In both cases, the Biden administration is asking the court to construe in its favor statutes that imply — but do not expressly confer — vaccine mandate authority. Based on what they said in oral arguments on Friday, most justices might agree with the administration on the second question but not the first.
Whatever the court rules, Congress should have cleared this matter up long ago by providing expressly for vaccine mandates, either within these statutes or more generally.
Even those who don’t support a mandate to deal with the coronavirus should acknowledge that some epidemics could necessitate one, and that the federal government ought to be able to impose it without resorting to a legal workaround, as Biden is arguably doing now.
There would be foreseeable constitutional objections. States can mandate vaccines, pursuant to their oddly named but broad, and long-established, “police power” over individual citizens. The Supreme Court recognized that in the 1905 Jacobson v. Massachusetts case, citing the primacy of public health concerns and the “common good.”
Congress has no police power. The relative handful of federal individual mandates are linked to express powers in the Constitution. A military draft derives from Congress’s power to raise armies; federal jury duty effectuates the Sixth Amendment right to a jury trial.
Since the New Deal, however, the Supreme Court has upheld broad congressional regulation of businesses and individuals under its authority over interstate commerce, which their behavior affects. Much of modern government rests on this doctrine.
To be sure, conservatives argue, often persuasively, that the “administrative state” has escaped meaningful political control. (They think that’s what’s going on in the vaccine mandate cases now.) Recent precedent — developed by conservative Supreme Court majorities — reined in the interstate commerce power by holding that Congress may not “pile inference upon inference” to recast local conduct as susceptible to federal control.
In 2012, the court upheld Obamacare’s individual insurance coverage mandate as an exercise of Congress’s taxation power, not its interstate commerce power, while also holding that “our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.”
However, as labor shortages, supply chain issues and hospital crowding suggest, no inference-piling would be required to show the potential impact of a pandemic on interstate commerce, which Congress could deem too pervasive to leave to a state-mandate patchwork. Nor is the court’s concern in the Obamacare case — regulating abstention — applicable. Getting infected by a virus, or passing it on, is not a matter of conscious choice.
These realities, plus public health benefits the court recognized in Jacobson, could be enough to support a federal mandate law for either businesses or individuals. Libertarians might balk but should consider: Defining rights and responsibilities ahead of time may help protect freedom in a pandemic during which — as in other emergencies — there is always a temptation to dispense with legal niceties.
Given the law as it now stands, the Biden administration’s arguments unavoidably carry a whiff of “desperate times call for desperate measures” — while those against, equally inevitably, perhaps, err on the side of complacency.
Zero-sum litigation before unelected courts, amid a crisis, is hardly the optimal way to conduct this risk-benefit analysis, a quintessentially legislative function. Justice Elena Kagan alluded to that at last week’s oral argument but seemed fine with Biden’s reading of the underlying law and with leaving the decision up to the Occupational Safety and Health Administration, which, she said, is “full of expert policymakers and completely politically accountable through the president.”
Again, this would be a stronger argument if the law in question, which empowers OSHA to set safety rules in sudden workplace emergencies, more precisely contemplated a case like the coronavirus, which is a risk people face both on and off the job.
Why, apart from any constitutional hesitation, has Congress not provided clearer legal direction on this issue? It can’t be for a lack of warning. In 2005, President George W. Bush, citing the 2002 SARS epidemic in Asia, gave a prescient speech about the possibility of pandemic influenza and proposed a “comprehensive national strategy” to prepare.
Perhaps neither presidents nor lawmakers imagined that they might someday spend billions of taxpayer dollars to help develop lifesaving vaccines in record time, then make them available for free — and millions of people would refuse to take them.