Here’s Why Biden’s Vaccine Mandate is Unconstitutional

As you can imagine, the constitutionality of the vaccine mandate will be litigated as soon as OSHA issues the rules. The media is running interference, telling the public that challenges to the mandate are “unlikely to succeed.”

Do not believe them.

The legality of the vaccine mandate will be assessed under what is called the major rules doctrine (also known as the major questions doctrine). Under this doctrine, the courts look to (1) whether the agency action is a major rule; and (2) whether Congress has clearly authorized the agency action.

As Justice Scalia stated in 2014, “We expect congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

From here we turn to the first question of the major rules doctrine: there is zero doubt that it is a major rule. It would affect the healthcare decisions – and implicate the personal autonomy – of “some 80 million private sector workers.” It is an action never before taken by OSHA, the Department of Labor, and any other federal agency. It would affect the entire US economy.

In support of my position, we have seen lesser invasive agency rules be determined to be major rules. For example, “rate-regulations” of telephone companies has been held to be a major rule. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994).

From there we get to the second question: whether Congress has clearly authorized the Department of Labor/OSHA to mandate vaccines. The answer is no.

If Congress clearly authorized (not just authorized, but clearly authorized) Labor/OSHA to mandate vaccines, then we would have seen such authority in the OSH Act of 1970. Look for yourself – the language isn’t there. Instead, there are general grants of authority to “set mandatory occupational safety and health standards.”

Looking to the history of OSHA, this authority has been understood to regulate employer actions to provide a safe workplace (Benzene limits) or employee actions at work (operation of heavy equipment). The OSH Act has never been understood historically to include mandatory vaccinations. This is significant because the Supreme Court recently looked to agency history to determine the CDC lacked the authority to issue its latest eviction mandate.

For an example of “clear authority” relating to public health, look to the authority Congress gave HHS to take action in case of “significant outbreaks of infectious diseases.” Going further, to allow the mandate would be to allow OSHA to require vaccination as a condition of employment. The OSH Act contains no such language or authority.

So there we have it. This is a “major rule” and Congress has not “clearly authorized” Labor/OSHA to issue a vaccine mandate. It is an unlawful - and unconstitutional - seizure of authority by the Executive. Expect further challenges on whether the ETS itself (and the finding of “grave danger”) is legal.

We also observe that we by no means concede Congressional authority to mandate vaccines. (In other words, Congress could not give OSHA/Labor this authority because Congress has no such authority to give.) You may have seen some pundits argue that the 1905 case of Jacobsen v. Massachusetts gives this authority. These arguments are misplaced, as that was the Supreme Court over 100 years ago considering state, and not federal, authority.

Biden's unconstitutional mandate has already resulted in the first state suing him.

"The federal government cannot force people to get the COVID-19 vaccine. The Biden Administration is once again flouting our laws and precedents to push their radical agenda," Attorney General Mark Brnovich said in a statement.

Biden announced the measures last week, which require federal workers and private sector workers in businesses with more than 100 employees be vaccinated or take a COVID test weekly, as part of an action plan to combat the virus.

"We've been patient but our patience is wearing thin and your refusal has cost all of us," Biden said from the White House. "This is not about freedom or personal choice. It's about protecting yourself and those around you."

The mandate, which is expected to affect as many as 100 million Americans in an array of jobs, including health care, directly impacts the private sector. Republicans have described the move as an "unconstitutional" act of federal coercion that should be challenged or resisted.

Specifically, the Arizona lawsuit contrasts the mandates with the lack of mandate for those entering the country illegally via the U.S. southern border, where there has been a surge in migrant encounters – with more than 212,000 in July alone. While approximately 40% of those encounters result an expulsion via Title 42 public health protections, many other migrants have been released into the U.S., which has led to concerns about the risk of potential COVID-19 spread.

"There can be no serious or scientific discussion about containing the spread of COVID-19 that doesn’t begin at our southern border," Brnovich said.

The lawsuit argues that the mandate violates the Equal Protection Clause by allegedly favoring migrants who have come into the country illegally over American citizens.