President Joe Biden in Boise, Idaho, September 13, 2021 (CNS photo/Leah Millis, Reuters)

On September 9, President Joe Biden announced that his administration would be requiring vaccination for all federal workers and contractors, and for health-care workers at hospitals and other facilities that receive Medicare or Medicaid. The administration would also require any company with a hundred or more employees to ensure that their workers are vaccinated or tested weekly. Nine months after the Food and Drug Administration authorized the first vaccine against COVID-19 for emergency use, more than 175 million Americans have been fully vaccinated. But an estimated 80 million Americans who are eligible for the vaccines—now fully approved by the FDA—have yet to receive their first shot. After a summer of gently encouraging Americans to get a “safe, effective, and free” vaccine, Biden decided it was time to stop indulging persistent “vaccine resistance.” The new rule, which would affect almost two-thirds of the private-sector workforce, is designed to bring down the number of infections, keep our hospitals from being overwhelmed, and help get the whole country back to work. 

The news that the federal government would be creating vaccine requirements for the private sector drew immediate backlash from Republican governors: Gov. Kay Ivey of Alabama called the mandate “outrageous” and “overreaching”; Gov. Greg Abbott of Texas called it a “power grab” and “an assault on private businesses”; and Gov. Tate Reeves of Mississippi—a state that does not allow religious or conscientious objections to mandatory vaccinations for schoolchildren—called it an “unconstitutional move” that the president had “no authority” to make. (All three states, like every other state in the country, already mandate other vaccines for children and, in some cases, for adults.) While prominent Republican leaders like Sen. Mitch McConnell have acknowledged the efficacy of the vaccine and urged their constituents to get the shots, some still object to what they see as an unconstitutional overreach.

In lieu of testing the constitutionality of a national mandate, Biden opted instead to make use of established presidential powers granted by Congress.

The Supreme Court has previously upheld vaccine mandates, notably in the 1905 case of Jacobson v. Massachusetts, in which the defendant claimed that “a compulsory vaccination law is unreasonable, arbitrary, and oppressive.” In his majority opinion, Justice John Marshall Harlan wrote that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Jacobson and, later, Zucht v. King, upheld state and city vaccine mandates. In lieu of testing the constitutionality of a national mandate, Biden opted instead to make use of established presidential powers granted by Congress.

His plan calls for the Occupational Safety and Health Administration to issue the rule ordering large businesses to mandate vaccination or weekly testing by using an emergency provision in the Occupational Safety and Health Act of 1970 to ensure a safe workplace. OSHA’s rule-making power is based on the federal government’s constitutional authority to regulate interstate commerce. Rather than asbestos or other toxic chemicals, the workplace hazard in this case “is the infectious worker,” says epidemiologist and Obama-era OSHA director David Michaels. “This rule will tell employers: You have to take steps to make sure potentially infectious workers don’t come into the workplace.”

The new rule, whose details are still being sorted out, probably will not take effect until November, but employers are already making plans to implement it, as they do all other OSHA requirements. And while some large businesses worry the mandate might cause vaccine-resistant workers to leave for jobs at smaller companies exempt from the federal mandate, others, including groups like the Business Roundtable, have welcomed the move as a first step toward restoring full confidence in an economy still hobbled by the fear of a deadly disease.  

Katie Daniels is the managing editor of Commonweal.

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Published in the October 2021 issue: View Contents
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