An unconstitutional mandate

The U.S. Supreme Court will hear oral arguments today in several cases challenging aspects of the Biden administration’s COVID-19 vaccine mandates. In the first pair of cases, the Occupational Safety and Health Administration (OSHA) claims the power to force all private businesses with 100 or more employees to require every worker to be vaccinated from COVID-19 or wear a mask and be tested weekly at their own expense—or lose their job.

These cases are not about vaccine efficacy or the wisdom of employers encouraging a vaccinated workforce. Rather, they are about a fundamental question of federal executive power. May the federal government impose what is in essence a nationwide vaccine mandate? Do the Constitution’s structural protections disappear in the face of a public emergency?

The answer must be no.

The Constitution applies in the bad times as well as the good. It is imperative that in times of national emergency that fundamental principles of limited government, federalism, and separation of powers be respected. Even good ends do not justify unconstitutional means.

There are at least two reasons the workplace vaccine mandate is unlawful. First, as a federal executive agency, OSHA has no authority to impose a nationwide vaccine mandate without explicit congressional authorization. While Congress may sometimes delegate regulatory authority to federal agencies, there are important constraints. Because agencies like OSHA are part of the executive branch of government, and because the Constitution does not authorize the executive unilaterally to enact legislation, the Supreme Court requires that Congress be especially clear if it wishes to empower an agency to exercise powers of “vast economic and political significance” and when it wishes to alter the traditional federal-state balance of power. These so-called clear statement rules mean that before an agency regulates on an especially important issue, Congress must have explicitly authorized the agency action.

Here, the vaccine mandate is unquestionably an issue of vast political and economic significance, and it has traditionally been the states, not the federal government, that regulate public health and safety. Yet, Congress did not clearly grant OSHA the power to impose a vaccinate-or­–mask and test mandate. Rather, the Occupational Safety and Health Act addresses occupational risks, not all health risks. OSHA is about workplace safety. This fact alone indicates that Congress did not intend to empower OSHA to institute a nationwide vaccine mandate.

Further, OSHA relied on its authority to enact “emergency temporary standards.” But two years into the pandemic, there is nothing emergent about COVID-19. The emergency provision, moreover, allowed OSHA to bypass the usual procedural safeguards of public notice and comment.

Because no statute clearly authorizes OSHA’s unprecedented vaccine-or-test mandate, and because OSHA improperly used its emergency powers to implement the mandate, it is unlawful.

Second, even if Congress had clearly authorized OSHA’s vaccine mandate, it likely has no authority to do so. As a matter of first principles, the federal government is assigned limited or “enumerated” powers. If the Constitution does not set out a federal power, it does not exist. And there is no federal vaccine power. Instead, the federal government relies on the commerce clause. But that clause allows Congress to regulate commerce, not mandate a non-commercial activity. Indeed, the Supreme Court recently rejected an expansive view of the commerce power under which “individuals may be regulated … whenever enough of them are not doing something the Government would have them do.” There are First Amendment concerns when the federal government forces religious employers to require vaccinations that may violate both their and their employees’ sincerely held religious beliefs.

Individuals may choose to be vaccinated against COVID-19 and other serious illnesses. And the federal government may encourage and facilitate such inoculation. But the Constitution is not put on hold during national emergencies. When the pressing public necessity of the day is deemed sufficient to allow the governing to do away with the rights of the governed, the Constitution becomes meaningless. If the federal government believes that too few Americans are vaccinated, it may encourage and facilitate vaccine development and inoculation. But it may not ignore the Constitution.