On September 9, 2021, President Joe Biden gave a speech outlining his Administration’s latest plan to “encourage” the American public to receive COVID vaccinations. He began by indicating that “(t)his is a pandemic of the unvaccinated,” further stating that “(t)he unvaccinated overcrowd our hospitals, are overrunning the emergency rooms and intensive care units, leaving no room for someone with a heart attack…or cancer.”
Biden then took pains to emphasize the benefits the vaccinated have received; “the vaccines provide very strong protection from severe illness from COVID-19…the world’s leading scientists confirm that if you are fully vaccinated, your risk of severe illness from COVID-19 is very low. In fact, based on available data from the summer, only one of out of every 160,000 fully vaccinated Americans was hospitalized for COVID per day. These are the facts.”
Continuing in this vein, Biden said, “as the science makes clear, if you’re fully vaccinated, you’re highly protected from severe illness, even if you get COVID-19. In fact, recent data indicates there is only one confirmed positive case per 5,000 fully vaccinated Americans per day. You’re as safe as possible, and we’re doing everything we can to keep it that way…”
Yet, in justifying a new series of vaccine mandates, Biden argued that “my plan is…to protect the vaccinated.” The question then occurs to anyone who really listened to this speech – protect them from what? According to the President, the vaccinated are “as safe as possible.” Why would the vaccinated need protection from the unvaccinated?
Among the new requirements the President announced, many of which are heavy-handed, but legal, one measure has stirred much controversy: “(T)onight, I’m announcing 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.” In making this pronouncement, he repeated the logical fallacy discussed above – “We’re going to protect vaccinated workers from unvaccinated co-workers.”
Again, didn’t Biden just say the vaccinated only represent “one confirmed positive case per 5,000 fully vaccinated,” and that the vaccinated were “as safe as possible?” Why would vaccinated workers need protection from unvaccinated workers?
Rather than go down the rabbit hole, and try to unravel the logical conundrum presented by the President’s COVID speech, let us focus on the primary issue – is it consistent with the US Constitution for the federal government to order private companies to require their employees be vaccinated?
In a previous article, we discussed the legality of employers making vaccination a condition of employment. In general, the practice is legal, so long are employees can seek either a medical or religious exemption. But what Biden has ordered goes beyond the actions taken by a private company. Here, the federal government plans to force private companies to order their employees to receive the COVID vaccination.
The Biden Administration must realize there is a weakness in their position. In addressing the “other sectors” of the economy, Biden issued as appeal rather than a mandate: “(t)o those of you running large entertainment venues—from sports arenas to concert venues to movie theaters—please require folks to get vaccinated or show a negative test as a condition of entry.” If the President believes he can order companies with 100 or more employees to get those employees vaccinated, why wouldn’t he order “large entertainment venues” to insure that their patrons are also vaccinated?
Arizona is the first state to actually challenge the vaccine mandates. In his lawsuit filed in federal court, Arizona Attorney General Mark Brnovich argues that “unauthorized aliens will not be subject to any vaccination requirements even when released directly into the United States…while roughly a hundred million U.S. citizens will be subject to unprecedented vaccination requirements. This reflects an unmistakable—and unconstitutional—brand of favoritism in favor of unauthorized aliens…(t)his discrimination in favor of unauthorized aliens violates the Equal Protection Clause…(b)ecause Defendants’ respect for individual rights vis-à-vis vaccination mandates appears to extend only to unauthorized aliens, and not U.S. citizens…”
An interesting approach, but a narrow one. Even if the District Court finds the mandate to be a violation of the Equal Protection Clause, the Court could order the government to administer vaccinations to illegal aliens. The mandate to private employers would remain unaffected.
There are those who argue that “the constitutionality of what Biden intends to do is fairly straightforward.” According to Jennifer D. Oliva, director of the Center for Health and Pharmaceutical Law at Seton Hall University School of Law, “The federal courts have uniformly rejected constitutional challenges to government vaccine mandates, so long as they don’t single out one demographic group in a way that’s discriminatory. The Supreme Court has done so since the 1905 case Jacobson v. Massachusetts, when a smallpox epidemic swept through the Bay State. To stem the disease, the Board of Health of Cambridge, Massachusetts, passed an ordinance that criminalized…the refusal…to be vaccinated against the variola (smallpox) virus…. As the (US Supreme) court explained, Americans do not have a constitutional right to harm their fellow citizens by refusing a vaccine…Justice John Marshall Harlan…explained (that), ‘the liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. . . . On any other basis, organized society could not exist with safety to its members.’”
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Writing for The Observer, Blake Ziegler makes these observations: “As part of the executive branch, 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. For the Biden administration, this jurisdiction is found through the Occupational Safety and Health Act of 1970, which permits the Department of Labor to issue an ’emergency temporary standard’ for workplaces when employees are exposed to a ‘grave danger’ from a ‘toxic or physically harmful’ substance and the standard is ‘necessary to protect employees from such danger.’ The last time the OSHA implemented an emergency standard was in 1983 when the Reagan administration attempted to limit workers’s (sic) exposure to asbestos…(u)ltimately, though, the asbestos standard was voided by the court because the federal government could not demonstrate the emergency temporary standard was necessary to combat asbestos. The Biden administration will likely encounter a similar difficulty…”
Further, another “area that warrants attention is whether a vaccine mandate falls under OSHA’s authority. OSHA did successfully issue an emergency temporary standard related to COVID-19 policies, but it only applied to the healthcare industry and did not involve vaccines. A widespread mandate covering tens of millions of Americans will likely encounter more scrutiny. In fact, some critics have already denounced the policy, proclaiming that a vaccine mandate is beyond the jurisdiction of OSHA. Their argument is that, according to OSHA’s authority, health and safety threats can only be combated from actions within the workplace. Receiving a vaccine would go beyond the workplace, so they reason a vaccine mandate is unconstitutional.”
The vaccine mandate to private employers would not be the first time the Biden Administration exceeded its authority. “In mid-May a federal court in Texas ruled that the race-based parts of the law governing relief to restaurant owners are unconstitutional. (Later that same month) a higher federal court, the Sixth Circuit Federal Court of Appeals, ruled the same way…(s)aid the court: ‘Here, the government could have used any number of alternative, nondiscriminatory policies. Yet it failed to do so. For example, the government contends that minority-owned businesses disproportionately struggled to obtain capital and credit during the pandemic. But obvious race-neutral alternative exists: The government could grant priority consideration to all business owners who were unable to obtain needed capital or credit during the pandemic.'”
Then, in June, “a third federal court…issued a temporary restraining order against Biden’s racially exclusionary farm and ranch relief program. This new decision concerns Section 1005 of the American Rescue Plan of 2021 (ARPA). Under this law, ‘the Secretary [of Agriculture] shall provide a payment in the amount of up to 120 percent of the outstanding indebtedness of each socially disadvantaged farmer or rancher…” The Department of Agriculture interprets ‘socially disadvantaged’ to include farmers or ranchers ‘who are one or more of the following: Black/African American, American Indian, Alaskan native, Hispanic/Latino, Asian or Pacific Islander.’ As the court describes it: ‘the loan forgiveness program is based entirely on the race of the farmer or rancher.”
Thus, “(i)t’s no surprise that the courts keep ruling that these laws are unconstitutional…(i)t would therefore seem obvious that no business owner or farmer can be denied economic relief solely on account of their race. This is why the Biden administration keeps losing these cases.”
The vaccine mandate to private employers is not discriminatory. However, it most closely resembles the Eviction Moratorium established by the Center for Disease Control – and what became of that moratorium? In August, “the Supreme Court…(decided) that the CDC exceeded its statutory authority in issuing the moratorium… The Court saw it as a stretch that…the CDC (has the) authority to impose an eviction moratorium…the Court reasoned that the…Government’s interpretation of the statute places no limits on the measures that the CDC could take, and its claim of authority under such provision is unprecedented.”
You can expect a similar fate to befall this latest attempt by the Biden Administration to exceed the limits of their authority, the law, and the Constitution.
Judge Wilson (ret.) served on the bench in New York City.
Illustration: Pixabay