The Daily Signal - Is Biden’s Vaccine Mandate Legal? Constitutional Expert Explains

Episode Date: September 15, 2021

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. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Wednesday, September 15th. I'm Kate Trinko. And I'm Doug Blair. On today's episode, Virginia Allen speaks with heritage legal expert John Malcolm about President Joe Biden's vaccine mandate. They discuss whether it's constitutional, what legal challenges it will face, and the role the Supreme Court will likely play. And don't forget, if you enjoy this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts. And please encourage others to subscribe. And now on to today's top news. Arizona Attorney General Mark Bernovich announced in a clip posted to Twitter on Tuesday that he had filed a lawsuit against the Biden administration in response to proposed vaccine mandates.

Here's Bernovich via Twitter. This is Arizona Attorney General Mark Bernovich. We have filed a lawsuit today against the unprecedented and unconstitutional power grab by the Biden administration of the federal government. The Biden administration is unconstitutionally. trying to mandate vaccines that may affect hundreds of millions of Americans. It's not only wrong, it's unconstitutional. And as we've done on the border crisis, as we've pushed back against federal overreach and their tax and spend policies, we will continue to hold the Biden administration accountable

and try to stop this federal overreach because we need to protect not only Arizona, but the entire United States. Bernovich's lawsuit is the first targeting the administration over the controversial mandates. The president's mandate, if implemented, would require federal employees and private businesses with more than 100 employees to get vaccinated or to take a weekly COVID test. Republicans quickly criticize the order as unconstitutional. Secretary of State Anthony Blinken appeared before the Senate Foreign Relations Committee Tuesday, facing questions about America's withdrawal from Afghanistan. Senator Bob Menendez, Democrat of New Jersey and chair of the committee noted that Defense Secretary Lloyd, Austin had refused to appear via the Hill. Second, I'm very disappointed that Secretary Austin declined our request to testify today.

A full accounting of the U.S. response to this crisis is not complete without the Pentagon, especially when it comes to understanding the complete collapse of the U.S. trained and funded Afghan military. His decision not to appear before the committee will affect my personal judgment on the Department of Defense nominees. I expect the Secretary will avail himself to the committee in the near future. And if he does not, I may consider the use of committee's subpoena power to compel him and others over the course of these last 20 years to testify. Senator John Bissarro, Republican of Wyoming, asked Blinken about how refugees were vetted via C-SPAN. So what percentage of the Afghan population that left Afghanistan as part as our U.S. evacuation efforts,

what percentage of those were vetted before they actually got on the airplanes? Before they got on the airplanes to leave Kabul, certainly not. Most of them were not. That's exactly why we established transit points in countries through negotiations with those countries to make sure that before anyone came to the United States, they would be vetted by the different law enforcement and security agencies. We established agreements with one more than a dozen countries. So who were you letting on the planes?

Anybody that showed up? Well, initially, as you know, there were people who managed to flood the airport. We had to do an immediate assessment of those. We had to make sure we could clear people out of the airports so that the flights could come in, go out. But no one came to the United States without being checked somewhere else first to make sure that they don't pose a security threat. Senator Ted Cruz, Republican of Texas, compared President Joe Biden to former President Jimmy Carter. President Biden and the Biden administration have presided over the worst foreign policy catastrophe in a generation. Americans across the nation are horrified.

Our servicemen and women are active duty military are angry, they're disillusioned, and they're frustrated. Our enemies across the globe are emboldened, which makes the world more dangerous today for America and our allies are dispirited. Ever since the disaster began unfolding in Afghanistan, we've seen the Biden administration making political excuses. We've seen Democrats on this committee explaining at great length how everything that happened in Afghanistan is Trump's fault. It's all Trump's fault. Mr. Secretary Joe Biden is the President of the United States. Kamala Harris is the Vice President of the United States. You are the United States Secretary of State.

Just like Jimmy Carter owns the disaster of the Iran hostage crisis, you own this. On Tuesday, Senate Democrats unveiled the Freedom to Vote Act, another attempt by the party to institute changes to federal election law in response to new state laws in Texas and Florida aimed at election integrity. The bill was introduced by Senator Amy Klobuchar, Democrat from Minnesota, and builds on proposals made by West Virginia Senator Joe Manchin, as well. as the For the People Act. The bill's co-sponsors currently include Senators Raphael Warnock of Georgia, John Tester of Montana, Tim Cain of Virginia, Jeff Merkley of Oregon, and Alex Padilla of California,

along with Maine Independent Senator Angus King. Senator Manchin has also signed on as a co-sponsor. The Freedom to Vote Act includes provisions from the For the People Act, including making election day a public holiday and banning partisan gerrymandering, along with voter ideas. requirements requested by Senator Manchin. Republicans have argued that bills like the Freedom to Vote Act and the For the People Act are examples of federal government overreach into elections. On Monday night, protesters went to the Maryland home of Justice Brett Kavanaugh. Via the Daily callers Jorge Ventura, here's a snippet from that protest. According to the Hill, the protest was organized by shutdown D.C.

The Hill also reported that Judiciary Committee Chair, Senator Dick Durbin, Democrat of Illinois, said Tuesday during a hearing, politics ain't beanbag. We all know that you have to have a tough mental hide to be in this business. And, but it's absolutely unacceptable from my point of view to involve any major public figures family or their home. Senator Chuck Grassley, Republican of Iowa, also addressed the protest saying, This protest looks like another blatant attempt to intimidate the judiciary and anyone who disagrees with a radical agenda pushed by partisan advocates. Now stay tuned for Virginia's conversation with John Malcolm as they discuss President Biden's vaccine mandates. The Heritage Foundation has a new website to combat critical race theory. CRT, as it's known, makes race the centerpiece of all aspects of American life.

It categorizes individuals into groups of oppressors and victims. the idea is infiltrating everything from our politics and education to the workplace and even our military. Heritage has pulled together the resources that you need to identify CRT in your community and the ways to fight it. We also have a legislation tracker so you can see what's happening in your state. Visit heritage.org slash CRT to learn more. 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. My pleasure. Great to be with you. 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? All right.

Well, you actually, there's a 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.

So 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 is violates equal protection. You know, 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.

It really might as well be called the laugh test as to, you know, 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, you know, there's some support for that. I guess you could find in cases like Roe versus Wade that have a right to privacy. But, you know, 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 there's never, 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 OSHA to do what it does, is that this doesn't involve interstate commerce in some way and that Congress can't regulate this. After all, they couldn't force you to get a vaccine, 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's 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.

And what do you explain what you mean by the statutory arguments? So 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 Procedures Act. if a government, if an executive branch is going to make a change in an 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, you know, making these distinctions between employers with more than 100 or more people and fewer, that is just an arbitrary and capricious a basis on which to make a rule. So you can make that argument. The stronger argument, it seems to me, is whether OSHA, the occupational safe and health

and safety and health organization, whether OSHA has the statutory authority, whether it's been given the statutory authority to issue a rule of this type. So you mentioned before about government employees and government contracts. 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's an authority out there that the federal government can impose conditions on entities or groups that contract with the government. 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 know, you have to look at what the OSHA Act says. So OSHA is not going to go through the rather lengthy notice and comment period that takes place under the Administrative Procedures 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's 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 the 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. And 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, you know, no one ever envisioned that the CDC was going to be involved in landlord-tenant relationship. Everybody knows that OSHA is involved to regulate.

workplace hazards. So OSHA's authority, they basically have to find, they 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. In some ways, it seems a little broad even still. It is very broad. There's no question about it.

But again, this is a pretty draconian mandate that's being imposed. 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 this a new?

Is it an agent? First of all, it's not a substance. Is it an agent? Is it 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. And do you think, 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? Look, it's a definite possibility. Again, the government, so 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 okay and another court in Ohio saying it's not okay. And another court in Texas coming out, you know, saying, well, maybe under these circumstances, not under those circumstances, at some point you need some clarity. And ultimately, since there are a number of different circuits, the only court that can issue 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 at this case will bubble up to the Supreme Court and bubble

up pretty quickly. And as those legal battles ensue and people are filing lawsuits, we're going to be able to 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? 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. So OSHA is enforcing it. They are under the Department of Labor. Yep. How practically do you go about, you know, for thousands of employers across the country that have more than 100 employees, how would OSHA practically enforce this?

Well, they may bring other federal agents, maybe 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% any more than we can enforce any other law. that we do 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, you know, agents who are allowed to come into your business because they're regulating, you know, your safety conditions.

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. And I'm not sure what they are, but I'm quite sure that they will be 10,000, 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, you know, 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. 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? 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 at a poor-profit. entities 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. Yeah, yeah. So let's talk a little bit more about the Supreme Court. So 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?

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 Hazard 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. 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, you know, it's a year or more before they actually hear those arguments. So, and then make a ruling. What do you think we would be looking at for a timeline here? 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 it should. shadow docket so they've been ruling on the basis of some briefs without even the benefit of oral arguments. So 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 mandate 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. 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 our all 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. How optimistic are you that all the ultimately will see a decision made that no, this rule can't be implemented, at least in this way. You know, maybe that it needs to be changed somehow, but that we can't force, that the government can't force businesses to private businesses to tell their employees you either have to be vaccinated or tested weekly. I want to say whether 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, you know, did Congress envision that OSHA could or should be able to do something like this? And I think, look, I just read the standards from the statute. I think it could go either way.

They might say, you know, 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.

Okay, Congress, go back and fix this if you want to. And in the meantime, Department of Labor, you can't do this. 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. It was my pleasure anytime. And that'll do it for today's episode. Thanks so much for listening to The Daily Signal Podcast.

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