Fixing Congress requires fixing how it legislates
President Biden's vaccination plan is constitutional — and necessary
Emphasizing that "we're in a tough stretch and it could last for a while," President Biden announced his plan to address "the pandemic of the unvaccinated" on Sept. 9. He ordered vaccinations for all federal government workers and contract employees doing business with the government; health care workers at Medicaid or Medicare participating hospitals and other health care settings; staff at Head Start programs, Department of Defense and Bureau of Indian Affairs schools. The president also required businesses with 100 or more employees to ensure that all of them are vaccinated or tested at least once a week.
Republicans, predictably, attacked the proposed policies. The plan is "blatantly unlawful," Gov. Brian Kemp of Georgia claimed, "and Georgia will not stand for it." "Joe Biden has declared war on constitutional government, the rule of law, and the jobs and livelihoods of millions of Americans," said Florida Gov. Ron DeSantis. Kay Ivey, Alabama's governor, who in July thought it appropriate to "start blaming the unvaccinated folks" for the rise in COVID cases, blasted Biden's mandates in September as "nonsense... an overreach... This is a fight for business, our hardworking men and women and our American liberties." A group of GOP governors has threatened to go to court to block implementation of the plan.
Biden's vaccination plan is constitutional. It may even pass muster with Trump-appointed judges. With about 100,000 Americans hospitalized with COVID-19 and some 1,500 Coronavirus-related deaths every day, Biden's strategy is urgently necessary to save lives and sustain the economic recovery. And Republican critics have proposed no alternative strategies for a once-in-a-century pandemic that has already killed over 650,000 Americans.
All 50 states require public school students to take vaccines for infectious diseases, a mandate upheld by the Supreme Court in Jacobson v. Massachusetts (1905). In his opinion, Justice John Marshall Harlan emphasized that "in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations." In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a case involving restrictions on religious gatherings, Supreme Court Justice Neil Gorsuch reaffirmed that state vaccine mandates are constitutional: "In Jacobson, individuals could accept the vaccine, pay the fine, or identify a basis for exemption. The imposition on Mr. Jacobson's claimed right to bodily integrity, thus, was avoidable and relatively modest."
The authority of the federal government to require vaccination through Biden's plan comes from the Occupational Safety and Health Act (1970) and the Commerce Clause of the U.S. Constitution. OSHA authorizes the Secretary of Labor to issue "an emergency temporary standard" for health and safety affecting interstate commerce if he or she determines "employees are exposed to grave danger from substances or agents determined to be toxic or physically harmful." OSHA can apply medical criteria "which will assure insofar as is practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of work experience." In Asbestos Information Association v. OSHA (1984), the U.S. Court of Appeals for the Fifth Circuit asserted, "Gravity of danger is a policy decision committed to OSHA, not to the courts." And Section 361 of the Public Health Service Act empowers the Department of Health and Human Services to take steps to "prevent the introduction, transmission or spread of communicable diseases" from one state to another.
The United States is already behind Great Britain, Canada, France, Germany, and Italy in our percentage of vaccinated adults. In a few weeks, Japan, which got a late start, will overtake us, and America - the COVID-19 vaccine pioneer - will have the lowest vaccination rate among the world's wealthiest democracies.
Moreover, a substantial majority of Americans favor vaccination mandates: 61 percent endorse a vaccination requirement with exemptions for medical or religious reasons. The same percentage believe effective measures to protect health and safety during the pandemic are more important than protecting personal liberty; 50 percent strongly or somewhat favor requiring employees working in person to be fully vaccinated, with 26 percent strongly or somewhat opposed (the remainder expressed no opinion). The percentages are 59 percent in favor and 21 percent opposed for K-12 teachers; 55-24 for K-12 students; 58-21 for workers in restaurants or retail stores; 62-19 for hospital and health care workers; 55-21 for government workers; 56-20 for members of the U.S. military.
It's worth noting the many vocal Republican officeholders and the disinformation disseminators on television, radio, and social media have not objected to vaccination requirements for measles, mumps, chicken pox, tetanus, and hepatitis in public schools, or laws against exceeding speed limits and driving while intoxicated, as violations of individual liberty or the U.S. Constitution.
They are playing a political game for partisan gain. In a pandemic that is deadly serious.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of "Rude Republic: Americans and Their Politics in the Nineteenth Century."