Federalism and the OSHA vaccine mandate
The Biden administration’s vaccine mandate is not only unconstitutional; it is an assault on federalism.
When I first began studying constitutional law, the civil rights cases were my favorite. The arguments contained a tone of passion and urgency that was inspiring. To me, these cases were on the cutting edge of the fight for freedom. However, as I explored more, I discovered an opposing view from the late-Justice Antonin Scalia. He said that his favorite cases were not the rights cases but the cases on the structure of government. Thus, he concluded, “Tyrannies have long lists of rights. What they do not have is structural restraint on the power of government.”
Our republic was founded upon the principle of limited government. The Framers first designed the constitution so that it would not require a separate bill of rights. Their goal was to create freedom through a limited government. Federalism, the separation of central and local power, was to be their sword and shield. They established free markets only giving congress the power to regulate trade and economic discourse in and among states that affected the national economy[a]. This is referred to as the interstate commerce clause. While the expression seems benign, it is one of the broadest powers of congress.
[a] Article I, Section VIII, Clause III: “Congress shall have the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
BST Holdings v. OSHA (the private business vaccine mandate case) turns on this very issue of federalism. While the federal government can regulate local activities that affect the national economy, states have the broad power to control the lives of their residents concerning health and safety. The federal government cannot compel citizens to do anything economic; it can only regulate existing commerce (National Federation of Independent Business v. Sebelius). This line that the federal government cannot cross is what Scalia dedicated his career to preserving. Today, states can mandate the vaccination of their residents under narrow circumstances[b]. But the federal government cannot unilaterally exercise police powers and force vaccination or testing on workers.
[b] Jacobson v. Massachusetts (1905): In this case, the Supreme Court upheld a vaccine mandate in Cambridge, Massachusetts because of its narrow application. The state legislature had passed a law allowing cities to issue vaccine mandates under the direction of the local health board. Cambridge ordered all its residents to get vaccinated for smallpox or face a fine of $5 (about $160 today). The Supreme Court held that the burden on the right to refuse a vaccine was not substantial because individuals did not face any penalties besides the fine.
The vaccine mandate was initiated by an Emergency Temporary Standard (ETS) issued by OSHA. It ordered businesses with more than 100 employees to create and execute a vaccine policy or enforce weekly testing and mask-wearing for employees. OSHA, the Occupational Safety and Health Administration, was created under the commerce clause and is therefore restrained by it. The decision to get a vaccine is not an economic one. No price signal would cause consumers to enter or exit the market. Furthermore, the unvaccinated are not participants in any exchange and cannot be compelled under the commerce clause. The Supreme Court could strike down the mandate wholly on these grounds.
The Court has refused to allow it in cases where the federal government has attempted to issue similar mandates under the commerce clause. Ignoring the outcome of the Affordable Care Act case, NFIB v. Sebelius, the Obama Administration tried to enact the individual mandate under the power of the commerce clause. Buying healthcare should not be construed as an economic decision for the same reason as the vaccine. Decisions about our health and bodies are intimate. It would be excellent if everyone went to the doctor once a year, but if the government made you do it, how would you feel?
The Supreme Court has held, on multiple occasions, that competent people have the right to refuse medical care (Cruzan v. Missouri Board of Health, Washington v. Glucksberg). Forced medical care amounts to battery in many states. The right to refuse medical treatment is a substantive due process right, meaning it is recognized even though it is not explicitly written in the constitution. Likewise, the right to marry or have consensual sex with any person you want is a substantive due process right. The cases require a lot of interpretation, so courts avoid ruling on these questions unless necessary. Given that the Supreme Court is set to address abortion cases[c], this term, they are not likely to overturn the ETS on this basis.
[c] the right to obtain an abortion has previously been recognized as a due process right (Planned Parenthood v. Casey, Roe v. Wade)
For now, the Fifth Circuit has reaffirmed the stay upon the merits, harm, and public interest of the vaccine mandate for private businesses. The opinion offered by the Court delivers a firm rebuke to OSHA and the Biden administration. It points out that OSHA took two months to draft the ETS after President Biden shared the news of the mandate with the public. Further, OSHA had already met earlier in the pandemic to discuss a proposal for an ETS but determined its impossibility on record. The process shows no exigency; the government did not act with deliberate speed in a situation they claim is an emergency. Aside from the mandate being unconstitutional, the ETS could also be struck down on this fact alone.
The pandemic has been going on for over a year and a half now. Most people have lost someone they know to COVID-19 at this point. But this emergency cannot go on forever. Governments around the world have taken unprecedented action to protect life. If we do not once again reclaim the freedoms we gave up in the interest of public health, the government will have the legal pathway to repeat these offenses with perpetuity. Luckily, it seems the Supreme Court is poised to deliver a mortal blow to this type of broad action by the federal government very soon.
Now, it’s cases like these that excite me the most. Another thing I have learned from reading federal court cases is the power of the footnote in legal writing. Some of the most famous bits of wisdom from the top legal minds of the time are stored in footnotes. Any lawyer in the US would know about footnote four. The Fifth Circuit lived up to this tradition in their opinion in BST Holdings v. OSHA, quoting Justice Neil Gorsuch: “If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
It is not only lessons of history that inform how we must face this dilemma but also the circumstances around the world today. Canada has closed its borders and commercial travel to unvaccinated citizens. Australians have been forced to endure over 250 days of lockdowns even though less than 2,000 people have died from COVID-19 in the country in total. There is no denying that US citizens are privileged with more freedoms than any other citizenry. This case, BST Holdings v. OSHA, is the line that we must hold to keep the promise of liberty safe for our children. This case is the battle that will turn the tide.
