Federal vaccine mandate usurps state and judicial power


Photo courtesy of Jim Watson

The Biden administration announced a COVID-19 vaccination mandate for U.S. companies with 100 or more workers. The mandate will be enforced starting Jan. 4, 2022.

As reported by the Associated Press, the Biden administration recently announced a COVID-19 vaccination mandate for the U.S. companies with 100 or more workers. This mandate will be enforced for 84 million workers starting Jan. 4, 2022 and features varying levels of public and private implementation on a state-by-state basis, with enforcement duties relegated to the Occupational Safety and Health Administration (OSHA). 

This OSHA-enforced mandate states that businesses must “require their employees to be fully vaccinated against COVID-19 or be tested for the virus weekly and wear masks on the job.” Violations of this mandate come with a $13,653 per-instance fine to guilty businesses, and employees who do not not comply with their employer’s developed vaccination plan will face termination of employment.  

The constitutionality of this mandate plan — which was created by the executive office and relegated to an executive agency, a part of the ever growing administrative state — has been directly questioned in the federal Fifth Circuit Court of Appeals. Questions on the constitutionality of this order have seen the Fifth Circuit Court temporarily order a halt to the mandate’s required preparations for the Jan. 4 deadline. Five separate appeals courts saw 26 states challenge the Biden administration’s diktat. 

Legal precedents for this mandate to be upheld are shaky at best. The most prominent of  historical precedents —  the 1905 Supreme Court decision of Jacobson v. Massachusetts —  upheld the right of a U.S. state to enforce compulsory vaccination. This decision refers explicitly to a state government’s, i.e. the government of the state of Massachusetts, ability to use its power of the police state to supersede individual liberty. In this case, it was Henning Jacobson who did not want to take a vaccine for smallpox, and who was compelled by the state level government to take the vaccine — not the federal government, and not an administrative agency of the executive branch. 

The efficacy of the COVID-19 vaccines is not what I am concerned about, and the vaccines do their job in reducing the likelihood of hospitalization and death from COVID-19. What I am concerned about is the executive office of the president and the administrative state making medical decisions for me. Another person’s vaccination status is unimportant to me, because I have been vaccinated. I am in charge of my own medical well-being and no one else’s. Individual cost-risk assessments — and a sense of individual agency — are of the utmost importance when making personal decisions such as this. 

As far as I am concerned, President Biden’s rhetoric on the role of personal freedoms in relation to COVID-19 — and the government’s role in “protecting” vaccinated people from unvaccinated people —  tells me what I need to know about the intention of this vaccine mandate. 

“This is not about freedom or personal choice,” President Biden said. “It’s about protecting yourself and those around you — the people you work with, the people you care about, the people you love… The bottom line: We’re going to protect vaccinated workers from unvaccinated co-workers.” 

I don’t want to empower the executive branch to the point where its ability to determine what is a legitimate claim of personal freedom is invincible, and I definitely don’t want it running roughshod over state governments. The federal government should be incentivizing people to vaccinate, not telling them that upon vaccination only the government can protect them from the unvaccinated. An additional cause for concern — especially in the American system of checks and balances — is how the Biden administration continues to blatantly disregard the judicial branch’s legal stay of the mandate program.