ALLY CHAMBERLIN—Earlier this month, President Joe Biden announced new Covid-19 policies regarding vaccinations. The President’s “action plan” consists of the following key components: an executive order mandating vaccinations for all federal employees; vaccine requirements for all healthcare workers employed at facilities receiving Medicare and Medicaid funding; and a requirement that all private employers with 100 or more employees ensure their workers are vaccinated or tested weekly. These policies are the most aggressive yet to combat the virus since the vaccines became widely available.
As expected, these new vaccination requirements have been met with resistance from politicians who are opposed to vaccine mandates. Indeed, the Biden Administration’s vaccine mandate raises interesting and complex constitutional issues. The mandate’s reach into the private sector is receiving backlash from governors across the country. The Department of Labor’s Occupational Safety and Health Administration (OSHA) is set to enact this portion of the executive order, which imposes a $14,000 penalty for violations of the vaccination requirements. OSHA and the Department of Labor will issue an Emergency Temporary Standard to carry out the mandate, which is projected to impact over 80 million workers in the affected private sector businesses with over 100 employees.
The focus of the constitutional debate surrounding the mandate is the issue of federal powers versus states’ rights. On the one hand, the federal government is claiming it has authority from the Occupational Safety and Health Act of 1970 and in case precedent supporting the government’s ability to mandate vaccines. On the other hand, opponents of the executive order argue that the federal government is overstepping its federal powers and interfering with state powers under the Tenth Amendment. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Supreme Court has previously considered the government’s authority to issue vaccine requirements. In 1905, the Court ruled in Jacobson v. Massachusetts that local health authorities could compel adults to receive the smallpox vaccine under a state law. The majority held that states have police powers to pass laws that protect the “health, safety, and general welfare of the public,” and that it is for the state legislature to decide whether or not vaccination is the best way to protect public health. In the subsequent 1922 case, Zucht v. King, the Supreme Court relied on its decision in Jacobson to support its conclusion that it is within state’s police power require vaccinations.
At the federal level, the vaccine mandate becomes more complicated. According to the Congressional Research Service, there is currently no express law that allows the federal government to issue vaccine mandates to the general population. However, President Biden purports that his mandate is authorized by the Occupational Safety and Health Act of 1970. Under the Act, The Department of Labor may issue an Emergency Temporary Standard if it determines that (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) “such emergency standard is necessary to protect employees from such danger.” When OSHA issues an Emergency Temporary Standard, it can remain in effect for up to six months without enduring the normal review and comment process of rulemaking under the Act.
Opponents of President Biden’s recent executive order argue that states, not the federal government, are tasked with protecting public health within states. House Republicans have argued that the mandate infringes on Americans’ individual rights and oversteps the reach of the federal government’s powers. The Supreme Court’s interpretation of Tenth Amendment issues makes clear that congress cannot commandeer state legislatures. The Court held in New York v. United States and Printz v. United States that the federal government cannot coerce states into using their own resources to carry out federal policies.
Additionally, the actual authority of the Department of Labor to issue this Emergency Temporary Standard is questioned by those who oppose President Biden’s vaccination plan. Challenges to the new vaccination rule are likely to focus on whether the Covid-19 pandemic meets the legal standard required for OSHA to issue this type of emergency rule. The last time OSHA attempted to issue an Emergency Standard was in 1983 in response to asbestos exposure in the workplace. The rule was struck down by the United States Fifth Circuit Court of Appeals in Asbestos Information Association v. OSHA, where the court’s opinion suggests that OSHA may be required to carry a heavy burden of proof when claiming an emergency standard is “necessary” to protect workers.
Finally, it is worth considering whether the federal government would be able to enforce a vaccine mandate through a different constitutional avenue. One option is attempting to use the federal government’s Commerce Clause powers to regulate the vaccine in interstate commerce. The Congressional Research Service suggests a federal mandate requiring vaccination as a condition to engage in existing economic activities might be a realistic use of this power. However, the Supreme Court’s decision in in NFIB v. Sebelius made clear that Congress’s Commerce Clause powers do not extend to mandates that force individuals to engage in commerce.
Another option is for the federal government to use its powers under the Spending Clause to provide financial incentives for states to enact their own vaccine mandates. If President Biden’s September 9th proposal does not withstand resistance, he might still have an opportunity to achieve a federal vaccine mandate through one of the federal government’s other constitutional powers.