President Joe Biden’s employer vaccine mandate has already raised a number of important questions, the most important of which is: Can he even do this?
The Cato Institute’s Ilya Shapiro argues that he cannot, for three reasons: First, it’s not at all clear whether Congress had the right to give such broad and sweeping powers to the Labor Department’s Occupational Safety and Health Administration office in the first place. In a 2008 paper for the University of Chicago, Cass Sunstein pointed out that nothing about OSHA is based on legal precedent or “judicial understanding.” It’s as if Congress created an agency and said to it, “Do what you believe is best. Act reasonably and appropriately. Adopt the legal standard that you prefer, all things considered,” Sunstein wrote.
Second, Shapiro notes that even if OSHA does have the authority to enforce the vaccine mandate, there is barely a constitutional justification for the federal government to overstep the states in this manner.
He writes:
Lastly, Shapiro argues the federal government cannot use businesses to “effectuate its goal of limiting the pandemic.” He notes that in the first Obamacare lawsuit, the Supreme Court found “no independent power to compel noncommercial intrastate activity as part of a larger regulatory scheme.” In other words, if the federal government does not have the authority to mandate that all individuals get the vaccine, it can’t mandate that private businesses force individuals to do so either.
At this point, it’s still a toss-up whether the courts will strike down the mandate or not. Unfortunately, they’ve been much too lenient regarding bureaucratic oversight in the past. But Shapiro makes a strong case. We should hope it’s the one that wins.
