Under Article 1 of the United States Constitution, “All legislative powers herein granted shall be vested in a Congress of the United States.” After enumerating a list of the various powers of the Congress, Article 1, Section 8 states “(t)he Congress shall have power… (t)o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
Thus, it is basic to our structure of government that Congress makes the laws, and can delegate to “any department or officer” whatever power is necessary to execute and enforce those laws.
It is also a basic tenet of the US Constitution that under Article 2, “(t)he President is responsible for implementing and enforcing the laws written by Congress.” That is, the President does not make the laws.
In September of 2021, we analyzed a speech given by Joe Biden that same month, in which the President announced that “the Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.” At that time, we quoted Justin Haskins, director of the Stopping Socialism Project at The Heartland Institute, who stated that “(n)othing in the Constitution suggest that the executive branch can impose blanket vaccine regulations on private businesses or their employees,” and Blake Ziegler of The Observer, who said “the Department of Labor cannot simply create new laws (that’s Congress’s job). It can only enact regulations under existing laws and its authority established by Congress.” Based upon this authority, we predicted that the Vaccine Mandate to private employers would be found unconstitutional.
In August of last year, we also discussed the mandate for healthcare workers to be vaccinated. At that time, we predicted that the legal efforts to halt this requirement would be unsuccessful, since “(r)equiring healthcare workers to submit to a vaccination as a condition of their employment is nothing new.”
Not to say that we told you so, but…we told you so.
In a pair of rulings handed down this month, the US Supreme Court invalidated the vaccine mandate to companies which have 100 or more employees, but upheld the vaccine mandate to healthcare workers. In each case, the Court was called upon to determine whether or not Congress had authorized the “department or officer” to act.
An examination of each decision will reveal the Constitutionally consistent basis for these two different rulings.
In Biden v. Missouri, the Court reviewed a rule promulgated by the Secretary for Health and Human Services “that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19.”
The Supreme Court found that “(b)oth Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations ‘as may be necessary to the efficient administration of the functions with which [he] is charged”…One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety…To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such ‘requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution’…Relying on these authorities, the Secretary has established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds.”
“On November 5, 2021, the Secretary issued an interim final rule amending the existing conditions of participation in Medicare and Medicaid to add a new requirement—that facilities ensure that their covered staff are vaccinated against COVID–19… A facility’s failure to comply may lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the programs.”
The condition is very common and is now treatable with some modern medicine like Kamagra. soft cialis online http://mouthsofthesouth.com/locations/estate-auction-of-brenda-parrish-deceased/ The doctor will be able to determine if you have ED, levitra cheap it means that you cannot get a proper erection every time either; but you never know, it does work for some people. Online drug sales have more than tripled in recent http://mouthsofthesouth.com/wp-content/uploads/2014/08/MOTS-Camden-sale.pdf super viagra for sale years; they approach the hundred billion dollar mark — little wonder, with savings of 50% or more over local drugstores. Choosing the best online service continue reading to find out more levitra sale provider will never ever make you disappoint in any aspect.On this basis, the Court found that the rule requiring all employees of a healthcare facility to be vaccinated “falls within the authorities that Congress has conferred upon (the Secretary)… Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services’…The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”
Further, “the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves… (a)nd the Secretary has always justified these sorts of requirements by citing his authorities to protect patient health and safety… a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the Secretary to impose.”
Whether or not we agree with the result, the issue in Biden v. Missouri is relatively straightforward and simple. Did Congress give the Secretary of Health and Human Services the authority to issue the vaccine directive? The answer is just as simple – yes. The Secretary is empowered by Congress with the discretion to enact whatever rules he finds necessary to protect the health of Medicare and Medicaid benefit recipients. The vaccine mandate to healthcare workers is a legitimate exercise of that authority.
Contrast this ruling with the holding of the second case, National Federal of Independent Business v. Department of Labor, Occupational Safety and Health Administration. There, “(t)he Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vaccine mandate for much of the Nation’s work force…(i)t requires that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws…OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
As in Biden v. Missouri, the Court went through an analysis of the power of the Secretary of Labor to promulgate rules and directives to an agency under his control – in this case, OSHA. “As its name suggests, OSHA is tasked with ensuring occupational safety— that is, ‘safe and healthful working conditions’…It does so by enforcing occupational safety and health standards promulgated by the Secretary…Such standards must be ‘reasonably necessary or appropriate to provide safe or healthful employment’…
“On September 9, 2021, President Biden announced…that the Department of Labor would issue an emergency rule requiring all employers with at least 100 employees ‘to ensure their workforces are fully vaccinated or show a negative test at least once a week’…After a 2-month delay, the Secretary of Labor issued the promised emergency standard…Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more employees…”
In finding this rule invalid, the Court noted that “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power’…It is instead a significant encroachment into the lives—and health—of a vast number of employees. ‘We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance’ (citation omitted)…
“The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures…Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
In Biden v. Missouri, the Court found the Secretary of Health and Human Services to be acting in accordance with the powers delegated to him by Congress. In National Federal of Independent Business, the Court found that the Secretary of Labor, acting under the order of the President, and not the Congress, exceeded his authority. In each case, the Supreme Court avoided the political implications of their decisions, and made their ruling under the guidelines established in the US Constitution.
In other words, the system created by the Founders worked, exactly as they intended.
Judge John Wilson (ret.) served on the bench in New York City