Leana Wen is a doctor whose frequent CNN appearances recently included her regretting the timidity of President Biden’s vaccination mandate: “We need to make it clear that there are privileges associated with being an American. That if you wish to have these privileges, you need to get vaccinated. Travel, and having the right to travel interstate — it’s not a constitutional right, as far as I know.”
In 1999, the Supreme Court held (7 to 2, with Antonin Scalia and Ruth Bader Ginsburg together in the majority) that the right to travel, which is among the rights of national citizenship guaranteed by the 14th Amendment, was violated by a California law limiting welfare benefits for newly arrived residents. Calling the constitutional right to interstate travel “firmly embedded in our jurisprudence,” the court cited a justice’s 1969 judgment that this is “a virtually personal unconditional right.”
The word “travel” is not in the Constitution. Neither is the word “bacon,” but we have a right to have bacon for breakfast, and to raise our children. This puzzles people who think rights are privileges — spaces of autonomy — granted by, and revocable by, government. Such thinking paves the road to what some seem to want: a permission society, where what is not explicitly permitted is implicitly forbidden, or at least contingent on the grace of government.
This nation’s Founders thought otherwise: Governments are, as the Declaration of Independence says, instituted to “secure” preexisting rights. To this end, the Constitution’s Framers gave the federal government finite, enumerated powers and reserved police power to the states. So, Congress cannot do what Biden has directed the Occupational Safety and Health Administration to do — impose a broad vaccination mandate covering 80 million private-sector workers. As the Centers for Disease Control and Prevention recently learned regarding its eviction moratorium, courts look askance at executive branch agencies suddenly discovering in old statutes sweeping new powers.
Did Congress intend to vest OSHA with regulatory powers without discernible limiting principles? If Congress did not intend this, OSHA is being put to illegitimate uses.
The president is rightly impatient with vaccine resistance, which often expresses only the mindless truculence of those who feel fully alive only when furious. But even under today’s grotesquely swollen presidency, presidential impatience is not a self-validating source of extra-constitutional power. Barack Obama repeatedly, and correctly, insisted that he did not have the power to legitimately do what he then did — unilaterally rewrite immigration law. Donald Trump, impatient with Congress’s reluctance to fund his border wall, “repurposed” money appropriated for other things. Are norms now routinely violated still norms? Not unless the judiciary enforces them.
Defenders of Biden’s vaccine (or testing) mandate say federalism and the separation of powers are nice in normal times, but the pandemic makes this an abnormal moment. In such moments, however, the rule of law is especially important. Otherwise, it will become normal for political figures, practicing opportunistic alarmism, to say we live in abnormal times that require abnormal power for them.
This mentality explains a fresh obscenity: Washington’s hysteria du jour, a political protest scheduled for Saturday, is the excuse for reinstalling fencing around the Capitol, thereby making the nation resemble a trembling republic frightened by a restive tank regiment at the edge of town.
Shortly before the pandemic unleashed by World War I killed him, Randolph Bourne wrote: “War is the health of the state.” This truism explains why the political class is so fond of martial rhetoric, waging “war” on poverty, drugs, cancer, terrorism, climate change, covid-19, etc. Today, some argue that Biden can mandate vaccinations because George Washington mandated them for soldiers under his command — as though Americans are situated as soldiers are.
Especially since 9/11, the nation has been challenged to limit uses of government power — e.g., torture, rendition, surveillance — to combat threatened violence. Covid, which is hardly the first and surely not the last pandemic — and which might become endemic — neither requires nor justifies government behaviors that weaken the principles that frame a free, lawful society.