A mandate for constitutional government

In its important ruling yesterday, the U.S. Supreme Court took no position on vaccines. The court’s majority offered no medical advice and acknowledged the context of the COVID-19 pandemic. But the nation’s highest court did block the Biden administration from moving forward with a mandate that required all employers with more than 100 employees to require that their employees be vaccinated or tested weekly.

In blocking this vaccine mandate, the court underlined the fact that the federal government cannot simply invent new powers for its agencies and then promulgate policies that turn private businesses into extensions of regulatory government.

Back in September, President Joe Biden announced he would instruct the U.S. Department of Labor to create a mandate for vaccinations that would cover two-thirds of all Americans in the workforce. The mandate would come as a rule produced by the Occupational Health and Safety Administration. That policy was released by OSHA on Nov. 5 and included rules that required employers to maintain, and in some cases publicly post, medical information concerning their employees.

But OSHA was never given such authority by Congress, and administration officials, including White House Chief of Staff Ron Klain, basically admitted that the OSHA policy was a “workaround.” In other words, the White House would seek to get by regulatory fiat—announced by the president of the United States, no less—that the Biden administration could never get through Congress. To admit the need for a workaround is to admit the absence of a legal or constitutional basis.

Furthermore, the OSHA policy provided no exemptions for religious employers and would require that a Christian institution invade the privacy and violate the consciences of Christian employees, some of whom have expressed religious objections to the vaccines. That is why The Southern Baptist Theological Seminary, the institution I serve as president, sued the Biden administration. The Biden administration’s workaround would violate religious liberty and conscience rights.

Yesterday, the Supreme Court acted in defense of constitutional government. The court’s ruling was clear: “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided.” The six conservative justices stood together in the ruling, even as the court’s three liberal justices dissented. The court’s ruling stated bluntly that Congress has given OSHA defined responsibilities related to occupational health, not extending to larger issues of public health. Citing precedent, the majority declared that the vaccine mandate is no “everyday exercise of federal power.” It was government overreach and a violation of the U.S. Constitution’s careful separation of powers.

As is so often the case, the importance of the court’s action is made even more clear by asking what would be the result of the court’s ruling otherwise. If a president can instruct his secretary of labor, without legal authority, to instruct a federal agency to mandate that employers require employees to be vaccinated, what could it not require?

And, if OSHA gets away with promulgating a rule that violates religious conscience, what about the innumerable other policies that liberal politicians would want to mandate and require of Christian institutions? If a federal agency can mandate vaccinations without respecting religious employers, what about LGBTQ policies or anything else that comes down the pike?

My concerns are not based in opposition to the vaccines. My mother was a nurse who had worked in pediatric wards and had seen firsthand the wonders of vaccines in saving children’s lives. I can assure you that she lined up her four children for vaccines with vigor. Thus far, I have received three COVID shots and I was glad to take them. As president of a large Christian institution, I have encouraged COVID vaccinations to faculty and students, both privately and in public.

But I have opposed any mandate from the start, and I deny the right of a federal agency to force me to line up our employees and separate the sheep from the goats based on vaccination status and to coerce employees against religious conscience to be vaccinated or be “outed.”

The Supreme Court’s stay against the Biden vaccine mandate yesterday noted that those who brought the suits “are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.” I sure hope that is right