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January 4, 2022

In Brief: SCOTUS Should Nix Biden’s Vax Mandates

In two fast-tracked cases, SCOTUS has the chance to restore constitutional limits.

Joe Biden himself declared that he had no power or intention to mandate COVID vaccines. Then he did so anyway, mandating vaccination for federal employees and contractors, healthcare workers, and employees of companies with more than 100 workers. The last two mandates have been fast-tracked to the Supreme Court, which will hear oral arguments Friday. Political analyst Andrew McCarthy is “betting the Court is poised to deal the president a double dose of defeat — though nothing is certain, of course.”

Very simply, Biden is in violation of the Constitution. We have a republic, not a monarchy, and there is nothing inherent in the executive power conferred by Article II that authorizes the Biden decrees. So the president lacks even arguable authority to coerce people into being vaccinated absent statutory authorization. Indeed, I must say “arguable” because it is doubtful that even Congress itself has power to force private citizens to submit to an invasive medical procedure, much less to delegate that authority to the executive branch. …

The main reason I believe that the Court will reject the Biden mandates is that, to do so, the justices need not wrestle with the knotty question of how much, if at all, Congress may intrude on the states’ supremacy over health and safety regulations. For regardless of what power Article I may arguably impart, the Court has stressed — most recently in August, when it rejected Biden’s effort to decree an eviction moratorium — that Congress must speak clearly when it endeavors either (a) “to assign to an agency decisions of vast economic and political significance”; or (b) “to significantly alter the balance between federal and state power and the power of the Government over private property.”

Plainly, in enabling the Occupational Safety and Health Administration (OSHA) to police workplace hazards, and in empowering the secretary of Health and Human Services to manage the Medicare and Medicaid programs, Congress did not purport to grant the president the transformative power that a vaccination mandate would portend.

Worse, the very definition of “fully vaccinated” is apparently now “a status the administration claims the power to change willy-nilly.” At least OSHA “deigns to allow employers to permit unvaccinated workers to undergo weekly testing and wear masks in the workplace.” McCarthy goes on:

The Biden administration’s gimcrack defense of the vaccination mandates elucidated the obvious: In authorizing OSHA to regulate workplace hazards with workplace solutions, Congress was not empowering the agency to impose a sweeping federal diktat regarding a medical threat of widely varying gravity, which only incidentally affects the workplace.

To conclude otherwise would be to hold that Congress had attempted to endow OSHA with power that Congress itself very likely lacks. And not just any power; rather, a Constitution-devouring grant that would eviscerate federalism and individual liberty, but that no one had noticed for the last half-century since OSHA’s creation in 1970.

Even with the reticence of Chief Justice John Roberts to overrule elected officials, or the seemingly similar tack taken by Justices Brett Kavanaugh and Amy Coney Barrett, McCarthy says, “I believe that the Biden vaccine mandates are doomed” because “the justices needn’t refute Roberts’s inclination to defer to the political branches — only to hold that, at a minimum, the president needs clear congressional authorization, and he hasn’t gotten it.”

Further, in agreeing to consider the two mandate cases, the Court did not content itself with the usual emergency procedures. While things have been accelerated, there has been briefing and the justices will hear oral argument — and only after lower courts, including three circuit courts of appeal, have extensively considered and ruled on the relevant questions. That should more than answer the hand-wringing of Kavanaugh and Barrett.

The betting here is that the Biden vaccine mandates will be invalidated. As they should be.

National Review subscribers can read the whole thing here.

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