Column: Catching Air
On Friday, January 7th, the U.S. Supreme Court will hear oral arguments on President Biden’s COVID vaccine mandate, which applies to 80 million U.S. workers. President Biden wants the Occupational Safety and Health Administration (OSHA) to force all companies with more than 100 workers to make a choice. The companies can either fire all unvaccinated workers, with few exceptions, or they can fire all those who, in lieu of vaccination, will not wear masks and submit to weekly testing.
Biden’s federal mandate would be a striking expansion of government power, forcing Americans to inject a still-experimental drug into their bodies against their will and conscience. While there are objections to this mandate on many levels, including medical, moral, economic, and legal grounds, the Supreme Court is likely to focus, for now, on how the vaccine mandate conflicts with the fundamental structure of our government.
How does the vaccine mandate violate the U.S. Constitution?
The mandate usurps Congress’ lawmaking authority for OSHA, an administrative agency under the president, to force vaccinations on the American people—an act that Congress has not and likely could not pass. The OSHA mandate is essentially an administrative agency work-around, created without Congressional approval after President Biden stated that his “patience” with unvaccinated Americans was “wearing thin.”
Remember high school civics class and the three branches of government?
The legislative branch—Congress—makes laws. The judicial branch, under the Supreme Court, interprets those laws. The executive branch, under the president, is responsible for implementing laws enacted by Congress. Administrative agencies like OSHA come under the executive branch, not the legislative branch, and are only allowed to issue regulations to implement laws passed by Congress and only to the extent that Congress has delegated some of its authority to the agency.
Remember also the Tenth Amendment to the Constitution, which states that the federal government has no powers beyond those given to it by the Constitution.
As such, the Supreme Court is likely to address at least four main arguments against the vaccine mandate.
Four main arguments likely to be addressed by Supreme Court:
1. Not an “emergency temporary standard” to justify bypassing legal procedures
The OSHA vaccine mandate is unlawful because it did not go through the required procedures for public notice and comment. Under the law by which Congress created OSHA, Biden’s vaccine mandate would need to qualify as an “emergency temporary standard,” a rarely used procedure, in order to justify bypassing the normal regulatory process that should have required advance public notice and comment. In addition, it is hard to call COVID an “emergency” when it has been around for two years and things are starting to get better. Nor is there anything “temporary” about a vaccine that changes a person’s body chemistry, even if vaccine efficacy does seem to wear off rather quickly.
2. No necessity to bypass legal procedures
The mandate is not necessary to address a grave workplace danger. In order to bypass the normal administrative agency procedures, the OSHA mandate would need to be “necessary”—defined as “indispensable or essential”—to address a “grave” workplace danger. Necessity in this case is questionable when there are much less invasive ways to address COVID spread in the workplace. It is not even clear that the vaccines are effective, let alone “necessary” to control COVID spread. The vaccines and their subsequent boosters have not been able to stop breakthrough cases among vaccinated people. People who are vaccinated are still getting sick in large numbers and passing COVID on to others. This is especially true for the Omicron variant.
The OSHA mandate also shows a disproportionate lack of concern for workers who are at most risk. For example, employers would fire healthy, unvaccinated, young workers who have no pre-existing health conditions while continuing to employ vaccinated, older workers with health conditions that put them more at risk if they do contract COVID. Is this really about worker safety, or is it just a pretext for increasing the number of vaccinated Americans?
3. Beyond the scope of Congressional authority
The mandate is beyond the scope of OSHA’s authority. Congress’ limited delegation of rulemaking authority to OSHA only empowers the agency to regulate “occupational health and safety risks.” This delegation of authority allows OSHA to address workplace-specific hazards with workplace-specific measures, but not personal health decisions just because they might affect workers at some point during the workday.
If OSHA is allowed to federally mandate COVID vaccines, why couldn’t the agency also federally mandate annual flu vaccines? After all, the flu is a communicable disease that the CDC estimates kills 12,000–52,000 people every year. Could OSHA also require workers to take daily vitamins, eat broccoli, or get a certain amount of sleep each night so they don’t get sick and pass diseases to co-workers? Congress seems to know its limits, even if OSHA does not, and Congress has never attempted compulsory vaccination or tried to give that power to OSHA or any other agency.
4. Beyond the scope of Constitutional authority
The federal government’s vaccine mandate through OSHA goes well beyond its authority under the Constitution. This is still true even if Congress authorized a federal vaccine mandate. While there is some very limited (and rather questionable) precedent for state vaccine mandates under the state “police powers,” there is no legal precedent for a federal mandate. Congress seems to recognize our Constitutional right to refuse unwanted medical treatments, including compulsory vaccination, and Congress cannot delegate to OSHA a power that Congress does not itself have.
In defense of its position, the government’s legal brief insists that the OSHA rule is not really a vaccine mandate at all, because employers are given the option to let workers wear masks and get tested each week in lieu of vaccination. But in most cases, the effect is the same as a vaccine mandate. Employers are encouraged not to allow the testing option, which is expensive and onerous, and workers would be discouraged from using the testing option even if it is allowed. In many places, tests are not even available.
Besides, even a simple “vax or test” rule, which this vaccine mandate is not, would probably exceed OSHA’s authority from Congress, and it would not excuse OSHA from following the required procedures for public notice and comment. The COVID test itself can be a medically invasive procedure, so a “vax or test” rule would still violate a worker’s Constitutional right to refuse unwanted medical procedures.
The Supreme Court is being asked to allow an unelected federal agency to subject unwilling citizens to a physically invasive medical procedure before the public can even weigh in through the normal channels. Even if Congress wanted to adopt such a vaccine mandate, which apparently it does not, the mandate would still exceed the federal government’s authority under the Constitution.
The outcome at the U.S. Supreme Court is far from certain, so let’s hope the justices remember their high school civics.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »
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