By Jonathan Emord
Joe Biden has just hurled his Department of Labor, Occupational Safety and Health Administration, and Department of Justice into a massive, costly, and lengthy legal quagmire brought on by corporations, employees, and states who will undoubtedly file suits across the nation challenging his vaccine mandate. He has jumped headlong into a litigation maelstrom the likes of which the nation has not seen since employers sued in overwhelming numbers to invalidate Franklin Delano Roosevelt’s failed National Industrial Recovery Act.
True to form, Biden has leapt without appreciating the gravity of his ill-conceived actions. They will boomerang. It seems everything Biden touches has that boomerang effect (his unilateral termination of the Keystone XL pipeline and fracking leases on federal lands destroying good paying jobs and energy independence, his elimination of the remain in Mexico policy ushering in uncontrolled immigration, drugs, and sex trafficking, his excessive federal spending bringing about inflation, and his precipitous, dishonorable retreat from Afghanistan, leaving Americans, SIVs, Afghan allies, and $80 billion in military hardware and munitions, and trillions in U.S. bases to the Taliban (his new “partners”).
Biden’s latest abuse of power will be challenged on constitutional and statutory grounds.
Equal Protection Component of the Fifth Amendment. Federal and non-federal employees who have natural immunity from prior infection may well sue under theEqual Protection component of theFifth Amendment, arguing that there is no rational basis for them to be coerced into vaccination or weekly testing because they already have a fulsome immunity, equal to or greater than the vaccinated. Moreover, they cannot carry the virus to transmit to others.
Those who are immunocompromised or otherwise infected with incurable diseases that make vaccination a particularly significant health hazard may likewise avail themselves of Fifth Amendment Equal Protection.
Tenth Amendment to the Constitution. UnderJacobson v. Massachusetts(1905) and Zucht v. King (1922), the authority to compel vaccination is a police power reserved to the states. There is no comparable power delegated by the Constitution to the federal government, and none that permits the Executive Branch to compel employers to coerce employees into vaccination or weekly testing as a condition of employment.
Moreover, if the states are deemed subject to the mandate, the Anti-Commandeering Doctrine under New York v. United States(1992) and Printz v. United States( 1997) may prohibit the federal government from coercing the states to compel their employees to be vaccinated or tested weekly.
Because the President has once again assumed dictatorial powers, there is no statutory basis for federal pre-emption of state laws banning mandatory vaccination (such as those in 14 states). That failure to get Congressional approval for the sweeping mandate will likely come back to bite him because he has usurped an inherently legislative act and unconstitutionally imposed his will upon the American people.
Separation of Powers Doctrine. The President’s vaccine mandate exceeds the power of the Executive under the Constitution. It invades the exclusive law-making province of the Congress of the United States. Thus, it violates the Separation of Powers Doctrine. His mandate is sweeping, not only affecting federal government employees but all companies that employ 100 or more, and all employees of those companies. It is unprecedented. For the first time, a President has used executive power to impose a national mandate requiring medical treatment and testing.
Federal Laws. In addition to the constitutional defects, the President is running roughshod over several existing federal laws.
If any slated to be vaccinated or weekly tested are immunocompromised or otherwise at risk of major injury due to pre-existing medical conditions, they may not be compelled to be vaccinated or tested. Title I of the Americans with Disabilities Act(including for federal employees via Title V of the Rehabilitation Act of 1973) protects them from any such federal requirement.
Moreover, if any federal or non-federal employee who has a religious scruple against vaccination is required to be vaccinated or tested, he or she may seek refuge underTitle VII of the Equal Employment Opportunity Act, which protects against religious discrimination.
Aside from these legal impediments, the facts strongly militate against the President’s action. He may well argue there ought to be an “emergency” exception to the Constitution and statutory strictures, enabling him to assume dictatorial powers. While on its face that argument ought not fly in our republic (no emergency exception exists to the Constitution), the conclusion that an “emergency” exists is belied by the facts. First, most affected by the mandate are either in a low-risk category (are young and healthy workers) or have had the virus and, thus, have a fulsome immunity. Second, there are many who pose no risk of transmission because they work remotely from home. Indeed, remote work is an accommodation employers could provide in many instances and thereby avoid the very risks the mandate is supposed to guard against. Third, there are far fewer deaths presently than at the peak of the pandemic in December 2020. Infections appear to be plateauing, the pandemic waning. Fourth, the government misrepresents the extent of actual immunity in the overall population (the addition of those vaccinated and those who have natural immunity). Indeed, the Biden Administration won’t acknowledge natural immunity as a factor. Combined vaccine and natural immunity yield a staggering immune population, perhaps 75 to 85% of all Americans. Fifth, no serious investment or promotion of numerous very effective therapeutics has been made that could reduce help hospitalizations and hasten recovery, such as ivermectin and hydroxychloroquine.
President Biden’s vaccine mandate has provoked a richly deserved, strongly negative reaction. Biden will surely suffer another stiff rebuke not only as his popularity continues to plummet but also as his vaccine mandate becomes entangled and sinks in a costly, time-consuming litigation quagmire.
Jonathan W. Emord is a constitutional law attorney and author of The Authoritarians: Their Assault on Individual Liberty, the Constitution, and Free Enterprise from the 19th Century to the Present (2021).