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Is Biden’s vaccine mandate constitutional?

| Thursday, September 16, 2021

Kerry Schneeman | The Observer

Last week, President Joe Biden announced a series of policies to contain the COVID-19 pandemic, which has become increasingly complicated due to the delta variant. Among the initiatives, two executive orders mandate the vaccine for federal executive branch employees and the employees of any contractor who does business with the federal government. The Centers for Medicare and Medicaid Services (CMS) will also require vaccination for healthcare workers in hospitals that receive Medicare or Medicaid reimbursement. Lastly, the Department of Labor’s Occupational Safety and Health Administration (OSHA) will mandate vaccines for the workforce of any business with at least 100 employees. These orders will cover approximately 100 million Americans as an attempt to vaccinate the roughly 80 million Americans who are currently unvaccinated.

The most contentious policy is the OSHA vaccine mandate. Across the private sector, 80 million Americans will be required to either be vaccinated or partake in weekly COVID-19 testing. Companies who fail to comply may be subjected to nearly $14,000 fines per violation. The mandate has come under intense criticism from Republicans, including accusations that it’s unconstitutional. The constitutionality of the vaccine mandate warrants further examination, as it will be the first COVID-19 policy to directly influence everyday workplaces. My intention in this column is not to take a stance on the policy’s constitutionality, but merely to present background information on potential legal concerns for these vaccine mandates.

The ability of the government to mandate vaccinations is a well-established constitutional authority. For instance, the Supreme Court ruled in Jacobson v. Massachusetts (1905) that a local school board’s vaccine mandate for smallpox was constitutional. The requirement for students to be vaccinated against certain diseases is also constitutionally valid, as solidified in Zucht v. King (1922). There’s no question that the government can require vaccines.

The issue arises, however, in the manner by which the vaccine mandate is created. As part of the executive branch, the Department of Labor cannot simply create new laws (that’s Congress’s job). It can only enact regulations under existing laws and its authority established by Congress. For the Biden administration, this jurisdiction is found through the Occupational Safety and Health Act of 1970, which permits the Department of Labor to issue an “emergency temporary standard” for workplaces when employees are exposed to a “grave danger” from a “toxic or physically harmful” substance and the standard is “necessary to protect employees from such danger.”

One concern is whether COVID-19 qualifies as a grave danger that warrants the standard. The last time the OSHA implemented an emergency standard was in 1983 when the Reagan administration attempted to limit workers’s exposure to asbestos. An ensuing court case ruled that OSHA has the authority to determine what qualifies a grave danger, a decision that can’t be overturned by the judiciary. This would likely be the same result for the vaccine mandate, as COVID-19 is a more potent threat than asbestos.

Ultimately, though, the asbestos standard was voided by the court because the federal government could not demonstrate the emergency temporary standard was necessary to combat asbestos. The Biden administration will likely encounter a similar difficulty, as it must demonstrate a vaccine mandate is a necessary response to the COVID-19 pandemic. It won’t be difficult to establish COVID-19 as a grave danger, an opinion many Biden officials hold with confidence. The necessity threshold will be the problem, as historically, roughly half of the emergency temporary standards issued by OSHA have been struck down by the courts. One point to watch in any ensuing legal battle will be how the Biden administration justifies the vaccine mandate as a necessity.

With a working understanding of the vaccine mandate’s legal background, we can consider some important legal inquiries. One area that warrants attention is whether a vaccine mandate falls under OSHA’s authority. OSHA did successfully issue an emergency temporary standard related to COVID-19 policies, but it only applied to the healthcare industry and did not involve vaccines. A widespread mandate covering tens of millions of Americans will likely encounter more scrutiny. In fact, some critics have already denounced the policy, proclaiming that a vaccine mandate is beyond the jurisdiction of OSHA. Their argument is that, according to OSHA’s authority, health and safety threats can only be combated from actions within the workplace. Receiving a vaccine would go beyond the workplace, so they reason a vaccine mandate is unconstitutional. Biden’s defenders seem to suppose that the pandemic will justify this external resolution to workplace safety. OSHA’s authority is also based on such general language that a court can easily reason a vaccine mandate falls under its jurisdiction (or the other way around).

The constitutionality of Biden’s vaccine mandate for the private sector will be debatable until the courts begin to consider the issue. We’re already seeing a barrage of lawsuits from a variety of sources across the country, so we’ll have answers soon. The Biden administration seems prepared for these legal challenges, with President Biden’s invitation for his opponents to “have at it.” My hope is that this column gives adequate information to understand the courts’s  decisions, as legal and political discussions are only worthwhile when one is informed and engages in civil dialogue.


Blake Ziegler is a junior at Notre Dame from New Orleans, Louisiana, with double majors in political science and philosophy. He enjoys writing about politics, Judaism and the occasional philosophical rant. For inquiries, he can be reached at [email protected] or followed at @NewsWithZig on Twitter if you want to see more of his opinions.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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