In what may go down as one of the most significant attempts to expand the power of the presidency in modern history, President Biden announced on Sept. 9 a series of sweeping new vaccine mandates, which, together, could affect as many 100 million people.
Under the new rules, employees working at health care facilities receiving Medicaid and Medicare funding – the vast majority of health facilities in the United States – will be required to get vaccinated or submit a weekly test showing they have not contracted the COVID-19 virus.
Some federal employees, as well as employees working for federal contractors, will also be subject to the rule. But Biden’s rule also applies to people working at private businesses of 100 or more employees, including companies that do not receive federal funding.
Businesses that fail to impose the new rules on their workers will be fined $14,000 per violation by the federal Occupational Safety and Health Administration (OSHA).
The decision to impose vaccines nationwide is one of the most stunning moves made by any president, a view bolstered by Biden’s speech announcing the plan, which included several explicit or implicit threats and warnings.
For example, at one point during the speech, Biden, speaking directly to the tens of millions of Americans who have chosen not to get vaccinated, said, “We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us.”
Let’s put aside questions about whether people ought to choose to get vaccinated, or even whether businesses should have the authority to demand that their employees get vaccinated. Those are important questions, but not nearly as essential as whether the president has the power to demand that employees of private companies be subjected to a vaccine mandate. (Mandates imposed on employees of the federal government is a different story entirely.)
On that question, Biden has violated both the spirit and explicit language of the Constitution. If the president is permitted to run roughshod over our constitutional liberties in such a reckless manner, future presidents could further erode our freedoms and undermine the protections guaranteed to every citizen by the Constitution.
When confronted with questions about the constitutionality of the mandate, defenders of the president have insisted Biden has the authority to issue a national vaccine mandate under the vaguely written Occupational Safety and Health Act of 1970, which was created to improve safety conditions in the workplace.
But a federal statute cannot be interpreted to warrant an unconstitutional law, since the Constitution is the supreme law of the federal government. So, unless a legal scholar can cite a provision in the Constitution that gives the president the authority to mandate vaccines or even to simply regulate public health generally, the Occupational Safety and Health Act of 1970 cannot be used to justify the mandate. And no such constitutional provision exists.
Others have pointed to a Supreme Court case from 1905, Jacobson v. Massachusetts, as proof that the president has the authority to issue a vaccine requirement.
It is true that the Supreme Court in Jacobson ruled that vaccine mandates can be imposed by a local government, so long as that government is not acting in violation of state law. And it’s also true the Massachusetts law cited in the case was even more intrusive than the policies now being pushed by the Biden administration. But this argument also fails spectacularly for one very important reason.
In Jacobson, the Supreme Court determined that a local vaccine mandate is permissible under the Constitution because states have maintained their police powers and authority to regulate public health under the 10th Amendment, which guarantees, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
But the decision in Jacobson does not include language indicating that the national government has the same authority. The case has nothing to do with federal vaccine mandates like the one imposed by Biden.
Nothing in the Constitution suggest that the executive branch can impose blanket vaccine regulations on private businesses or their employees.
The only question that remains is whether the Supreme Court will strike down Biden’s mandate. If the court refuses to get involved, the public will suffer for generations, as one presidential administration after another erodes its hard-won liberties.
Justin Haskins is director of the Stopping Socialism Project at The Heartland Institute, where he also serves as a research fellow and editorial director.