President Biden recently announced his government-imposed vaccination mandate on individuals and private businesses — requiring all businesses with more than 100 employees to force their employees either to be vaccinated or submit to cumbersome weekly testing.
What Biden is doing represents an authoritarian usurpation of power that exceeds his constitutional authority as the head of the federal government’s executive branch. He is illegally enlisting the Occupational Safety and Health Administration (OSHA) to issue mandate rules, including penalties for violations, on the pretext of a workplace safety “emergency.”
The supporters of Biden’s mandate point to a 1905 Supreme Court decision that upheld the constitutionality of Massachusetts’ mandatory smallpox vaccination law. But this decision, Henning Jacobson v .Commonwealth of Massachusetts, does not provide justification for Biden’s mandate. In fact, it undercuts the constitutional basis for Biden’s overreach.
Justice Harlan’s majority opinion made it clear that the Supreme Court was dealing with a statute enacted by a state legislature exercising “what is commonly called the police power,—a power which the state did not surrender when becoming a member of the Union under the Constitution.”
States, and local public entities acting pursuant to authority granted by the states, have such broad police powers, particularly when dealing with the health of their own citizens. That is why local school districts, for example, can legitimately require children entering their schools to show proof of vaccinations for such illnesses as the measles.
“According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety,” Justice Harlan wrote.
The federal government does not have such broad powers, at least with respect to individuals and entities operating completely within a particular state’s own territory.
The authority of the U.S. government and its departments, Justice Harlan explained at the outset of his opinion, is limited to what can “be found in some express delegation of power, or in some power to be properly implied therefrom.”
Although the Constitution’s Commerce Clause has been stretched in recent decades, it is not unbounded. Chief Justice John Roberts made that point clear in his opinion upholding the constitutionality of Obamacare under the Constitution’s taxing clause but rejecting its constitutionality under the Commerce Clause.
Even if the courts were to rule that the federal government has the constitutional authority to impose mandates dealing with the coronavirus because, by its nature, the virus crosses state lines, President Biden does not have the constitutional power to do that on his own. He lacks clear and unambiguous congressional authorization – the same problem that the Supreme Court identified as the basis for striking down the Biden administration’s latest tenant eviction moratorium.
“We’re going to see COVID become like the flu. Seasonal different variations, different vaccinations, so it shouldn’t be done under the rubric of emergency,” said Harvard Law School professor emeritus Alan Dershowitz. “It should be done under the rubric of ordinary congressional power.”
President Harry Truman found out the limits on his executive authority the hard way when the Supreme Court struck down his steel mill seizure executive order. “There is no statute that expressly authorizes the President to take possession of property as he did here,” Justice Hugo Black wrote in his majority opinion. “Nor is there any act of Congress…from which such a power can be fairly implied.” The majority opinion added that “[i]n the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
Biden has openly defied Supreme Court precedents limiting his exercise of unilateral powers.
Aside from usurping the powers of the states and of Congress, Biden’s mandate is overly broad as well as arbitrary and capricious in its application. The mandate would apply to people who already have natural immunity from a previous coronavirus infection and do not want to be subjected to what some doctors consider to be an unnecessary medical intervention. Other individuals may have legitimate concerns about unknown long-term side effects of the vaccines. As for the alternative of weekly testing, it is unclear who will have to pay for such frequent tests.
There are less restrictive ways to protect places of business from coronavirus contagion, such as offering employees vaccinations and testing at the workplace at government expense.
Moreover, there are other diseases such as the flu that are highly contagious and potentially life-threatening. Yet Biden has chosen to go after only COVID-19 in a full-blown mode despite the overall decline in deaths and hospitalizations since its peak. There is no compelling government interest in imposing a federal mandate in the case of this one disease upon as many as two-thirds of America’s work force.
Finally, there is the issue of autonomy over one’s own body that Supreme Court rulings since the Jacobson v. Massachusetts decision have recognized, with some limitations. Roe v. Wade, for example, is all about a woman’s right to choose, in consultation with her doctor, whether or not to have an abortion during the first two trimesters, regardless of whether a developing human life is being snuffed out.
In announcing his vaccination mandate order, Biden declared that taking the vaccine was not a matter of “freedom or personal choice.” But when it comes to abortion, Biden is all for personal choice, even to the point that he now supports taxpayer funding of a woman’s choice to have an abortion.
“Have at it,” Biden said defiantly when asked about the Republican governors who have threatened to challenge his vaccine mandate in court.
Have at it, indeed. Biden must be stopped from expanding his creeping authoritarianism.
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