Dan O’Donnell presents the most comprehensive, in-depth legal analysis of President Biden’s new vaccine mandate that you will read anywhere
Biden is either too dense or demagogic to see the contradiction in his worldview, but he is nevertheless convinced that a blanket vaccine mandate from the federal government would be unconstitutional. If he wasn’t, he would have… Click To Tweet
September 10, 2021
Perspective by Dan O’Donnell
“Irony” is quite possibly the least-understood word in the English language. It is not, as Alanis Morissette famously sang, “a black fly in your chardonnay,” and it is most certainly not a coincidence, as most seem to believe.
Irony is the President of the United States effectively mandating a medical procedure just hours after his Vice President said that “when people are able to design their lives in a way that they can determine their own futures, we are a stronger democracy and we are a stronger nation. When people are able to make choices without government interference for themselves in terms of their well-being and the well-being of their family in consultation with whomever they choose, we are a stronger society.”
Irony is the federal government making an unconstitutional public health order on the same day it sued the state of Texas, claiming it had enacted an unconstitutional public health law.
Irony is an entire political movement that has made “my body, my choice” its slogan applauding President Biden for issuing a new rule that requires nearly a third of the U.S. population to get a COVID-19 vaccine or face mandatory weekly screenings.
“Tonight, I’m announcing that the Department of Labor is developing an emergency rule to require all employers with 100 or more employees that together employee[sic] over 80 million workers to ensure their workforces are fully vaccinated, or show a negative test at least once a week,” Biden said during an address to the nation Thursday. “In total, the vaccine requirements in my plan will affect about 100 million Americans, two thirds of all workers.”
Almost immediately, more than a dozen states and the Republican National Committee announced plans to sue the Biden Administration over this mandate and, unironically, they are almost certain to win. Biden’s mandate is plainly unlawful as it represents an arbitrary and capricious application of the Labor Department’s rulemaking power.
While popular belief holds that government vaccine mandates have been constitutional ever since the United States Supreme Court upheld one in the 1905 Jacobson v. Massachusetts decision, the Biden Administration clearly does not believe that it can simply order all those who are eligible to get vaccinated. If it did, Biden would have used his address to announce a nationwide mandate.
The fact that he did not is very telling. In Jacobson, the plaintiff, Henning Jacobson, refused to comply with Massachusetts’ mandatory smallpox vaccine because he “had been caused great and extreme suffering for a long period by a disease produced by vaccination” as a child. The state fined him five dollars (the equivalent of about $150 today), and he sued.
The Court held that Massachusetts’ vaccine mandate was constitutional because “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
17 years later, Jacobson was the precedent that led the Court to rule in Zucht v. King that the San Antonio Public School System could deny admission to students who had not received a smallpox vaccine. In its ruling, the Court noted that Jacobson “had settled that it is within the police power of a state to provide for compulsory vaccination.”
Pretty cut and dry, right? Not quite. Five years after Zucht, the Court used the Jacobson ruling to uphold eugenics. In an effort to prevent the “feeble-minded” from passing on their supposedly defective genes, Virginia in 1924 passed a law that allowed the mentally disabled to be forcibly sterilized “for the protection and health of the state.”
After all, reasoned Justice Oliver Wendell Holmes, if a state can mandate vaccination for the good of society, why can’t it mandate sterilization for an equally noble goal?
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind,” Holmes wrote in his ruling in Buck v. Bell. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”
Fortunately, subsequent Supreme Court rulings and the Americans with Disabilities Act rid the nation of the idea that forced sterilization was acceptable, but the broader point is that Jacobson is not the ironclad defense of vaccine mandates that most think it is.
In upholding the ability of a prisoner to be injected with antipsychotic medication against his will, the Supreme Court noted in its 1992 Riggins V. Nevada decision that “the forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”
Such concerns were not taken into as much consideration when Jacobson was decided—a full half-century before the concept of “bodily autonomy” began informing American constitutional law. This of course reached a crescendo in the Court’s Roe v. Wade decision in 1973 that the individual’s “right to privacy” precluded a state from infringing on her ability to have an abortion in the first trimester of fetal development.
Herein lies the ultimate irony of Biden’s vaccine mandate: He opposes the individual’s right to a medical decision that he claims puts others at risk of disease yet firmly supports the individual’s right to a medical decision that is 100 percent fatal to another human being.
Biden is either too dense or demagogic to see the inherent contradiction in his worldview, but he is nevertheless convinced that a blanket vaccine mandate from the federal government would be unconstitutional. If he wasn’t, he would have issued such a mandate months ago.
Instead, he believes that he can get around such annoyances as the Constitution through a Labor Department rule forcing large private businesses to either require their employees to be vaccinated or to test them once a week.
The cynical calculation here is that it will be simply too time-consuming and cumbersome for most businesses to test their unvaccinated employees each week, so they will give in and make vaccination a condition of employment.
At least large employers will. Small and medium-sized employers aren’t covered by Biden’s plan. Why not? Why is 100 the magic number of employees that forces a business to either mandate vaccines or test weekly? Why is, say, a widget factory with 99 employees exempt from this requirement but a nearly identical widget factory down the street with 100 employees is not?
The sheer arbitrariness of the 100-employee standard renders the Labor Department’s new rule unlawful, as it violates the “arbitrary or capricious” standard of the Administrative Procedure Act. Under it, rules are invalid if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Biden’s new rule is promulgated by the Occupational Safety and Health Administration (OSHA) through an emergency temporary standard (ETS), which is exceedingly uncommon. In fact, the Congressional Research Service noted in July that “OSHA has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.”
Courts are understandably skeptical of the use of emergency powers by federal agencies, as they can be used for draconian and unconstitutional overreach. As such, the employer vaccine mandate will and should be under a judicial microscope, especially since it so obviously violates the “arbitrary or capricious” test.
There is no rational basis for only requiring businesses with 100 employees or more to mandate vaccines or test their employees weekly. Is an office with 101 workers so much more likely to be a COVID super-spreader than a similar office with a staff of 99 that the former must test its unvaccinated employees weekly while the latter is exempt? Of course not.
One could even make the argument that a much smaller business in a much smaller office setting—with far less space to social distance—would be more likely to see an outbreak than a larger company who could more easily separate workers or allow them to work from home.
Biden never explained how OSHA (or, more likely, his political advisors) arrived at the 100-employee threshold, likely because there isn’t any good reason for such an arbitrary number. Wouldn’t imposing a mandate on businesses with 50 employees get far more people vaccinated? If that is the goal, then wouldn’t imposing a mandate on businesses with 25 employees get even more people vaccinated?
Given the rapid and, well, capricious manner in which OSHA has issued new ETSs on mandatory COVID vaccination—first for federal employees, then nursing home workers, then federal contractors, then businesses of 100 employees or more—it is unclear when the Biden Administration will issue a new order.
This is the dictionary definition of capriciousness. Businesses can’t possibly plan for a change in the rules that govern them if the rules that govern them change with the whims of the President.
It is almost certain that Biden knew well in advance that his latest mandate would face serious legal challenges; it is even probable that he knows his mandate won’t survive them. It is entirely plausible—and, frankly, terrifying—that he is relying on a similar strategy that he used to extend the eviction moratorium on landlords.
“Here’s the deal,” he said last month, “I can’t guarantee you that the Court won’t rule that we don’t have that authority. But at least we’ll have the ability to appeal and keep this going for a while.”
Knowingly engaging in unconstitutional governance because courts take a long time to rule is about as close to despotic rule as this country has perhaps ever seen, and the distinct possibility that Biden is running the same gambit with his vaccine mandate represents a dangerous pattern of autocratic behavior.
“So what if it’s unconstitutional? We can get away with it for as long as the courts deliberate” is no way to govern, and ironically, it will prove to be Biden’s undoing once the courts start ruling on his vaccine mandate.