On Thursday, President Biden released a new plan to fight Covid-19 which included a vast and sweeping vaccine mandate on companies with at least 100 employees. The nuts and bolts of the plan, which will is to be enforced using regulations under OSHA, the Occupational Safety and Health Administration, include fines and penalties for companies that do not comply. This mandate will directly impact some 100 million Americans.
Biden will also require all federal workers and contractors to receive the vaccine with no further option to opt out with regular testing. In a bitter and cynical tone, the President said his patience with the 80 million Americans who had yet to be vaccinated was wearing thin.
The question is whether Biden’s mandate, accomplished through the use of executive order, will pass constitutional muster. Almost immediately the order was met, as expected, with threats of legal challenges from prominent Republicans:
South Dakota will stand up to defend freedom. @JoeBiden see you in court.
— Governor Kristi Noem (@govkristinoem) September 9, 2021
Gov. Noem is considered a likely 2024 Republican candidate, so it’s noteworthy to see where the political battle lines are being drawn. As most controversial executive orders face some form of legal scrutiny, it’s not surprising Biden’s vaccine mandate on employers will face the same fate.
Legal minds seem to be split on whether the order will ever be struck down or held up in court. Given the federal government’s sweeping jurisdiction with the Commerce Clause, and ability to regulate workplace safety with OSHA, there seems to be at least a legal argument to be made in favor of Biden’s mandate.
According to various legal views, the question could date back to a court case in the early 1900s as to whether the government can force a vaccination:
“Yes, this is constitutional,” famed constitutional law professor and Dean of Berkeley Law School Erwin Chemerinsky, told Law&Crime.
“There is no constitutional problem with requiring people be vaccinated,” the author of the premier constitutional case law textbook used in U.S. law schools added. “The government could require everyone to be vaccinated against COVID.”
“This was resolved by the Supreme Court in 1905,” Chemerinsky said, referring to Jacobson v. Massachusetts.
Other legal minds disagree believing that the mandate could be struck down in court for a variety of reasons:
Dr. Mark Caleb Smith, director of the Center for Political Studies at Cedarville University, said he was shocked with Biden’s announcement.
Smith said it will all come down to how the court will interpret the OSHA statute, which includes an emergency standard that allows Biden to issue emergency rulings if it presents a grave danger to our society — but he doesn’t believe the coronavirus pandemic will suffice.
“I think it’s going to be difficult, the vaccines do work at some level but people who don’t have them are still surviving at very high rates,” Smith said. “Legislation doesn’t really unpack what that phrase should be in terms of ‘grave danger’ so it’s going to be interesting to watch.”
The Supreme Court will have to determine if the vaccine mandate violated the president’s powers obtained in Article II of the US Constitution, but it all depends on the phrase “grave danger.”
The legal question is very basic. Does exposure to Covid-19 put a worker in “grave danger” and, furthermore, if vaccines don’t entirely eliminate the threat of Covid-19 infection, does imposing a vaccine mandate pass this legal test?
In some ways, it almost appears the Biden’s vaccine order is simply begging for a legal challenge if only to pivot away from his failure in Afghanistan and set up a vaccine/anti-vaccine fight for the 2022 midterms. There are plenty of voters, on both sides of the aisle, who may be pro-vaccine, but are not necessarily pro-mandate.
There is a big risk in allowing the federal government such power as it could be abused in many, many ways.
If we move back to last year, in 2020, much of the vaccine skepticism was coming from the Democratic Party, and people like Vice President Kamala Harris, in particular. What if President Trump had intended to issue a vaccine mandate? Would Democrats be standing up in opposition? It’s very likely that many would have.
It can’t be overstated that the President’s tone and irritated demeanor on Thursday will be a turn-off to many Americans who are already hesitant to get vaccinated for several reasons. It was also noteworthy that there were no doctors present at Biden’s announcement and no talk of the millions of people who already have natural immunity having survived the virus. What about those considerations and following the science?
The legal challenges are just beginning and the political battles will last well into next year. Buckle up.
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