It's debatable: Should federal government mandate vaccines for private employers

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether the federal government should be able to mandate vaccines for private employers. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.

ROSEN 1

I am not an “anti-vaxxer.” I received my COVID-19 vaccines and booster, and during my 26 years in the Army, I received all manner of shots, including the controversial anthrax vaccine, which was then an investigational new drug. I hope all Americans get vaccinated; however, the federal government may not—by executive fiat—coerce them to do so.

Vaccine mandates for servicemembers and federal employees, over whom the executive branch exercises broad authority, are not at issue. Indeed, by statute, the president can even subject military personnel to experimental vaccines. My focus is the Occupational Safety and Health Administration’s (OHSA) emergency measure requiring private employers of 100 or more employees to enforce a mandatory vaccination policy, and to require unvaccinated workers to undergo weekly COVID testing and wear face masks. Given the administration’s ineptitude in furnishing sufficient COVID tests, the OSHA measure is, in reality, a vaccine mandate.

Absent congressional authorization, the executive branch may not compel private employers to require vaccines. The federal government does not have a general police power to protect citizens’ health; only the states have such authority. The federal government is limited to its constitutionally enumerated powers. Congress is empowered to regulate interstate commerce and arguably could have given OSHA vaccine-mandate authority, but it never did so. Instead of seeking legislative approval, the administration circumvented Congress and used OSHA to require millions of private citizens to be vaccinated. OSHA’s edict deputizes private employers to enforce its policy and subjects them to severe financial risk if they fail to do so.

Although deemed an “emergency” measure, OSHA did not issue its vaccine directive for nearly two years into the pandemic and two months after the president ordered it. The Court of Appeals for the Fifth Circuit noted that OSHA's authority to establish emergency temporary standards “is an extraordinary power to be delicately exercised in limited situations,” but the court found that the mandate is anything but. It is “overinclusive” because it does not distinguish between risks in various workplaces, and it is “underinclusive” because it “purport[s] to save employees with 99 or more coworkers from a grave danger in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat.” In short, I believe OSHA’s vaccine mandate is unconstitutional.

MOSTER 1

Professor Rosen makes some good constitutional points, but his analysis is short-sighted and could have dangerous implications in this toxic “Age of Covid.” There is ample precedent to affirm vaccine mandates in accordance with state police and health powers. Extending that mandate to the feds is more attenuated, but the right thing to do from both an immediate health perspective and the very survival of Americans ravaged by a plague which has already killed more people than the total fatalities of the Civil War.

Although the OSHA vaccine mandate was blocked by the 5th Circuit Court of Appeals, it was upheld by the 6th Circuit Court of Appeals before being sent up to the Supreme Court. At the recent expedited hearing, the High Court seemed inclined to strike down the regulation which could easily occur before this column is completed. However, that will still not affect the validity of the question herein debated.

The bedrock of the analysis, at least as far as OSHA is concerned, turns on the authority of federal executive agencies like OSHA to issue broad regulations intended to protect public health. A leading professor of Global Health Law, Lawrence Gostin, from my alma mater, Georgetown University, would side in favor of OSHA, concluding that “The Courts have long permitted regulatory authorities to set standards that have far reaching political and economic consequences.” I agree with that.

We are living through a period which could best be described as “The Great Dying.” It will certainly be viewed as such by historians, assuming a new variant doesn’t come along and kill everyone, including those with vaccines and historians in particular. Extraordinary dangers require extraordinary solutions and a more expansive view at least when it comes to protecting all of us, our children, and grandchildren.

I’m not sure how the Supreme Court will rule, but I am keeping my fingers crossed.

ROSEN 2

I fully agree with Charles’ assessment of the seriousness of the COVID pandemic. Too many people are becoming sick and too many are dying. And because vaccines are an indispensable tool in preventing illness and death, I believe people should be vaccinated.

The issue is not whether vaccines will help prevent or mitigate the effects of COVID, but rather whether the president has the constitutional power to require private citizens to be vaccinated in the absence of congressional authorization. In other words, is the crisis sufficient to sustain vaccine mandates by executive fiat? May our Constitution be abandoned in times of national emergency or distress? Is Cicero’s maxim—“inter arma enim silent leges”—that “in time of war, the law is silent,” true?

Quite obviously, the answer is “no.” The Supreme Court stated more than 150 years ago after our nation’s greatest conflagration—the Civil War: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, ­­­­­­­and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” Similarly, in overturning the administration's unlawful extension of the CDC eviction moratorium, the court noted that “[i]t is indisputable that the public has a strong interest in combating the spread of … COVID …. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Indeed, as recently as July 2021, the administration itself disclaimed any legal authority to require Americans to be vaccinated.

I believe the president has two options. First, he can seek Congress’ approval for a vaccine mandate, which it may achieve either by conditioning the states’ receipt of COVID funds on the their adoption of a COVID-vaccine mandate, or arguably under its interstate commerce power. Second, the president could rely upon the states to mandate vaccines. In fact, last month the president acknowledged that there is “no federal solution” to COVID—it gets “solved at the state level.” I am pessimistic about either alternative given the partisan bickering over COVID.

MOSTER 2

Professor Rosen’s rejoinder about adherence to the Constitution in time of crisis such as the Civil War is, unfortunately, inaccurate. Notwithstanding the popular perception of historical revisionists, the president, and particularly the executive branch have acted aggressively in dealing with potential catastrophic situations which have confronted Americans and threatened our very way of life. Historian Brian McClanahan is his recent book, “9 Presidents Who Screwed up America: And Four Who Tried to Save Her,” points out the truth about Lincoln’s conduct during the Civil War. Notwithstanding the correct moral position which was to eradicate slavery in the south, the use of force to stave off secession was unconstitutional. The Constitution expressly repealed the prior Articles of Confederation which did provide for “perpetual union” by the various states. No such restriction is included in the Constitution. “The states reserved all powers not delegated to the central authority or prohibited by Article I, Section 10. The right of secession is not a prohibited power in Article I, Section 10.”

I am not making the argument that extra-Constitutional actions by the executive is the preferred course of action, but other presidents including FDR have recognized the need for expansive powers during times of crisis. Although I am not a big fan of Roosevelt’s New Deal programs, he was facing massive national starvation and crisis during the Great Depression. He likely saved America from collapse during this turbulent period.

President Biden faces grave challenges akin to Lincoln and FDR. Although not the subject of this debate, former President Trump has challenged the very foundation of our democracy and needs to be directly confronted by a strong leader. Biden has not been up to the task.

Of immediate urgency is the need for the vaccine mandate. Professor Rosen’s reliance on the states and/or Congress will not yield results in time to eradicate the pandemic which is on target to kill over 1 million Americans before the end of 2022. This is an existential threat which requires the full use of the Lincoln and FDR “Political Playbook.” Biden moved in that direction as per his executive order of 9.9.21 which relied on his general constitutional authority and the National Emergencies Act in proclamation of 3.13.20 declaring a national emergency due to the pandemic. He needs to reassert that authority immediately and order all Americans regardless of employment status to be vaccinated.

Without a national mandate, the very debate on this subject may be rendered moot by Covid or the next variant around the corner, which may be unmerciful.

This article originally appeared on Lubbock Avalanche-Journal: It's debatable: Feds, vaccine mandates and private employers