By: Naomi Rose  | 

Biden’s COVID Vaccine Mandate is Unconstitutional

“My message to unvaccinated Americans is this: what more is there to wait for? What more do you need to see? We have been patient, but our patience is wearing thin. And your refusal has cost all of us.”

These words, spoken on Sept. 9, 2021 by President Biden, seem to me less like the words of an American president striving to protect the life, liberty and property of the American people, and more like the words of an undemocratic authoritarian trying to control the personal freedoms of the citizens of our nation.

Over the past couple of months, vaccine mandates have been infringing more and more upon personal liberties involving our freedom of choice. First, they were aimed just at federal employees. Then just the healthcare workers. Now, it is any business with 100 or more employees. This includes private businesses that do not even accept government funding. These businesses must mandate the COVID-19 vaccine or insist on weekly testing for their employees. Otherwise, they risk being fined about $14,000.

The Constitution was a document written in order to limit the power of the President to do such things without the consent of the legislature. I believe that this mandate is in direct contradiction with the Constitution.

First, under the Administrative Procedure Act, rules or mandates issued by executive or administrative agencies, are invalid if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This vaccine mandate clearly falls under this category, as it is for businesses with 100 or more employees, with no clear answer as to why the “science” specifically points to this number. Does this mean that companies with 99 employees are not at risk of COVID, but those with one additional employee are? Maybe a business with 50 employees is at higher risk because its workspace is smaller and more confined! As no answer has been provided to us by the Biden Administration, we can only assume that this number is arbitrary, and therefore the mandate is unlawful and invalid.

But that is only one problem with the mandate. Another exists with the major rules doctrine, which assesses the legality of this vaccine mandate. This doctrine states two conditions. The first is whether the rule is considered a “major rule.” As this mandate encompasses all businesses with 100-plus employees, covering about 80 million total workers, this is quite plainly a major rule. The next condition is whether Congress has clearly authorized these actions, which it has not.

Additionally, Biden is issuing this mandate through the Occupational Safety and Health Administration (OSHA), using an ETS (Emergency Temporary Standard). However, to do so, he is taking the OSH Act of 1970 completely out of context. The OSH Act states that in order to even issue an ETS, OSHA has to determine that “employees are exposed to grave danger from exposure to substances or agents determined to be physically harmful or from new hazards.” Notice the language of this law. Substances. Agents. Hazards. The OSH Act was designed to protect employees from things such as toxins, which we see from the Benzene limits put in place, and from employee actions, such as the operation of heavy equipment. Never has this been used to refer to vaccinations. Furthermore, Congress stated that the OSH Act was motivated by “employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment.” Congress did not say that the OSH Act was designed to protect workers from a risk anywhere in the world. It specifically states that it was only designed to protect them from health risks in the workplace. As COVID is not something that only targets workplaces, it clearly does not fall under the rules that OSHA can dictate. The Biden Administration is purposely misconstruing this.

Many people in support of Biden’s new proposal cite the famous 1905 Supreme Court case Jacobson v. Massachusetts, to explain how this mandate is lawful. In 1905, the smallpox vaccine became mandatory in the state of Massachusetts. Jacobson refused to get the vaccine because he stated that he had gotten sick from a previous childhood vaccine, and did not want to undergo similar trauma. The state fined him, so Jacobson sued the state. The Supreme Court decided that “in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” This case is often championed as proof for the legality of vaccine mandates. However, what people completely ignore is that this case only gives authority to the state (and even that is not completely black and white, as we see from the case of Buck v. Bell). Nowhere does this concern the federal government at all. This court case is completely irrelevant when assessing the lawfulness of Biden’s vaccination mandate.

Another point as to the unconstitutionality of Biden’s mandate concerns the 1992 Supreme Court case Riggins v. Nevada. This case, concerning whether a prisoner can be forced to take an antipsychotic drug to stand trial, clearly states that “the forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Here is a clear-cut statement issued by the Supreme Court that shows that what Biden is proposing is completely and utterly illegal. If people can pretend that a court case concerning a state’s powers is somehow relevant to the issue of federal mandates, then surely this court case at the federal level is even more important.

Biden has been flip-flopping on the issue of mandates all year. Last December, he said that although he encourages vaccination and masking, he does not support mandates. In July, Press Secretary Jen Psaki said that there will be no mandates as it is “not the role of the federal government.” But now, the Biden administration has completely changed its tune. Even though what they are doing is plainly unconstitutional, they seem not to care. They are perfectly willing to override the foundation of American law in order to achieve their goals.

It is astounding that the same people who chant “my body, my choice” are suddenly not in support of this when it comes to the other side of the issues. In fact, the very day that Biden issued this unconstitutional health mandate, he sued the state of Texas for its so-called “unconstitutional” health mandate regarding the fetal heartbeat law. Vice President Kamala Harris said then, “when people are able to make choices without government interference for themselves-in terms of their well-being and the well-being of their family in consultation with whomever they choose-we are a stronger society.” Apparently, these words do not have the same meaning when talking about vaccines.

Every person should have the right to make their own personal decisions. When the federal government starts to get involved in our freedoms and nobody fights back, it sets a precedent for future leaders to infringe upon our liberties even more. If we do not stand up and fight against unconstitutional overreaches of power, we are effectively losing what the American people fought so hard to gain with pen and sword back in 1776.

Photo Caption: The US Supreme Court at sunset

Photo Credit: Unspash