LSU law professor: Biden vaccine mandate appears legal, but avenues for challenge exist - Greater Baton Rouge Business Report
President Joe Biden’s executive order that companies with 100 or more employees must ensure their workers are vaccinated against COVID-19 or tested weekly for the illness seems legal under current interpretations of the law and the U.S. Constitution, but opponents have at least three legal arguments they can try, LSU law professor John Devlin says.
The sweeping mandate meant to raise vaccination rates could affect some 80 million Americans, including about 350 companies and 56,000 employees in the Capital Region. More than two dozen Republican governors or attorneys general including Louisiana AG Jeff Landry have threatened a lawsuit to block the mandate, which they consider an infringement on individual rights.
“Is this Supreme Court capable of changing the law?” Devlin says. “Sure. But under current law, it seems to me the government is within its rights to do what is necessary for public health.”
Devlin points to three key issues courts may consider:
Individual rights: Does the mandate represent government overreach?
Pro: Individuals have the right to control their own health decisions, but individual rights are never absolute. “You do not have an individual right to endanger your neighbors by refusing a vaccine, any more than you have an individual right to endanger your neighbors by going 100 miles per hour on I-10,” Devlin says.
Con: Among other arguments, the state officials suing to stop the mandates cite Biden’s own statement that vaccination provides strong protection from severe illness. Given that fact, they argue, the unvaccinated are not a grave threat to those who have chosen to be vaccinated.
Federalism: Can the federal government do this, or is this power reserved to the states?
Pro: Under current interpretations of the Constitution’s Commerce Clause, the federal government can act to protect the national economy, which COVID-19 continues to harm. Again, the Supreme Court could change its interpretation, though it would be a far-reaching change.
Con: The Constitution principally entrusts “the health and safety of the people” to the states. “States have taken varying approaches to dealing with the virus, and, whether you like it or not, that is how our constitutional structure is arranged,” the Republican officials argue.
Executive action versus legislation: If the federal government can do it, can the executive branch do it alone through OSHA, as Biden’s order says it will?
Pro: Though OSHA is not explicitly authorized by law to do this, Congress generally has given it the authority to protect public health.
Con: Under what is known as the “nondelegation doctrine,” Congress is supposed to give clear instructions to the executive branch to carry out, and the power to enforce a vaccine mandate is not included in OSHA’s enabling legislation. The courts largely have not enforced the doctrine in decades, though the Supreme Court could use this case as an excuse to revive it, Devlin says.
Ultimately, the law effectively will be whatever the high court’s majority says it is. As the late Justice Robert Jackson wrote, “We are not final because we are infallible, but we are infallible only because we are final.”
source: https://www.businessreport.com/business/lsu-law-professor-biden-vaccine-mandate-appears-legal-but-avenues-for-challenge-exist
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