[dc]O[/dc]n Saturday, November 6, the 5th Circuit suspended enforcement of the Biden administration’s vaccine mandate.  The Biden administration does claim direct power to force the general public to receive the vaccine, but it intends to do so through employers. Last week, via the Department of Labor’s Occupational Safety and Health Administration (OSHA), the administration issued rules that require employers with more than 100 employees to vaccinate all employees, require weekly testing, or face up to a $14,000 fine per violation.

The purpose of this discussion is not to discuss the merits or problems with the vaccine or to discuss whether there are alternative ways for the government to compel compliance. But it is a discussion of whether the federal government can make individual corporations vaccinate employees.

As a civics refresher, Federal law is created by Congress and signed by the President. The Federal government has certain powers that apply to things between the states, such as immigration, bankruptcy, and patents. These rights are specifically enumerated, with the broadest being federal oversight of interstate commerce (like highways, hotels, and so forth.) If a state law affords more rights to individuals than federal law, then the state law is presumed to prevail. If there’s an explicit conflict between state and federal law, and the federal law applies to something within federal jurisdiction, then the state law is subservient to federal law. But no state can diminish rights that individuals have under the U.S. Constitution.

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While OSHA has blocked employers from using certain materials, such as asbestos or other carcinogens, OSHA has not mandated individual employees to take vaccines. In this case, the OSHA requirement directly conflicts with laws in place in several states, 11 of which filed suit on Friday to block the OSHA requirement.

Congress established OSHA, but whether Congress envisioned OSHA as being pressed into service for a public health purpose is controversial.

It also potentially steps on the toes of state regulations in other areas of healthcare. The only method within the Constitution that the OSHA mandate could affect private companies not engaged in interstate commerce, such as an airline, is through the commerce clause. If a company has more than 100 employees but is not engaged in interstate commerce, the mandate could fail under this clause. For instance, in the past, federal attempts at gun control legislation failed because it did not meet the requirements for interstate commerce.

At the Cato Institute, Ilya Shapiro described these constitutional challenges and noted a third, the “necessary and proper clause.” In other words, the “federal government can’t now commandeer businesses to impose mandates on individuals that it can’t impose directly.”

Federal entities often make healthcare-related recommendations about diet and exercise, but they don’t require employees to exercise or eat certain foods while avoiding others. OSHA can’t even require employees to wear seatbelts or helmets even if people are driving on roads connected to roads in other states – those safety requirements are regulated by the state in which a person is driving.

In 1967, Congress tried to enact a universal motorcycle helmet laws that required states to require helmets in order to qualify for certain highway safety funds. Ten years later, Congress revoked the law and the states now decide. While the National Highway Transportaion Safety Administration (NHTSA) continues to recommend helmets and seat belts, Congress has left that to the discretion of the states. In fact, only 18 states and the District of Columbia have laws that require all riders to wear helmets.

When the powers of persuasion fail, governments will often resort to force – and it often starts with “good things.” While the value of the vaccines to combat COVID-19 is increasingly clear, the ability of the federal government to enforce a mandate outside its enumerated powers and outside of interstate commerce is weak at best.

 

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