The Supreme Court has fast-tracked two cases involving the vaccine mandates that President Biden has imperiously imposed on tens of millions of Americans. One mandate is for businesses that employ more than 100 people and another separate mandate is for healthcare workers. Oral arguments are scheduled for Friday. That’s a big reason I’m betting the Court is poised to deal the president a double dose of defeat — though nothing is certain, of course.
Very simply, Biden is in violation of the Constitution. We have a republic, not a monarchy, and there is nothing inherent in the executive power conferred by Article II that authorizes the Biden decrees. So the president lacks even arguable authority to coerce people into being vaccinated absent statutory authorization. Indeed, I must say “arguable” because it is doubtful that even Congress itself has the power to force private citizens to submit to an invasive medical procedure, much less to delegate that authority to the executive branch.
As Rich Lowry notes, Biden conceded in a sudden epiphany last week that the regulation of medical procedures — e.g., inoculations that have long been a prerequisite to school attendance — is primarily a state responsibility in our constitutional system. Even in its Obamacare cases, though otherwise broadly deferring to Congress, the Supreme Court rejected the notion that the commerce clause of the Constitution empowers lawmakers to force people to engage in health-care commerce — in that instance, purchasing insurance. Moreover, Article I’s general-welfare clause has never been a congressional blank check. After all, if read that way, it would swallow federalism whole, razing the vertical separation of powers between federal and state governments.
The main reason I believe that the Court will reject the Biden mandates is that to do so, the justices need not wrestle with the knotty question of how much, if at all, Congress may intrude on the states’ supremacy over health and safety regulations. For regardless of what power Article I may arguably impart, the Court has stressed — most recently in August, when it rejected Biden’s effort to decree an eviction moratorium — that Congress must speak clearly when it endeavors either (a) “to assign to an agency decisions of vast economic and political significance” or (b) “to significantly alter the balance between federal and state power and the power of the Government over private property.”
Plainly, in enabling the Occupational Safety and Health Administration (OSHA) to police workplace hazards, and in empowering the secretary of health and human services to manage the Medicare and Medicaid programs, Congress did not purport to grant the president the transformative power that a vaccination mandate would portend.
Through an “emergency” rule, issued by OSHA, Biden has ordered every American private business that employs over 100 people “to establish, implement, and enforce a written mandatory vaccine policy.” If employees are not “fully vaccinated” (a status the administration claims the power to change willy-nilly), they can be terminated unless they qualify for religious or medical exemptions.
As an alternative, OSHA deigns to allow employers to permit unvaccinated workers to undergo weekly testing and wear masks in the workplace. Yet it ratchets up the administrative burdens on this path, the better to bludgeon employers into choosing the mandatory-vaccine route. The latter, however, imposes on employers the cost of time off for employees to get vaccinated and recover from any complications — while employees must bear the burden of testing and masks, even though OSHA normally imposes such costs on employers.
By a procedural quirk of multi-district litigation rules, the Fifth Circuit federal appeals court’s injunction against the OSHA mandate was reviewed by a three-judge Sixth Circuit panel, which reversed it in a divided ruling. In essence, two judges rationalized that the mandate was not really a mandate; instead, it supposedly endows employers with self-determination about how best to minimize the incidence of Covid in the workplace. In dissent, Judge Joan Larsen (a stellar jurist who clerked for Justice Antonin Scalia a few years before Supreme Court Justice Amy Coney Barrett did) dismantled this hocus-pocus.
Larsen reasoned that, while the mandate could eventually face other insuperable constitutional hurdles, there was little need to grapple with these because Congress simply has not given OSHA the requisite statutory authority. OSHA has relied on its emergency authority, which it rarely invokes, with courts having struck down emergency rules with numbing regularity. That reliance is especially dubious here given the administration’s dawdling: OSHA issued the vaccine mandate a year after the shots became available, and months after Biden first announced the “emergency.” The emergency invocation triggers a three-part test, and Larsen deftly demonstrated that the OSHA rule fails on every count.
First, the mandate is not necessary in the emergency sense of being essential or indispensable — an inconvenience the majority attempted to evade by distorting the term necessary as if it meant merely reasonable or useful. Larsen illustrated the point with a hypothetical: If OSHA ordered that pizzeria employees wear oven mittens at all times, that would undoubtedly improve safety, but no one would sensibly argue that doing so was necessary for, say, taking phone orders or making deliveries.
Second, OSHA failed to establish that the Covid poses a grave danger. In the statutory context, this means a risk that is not only possibly incurable or fatal but one whose occurrence is likely. No one questions that Covid can be perilous. Still, OSHA itself says not only that vaccinated workers are not in grave danger, but that the risk to a vast cadre of unvaccinated people — those between 18 and 29 — is roughly the same as that borne by vaccinated people between 50 and 64. Covid is simply not a significant danger, much less a grave danger, to the vast majority of people outside certain discrete risk categories.
Third, OSHA’s authority is confined to the walls of the workplace. Covid, to the contrary, is not uniquely a workplace condition. OSHA did not even try to identify a Covid risk peculiar to the workplace; it determined that each of 26 million unvaccinated workers had a 1 in 202 chance of dying if they contract Covid . . . someplace.
The Biden administration’s gimcrack defense of the vaccination mandates elucidated the obvious: In authorizing OSHA to regulate workplace hazards with workplace solutions, Congress was not empowering the agency to impose a sweeping federal diktat regarding a medical threat of widely varying gravity, which only incidentally affects the workplace.
To conclude otherwise would be to hold that Congress had attempted to endow OSHA with power that Congress itself very likely lacks. And not just any power; rather, a Constitution-devouring grant that would eviscerate federalism and individual liberty, but that no one had noticed for the last half-century since OSHA’s creation in 1970.
At least OSHA can say that its principal mission is safety. By contrast, CMS (formally, the Centers for Medicare and Medicaid Services) primarily exists to administer huge federal health-care-entitlement programs.
As Judge Matthew T. Schelp of the federal district court in Missouri observed in late November, CMS has no expertise in crafting vaccine mandates. It thus strains credulity beyond the breaking point to believe that Congress, in creating a program administrator, intended to vest it with powers of vast economic and political significance that would dramatically alter the federal government’s relationship with the states and with American citizens. Consequently, Judge Schelp enjoined the Biden mandate that purported to require nearly every employee, volunteer, and third-party contractor connected to the nation’s healthcare facilities to submit to Covid vaccination. The Eighth Circuit federal appeals court affirmed Schelp’s ruling (with Judge Jane L. Kelly, appointed by President Obama, her Harvard Law School classmate, dissenting without elaboration).
Let’s set aside the Supreme Court’s three progressive justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — whose track record makes it certain that they’ll side with the Biden administration. Let’s further assume that conservative justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, who has been hostile to Covid mandates that infringe on individual liberties and state authority, will oppose Biden’s vaccination ukases. The case is apt to be decided by the Court’s emerging right-of-center wing: Chief Justice John Roberts, along with Justices Brett Kavanaugh and Amy Coney Barrett.
The risk-averse chief justice has bent over backward in deference to pandemic decisions by elected officials, rationalizing that they, unlike judges, are politically accountable to the Americans whose lives are affected. As one would suspect, Kavanaugh and Barrett appear to be sympathetic to the position staked out by their fellow conservative justices. But – I suspect out of loyalty to the chief justice, who has tried to shield them from the Left’s attacks after their controversial confirmations — they have pretextually raised worries about the abbreviated process of the Court’s emergency docket to sidestep the issues raised in such cases. The challenges to Biden’s vaccine mandates have come to the Court via the emergency docket.
Nevertheless, I believe that the Biden vaccine mandates are doomed. To sustain challenges to the mandates, the Court need not hold that the federal government has no authority to require vaccines, only that Congress has neither claimed such authority nor attempted to vest it in the president. That is, the justices needn’t refute Roberts’s inclination to defer to the political branches — only to hold that, at a minimum, the president needs clear congressional authorization, and he hasn’t gotten it.
Further, in agreeing to consider the two mandate cases, the Court did not content itself with the usual emergency procedures. While things have been accelerated, there has been briefing and the justices will hear oral argument — and only after lower courts, including three circuit courts of appeal, have extensively considered and ruled on the relevant questions. That should more than answer the hand-wringing of Kavanaugh and Barrett.
The betting here is that the Biden vaccine mandates will be invalidated. As they should be.
ANDREW C. MCCARTHY is a senior fellow at National Review Institute, an NR contributing editor, and author of BALL OF COLLUSION: THE PLOT TO RIG AN ELECTION AND DESTROY A PRESIDENCY. @andrewcmccarthy