This essay was originally by National Review on September 23, 2021. Click here to read.

In the name of an ‘emergency,’ the administration is invoking a 50-year-old statute of doubtful relevance to justify a sweeping and unprecedented mandate over the private sector.

President Joe Biden’s vaccine mandate represents a bold, unprecedented use of federal power. Despite its being advanced in the name of public health, and in the midst of a viral pandemic, it should fail because it undermines the Constitution’s balance between Congress and the president and between the federal and state governments. Congress has not vested the president with the power to govern every aspect of every office and factory in the nation, and even if it had, such a grant of sweeping power would violate the very division of authority between the national and state governments.

In fact, the administration implicitly concedes that it does not have the power to order every American to obtain a vaccine against COVID-19. Instead, it has announced that it will issue an emergency order by way of the Occupational Safety and Health Administration (OSHA). OSHA is to issue a rule that private employers with 100 or more employees require their workers to get vaccinated or get tested on a weekly basis, or else lose their jobs. Apparently, small businesses and individuals remain exempt from the Biden vaccine command — a sign of the constitutional problems to come.

OSHA is to promulgate this regulation as an Emergency Temporary Standard (ETS), to go into effect immediately on publication, thus bypassing the ordinary rules of administrative procedure. Those rules would have required an extended period of public notice and comment. Employers who do not comply with the ETS face enforcement actions by OSHA, including fines of up to $13,653 for each “serious” violation. The administration estimates that this action will result in the vaccination of about 80 million private-sector employees.

Biden’s order recalls his recent, ill-fated decision to permit the Centers for Disease Control and Prevention (CDC) to extend its moratorium on tenant evictions beyond the deadline authorized by Congress. That move flew in the face of an earlier Supreme Court decision clearly indicating that such an extension would be impermissible without congressional approval. When Congress did not act, the Biden administration determined to treat the Supreme Court precedent as a mere bump in the road and extended the moratorium anyway. The Court swiftly struck down the renewed extension on August 26 in Alabama Association of Realtors v. Department of Health and Human Services.

Although the CDC and OSHA cases are significantly different, both raise the question of the authority delegated to the administrative agencies by Congress. In substance, reviewing courts will ask whether Biden can order a measure of this magnitude and impact without seeking specific congressional approval. And their review will be guided by the Supreme Court’s recent statement in the CDC case that “we expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’” If the eviction-moratorium case is any guide, the Supreme Court will look suspiciously on any Biden effort to rig up an unrelated law into a mandate to regulate public health nationwide — even in the midst of a dangerous pandemic.

The Perils of Procedure

If the Supreme Court reviews OSHA’s regulation, as we expect, it may well base its decision on seemingly arcane procedural considerations. In several important recent decisions during both the Trump and Biden presidencies, the Court has rebuffed important executive initiatives — Trump’s attempt to rescind the Obama-era “deferred enforced departure” policy and Biden’s attempted reversal of Trump’s “remain in Mexico” policy — on the grounds that those actions did not follow the right procedures for issuing or reversing administrative rules. It could do so again here.

OSHA has been charged with promulgating the ETS through a “fast track” procedure provided under the OSH Act. The agency has used this procedure only sparingly in the past, and on those occasions its efforts have not stood up well in court. Before COVID, OSHA had issued only nine Emergency Temporary Standards, of which six were challenged. Of these six, the courts overturned four and partially vacated a fifth. In a successful 1984 challenge to an asbestos ETS, a reviewing court found that OSHA was not justified in taking “resort to the most dramatic weapon in [its] enforcement arsenal.”

Normal procedure under both the foundational Administrative Procedure Act and the OSH Act calls for the agency to give public notice of a proposed rule and to provide for a period of public comment on the proposal. Because Congress typically delegates much of its lawmaking power to the agencies, this policy seeks to force the agencies to emulate the deliberative process by which Congress enacts legislation. Notice-and-comment procedures are designed to improve the quality of agency rules by subjecting them to the scrutiny of those who will be regulated, and to contribute to the rules’ legitimacy by ensuring that interested constituencies will have had ample opportunity to influence the outcome.

But of course emergencies that call for rapid responses arise, and they may justify allowing an agency to act immediately without first going through full notice-and-comment procedures. Even so, the suspension of the normal rulemaking process is only temporary. An ETS has only a six-month life span, and OSHA is required to begin the full rulemaking process for a permanent standard as soon as it promulgates the temporary one. Experience has shown that OSHA rulemaking is an extremely protracted process that can take several years to complete — by which time the emergency has probably passed. Hence the OSH Act permits recourse to a fast-track procedure.

The Grave Danger Test

The law allows OSHA to use this emergency process only under two conditions: The employees must be “exposed to grave danger,” and the emergency standard must be “necessary to protect employees from such danger.”

On the “grave danger” prong, OSHA can offer two main defenses: that it is obvious that a pandemic that has killed over 670,000 Americans is a grave danger, and that in any case the question whether a “grave danger” exists is for the executive agencies to determine.

Both claims are dubious. The pandemic has been here for a year and a half, and it is increasingly difficult to describe it as an emergency. To be sure, the highly contagious Delta variant has disappointed earlier expectations that the COVID threat was passing and that life was fully returning to normal. But widespread vaccination —  two-thirds of the population aged 18 or above, and over four-fifths of the population aged 65 or above, have been fully vaccinated — natural immunity, and improved availability of treatments are having a marked effect.

OSHA’s second defense — that it is not for the judiciary to determine whether a “grave danger” exists — is indeed consonant with earlier legal doctrine. Chief Justice John Roberts took such a view early in the outbreak in his concurring opinion in the 2020 South Bay United Pentecostal Church case. But it is unconvincing in current circumstances. If the courts blindly defer to the agency’s judgment, they would be giving it virtually unbounded power whenever it decides that a public-health emergency exists. If OSHA had decided that the AIDS epidemic constituted a “grave danger” in the workplace, could it have ordered employers to require workers to take weekly tests that identified those who were HIV-positive? Could OSHA have done so free from judicial review? We think the answer to both questions is clearly no.

Courts should be alert to the possibility of abuse when an agency invokes a 50-year-old statute of doubtful relevance in order to justify a sweeping and unprecedented mandate over the private sector in the name of an emergency that began 18 months ago. Nor is judicial deference due to OSHA because it has special expertise as to COVID. Unlike industrial accidents or toxic substances found in the workplace, OSHA has no special competence to regulate a virus that can be caught anywhere.

Finally, courts will note that the Biden administration’s appeal to an emergency in the workplace is pretextual. Biden’s White House chief of staff Ronald Klain retweeted a tweet by an MSNBC anchor that “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.” We doubt that the courts will readily lend themselves to this cynical “work-around.”

The Necessity Test

But even if the ETS survives the “grave danger” test, it would also have to pass the “necessity” test. And this too is highly problematic. Widespread vaccination together with naturally acquired immunity may already be accomplishing what the ETS is purportedly designed to do — protect more people from getting COVID. And younger workers who are in good health have a low risk of hospitalization or death from COVID. Is the ETS truly “necessary” to protect them? Likewise, is mandatory vaccination (or weekly testing) “necessary” to protect those in the workplace who have already been infected and recovered? Biden himself noted that “only one out of every 160,000 fully vaccinated Americans was hospitalized for COVID per day.”

Furthermore, though the proposed ETS may be suited, say, to those working at close quarters and in confined spaces, it is hard to see how mandatory vaccination can be “necessary” to protect the many employees now working regularly from home. It is also implausible to claim that vaccination is “necessary” to protect employees who have acquired natural immunity through having been previously infected with the virus, or those who, for medical reasons, are likely to be injured by being vaccinated. Finally, measures other than vaccination, such as better ventilation or more effective masks, may achieve similar levels of workplace protection while being less intrusive.

Constitutional Limits to Federal Authority over Public Health

Even if the vaccine mandate fell within the OSH Act, the Biden administration’s use of the law would still violate fundamental constitutional principles. The Constitution’s grant of limited, enumerated powers to the national government does not include the right to regulate either public health or all human activity in the land. Under Article I, Section 8, of the Constitution, Congress enjoys the authority to “regulate Commerce with foreign Nations, and among the several States.” It also has the power to tax and spend for the general welfare.

Properly read, the commerce clause gives the federal government a supporting role in confronting the pandemic. It can bar those who might be infected from entering the United States or traveling across interstate borders, reduce air and road traffic, and even isolate whole states. Congress can control commerce that crosses state lines and even the “channels and instrumentalities” of interstate commerce, such as transportation and communication networks. But the commerce clause cannot turn into a general police power to regulate everything and everyone in the country.

Our federal system reserves the leading role over public health to the states — as it does for most areas of life, such as crime and justice, public safety, family relations, property, contracts, and accidents. States possess the “police power” to regulate virtually all activity within their borders. As the Supreme Court has recognized, safeguarding public health and safety presents the most compelling use of state power. Only the states can impose quarantines, close businesses and schools, and limit intrastate travel. Just as some governors imposed lockdowns, only governors can impose vaccination mandates on state residents. The Supreme Court’s recent decision not to strike down Indiana University’s vaccine mandate for returning students is thus of no help to Biden’s OSHA: Indiana University is a state, not a federal, actor.

Biden’s defenders will claim that the Supreme Court has allowed Congress to regulate purely intrastate activity that, when aggregated, affects the national markets. In Gonzales v. Reich (2005), a 6–3 majority of the Supreme Court used such a theory to justify the federal criminal ban on the possession of marijuana, even if it was neither bought nor sold but grown and given as a gift (as occurred in that case in the city of Berkeley, naturally). Even though the individual gift did not involve interstate commerce, the Court reasoned, aggregating all sale and gifts of small amounts of marijuana taken together would affect interstate markets. Under this reading of the commerce clause, Congress could reach every business and force the vaccination of all workers; in fact, it could force the vaccination of all Americans.

The Power to Regulate Commerce

That limitless theory of federal power has proven anathema to the conservative justices of the Supreme Court. Even in NFIB v. Sebelius (2012), the Roberts Court held that the Affordable Care Act could not require every American to buy health insurance. “The power to regulate commerce presupposes the existence of commercial activity to be regulated,” Chief Justice Roberts wrote for a majority of five conservative justices. “If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.”

Justice Clarence Thomas has called for the end of the commerce clause’s reach to purely intrastate activity. As he wrote in concurring in United States v. Lopez (1995), which struck down the Gun-Free School Zones law:

This test, if taken to its logical extreme, would give Congress a “police power” over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula. Although we have supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; our cases are quite clear that there are real limits to federal power.

It is not difficult to see Justices Alito, Gorsuch, Barrett, and Kavanaugh agreeing. Chief Justice Roberts ultimately upheld Obamacare, but even he agreed that the commerce clause had limits.

Even if Biden could find some source of authority granted by Congress to regulate all businesses, he could not enforce any command. In another set of federalism cases, decided by the Rehnquist Court, a conservative majority forbade Congress from “commandeering” state officials into enforcing federal commands. If the federal government were to demand that virtually all businesses force their workers to be vaccinated, it could only call upon federal officials to execute it. Will OSHA inspectors suddenly and systematically spy on every medium and large business, determine if tens of millions of workers have received vaccinations, and levy millions in fines and overload the federal courts with millions of cases? Washington simply does not have enough resources to manage such a vast task; the FBI, the closest we have to a national police force, has fewer agents than the NYPD has sworn officers.

Commanding or Persuading?

Article I of the Constitution provides that Congress has the power to tax and spend to “provide for the common Defence and general Welfare of the United States.” The federal government can encourage vaccination by using that power rather than compulsion and sanction. It has often used the offer of federal grants to convince — or perhaps bribe — states to bring their education, health-care, and welfare policies into national uniformity. The spending power already has provided the nation’s most effective weapon in fighting the pandemic: federal funds paid for the development of the vaccines and their distribution throughout the country. Washington has paid for medical equipment and supplies, supported the budgets of state and local governments, and propped up the economy. It could decide to pay people to get vaccinated. The Biden administration could reward states that mandate vaccines or create programs to expand their availability.

President Biden should rely more on persuasion — including financial incentives — and less on command. If he wants to overcome the contrary views of 80 million Americans as to how best to protect their health, requiring their employers to fire them if they refuse the shot is no way to go about it.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. 

Robert J. Delahunty is the Washington Fellow at the Claremont Institute’s Center for the American Way of Life.