COVID-19, Liberty, the Constitution, and Executive Overreach
February 1st, 2022
By Peter Hill
Let me say this up front. I thank God for the developments of modern science that makes life easier, better, healthier, and longer. That is why I received a COVID-19 vaccine, and a booster, and I encourage you to do so unless some underlying health condition makes it risky for you. But in the realm of governmental control and coercion, there is a world of difference between saying “Being vaccinated is a good idea and I will do it” and “This is a good idea and the President, without specific statutory or constitutional authority, can order everyone to be vaccinated or be fired.” The issue is not whether or not being vaccinated is a good idea. The issue is who decides whether Americans are vaccinated? And does the President have the authority, as would a king, to simply order everybody to be vaccinated?
Soon I will write some essays on the Constitution. Conservatives believe in constitutional government, in large part because they are so much in favor of liberty, and the constitution limits the federal government, thereby ensuring more liberty for the people. But a recent Supreme Court case illustrates what constitutional government is from a structural perspective. That is, not in terms of civil liberties, but in terms of how the constitution structures 1) our federal government with its division of authority between the federal and state governments, and 2) the separation of powers within the federal government, which limits the Executive Branch, (the President and his federal agencies), the Legislative Branch, (Congress), and the Judicial Branch, (especially the Supreme Court.)
The federal government is a government of enumerated powers. That is, it is only legally authorized to do those things the Constitution says it can, and anything “necessary and proper” (i.e., implied power from the enumerated, explicit powers) to accomplish those enumerated tasks. To make it clearer, the 10th Amendment says any power not delegated to the federal government by the Constitution is reserved to the states or the people. Still, some of the enumerated powers are broad, such as to “regulate interstate commerce.”
This is a very different approach than many state constitutions, which typically grant much authority to its legislatures and governors. State constitutions tend to be expansive of state governmental power, whereas the federal constitution tends to limit federal governmental power.
The very first sentence of the Constitution says that “All legislative power herein granted shall be vested in a Congress of the United States.” Not in the President. Not in the Supreme Court. Not in a Commission. But Congress. Accordingly, if the President exercises legislative power, he is doing what Congress is to do, and is acting unconstitutionally. It does not matter how good the idea is. It does not matter how necessary the action is. It does not matter if everyone is in favor of it. If the President does not have an enumerated power in the Constitution, and does not have a law from Congress for him to enforce, he may not act. Article II, section III of the Constitution provides that the president “shall take care that the laws be faithfully executed.” If there is no statute to execute, the President has no authority.
I hope we would all agree that nothing in the Constitution gives the President an enumerated power to order tens of thousands of companies to vaccinate 86,000,000 employees using the coercive tools of being fired (the employees) or being fined (the employer.)
But, did the President have a Congressional law to enforce? Here is what President Biden and his federal agency attorneys at OSHA found to give them statutory authority to issue this regulatory directive. In 1970, OSHA was created by Congress. This is the legislative language:
Title 29 U.S. Code, Section 654:
(a) Each employer—
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter.
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.
Using these very general eight lines, enacted 50 years ago, President Biden’s Administration issued a 154-page regulation with the details companies and employees were ordered to follow in 60 days – by January 5, 2022. Eight lines. 154 pages. Do you think this OSHA law authorized President Biden to issue his regulation? If it seems like a stretch to you, you agree with the Supreme Court. The regulation can be found here: Federal Register :: COVID-19 Vaccination and Testing; Emergency Temporary Standard and also in the Federal Register, under OSHA, from November 5, 2021.
The Supreme Court struck down this regulation as being unconstitutional. The regulation was not really encompassed or anticipated in this very general grant of statutory authority, and the President had no Constitutional authority to issue it on his own without Congressional legislation. No Constitutional authority. No legislative authority from Congress. So, there was no law to “faithfully execute” as the Constitution says the President will do.
The Court required a much more specific grant of authority from Congress than what was given here. The language in these eight lines was simply too general (and perhaps too long ago) to serve as justification for the President’s actions. For a Presidential action this significant, affecting this many people and this many businesses, costing billions, and with the penalties so severe, the Court wanted to see a more specific Congressional law authorizing or requiring the President to do what he did.
For the more constitutionally oriented justices, the issue was “Under the Constitution, who decides?” The issue was not “Is this a really good idea?” Their conclusion was that this is a matter for Congress and/or the states to decide. States, typically, have broad and general power. The federal government, on the other hand, has limited, specific, and divided power. Separation of powers requires that the President execute the laws Congress has passed, not make his own legislation masquerading as a regulation. And in this case Congress did not pass a law directing the President to enforce this vaccination requirement. Nor may Congress delegate to the President Congress’s legislative power. That power, according to the Constitution, belongs to Congress alone. The President does not have an “almost unlimited discretion” (the phrase used by the President’s attorney) in what he wants to do in an OSHA regulation just because he thinks it is a good idea.
These justices wrote of this decision, and of this interpretation of the Constitution:
It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress
The decision itself was rendered on January 13, 2022, and may be read at 21A244 National Federation of Independent Business v. OSHA (01/13/2022) (supremecourt.gov)
And the more progressive justices who dissented in this case? What about them? They were perfectly willing to let the President do anything so long as it might be reasonably be related to worker health, (in this case, of course, limited to employers and employees of more than 100 workers – not everyone), and spent a good deal of time in their opinion saying what a really good idea this vaccination, firing, and fining regulation was. Remember that for the progressive, whether legislator, President, or jurist, constitutional niceties may not matter much if the desired public policy outcome is a really good idea.
I started this essay be referring to our constitutional structure, with its concepts of federalism and the separation of powers. This “employer vaccination mandate” case illustrates those principles. Another recent case does as well, with similar analysis and a similar result, but an interesting twist.
You may remember that the federal government imposed an “eviction moratorium ban” in 2020 so that landlords could not evict tenants who could not pay their rent in counties with high incidence of illness. The intent of the law was to prevent tenants from being evicted when they had lost income and perhaps their jobs because of COVID. Many other tenants took advantage of the law to stay in their apartments rent-free, however, regardless of their economic condition. Congress passed this law, and specifically gave the Centers for Disease Control (CDC) the authority to monitor the situation and, if warranted, promulgate a federal regulation for the moratorium.
Landlords challenged the law. The Supreme Court upheld the law and CDC’s authority in a 5-4 decision, with the deciding vote being cast by a justice who explained that the law was going to expire in a month, and he would not intervene with so little time left. The law expired. President Biden then directed the CDC to issue another regulation providing for another moratorium, but this time with no law to support him. The law was again challenged. This time a majority told the President his action was unconstitutional because he had no authority in the Constitution or pursuant to a law to issue such a regulation. As the Court said, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
The difference, of course, is that in the first case the president was executing a law Congress had passed. In the second case the President simply issued an order because he thought it was just, necessary, advisable, and a good idea. The case may be found here: 21A23 Alabama Assn. of Realtors v. Department of Health and Human Servs. (08/26/21) (supremecourt.gov) dated August 26, 2021. The Court upheld the Constitution’s language and the separation of powers principle by insisting that Congress pass a law, rather than upholding a Presidential directive with no constitutional or statutory authority.
Conservatives might think that a federally imposed eviction moratorium is a poor policy decision. That might be the case. But simply because a law or regulation is bad policy does not make it unconstitutional. There were other problems with the statutory eviction ban, but Congress at least gave the President (and the CDC) some legal justification by passing a federal statute. Without that statute, the President was acting like a king.
The vaccine mandate case, like the eviction moratorium cases, were good decisions by the Supreme Court, meaning that they were based on a sound reading of the Constitution, and an understanding of the limits the Constitution places on the federal government in general, and the President in particular. They upheld the principles of federalism and the separation of powers.
Meanwhile, stay healthy and I hope you get vaccinated.
© Peter Hill, 22 Jan 22