VOICES: Constitutional opposition to federal vaccine mandate

Dr. Mark Caleb Smith is Professor of Political Science and Chair of the Department of History and Government at Cedarville University. Dr. Smith is also Director of the Center for Political Studies.
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Dr. Mark Caleb Smith is Professor of Political Science and Chair of the Department of History and Government at Cedarville University. Dr. Smith is also Director of the Center for Political Studies.

On September 10, Joe Biden gave a historic presidential address. The President warned that “our patience is running thin” with unvaccinated Americans. He then issued two executive orders: one requires vaccination for federal employees and contractors, and the other forces employers with more than 100 workers to mandate vaccines or weekly testing.

The private employer mandate will come through the Occupational Safety and Health Administration (OSHA). OSHA is permitted to issue an Emergency Temporary Standard (ETS) when employees face a “grave danger” from exposure to substances or agents that are harmful or toxic and when the emergency action is necessary to protect employees.

First, I would suspect a highly communicable virus that has caused a global pandemic could qualify as such a danger–though the mortality, hospitalization, and illness rates, and their variability by age and physical condition, would be an issue.

The second challenge would be more difficult. Can the administration argue that this approach is necessary? While there is a reasonable basis to argue vaccinating all employees, which accounts for more than 80 million Americans, would benefit the public good, is that the proper goal for a rule that targets employers? In other words, to what degree is this an occupational hazard, which is OSHA’s primary concern?

This feels more like the federal government using employers to carry out a policy it would not have the power to enforce on its own.

There are constitutional matters to consider as well. Primarily, which element of government has the proper authority to enact vaccine mandates? Typically, states have broad and deep powers to protect health, safety and welfare. The federal government cannot easily claim this kind of authority, so the courts could reason that applying the OSHA statute is beyond the reach of the national government.

Of course, there is also the looming issue of executive authority. Article 2 of the U.S. Constitution begins, “The executive Power shall be vested in a President of the United States of America.” The founders envisioned the president as able to deal with crises swiftly and decisively. While there are always checks and balances, the presidency was designed to handle emergencies. Against this backdrop, the courts have afforded the executive wide latitude to handle emergencies, including an executive order that ultimately detained Japanese American citizens during World War II.

I think President Biden has overstepped his authority under the OSHA statute, and his order undermines elements of our constitutional system. The effort to force employers to vaccinate or test their employees is unconstitutional, but it would not stun me if the courts rule otherwise.

Still, this could be when the Supreme Court decides to chart a new path. SCOTUS could curb executive growth or, if it really wanted to send a thunderbolt, limit the power of Congress to delegate unlimited decision-making power to the executive branch via legislation like the OSHA statute. It would be good for the long-term health of the nation if those things happened, though, ironically, that could be poor for the short-term health of the citizenry.

ExploreRead a constitutional argument defending vaccine mandates.

Dr. Smith is a professor of political science and chair of the department of history and government at Cedarville University. He also serves as director of the Center for Political Studies.

Dr. Mark Caleb Smith is Professor of Political Science and Chair of the Department of History and Government at Cedarville University. Dr. Smith is also Director of the Center for Political Studies.
Caption
Dr. Mark Caleb Smith is Professor of Political Science and Chair of the Department of History and Government at Cedarville University. Dr. Smith is also Director of the Center for Political Studies.