Support The Bulwark and subscribe today.
  Join Now

Are Biden’s New Vaccination Mandates Legal?

There will be court fights, but the constitutional and statutory footing looks solid.
September 10, 2021
Are Biden’s New Vaccination Mandates Legal?
WASHINGTON, DC - SEPTEMBER 09: President Joe Biden delivers remarks on his plan to stop the spread of the Delta variant and boost COVID-19 vaccinations, in the State Dining Room of the White House complex on Thursday, Sept. 9, 2021 in Washington, DC. The President announced expanded efforts to stamp out the lingering pandemic, including stricter rules to get more Americans vaccinated against COVID-19 and additional funding for testing. (Kent Nishimura / Los Angeles Times via Getty Images)

Following yesterday’s White House announcement of new federal policies regarding COVID vaccination and testing, one wag on Twitter had this to say:

Yes, the announcement does have something of the feel of a grownup taking charge of the pandemic mayhem that still grips the country. Multiple COVID vaccines were made widely available months ago, and one of them has been recently approved by the FDA. But about 90,000 people have died in this country since April 1, and the vast majority of COVID cases, hospitalizations, and deaths are among the unvaccinated. About a quarter of Americans aged 12 and over still haven’t had even one vaccine dose; when you add in the population of children still too young to be eligible for a vaccine, some 37 percent of the country hasn’t had one dose. That’s a huge population for infection, transmission, and the evolution of new variants.

The New Policies and the Political Reaction

The vaccine and testing requirements announced yesterday could encompass upwards of 100 million people, nearly two-thirds of the U.S. workforce. The policies could also give other businesses justification for mandating vaccines in the face of labor shortages and existing state and local laws that push against masking and vaccinations.

In his Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, Biden announced that:

to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exemptions as required by law.

His more comprehensive “COVID-19 Action Plan” extends the federal employee requirement to private contractors doing business with the federal government.

Perhaps most significantly, Biden in his plan also directs the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an “Emergency Temporary Standard”—and to later promulgate a regulation—that requires all employers with 100 or more employees to either be fully vaccinated or produce a negative coronavirus test result every week before coming to work.

Finally, Biden tasked the Centers for Medicare and Medicaid Services (CMS) with taking action to mandate vaccinations for health care workers in settings that receive federal dollars in the form of Medicare or Medicaid reimbursement. These include hospitals, dialysis facilities, and some home health providers. CMS was already on track to require vaccinations for nursing home employees; the new mandate would protect residents who wind up in the hospital, as well.

“Some of the biggest companies are already requiring this,” said the president of mandatory vaccines and testing. “Even Fox News.” Yet—of course—Fox wasted no time denouncing Biden in an on-screen banner as “an authoritarian.” One Fox guest called the president a “rotting bag of oatmeal” and a “real tyrant.” And as Charlie Sykes noted this morning, other right-wing media outlets were just as hysterical, like the Federalist, which called Biden’s announcements “fascist” and “based on a lie.”

Several Republican governors across the country immediately attacked the proposed policy. And GOP candidates for 2022 got into the act as well. Josh Mandel, running for the Senate in Ohio, implicitly tasked anti-maskers/anti-vaxers with violence:

One of Mandel’s opponents, J.D. Vance, said the president is a “geriatric tyrant” and called for “mass civil disobedience” to the new policies.

The Constitutional and Statutory Questions

From a legal standpoint, Ilya Shapiro of the Cato Institute charges that Biden’s new vaccine policy imposes a “constitutional triple threat.” Shapiro concedes that “the government can generally regulate its employees, or those it funds with Medicaid/Medicare dollars.” That’s not the political battleground. The perceived problem is Biden’s directing that OSHA enact laws regulating private workplace safety to minimize exposure, sickness, and death due to the coronavirus.

Shapiro’s first argument is a familiar one: that the president cannot constitutionally take steps that amount to legislative action. In the past few years, the U.S. Supreme Court has accordingly been asked to weigh in on presidential powers to impose a Muslim ban at the border, to lift a Trump-era policy of sending asylum seekers back to Mexico pending hearings, to include a citizenship question on the Census, and to implement the Deferred Action for Childhood Arrivals (DACA) plan.

The bottom line, however, is that the Court has long established that Congress can delegate powers to agencies headed by the president without running afoul of the Constitution. In this instance, the governing statute known as the Occupational Safety and Health (OSH) Act allows OSHA to bypass ordinary rulemaking procedures in the interest of “permitting rapid action to meet emergencies.” OSHA explained its reasoning for regulating COVID-19 exposure when in June of this year it unveiled an interim rule requiring covered healthcare employers to implement protocols to reduce transmission—such as facemasks, disinfection, and encouraging vaccines.

Which is all to say that the separation of powers critique of Biden’s actions is a tenuous and vastly overstated one.

There are other actions—such as the evictions moratorium, which was imposed by both Biden and Trump before him—that have similarly been criticized. The relevant question in all these cases is: What does the statute say the agency can do? For the evictions moratorium, the authority lay in the Public Health Service Act, which gives the CDC director the authority “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” The statute also allows the director to employ “any other measures” deemed necessary to achieve this objective. Arguably, forcing landlords to provide free rent is too far afield from the authority Congress delegated in the Public Health Service Act; that was the Supreme Court’s rationale in its decision in August to enjoin the evictions moratorium (pending full argument).  Biden’s action under the OSH Act is unquestionably on more solid ground.

Shapiro next suggests that the OSH Act itself is unconstitutional as falling outside Congress’s core authority to regulate interstate commerce. Yet it’s been the law of the land for over fifty years, and has produced reams of regulations governing worker safety in fields from construction work and shipyard employment to longshoring and marine terminals. OSHA has rules about ladders, manhole steps, stairways, scaffolds, exit routes, noise exposure, ventilation, and a slew of hazardous materials including—wait for it—oxygen itself. It strains common sense to imply that regulating oxygen for all these years is constitutionally tolerable but that OSHA cannot regulate a lethal virus that has killed over 656,000 Americans to date, including babies and children who lack agency over their own health and safety and cannot get a vaccine in any event. Shapiro calls these efforts “forcing private business to do the government’s dirty work.” But regarding the constitutional question of interstate commerce, this virus—even if asked politely—is not going to respect state borders. It travels through the air, across state lines, across the globe, and into millions of lungs.

And if we stipulate, as the courts would likely find, that the OSH Act is constitutional, the new Biden vaccines-or-tests workplace requirement seems like a legitimate use of the powers Congress delegated through it.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.