President Biden announced on Sept. 9 that he would be instating vaccine mandates.
These requirements apply to federal executive branch employees, the employees of businesses that contract with the federal government, as well as employees in most health care facilities that receive Medicare and Medicaid funding.
Businesses with more than 100 workers are also required to have their employees fully vaccinated or have unvaccinated employees provide a negative COVID-19 test at least weekly.
All told, this executive order applies to over 100 million Americans.
The announcement was predictably met with praise from the left and condemnation from the right.
Republican governors in Texas, Missouri and Georgia have threatened to fight back at all costs, arguing that the mandate is a government overreach. The Republican National Committee’s Chairwoman Ronna McDaniel declared the mandate unconstitutional and vowed to file suit. And on Sept. 16, the attorneys general of 24 states sent a letter to the Biden administration requesting that he reverse his vaccine mandate executive order.
The grounds to support any legal challenge is purely speculative at this time as the White House has only instructed the Center for Medicare Services (CMS) and the Department of Labor (DOL) to develop the rules.
Regulations governing a mandate have not been released yet. But the basic question for any possible vaccine mandate lawsuit is the constitutional nature of the very idea of public health mandates.
Since 1905 in Jacobson v. Massachusetts, the U.S. Supreme Court has recognized a state legislature’s right to put laws in place that are designed to ensure public health and control the spread of disease.
While the high court historically has upheld the 14th Amendment (Roe v Wade; Brown v Board of Education; Mapp v. Ohio, for example), it is recognized that there are limits on individual freedoms that can be put into place to protect the common good.
In the majority opinion of Jacobson, Justice John Marshall Harlan argued: “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 pressure for great danger, be subjected to such restraints, to be enforced by reasonable regulations, as the safety of the general public may demand.”
In addition, it was determined that it is the role of the legislature, not the courts, to establish the most effective means of protecting the masses against public health threats.
Today, it is generally recognized that a state legislative body has a right to establish regulations and procedures which ensure public safety. This is most often seen in public school vaccination requirements.
In addition, the U.S. Equal Employment Opportunity Commission has repeatedly ruled that a private employer has a right to require proof of immunization for continued employment of its workers. This is frequently seen in influenza vaccine mandates imposed upon health care professionals.
Already, we can see possible legal problems for both the Biden administration and anyone seeking to challenge the mandates in court.
First and foremost, any legal challenge will center around the president’s authorization to enact such a program.
While the Supreme Court recognizes the states’ right to impose a mandate, it clearly places that right in the hands of the respective legislative body. In the case of Jacobson, the smallpox vaccine mandate was enacted based on existing statues that empower state and local officials to enforce a mandate if public health deems it necessary.
Along this line of thinking, it should be Congress that enacts vaccine mandates at the federal level. The executive branch might not have a clear authorization to do so based on past court decisions.
With regard to federal employees, the mandate would apply to federal workers of the executive branch but not those of the legislative or judiciary branch.
With a divided Congress, it is unlikely that Democrats could get vaccine mandates added to the Department of Labor or CMS regulations passed in both houses.
Even if Senate and House Republicans were open to the idea of vaccine mandates, proposed changes have to go through several committees, and then there is a period of public comment so that impacted professions can provide input. This traditional process for updating rules takes months, sometimes years.
On the other hand, Republicans who are opposed to a federal vaccine mandate have asserted that the executive branch lacks the authority in this matter. But do they have legal grounds to file a lawsuit?
While state governments have the power to prevent local governments or even private businesses from enacting vaccine mandates on employees, their ability to block a federal mandate is less certain.
It is thought that such a suit would be based on a 10th Amendment appeal, but state employees are not directly affected by the Biden administration’s mandate. So, such a lawsuit would most likely need to be filed by health care professionals, private businesses or impacted professional organizations.
This may not happen, as the large private businesses who can afford a very expensive lawsuit that would likely go all the way to the U.S. Supreme Court may not be incentivized to protest.
Biden’s mandate is a gift for these businesses because they no longer have to deal with internal or external pressures about vaccination. They can simply blame the president when workers complain.
In essence, affected businesses will probably be able to sit quietly as their workforce becomes vaccinated without losing employees or customers due to enacting company mandates.
All of this can cause your head to spin.
While Democrats and Republicans will soon begin to fight this out in court, we must not forget that thousands of new COVID-19 cases flood our already strained health care system.
It is time for a return to the art of compromise and let the country move forward in working together to bring an end to the pandemic.
Editor’s note: This is the first article in a two-part series. Part two is available here.
Senior Staff Chaplain and Clinical Ethicist at the Baptist Health Medical Center in Little Rock, Arkansas.