President Joe Biden took a significant step in combatting the COVID-19 virus this week by utilizing the significant amount of executive power his office permits. However, is it a wise policy? Does it violate constitutional rights? Is Biden acting like a king or dictator? These are a few of the questions worth exploring.
What exactly is the Biden administration doing?
The president’s role as chief executive requires him or her to carry out the laws passed by Congress. When our legislative body creates a law, they sometimes purposely leave portions of it vague to allow the executive branch flexibility in how to best carry out the law. For instance, with regard to the Social Security program, the law does not dictate in what way payments are made to recipients. This allows executive branch officials to determine if they should send checks, use direct deposit, or even consider other digital programs. The flexibility allows for efficient functioning of government. This much is clear — when the law does not specify how a law should be enforced, it is the prerogative of the executive branch on how to enforce that law (provided they do not violate the Constitution in the process). Presidents cannot simply give random orders unless they are based on an already existing law. They cannot enforce what does not exist.
In this instance, President Biden is utilizing the Occupational Safety and Health Administration (OSHA) to implement policies based on the Occupational Safety and Health Act of 1970. This law established OSHA and empowered the Secretary of Labor and the Director of OSHA to create policies under the law to ensure the safety of the workplace in the United States. Since the Secretary of Labor works at the pleasure of the president, this person has a responsibility to develop policies which the president wants.
In this case, the Secretary and OSHA will be writing new regulations which
- Require all private employers with 100 or more employees to ensure those employees have received vaccination for COVID-19 or those unvaccinated employees must produce a negative COVID test one each week. This new rule is expected to affect nearly 100 million workers in the country. The penalty for non-compliance will be $14,000 per offense.
- All healthcare facilities which receive Medicare or Medicaid reimbursement from the federal government must have its employees vaccinated.
- Employees of federal education programs such as Head Start or Department of Defense schools must receive a vaccine.
Additionally, President Biden ordered the Transit Security Administration (TSA) to increase fines for individuals who failed to wear masks and for those abusive towards flight attendants. The federal government is also planning on allocating $2 billion for testing (rapid test and PCR).
Outside of the requirements, President Biden also asked for governors of individual states to establish mask and vaccine mandates for their public education systems.
Is there any precedent for a vaccine mandate?
The United States has faced a few similar situations in the past. In the early 20th century, Massachusetts enacted legislation which required vaccination for smallpox for all adult citizens and fined those who refused. Henning Jacobson, a Swedish immigrant, refused and appealed the matter to courts, claiming the Massachusetts law violated his 14th Amendment rights under the Due Process Clause. Jacobson’s argument contended the state’s action in mandating a vaccine deprived him of his ‘liberty.’ In the Due Process Clause, the state must demonstrate some rational basis for why they would take deprive someone of a freedom. In this instance, Massachusetts claimed that eradicating smallpox and creating a better public health environment constituted a legitimate government interest in mandating a vaccine.
In Jacobson v. Massachusetts (1905), the United States Supreme Court ruled that the state legitimately held policing powers, which included, “… such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” The Court stated that issues such as a public health crisis, particularly the increasing cases of smallpox at the time, override the liberties of Jacobson.
Justice John Marshall Harlan also articulated a key principle which many Americans forget about the freedoms granted to us. Harlan wrote,
… 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. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.
Despite what people might want to believe, there is no absolute freedom in our society.
In 1922, the Supreme Court also upheld the constitutionality of mandatory vaccines for public and private school students. While states are under no obligation to create such vaccine mandates, the Court noted that such mandates did not violate the Constitution (see: Zucht v. King). Society has long accepted vaccinations as a key aspect in public health and the fight against serious disease, and this is one of the reasons we haven’t seen a significant challenge to this concept in nearly a century.
Federal courts at all levels do not appear in any mood to overturn precedent. Students at Indiana University filed suit after the school required a COVID-19 vaccine for all students and staff (with a few exceptions carved out). A federal district court and the 7th Circuit Court of Appeals ruled that Indiana held the authority to require the vaccines. The Supreme Court turned down an appeal for an emergency injunction (which could have temporarily halted the mandate until the matter was resolved in its entirety).
The Biden administration’s new rules seem solidly grounded in legislation, and the president seems confident that any legal challenges would fail. When asked about those potential legal challenges, Biden responded to critics, “Have at it.”
Why is this happening now?
For the Biden administration, this seems to be a move that makes sense for a number of reasons. First, the vaccination rates of Americans have plateaued over the last few months. Despite financial incentives and massive public relations campaigns, states have struggled to increase vaccination rates.
The unvaccinated Americans also have taken the position that they have seen what COVID-19 does and they don’t seem to mind the risk. While doctors and other health care professionals recommend taking the vaccine, a substantial number of Americans don’t feel comfortable taking it. The stagnation in vaccination rates has led to the rise of the rise of the ‘delta’ variant of COVID. The mutation of COVID makes it more difficult to defeat in the long term.
Infections, hospitalizations, and deaths related to the virus are increasing, and this is a public health problem, obviously. However, there is undoubtedly political calculus behind the vaccine mandates.
President Biden and his administration have a razor thin majority in both houses of Congress right now, meaning their ability to pass legislation is limited. Democrats are delicately trying to pass a bipartisan infrastructure deal while simultaneously threading a budget bill through Congress. The Biden administration must deal decisively with problems which can be solved with executive action only. They can solve this problem without Congress, so they must. There’s no time to waste, particularly considering that the 2022 mid-term elections will be coming soon.
Democrats want to head into the 2022 mid-terms with legislative victories in their pocket and light at the end of the tunnel when it comes to solving the pandemic. President Biden’s approval numbers have taken a hit with the American withdrawal from Afghanistan and COVID problems. His average approval rating is trending in the high 40s, but that’s down significantly from the beginning of summer.
The vaccine mandate is a calculated gamble to solve an important problem for the nation. Is it a ‘make or break’ moment for Biden’s presidency? No, but the political benefits outweigh the risks of not acting. Within West Virginia, Governor Jim Justice is lamenting the rise in infections but he refuses to take any action as our state’s chief executive. He has continually passed the buck to county and local administrations, causing significant confusion with absolutely no positive results.
If the increase in vaccinations with these federal mandates can stymie the COVID problem, Biden will look incredibly good in the eyes of voters for taking decisive action at a key moment in the pandemic. The people most likely to claim that Biden is a ‘tyrant’ who has overstepped his authority were never going to vote for him anyway.
Biden is not a tyrant, dictator, king, or any other authoritarian trope
Americans have a strange way of viewing presidents, particularly ones who take strong executive actions. The use of executive orders or government agency regulations to shape policy always tend to cause selective outrage. Presidents from both parties utilize these as means of achieving their goals. They are far more common than what people realize. Yet, Americans only complain about them when it’s a political foe in the White House.
Legislative bodies benefit from debate in lawmaking, and a slowed process. However, situations exist in government where quick, decisive action is warranted. Our chief executive needs that flexibility in responding to situations in such a manner.
The American presidency does more in permitting one single person to exercise power than any other democracy. It fuses the role of head of state and head of government where most nations divide those roles. In his famous Federalist #70, Alexander Hamilton wrote that our republic needed an ‘energetic’ president for effective administration of the laws. The energy included several characteristics, including unity (a single person acting as executive) and competent powers.
Powers exhibited by the president, whether Biden or Trump or anyone else, must still obey the Constitution and comply with other existing federal laws. Their actions are subject to review by the courts, and they are ultimately responsible to the people.
Hamilton’s work also contained wisdom which explains why Republicans are currently frustrated with Biden’s unilateral action. He wrote, “Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike.”
Republicans will attempt to seize upon any opportunity to gain seats in Congress and the majority in either house. And I suppose that’s part of what the minority party does, particularly when the difference in the number of seats in both houses is so small. A person can question the wisdom of President Biden’s policy. But to suggest the president is somehow crowning himself king over the nation or a tyrant? This is an attempt to play on the fears of Americans. Don’t fall for it.
I find it equally frustrating that Republicans have taken their hypocrisy to new levels when they have suggested for the entirety of President Biden’s term that he is confused, senile, or incompetent, but now they want Americans to believe that same crazy old codger is somehow launching a secret Marxist takeover of the nation. Could that senile old man have plotted all of this in his fragile mental state? I am convinced that both major political parties in the United States have serious flaws, but Republican leadership continually embarrasses itself in their quest to gain power.
The COVID-19 virus killed 4.6 million people worldwide in the 18 months. The deaths show no signs of relenting unless we take drastic action. In 2020 alone, nearly 378,000 Americans died from this virus, making it the third leading cause of death (behind cancer and heart disease). This nation created a vaccine to tamp down a deadly plague and the refusal to take it is harming society as a whole. We have the ability to end this and return to life as normal.
Critics would argue that government doesn’t dictate what people eat or ingest, which often cause heart disease and cancer, the two leading causes of death for Americans. This is true, but those diseases do not easily spread to other human beings.
President Biden was correct when he stated, “We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us.” It’s time to end this. If you’re eligible for a vaccine, take the vaccine. It’s safe, it’s effective, and it saves lives.