After President Joe Biden finished his speech last Thursday evening announcing new COVID-19 vaccine mandates, a reporter called out, “Is this constitutional?” Biden, leaving the room, did not stop to answer.
The president’s new vaccine mandate directs the Occupational Safety and Health Administration, part of the Labor Department, to require all organizations with 100 employees or more either to test their employees weekly for COVID-19 or ensure they are vaccinated. Biden also signed an executive order requiring that all federal employees and contract workers be vaccinated.
One of the most important questions to ask is whether OSHA “has the statutory authority … to issue a rule of this type,” Heritage Foundation legal scholar John Malcolm says.
Biden’s requirements likely will affect between 80 and 100 million Americans, some of whom now face the choice of taking a COVID-19 vaccine or losing their job.
Malcolm, who is a senior legal fellow at Heritage and directs its Meese Center for Legal and Judicial Studies, joins “The Daily Signal Podcast” to explain the constitutionality of vaccine mandates and the likelihood that litigation over a new OSHA rule will rise to the Supreme Court. (The Heritage Foundation is the parent organization of The Daily Signal.)
We also cover these stories:
- Arizona Attorney General Mark Brnovich announces the filing of a lawsuit against the Biden administration in response to proposed vaccine mandates.
- Secretary of State Antony Blinken appears before the Senate Foreign Relations Committee to face questions about the hasty U.S. withdrawal from Afghanistan.
- Senate Democrats unveil legislation to change federal election law in response to new Republican-led election reforms in Texas and Florida.
Listen to the podcast below or read the lightly edited transcript.
Virginia Allen: Last week, President Joe Biden announced that all government workers and contractors are now required to be vaccinated. Biden also announced that he is directing the Department of Labor to write a rule that will require all businesses with 100 employees or more to either have all their staff vaccinated or tested weekly.
As Biden completed his speech last Wednesday and walked out of the room, a reporter called after him, asking, “Is this constitutional?” And here with us to answer that question is Heritage Foundation’s senior legal fellow John Malcolm. John is also the vice president of the Institute for Constitutional Government at The Heritage Foundation. John, thank you so much for being here.
John Malcolm: My pleasure. Great to be with you.
Allen: So, Biden has essentially told about 100 million Americans that they have to choose either between their job, being vaccinated, or tested weekly. Is the president’s vaccine mandate constitutional, John?
Malcolm: Well, there’s the question of whether it’s constitutional and even if it could be done under the Constitution, whether he can do it under existing authorities. And there’s a difference between the two.
If something is unconstitutional, the federal government just can’t do it. If it is constitutional, but the statutory authority doesn’t exist, then conceivably, Congress could come in and pass a law giving the president the authority to do these. So there’s separate questions.
There are constitutional arguments that can be made here. I’m not sure how great any of them are. Three come to mind. One is, you could argue with respect to the private employers that it violates equal protection to do it this way, because there’s no rational distinction between companies with 100 or more employees and companies with fewer than 100 employees. And making a law that hinges on that distinction violates equal protection. Private businesses are not a protected class.
I assume that the government could come up with some reasons that would pass. It’s called the rational basis test—might as well be called the laugh test as to why it makes sense to regulate businesses with 100 or more employees. So I’m not sure that’s the strongest argument.
You can make an argument that this violates due process, that the government is forcing people to either lose their jobs or have an invasive medical procedure by having this vaccine or another invasive procedure by undergoing testing.
Actually, there’s some support for that I guess you could find in cases like Roe v. Wade that have a right to privacy. But there is some Supreme Court precedent allowing governmental authorities—usually state governmental authorities—to, in the middle of a pandemic, force people to undergo vaccines or suffer a penalty of some kind.
And … the Supreme Court, not since the New Deal at least, has not said that your right to a job is a due process right that is protected by the Constitution.
They could also argue that this exceeds the statute that enables [the Occupational Safety and Health Administration] to do what it does, that this doesn’t involve interstate commerce in some way. And the Congress can’t regulate this. After all, they couldn’t force you to buy insurance. So if they can’t force you to buy insurance, maybe they can’t force you to have a vaccine.
But the Supreme Court has given a very, very broad interpretation in the past as to what Congress’ authority is under the interstate commerce clause. So I’m not sure that that’s going to be a particularly strong argument. The stronger arguments it seems to me are more statutory in nature.
Allen: And explain what you mean by the statutory arguments. What do you mean by statutory arguments?
Malcolm: You have the threshold question about whether Congress has the constitutional authority to pass a statute. That’s the constitutional question. If you pass that threshold and you determine that Congress has the constitutional authority to pass a statute, then it’s a question of, did they pass a statute? And what does that statute say?
And there are at least a couple of statutes that are implicated here. One is an act that applies to all government actions called the Administrative Procedure Act. If an executive branch is going to make a change in administrative agency, they have to follow certain procedures and their actions cannot be arbitrary and capricious. They have to be grounded in fact or science or something like that.
So one could make an argument that making these distinctions between employers with 100 or more people and fewer, that that is just an arbitrary and capricious basis on which to make rules. You can make that argument.
The stronger argument it seems to me is whether OSHA … has the statutory authority, whether it’s been given this statutory authority to issue a rule of this type.
You mentioned before about government employees and government contractors. I would separate those. I think it’s pretty clear that the federal government can require a federal employee as a condition of employment to get this vaccine or be subjected to testing. And government contractors, they may be able to assert some of these constitutional arguments, but there is authority out there that the federal government can impose conditions on entities or groups that contract with the government that are looking to get federal funds. So that group will have a weaker set of arguments.
With respect to the private employers, you have to look at what the [Occupational Safety and Health Act] says. So OSHA is not going to go through the rather lengthy notice and comment period that takes place under the Administrative Procedure Act. They want to get these rules out quickly. So they’re relying on the authority that gives them the right to promulgate what’s referred to as emergency temporary standards.
And the statute says that in order to issue emergency temporary standards, they have to show three things. One, that workers are being exposed to a grave danger. So there is a question about whether this pandemic constitutes a grave danger, particularly because a number of the employees may already have been vaccinated or may already have had COVID and built up a natural immunity. That the provision, whatever it is that OSHA promulgates, will address that danger. And thirdly, that the rule is feasible for employers to enforce it.
So if you pass that threshold that allows OSHA to issue emergency standards, then there’s an additional condition. And here’s where it will get complicated. I’ll make one broad point: Courts are very skeptical of agencies exercising broad emergency powers because courts are very aware of the fact that agencies can abuse that power—and to issue very, very broad mandates beyond anything that Congress ever envisioned.
So far as I am aware, OSHA has never done something like requiring 80 million people to be vaccinated or undergo weekly testing. So courts are already going to approach OSHA’s authority with a little bit of skepticism in the same way that the courts approached the Centers for Disease Control and Prevention’s authority to enact a nationwide moratorium on evictions. And that has now been struck down, but OSHA does have broader authority.
I mean, no one ever envisioned that the CDC was going to be involved in landlord-tenant relations. Everybody knows that OSHA is involved to regulate workplace hazards. So OSHA’s authority—they basically have to find a couple of things. One, that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards. And that such emergency standard is necessary to protect employees from danger. Now, that opens up a whole host of questions.
Allen: And in some ways it seems a little broad even still.
Malcolm: It is very broad. There’s no question about it. But again, this is a pretty Draconian mandate that’s being posed. You’ve got to ask yourself, is COVID a grave danger? Again, you may have a lot of employees who have in fact been vaccinated or who may have developed natural immunities from having had COVID already.
Is this a new hazard? It’s clearly not toxic, right? It’s not a toxic agent. Is it an agent? First of all, it’s not a substance. Is it an agent? Is a virus an agent? If so, is it a new hazard? Does it fit into that category?
And then if you show all of that, is the emergency standard necessary? Could you have, for instance, periodic testing or have people work remotely? Is it necessary to force people to undergo this draconian measure in order to protect employees?
Those are all questions that are going to be raised in the myriad of lawsuits that are going to be filed the moment this rule is promulgated and we’ll see how the courts deal with them.
Allen: … Like you say, it’s almost guaranteed we’re going to see lawsuits. Do you foresee this rising all the way to the Supreme Court for those questions that you raised to ultimately be answered by the high court?
Malcolm: Look, it’s a definite possibility. Again, the government, as far as I’m aware, has never done anything like this before. And if you end up getting lawsuits in a variety of different districts, you will conceivably have courts coming out with different rulings on these issues.
And when you’re attempting to do something nationwide and you have one court in, I don’t know, New York saying that it’s OK, and another court in Ohio saying it’s not OK, and then another court in Texas coming out, saying, “Well, maybe under these circumstances, not under those circumstances,” at some point you need some clarity.
Ultimately, since there are a number of different circuits, the only court that can give that kind of clarity is the Supreme Court or Congress. Congress could step in and say, “Let’s pass a statute that makes clear what OSHA can or can’t do.” But I don’t think Congress is going to act that quickly. And so, it’s quite possible that this case will bubble up to the Supreme Court and bubble up pretty quickly.
Allen: As those legal battles ensue and people are filing lawsuits, would that pause the order in any way? Like, if one specific business sues and says, “We’re not doing this,” would that mean while their lawsuit proceeds, they don’t have to enforce the rule? Would that affect enforcement of the rule in the state, across the country, as things are tied up in the courts?
Malcolm: Nope. Not unless a court issues an injunction.
If there is a court that issues an injunction and says to OSHA and says to the Biden administration, “You cannot impose this mandate”— first of all, that would be probably the quickest way to get this up to the Supreme Court, if a court issued an injunction, particularly if they issued a nationwide injunction and attempted to enjoin the Biden administration from doing this anywhere.
But unless and until a court says, “Biden administration, you can’t do this,” employers that choose to ignore the mandate are taking a risk.
Allen: So OSHA’s enforcing it. They’re under the Department of Labor. … For thousands of employers across the country that have more than 100 employees, how would OSHA practically enforce this?
Malcolm: Well, they may bring other federal agents who may be deputized to go work for OSHA. So that might increase the number of agents that are involved in looking at this.
I mean, they couldn’t enforce this law 100%, anymore than we can enforce any other law that we have 100%. I mean, we have a lot of traffic cops out there. I assure you that there are people who violate traffic laws and engage in jaywalking and they aren’t caught.
What happens, though, is they would be agents who are allowed to come into your business because they’re regulating your safety condition, they probably don’t need to get a warrant in order to do that. They just show up and say, “You’re letting us in now.” And if you are caught violating that rule, the penalties can be quite Draconian. I’m not sure what they are, but I’m quite sure that they will be ten thousands, if not tens of thousands, of dollars per person violating that mandate.
So as is, anybody who chooses to engage in a civil infraction or a crime, they can do it. And the odds are decent that they will get away with it. But if they get caught, the penalties can be pretty, pretty bad. So businesses are going to have to decide for themselves whether they’re willing to take that chance of violating this mandate and possibly being bankrupted by the fines that are imposed.
Allen: I know you say we’re in a bit of uncharted territory. We haven’t exactly seen something like this before, this very totalitarian overreach, use of government power and authority. And of course, we actually haven’t seen the rule yet. The Department of Labor hasn’t released it, the president has just directed them to write it. Do we know if this will apply to nonprofit organizations and for-profit organizations the same? Or would there be any difference there?
Malcolm: I don’t know. I can’t think why they would treat them differently. I mean, they treat nonprofits differently because of their mission and whether or not they get a tax-exempt status. But an employee working at a nonprofit is just as susceptible to having COVID-19 as somebody working in a for-profit entity. Like, that really would strike me as being an irrational distinction to make. Working at a nonprofit, I might hope that they would do it, but I can’t imagine that they will do it.
Allen: Yeah, yeah. So, let’s talk a little bit more about the Supreme Court. You say it’s possible that we might see this go all the way up. If it does, how likely do you think it is that the justices will declare this rule unconstitutional?
Malcolm: Well, again, I sort of went through the constitutional arguments. There are a lot of clever lawyers out there, so they may think of some that I haven’t enumerated. I think that those are questionable at best. I think the statutory arguments are more likely.
And I will also say that a judge and particularly Supreme Court justices would probably be more willing to say, “Look, we’re not saying you can’t do this under the Constitution. What we are saying is Congress hasn’t given you that authority. If Congress wants to go back and give you that authority, they can, and then we can consider the constitutional argument.” But if they can avoid making a constitutional argument and rule on statutory grounds, I think they will feel more comfortable.
If, on the other hand, they believe that the Occupational Safety and [Health] Act does give OSHA this authority, then they will have to face whether or not that act is—at least as applied in this situation—constitutional or not.
Allen: And any sense on how quickly this could progress? I mean, would we see this rise faster maybe to the Supreme Court or the Supreme Court choose to hear this case sooner since it is a somewhat time-sensitive issue? Of course, usually when the high court accepts the case, it’s a year or more before they actually hear those arguments, then make a ruling. What do you think we’d be looking at for a timeline here?
Malcolm: Well, because of this pandemic we’ve been seeing, at least on pandemic-related issues, the court’s been ruling kind of quickly under what’s known as shadow dockets. So they’ve been ruling on the basis of some briefs without even the benefit of oral arguments.
We just saw that when they struck down the CDC’s attempt to extend the eviction moratorium. Again, we’ve seen this with respect to governors issuing mandates saying that church services can’t be held if there are over a certain number of parishioners showing up at churches. Those cases have bubbled up very, very quickly.
So again, if a lawsuit is filed and you end up getting one or two or three courts saying that the government can’t do this and entering nationwide injunctions, my guess is this will be on a fast track to the Supreme Court.
The Supreme Court’s been out of session, but it’s coming back into session in a couple of weeks, first week in October. So my guess is that you would get a lower court ruling. You would get expedited consideration by a court of appeals. And then quite possibly, the Supreme Court would say, “All right, we’re going to either allow this thing to go into effect or not allow this thing to go into effect, but it’s going to be on a fast track. We’re going to require briefings and have oral argument and promise to issue an opinion expeditiously.”
So if it’s going to go to the Supreme Court, it can get there quickly, particularly if the lower courts tell the Biden administration that they cannot do this.
Allen: How optimistic are you that ultimately we’ll see a decision made that no, this rule can’t be implemented, at least in this way? Maybe that’s, it needs to be changed somehow, but that the government can’t force private businesses to tell their employees you either have to be vaccinated or tested weekly.
Malcolm: I won’t say that I’m optimistic or pessimistic other than to say I think this is not a slam dunk either way. I think that this is a close question. And a lot of it’s going to involve, did Congress envision that OSHA could or should be able to do something like this? And I just read the standards from the statute, I think it could go either way.
They might say, “Yes, to the extent to which workers are there, this is an occupational and safety hazard and OSHA exists in order to prevent occupational and safety hazards.”
And Congress gave them very broad authority. They may regret having given them that authority, but that’s the authority that they gave them. And unless they trim that back, they can do it.
Or they might say, coming out the other way, which is, I think, also quite plausible to say, “Congress never envisioned giving them this kind of authority.” We’re not talking about whether or not the wiring system is safe or whether there’s asbestos in the air conditioners. This is something broader than that that actually involves a physically invasive procedure on employees, not the business itself. And that Congress did not give them that authority. And if they want to, they’re going to have to be a lot clearer about it. “OK, Congress, go back and fix this if you want to. And in the meantime, Department of Labor, you can’t do this.”
Allen: John, thank you so much for your time today. John Malcolm, a senior legal fellow at The Heritage Foundation. We really appreciate you joining us.
Malcolm: It was my pleasure. Anytime.