Bye, Bye Vaccine Mandate

By Dinesh D’Souza
Dinesh D’Souza
Dinesh D’Souza
Dinesh D’Souza is an author, filmmaker, and daily host of the Dinesh D’Souza podcast.
January 17, 2022Updated: January 19, 2022


In attempting to impose a vaccine mandate not merely on the federal government but throughout the private sector—on all companies with 100 or more employees—the Biden administration recognized it faced a constitutional obstacle. Where does the Constitution grant the president or his executive branch the authority to do this?

Biden’s chief of staff, Ron Klain, believed there might be a way to dodge this obstacle. He called it a “workaround” to the Constitution. The administration settled on the Occupational Safety and Health Administration (OSHA), charged with regulating health and safety in the workplace, as the instrument for carrying out this workaround.

It was an ingenious plot, and had it worked, it would have had massive reverberations throughout the country. More than 80 million Americans would have been forced to vaccinate or be subjected to a regular regimen of testing. If they refused, they faced suspensions and firing. Companies faced severe financial penalties for refusing to comply. More broadly, the government would have greatly expanded its power over the lives of citizens.

Fortunately, from my point of view, the plot failed. This isn’t an argument about the efficacy of vaccines. I’ve never said a public word criticizing the vaccine. Rather, this is about the compulsory power of a regulatory agency of the government. The Supreme Court ruled 6–3 that no such power has been granted to OSHA either by the Congress or by the Constitution. The Constitution was not written to permit “workarounds.”

The core of the Court’s decision is that, in a democratic society, Congress is the institution that makes laws. The people elect members of Congress and grant them the authority to enact laws on behalf of the people. The role of the executive branch is to carry out or execute those laws. Congress can set up agencies, such as OSHA, with delegated powers to administer particular areas of the law, but those agencies must operate within the parameters of this assigned authority.

The Supreme Court ruled (pdf) that Congress authorized OSHA to set workplace standards, not broad public health measures. OSHA’s focus is the health and safety of Americans on the job, not anyplace else. When OSHA was set up a half-century ago, the Court sardonically observed, it didn’t seem to have had COVID in mind. OSHA isn’t even the primary agency dealing with public health.

Moreover, the Court observed, even on the job, COVID-19 poses different levels of risk depending on the nature of the job. The Biden administration’s vaccine mandate “operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure.” Lifeguards who work outdoors would be subject to it no less than meatpackers who work indoors while pressed closely together. The mandate, in other words, isn’t thoughtfully calibrated to mitigate health risk.

“If administrative agencies seek to regulate the daily lives and liberties of millions of Americans … they must at least be able to trace that power to a clear grant of authority from Congress,” Justice Neil Gorsuch wrote in his concurring opinion.

Congress, the Court noted, has passed several laws pertaining to COVID-19, including multiple COVID relief packages. Congress clearly could have chosen to legislate a nationwide mandate. But it didn’t.

“The question before us is not how to respond to the pandemic,” Gorsuch wrote, “but who holds the power to do so.” Quoting a note by former Justice Antonin Scalia, Gorsuch raised the specter of “government by bureaucracy supplanting government by the people.” It’s worth noting the irony here of the Supreme Court, our one unelected branch of government, coming down squarely on the side of democracy and rule by the people—not rule by self-styled “experts.”

The Court’s decision drew a sharp warning from legal scholar Kimberly Wehle. She said, “Agencies make rules and regulations affecting stock markets, consumer-product safety, the use and trafficking of firearms, environmental protection, workplace discrimination, agriculture, aviation, radio and television communications, financial institutions, federal elections, natural gas and electricity, the construction and maintenance of highways, imports and exports, human and veterinary drugs, and even the licensing and inspection of nuclear-power plants.”

True. But the Court’s point isn’t that we don’t need experts, but rather that we need experts who operate within the ambit of their delegated congressional authority. Interestingly, in a minor though related case, the Supreme Court upheld vaccine mandates for health workers in federally funded facilities (pdf). Two conservative justices—John Roberts and Brett Kavanaugh—joined the three progressives in a 5–4 decision that basically said the Department of Health and Human Services does have delegated authority to regulate health centers that receive government money.

But even here, four justices dissented, with Justice Clarence Thomas noting the harshness of the rule: “It requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected.” Thomas noted that traditionally such powers are left to the states, not the federal government. Moreover, “If Congress had wanted to grant … authority to impose a nationwide mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”

Reading these two decisions, I’m impressed by the close reasoning and prudential wisdom of the Court as a whole. One doesn’t get from the justices, not even the progressive justices, the sense of craziness and fanaticism that seems to emanate from the Biden administration. The Court was established as a guardian of the Constitution, and through it, of our civil liberties, and also as a check on the excesses of government. In this case, it’s refreshing to see the Court do its job with such diligence and aplomb.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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