More troubling is the executive order’s manifest unconstitutionality. Biden’s order does three primary things. First, it establishes a mandate that all federal employees and the employees of government contractors be vaccinated against covid-19. Second, it requires that all employees of private employers of 100 or more employees, regardless of their connection with the federal government, either be vaccinated or undergo weekly coronavirus tests. Finally, it requires all entities that receive payments from Medicare or Medicaid to require health-care workers to be vaccinated.
Only the requirements affecting direct federal employees pass clear constitutional muster. There’s certainly no constitutional bar on private-sector employers requiring vaccination as a condition of employment, much as employers can require employees to undergo regular drug testing. When acting in its capacity as an employer, there’s no obvious reason why the federal government would be more constrained.
Beyond that, however, Biden’s order is unconstitutional. Under our federal system, the U.S. government does not have the power to require an adult American to do something with, or put something into, his or her body. Indeed, it doesn’t even have the power to order an adult to buy a commercial product: That’s why Obamacare’s individual “mandate” was structured as a tax rather than a command. Even the Obama administration understood that the federal government could not constitutionally treat its citizens like subjects. Biden seems to understand this, too, when it comes to issues he cares about, such as abortion rights. His administration ironically filed suit on Thursday to enjoin Texas’s new “fetal heartbeat” law, which is opposed by abortion rights advocates as violating the principle that it is the sacred right of a woman to do what she wants with her body. The logical disconnect between the suit and the order is mind-blowing.
Neither the private-sector mandate nor the Medicare and Medicaid vaccination requirements can survive court scrutiny. The mandate is unconstitutional because it would directly coerce a person to take a drug or test, both unconstitutional compulsions. The Medicare and Medicaid requirements fall short because of the doctrine of “unconstitutional conditions,” which holds that the government cannot use its power to grant or withhold benefits to take away a person’s constitutional rights indirectly. Otherwise, for example, it could condition receipt of federal money on the recipient renouncing their freedom of speech. Forcing a hospital to choose between the federal government’s cash and acting as the government’s henchman is a textbook example of what the doctrine is intended to prevent.
In fact, Biden’s order would be illegal even if the federal government had this power. Biden claims that he can bypass Congress on this matter because the Occupational Safety and Health Administration can issue orders without going through the time-consuming rulemaking process under its Emergency Temporary Standards power. Before this summer, that power was last used in the 1980s, and that order — mandating employers to limit the level of asbestos its employees were exposed to — was struck down by the courts as inconsistent with the law. The law authorizing OSHA’s temporary powers clearly envisions such orders arising in a workplace context, where threats to health that arise from the workplace can be eliminated by actions within the workplace — something clearly not true of covid-19. OSHA law was not intended to use workplace regulations to fight a pandemic, and the courts will not twist it to say otherwise.
There are plenty of things we can do to fight the pandemic without surrendering our freedom or running roughshod over the Constitution. Private employers can mandate vaccination, and many are doing so. State and local governments can mandate their employees to be vaccinated, and public schools can require their students to be vaccinated, too. The sorts of public health measures we have employed since the pandemic’s start — social distancing, masking and the rest — do help reduce the incidence of the disease.
But then we already knew that Biden does not care about following the Constitution when its strictures don’t suit him. He openly said that the courts would most likely strike down his move to extend the Centers for Disease Control and Prevention’s order prohibiting landlords from evicting their tenants during the pandemic. His view of his own power was further made clear Thursday when he noted that many governors don’t agree with his new plans. “If these governors won’t help us beat the pandemic,” he said, “I’ll use my power as president to get them out of the way.” President Donald Trump was widely condemned for saying that he had “total” authority to make states reopen their economies. Biden has no more power to make his wishes law than did Trump.
Biden said he was running for president to “restore the soul of America.” But the country’s soul, its heartbeat from its initial gestation in 1776, is the freedom of the individual from arbitrary government power. Chief Justice John G. Roberts Jr., writing for the Supreme Court’s majority in the case upholding Obamacare’s constitutionality, said, “People, for reasons of their own, often fail to do things that would be good for them or good for society.”
A nation that allows the government to compel people to do those things “is not the country the Framers of our Constitution envisioned.” We can fight and beat the virus without ignoring this basic truth. That Biden doesn’t understand this shows he doesn’t really understand America.