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Fit for a King

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Fit for a King

Joe Biden’s vaccine mandate subverts the constitutional design. December 20, 2021
Politics and law
Covid-19

“In republican governments, the legislative authority necessarily predominates,” said James Madison. But what sort of government is it when the president thinks he can decree a nationwide vaccine mandate without the legislature’s involvement? Such a decree would seem to be more characteristic of an elective monarchy than a republic.

President Joe Biden’s vaccine mandate has been criticized for intrusively injecting the federal government into personal health decisions, for denying the existence of natural immunity (already obtained by perhaps half of the U.S. population), and for causing people who choose not to be vaccinated to lose their livelihoods (and at a time when the nation is already experiencing a shortage of workers). In short, it is being criticized as bad policy. But another problem with the mandate is that Biden thinks he can decide such policy questions unilaterally for a nation of more than 300 million ostensibly free citizens—and that so much of the country is willing to go along with his claim.

Biden’s mandate is clearly an exercise of legislative power on the part of the chief executive. As such, it marks the substitution of the arbitrary rule of one man for the republican rule of law. At the same time, it represents the substitution of federal rule for state or local rule. In other words, it undermines both the separation of powers and federalism—which together form what Madison in Federalist 51 called the “double security . . . to the rights of the people.” Biden’s assertion of power is therefore about much more than Covid vaccines. It is about whether Americans will accept having the president function as a one-man quasi-legislature or will instead demand that we revert to what Alexander Hamilton, writing in Federalist 1, called “the true principles of republican government.”

Speaking from the White House on September 9, Biden declared, “As your President, I’m announcing tonight a new plan to require more Americans to be vaccinated.” Biden revealed that he had ordered the Department of Labor, specifically its Occupational Safety and Health Administration (OSHA), to develop an emergency rule “to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.” Apparently forgetting that America is a nation conceived in liberty, he said, “This is not about freedom or personal choice.”

In truth, Biden’s mandate goes beyond even compulsory vaccination or testing. It is really a combination vaccine/mask mandate, as workers who manage to avoid the vaccine mandate—either because their employers instead opt for frequent testing or because they have received a hard-won medical or religious exemption—are instead subjected to an unprecedented, executive-decreed, federal mask mandate. This even as the best available scientific evidence suggests, as I have detailed in City Journal, that masks do little (if that) to prevent the spread of viruses, and might even be counterproductive. They also do tremendous damage to our quality of life.

While Biden asserts that his mandate is “nothing new,” his own press secretary, Jen Psaki, has admitted that “there isn’t a big historical precedent for this.” A few months earlier, Psaki had gone even further, flatly declaring that vaccine mandates are “not the role of the federal government.” She could have added that such mandates are even less the role of the executive branch of the federal government.

Not even Congress has subjected Americans to such a nationwide vaccine mandate—for any vaccine, for any disease. The Congressional Research Service (CRS) writes that “no existing federal law expressly imposes vaccination requirements on the general population.” Biden’s mandate also goes beyond state mandates. State governments, per the CRS, have not mandated vaccines except as a condition of attending school (for children) or being a health-care worker (for adults). Moreover, many such state mandates allow for philosophical exemptions (in addition to religious or medical ones), while Biden’s decree does not.

The president’s allies routinely cite two favorite examples in attempting to support his claim that this mandate is nothing new. The first is that George Washington required that his troops get inoculated for smallpox during the Revolutionary War. The second is that the Supreme Court decided in favor of Massachusetts’s vaccine mandate in Jacobson v. Massachusetts (1905).

The differences between what General Washington did, and what Biden is doing, are profound. First, Washington’s order did not apply to the general population, but only to his troops. Biden’s mandate applies to a wide swath of private citizens. Second, Washington’s order was issued as commander-in-chief during wartime, as a “new military strategy,” in the words of Ann Becker, author of the scholarly article “Smallpox in Washington’s Army.” Biden’s order certainly does not constitute a military strategy and was issued during a time of peace. Third, Becker writes that Washington, far from imposing federal control over local areas, “found it necessary to work with local authorities in New England and to request their permission to inoculate his troops.” Biden said in announcing his mandate that if “governors won’t help us beat the pandemic, I’ll use my power as President to get them out of the way.”

Fourth, despite the far deadlier nature of the disease (smallpox was said to kill about one in three people who got it, versus fewer than one in 150 for Covid-19), Washington nevertheless exempted troops who revealed that they had already had smallpox, since they therefore possessed natural immunity. Neither Biden’s speech nor OSHA’s summary of the Covid vaccine mandate provide any mention or recognition of the existence of natural immunity, and no exception is made for the millions who possess it. Fifth, it is not clear that Washington issued his order absent the involvement, or perhaps even the initiative, of the Continental Congress. Fritz Hirschfeld observes that “available records” are spotty but writes, “That some consultation occurred is suggested by the resolution of Congress adopted on February 12, 1777,” which read, “Ordered, That the Medical Committee write to General Washington, and consult him on the propriety and expediency of causing such of the troops in his army, as have not had the small pox, to be inoculated, and recommend that measure to him.” Biden, in contrast, has treated Congress as nonexistent and the states as unfortunate impediments to his will.

The 1905 case of Jacobson v. Massachusetts likewise provides no precedent for Biden’s actions. Far from encouraging a federal or executive vaccine mandate, the Supreme Court’s opinion stresses that, under the Constitution, decisions about the propriety of such mandates should be made at the state level and by legislatures—emphasizing both halves of that equation. Rejecting a constitutional challenge to a vaccine mandate passed by Massachusetts’s state legislature and implemented locally, the Court declared that it would be improper to “strip the legislative department of its function to care for the public health and public safety.” The Court’s opinion reads: “The authority of the state to enact this statute is to be referred to what is commonly called the police power—a power which the state did not surrender when becoming a member of the Union under the Constitution.” It adds, “The safety and the health of the people of Massachusetts”—and presumably of any other state—“are matters that do not ordinarily concern the national government.” It is hard to see how this opinion could be read as inviting the federal government, let alone the federal executive, to issue a nationwide vaccine mandate.

Unfortunately, too many Americans have forgotten the distinction between federal and state power. Perhaps even more disturbingly, they have forgotten the distinction between legislative and executive power. This latter distinction, as our Founders knew, is crucial to the preservation both of our rights and of our very form of government—indeed, it is a large part of what makes us a republic.

Legal challenges to Biden’s mandate generally focus on much narrower questions. Does his decree, carried out by OSHA, exceed the statutory authority granted to OSHA by Congress? Do the circumstances of Covid-19 justify OSHA’s having skirted the usual rulemaking process, which takes more time and allows for more public input, by issuing an emergency decree? While these questions will principally determine judicial decisions and are therefore important, they nevertheless largely miss the forest for the trees.

Congress may not delegate the legislative power, which the people granted to Congress under the Constitution. John Locke, whose writings profoundly influenced the Founders, wrote in The Second Treatise of Government, “The Legislative cannot transfer the Power of Making Laws to any other hands.” As Locke explained, the grant of power from the people to the legislative body is “to make Laws, and not to make Legislatures.” In our specific context, the Constitution vests the federal lawmaking power in Congress, not wherever Congress in turn decides to vest it.

Therefore, if OSHA’s decrees exceed the statutory authority granted to that agency by Congress, then Biden ordered OSHA to exercise power lawlessly. If OSHA’s decrees are consistent with the statutory authority granted to it by Congress, then that statutory grant of power is an unconstitutional delegation of legislative power to the executive branch. Either way, the executive branch cannot legitimately exercise legislative power—which is what OSHA, carrying out its orders from Biden, has done. The only question that remains is whether the executive branch has simply seized this unconstitutional power or whether Congress has unconstitutionally yielded it. Regardless, the vaccine/mask mandate is not an example of executive power but of legislative power exercised by the executive branch, in violation of the Constitution.

Notions of legislative and executive power, being simply a reflection of the natural order of things, were well understood at the time of the Founding. The legislative power is the power to declare what the law will be, while the executive power is the power to execute the law or carry it out. The legislative power is “at once more extensive, and less susceptible of precise limits,” writes Madison in Federalist 48, with “the executive power being restrained within a narrower compass and being more simple in its nature.” The “principal task” of the legislature, he wrote in Federalist 10, is to regulate the citizenry’s “various and interfering interests”—a broad power indeed. Similarly, the great Supreme Court justice Joseph Story, appointed to the Court by Madison, writes in his comprehensive Commentaries on the Constitution of the United States that the “bounds of the executive authority are easily marked out, and defined. It reaches few objects, and those are known.” In marked contrast, “the legislative power” determines the “public policy of the country. It regulates all its vast interests.” In decreeing his vaccine/mask mandate, Biden is determining public policy and regulating various and interfering interests by proclaiming what millions of Americans are allowed to do, or not allowed to do, if they wish to remain employed.

The naturally and inevitably wide scope of legislative power caused Locke to call it “the Supreme Power,” Story to call it “the great and overarching power in every free government,” and Madison to observe that in “republican governments” it “necessarily predominates.” The oft-repeated modern-day assertion that we have three separate and equally powerful branches of government is incorrect, at least in terms of our government’s design. The Founders designed the three branches of government to be separate and independent, but certainly not equally powerful. Further evidence of the legislature’s superior power is that the Founders devoted Article I of the Constitution to it, rather than relegating it to a later article, and made Article I roughly as long as the other six articles combined.

In fact, the scope of legislative power is so great that, in order to keep it from being used to undermine Americans’ God-given, unalienable rights, the Founders insisted that it be divided between different legislative chambers. Far from trusting one man with the legislative power, the Founders did not trust even one legislative body. Describing the need to divide the legislative power into two bodies, Madison writes in Federalist 62 that an important “impediment” to “improper acts of legislation” is this: “No law or resolution can be passed without the concurrence, first, of a majority of the people” (via the House of Representatives) “and then of a majority of the States” (via the Senate). By skirting Congress, Biden cut out these protections.

The legislature must also be large enough to be truly representative of the people. Madison writes in Federalist 10 that “the representatives must be raised to a certain number in order to guard against the cabals of a few.” He adds that “the smaller the number of individuals composing a majority . . . the more easily will they concert and execute their plans of oppression.” Again, the most extreme case would be to rely upon just one man. Madison writes, “A rage for . . . an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

In all, our Founders and early commentators believed that the legislative power must be divided; that it must be separated from the other powers of government; and that it must be exercised in a manner that encourages deliberation and debate. Reflecting these views, Story concludes that, apart from dividing the legislative power, “there can scarcely be any other adequate security against encroachments upon the constitutional rights and liberties of the people”; Madison writes in Federalist 51 that the separation of powers is “essential to the preservation of liberty”; and Hamilton says in Federalist 70 that the legislature’s “differences of opinion” and “jarring of parties” are conducive to “deliberation and circumspection,” which protect minority rights. Biden’s actions undermine our Constitution’s salutary design in all three of these ways. They unite the legislative power rather than dividing it; combine it with the executive rather than separating it; and substitute one man’s proclamations for a multitude’s deliberations. It is hard to imagine a graver threat to liberty than ceding legislative power to an unchecked individual, especially one who has not been vested with that power.

Story writes that “in every government,” the legislative power “is the predominating, and almost irresistible power.” It appears to have been irresistible to Biden.

Some may argue that Biden had to act because, otherwise, no one would act. But if Biden’s preferred policies could not get through Congress—the most representative branch of the federal government—then it is because they lacked sufficient public support. Rather than reflecting public opinion, therefore, his decrees involve one person imposing his views on millions of others. This is not an example of having a legislature “refine and enlarge” public opinion, as Madison said should happen, but of having the executive discard and supplant public opinion.

Indeed, under the Congressional Review Act, the Senate actually voted on December 8 to overturn Biden’s mandate. But even if the House votes likewise, we now face a bizarre circumstance: Psaki says Biden will exercise his veto power to prevent Congress from thwarting his unilateral decree. This makes it even clearer who is exercising the legislative power. We have gone from constitutionally requiring the concurrence of two legislative chambers and the president (or supermajorities of both legislative chambers) to pass legislation, to having one out of three be considered good enough—and having that one be the executive, rather than either branch of the legislature.

Interestingly, Story observed that dividing the legislative power would protect against having policies be fueled by “strong passions” that were “impatient, irritable, and impetuous.” It would be hard to choose three better adjectives to describe Biden’s tone toward the citizenry in announcing his mandate. Biden declared, “Many of us are frustrated with [those] who are still not vaccinated”; that millions “have failed to get the shot”; and that millions were not “doing the right thing.” It is “incredibly more frustrating,” he added, that “a distinct minority of Americans . . . are keeping us from turning the corner” because they have not “done their part.” He continued, “And my message to unvaccinated Americans is this: . . . What more do you need to see? . . . We’ve been patient, but our patience is wearing thin. And your refusal has cost all of us.” He then addressed a subset of the population: “For [those] who have gotten vaccinated, I understand your anger at those who haven’t gotten vaccinated.” He addressed parents with children eligible for vaccination, “They get vaccinated for a lot of things. That’s it. Get them vaccinated.” Finally, he added to all: “If you break [TSA] rules, be prepared to pay. And by the way, show some respect.” When it comes to unifying and conciliatory language, this isn’t exactly Lincoln’s Second Inaugural.

Nor is this Biden’s only vaccine/mask mandate. Though the Constitution explicitly grants Congress the power to “make Rules for the Government and Regulation of the land and naval Forces,” Biden has decreed that all Department of Defense employees must be vaccinated and masked. He has extended such decrees to all employees across the executive branch, even though, when it comes to other federal departments, he cannot rely on his power as commander-in-chief. (He has even extended his decrees to government contractors, who are not part of the executive branch.) On top of all this, Biden has decreed that all health-care workers whose employers accept Medicare or Medicaid patients must be vaccinated.

It is not at all clear that Congress has the power to issue nationwide vaccine mandates, either. CRS indicates that such authority would most likely have to be rooted in Congress’s taxing and spending power, or its power to regulate interstate commerce. But these powers were already in the Constitution when Madison wrote in Federalist 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; . . . [the latter] will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” The power to require widespread vaccinations, then, would rightly seem to reside with states and localities, which exclusively wielded it in the pre-Biden era.

States, too, have seen a divergence between executives and legislatures. According to information compiled by the National Academy for State Health Policy and Ballotpedia (here for vaccines), governors have issued mask mandates at one time or another during the past two years in 40 states. What’s more, six governors have issued vaccine mandates, at least in some contexts. Legislatures, meantime, being the branch of government most closely connected to the people, have issued no mask mandates and no vaccine mandates, with the arguable exception of Virginia. Since these statistics are partly a product of state legislatures having too often been AWOL during the Covid-19 pandemic, it is even more illuminating to consider the following: six legislatures have passed laws banning mask mandates, at least in some contexts, while 18 have passed laws banning vaccine mandates. When the closest representatives of the people have acted, they have eliminated mask and vaccine mandates, not imposed them.

Who gets to make the law is no small matter. A country’s very form of government, according to Locke, is determined by who exercises the legislative power. A “Community” or “Society,” he writes, “may put the powers of making Laws . . . into the hands of one Man, and then it is a Monarchy.” He elaborates, “For the Form of Government depending upon the placing [of] the Supreme Power, which is the Legislative . . . , such is the Form of the Common-wealth” (italics in original).

While no one would claim that Biden is exercising anything close to the whole of the legislative power in the United States, that does not make his exercise of legislative power in this case any less monarchical. In this instance, at least, we are not being governed as a republic. For either Biden has made the law in declaring his vaccine/mask mandate and has thereby assumed for himself the legislative power in this instance, or else his mandate is not law, and we are instead living under the arbitrary will of one man. Either he has made the law, or we are being governed by something other than the law.

It is plainly illegitimate for the executive to make the law, and it is similarly illegitimate for arbitrary decrees to take the place of the law. As Locke stated, “The Legislative, or Supreme Authority, cannot assume to itself a power to Rule by extemporary Arbitrary Decrees.” Or as the great American patriot Thomas Paine put it in 1776, “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other” (italics in originals).

President Biden’s declaration that some 80 million private citizens must get vaccinated or else lose their jobs constitutes an exercise of legislative power by one who does not possess it. We now face the extraordinary example of a president who has ranged beyond Congress on policy, has ignored the Constitution to impose it, and has contradicted our very form of government in the process.

Photo by JIM WATSON/AFP via Getty Images

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