrote them. James Madison called the concentration of government power in one branch “the very definition of tyranny.” Every authoritarian government proves his point. They always end up concentrating the power in one leader, who then can dictate the laws and change them at will.
And a breakdown of the separation of powers means a breakdown in accountability. Our government can be based on the consent of the governed only if the governed have a role in the lawmaking process. But when our laws come from agencies such as OSHA, there’s no debate in Congress and no ability to vote the bums out of office if you don’t like the result.
Meanwhile, Congress gets to take credit for popular regulations and then blame agencies when something goes wrong. We saw an example of this when President Biden declined to renew the Centers for Disease Control and Prevention’s (CDC) eviction moratorium and then changed course after members of Congress protested the “tidal wave of evictions” that allegedly would result without a moratorium. How can anyone take lawmakers seriously when they refuse to do the hard work of passing laws they support and instead complain that the president or an agency won’t do their jobs for them? And forcing the CDC to pass housing laws can’t have helped its already tarnished reputation. Likewise, ramming a vaccine mandate through OSHA — whose purpose is workplace safety, not public health — will breed contempt for the agency and for the rule of law.
It’s no secret that the president is using OSHA to avoid the difficult process of getting a vaccine mandate passed by Congress. The courts may allow him to get away with it. They’ve permitted Congress to cede its authority to agencies for decades. But that doesn’t make it proper. If we want constitutional government, we need to start demanding that our political leaders follow the separation of powers. The Constitution and the rule of law are too important not to.
Steve Simpson is an attorney at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.