The federal government does not have the power to issue a vaccine mandate

In a tempting claim of authority, the federal government says every 100-person private employer must require employees to be vaccinated for COVID-19, tested weekly, or lose their jobs. While the federal government is within its authority to encourage vaccine development, distribution, and vaccination, it cannot ignore constitutional safeguards and safeguards, even during national emergencies. That’s what this federal vaccine-or-testing mandate does, and why it’s illegal.

The first problem with a vaccine-or-testing mandate is that Congress has said nothing about one. Instead, it is a federal agency, made up of irresponsible bureaucrats, that has promulgated the mandate. This is problematic because federal agencies sit uncomfortably within a constitutional framework: they are generally considered part of the executive branch, but the executive branch is only given the power to enforce—not make—laws. And no one denies that the vaccine mandate has the force and effect of the law; It currently threatens the livelihoods of millions of American workers.

A mask-wearing health technician gives a resident the third dose of the COVID-19 vaccine in Lisbon, Portugal, December 01, 2021.
Horacio Villalobos / Corbis via Getty Images

Given that federal agencies often look like law-making power, the Supreme Court has placed certain limits on them. Under the principle of leading questions, when agencies make important policy decisions in areas that have highly significant economic, political or social consequences—areas you’d expect from Congress, not the bureaucracy, have the final say. Word – The Supreme Court requires an explicit delegation of such authority from Congress. This so-called explicit statement rule ensures that Congress is on top and that the superintending agency is taking action.

Yet in this case, Congress has nothing to do with OSHA’s vaccine-or-testing mandate. The Occupational Safety and Health Act limits OSHA’s authority to workplace hazards; This does not give OSHA the authority to regulate general health hazards or general life hazards. OSHA has never required vaccinations nationwide, regardless of occupation, even from diseases that come with a higher morbidity than COVID-19. There is neither any other agency nor Congress for that matter.

In addition, the emergency mechanism that OSHA used to enforce its mandate allowed the agency to avoid general public notice and comment requirements. But COVID-19 cannot be considered an emergency that allows the evasion of two years of procedural requirements in a pandemic.

In short, the vaccine-or-testing mandate is illegal because Congress itself does not require nationwide vaccinations and because federal courts do not lightly recognize that agencies have the power to legislate on issues of such social and political importance.

But there is another problem with the mandate, and it is not clear that Congress could Implement nationwide COVID-19 vaccination. The federal government has limited powers—only those expressly provided for by the Constitution; The state and the people retain the remainder. In form of tenth amendment Reminds us, “The powers delegated to the United States of America by the Constitution … are respectively reserved for the states or the people.”

But unlike the federal government, states on the other hand have a common power to govern, also known as police power, a power that predates the constitution and does not derive from it.

Why is the dissemination of power so important? This is what secures our freedom. As explained by James Madison Federalist No. 45, the intention of the founders for the government we interact with daily to be more local, more accountable and closer to the governed. And as Judge Bush recognized during proceedings in the Sixth Circuit, the framers understood that the “true defense” of American liberties is the distribution of power between federal branches and between federal and state governments.

Of course, there is no federal vaccine power. The power to regulate public health is a supreme police power reserved for the states. OSHA therefore relies on the authority of Congress to regulate commerce, which extends to activities that substantially affect interstate commerce. But as Chief Justice Roberts keep thisThe Supreme Court has never held that individuals “can be regulated under the commerce clause whenever there is not enough of them doing something the government wants them to do.” The Framers never thought that the Commerce Clause—a clause that allows for little controversy or debate—would turn every issue into a federal one.

This was made clear in the debate on Obamacare, when the Obama administration argued that because everyone would eventually need health care, the government might require healthy individuals to purchase health insurance. While the Supreme Court ultimately justified The individual mandate, under the taxing power, made it clear that the commerce clause did not extend to non-commercial activity—even where the collective effect would have a substantial impact on commerce. “Creating a commerce clause to allow Congress to regulate individuals precisely because they are doing nothing would open up a new and potentially vast domain for Congress to authority,” wrote Chief Justice Roberts. The fact that people fail to do what may be good for them or for society, that Continuous, does not grant unlimited federal authority.

A national emergency, in other words, does not turn the commerce clause into a blank cheque.

In fact, it is right in the face of a national emergency that we need the protection of the Constitution the most. National emergencies have prompted the federal government to unconstitutional capture of private industries and violate other fundamental civil rights.

The federal response to today’s public need must follow constitutional protections. While the federal government may facilitate the use of safe and effective vaccines, the Supreme Court has already Held that it cannot use its commerce clause power “to compel citizens to act as the government would make them act.”

Erin Morrow is Senior Counsel at the Hawley Alliance Defending Freedom, Senior Legal Fellow at the Independent Women’s Law Center, and former Clerk to Chief Justice John G. Roberts.

The views expressed in this article are those of the author.