Regulating “Every Breath You Take”: Police Power and OSHA’s Vax Mandate
“Congress likely has no authority under the Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine mandate upon the American public. Such claimed authority runs contrary to the text and structure of the Constitution and historical practice. The regulation of health and safety through compulsory vaccination is a traditional prerogative of the states—not the domain of Congress and certainly not fodder for the diktat of a federal administrative agency.”1
On September 9, 2021, a year and a half into the Covid-19 pandemic and more than half a year since the advent of vaccines, President Joe Biden announced several sweeping vaccination mandates.2 These mandates were directed at federal workers, contractors, employees of large businesses, and healthcare workers, respectively, ultimately affecting more than two-thirds of the U.S. workforce—over 100 million Americans.3 Most significantly, he directed the Labor Department to issue a rule requiring all employers with 100 or more employees to ensure their workers are vaccinated or require unvaccinated workers to produce a weekly negative Covid test on their own time and dime. Two months later, the Occupational Safety and Health Administration (OSHA) finally issued this “emergency” rule, which was to take effect in early 2022.4 OSHA had never before imposed such a sweeping mandate—and indeed its use of the “emergency temporary standard” (ETS) process itself has a dubious legal history.5 Nor had Congress, not even in any of the massive pieces of legislation it passed to address the pandemic. The most that Congress had explicitly spoken to the question of vaccine mandates was a Senate resolution disapproving of the ETS on December 8, 2021.6 Biden himself had rejected mandatory vaccination a year earlier, before he was inaugurated.7
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Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
1. In re MCP No. 165, 20 F.4th 264, 285 (6th Cir. 2021) (en banc) (Bush, J., dissenting from the denial of initial hearing en banc [hereinafter dissental]).
2. Remarks on the COVID–19 Response and National Vaccination Efforts, 2021 Daily Comp. of Pres. Doc. 725 (Sept. 9, 2021), at 2.
3. Shannon Pettypiece et al., Biden Announces Sweeping Vaccine Mandates Affecting Millions of Workers, NBC NEWS (Sept. 9, 2021), https://nbcnews.to/3tBUc5m [https://perma.cc/B3LF-3W48]. 4. U.S. Dep’t of Lab., Statement on the Status of the OSHA COVID-19 Vaccination and Testing ETS (Jan. 25, 2022), https://www.osha.gov/coronavirus/ets2 [https://perma.cc/PJ45-YGJ5].
5. Of the nine times OSHA had used its ETS power, six had been challenged in court, where only one instance was fully upheld. Walter Olson, Where Does Biden Get the Authority to Mandate Vaccination?, REASON (Sept. 10, 2021), https://reason.com/2021/09/10/ where-does-biden-get-the-authority-to-mandate-vaccination [https://perma.cc/B3TB3KYZ].
6. S.J. Res. 29, 117th Cong., 1st Sess. (2021).
7. Jacob Jarvis, Fact Check: Did Joe Biden Reject Idea of Mandatory Vaccines in December 2020?, NEWSWEEK, (Sept. 10, 2021), https://www.newsweek.com/fact-check-joe-biden-novaccines-mandatory-decem... [https://perma.cc/RN9R-V9D9].