Are Covid Mandates Legal?

COVID-19 vaccination mandates have been a hot-button issue across the U.S. Multiple states have passed laws banning vaccine mandates, and several states have filed lawsuits against the federal government to prevent its mandates from going into effect.

These moves by some states have come after President Joseph Biden announced his administration’s COVID-19 action plan, which includes mandates for all federal employees to get vaccinated or undergo weekly testing.
The plan also includes a mandate for large, private employers with 100 or more employees to institute vaccine mandates or weekly testing for those employees who refuse vaccination. Finally, the plan requires all health care workers who work in facilities that contract with Medicare to get vaccinated. President Biden’s policies are aggressive and are designed to combat the spread of the novel coronavirus. The COVID-19 vaccines have been authorized by the FDA and are widely available, and they offer the best defense that we have against the COVID-19 pandemic. However, are the mandates legal? Here is some information to know about the constitutionality of the mandates and the arguments that might be made for and against them.  
Political Resistance to the Biden Administration’s Vaccine Mandates
Following President Biden’s announcement of the administration’s COVID-19 vaccine policies, many Republican politicians swiftly and negatively reacted. Republican-led legislatures in states like Florida and Texas have moved to pass bans on vaccine mandates and prohibit schools and private employers from enforcing them or requiring people to get vaccinated.
Two of the administration’s mandates have been temporarily placed on hold, following decisions issued by U.S. District Court Judges in Kentucky and Louisiana. The mandates that have been temporarily halted include the mandate for all health care workers who contract with Medicare to get vaccinated, which has been halted nationwide, and the mandate for private employers to require vaccinations before they can enter into federal contracts for federal contractors in Kentucky, Ohio, and Tennessee. Whether the federal courts will ultimately determine whether the federal vaccine mandates are constitutional or not remains to be seen.  
Constitutional Debate Over the Federal Vaccine Mandates
Opponents of the federal vaccine mandates argue that the federal government has overstepped by reaching into the states. They argue that since the police powers are granted to the states, the federal government does not have the power to issue vaccine mandates that apply within them, especially to employers in the private sector.
As a part of President Biden’s executive order for private sector employers to implement vaccine mandates, the Occupational Safety and Health Administration with the U.S. Department of Labor has been authorized to enforce the mandate by issuing a $14,000 penalty per violation of the vaccine mandate. OSHA is expected to release an Emergency Temporary Standard, which will allow it to enforce the mandate on private employers. This mandate is anticipated to affect more than 80 million people who work for companies employing more than 100 employees.  
Arguments of Federal Powers vs. State Rights
The constitutional debate over the federal vaccine mandate involves an argument of federal powers vs. state powers. The federal government is arguing that it has the authority to issue the federal vaccine mandates under both case precedent and the Occupational Safety and Health Act of 1970. Two Supreme Court decisions from the early 20th century provide support for local governments to issue vaccine mandates.
In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court held that state governments had the authority to authorize local health authorities to mandate the smallpox vaccine. Jacobson refused a free smallpox vaccine, was fined $5, and filed a lawsuit arguing that the state law was unconstitutional. However, the Supreme Court found that state and local governments could issue vaccine mandates and order penalties because of their interest in protecting public health.
In 1922, the Supreme Court issued a decision in Zucht v. King, 260 U.S. 274 (1922). This case dealt with a local ordinance in San Antonio, Texas, that banned students from attending public or private school unless they had received smallpox vaccinations. Zucht filed a lawsuit, arguing that the ordinance violated her rights to due process under the 14th Amendment. Again, the Supreme Court found that local and state governments have the authority to issue vaccine mandates to protect the public as a part of their inherent police powers.
While the decisions in both of these cases underscore the power of state and local governments to issue vaccine mandates, the issue is more complicated because the current COVID-19 vaccine mandates have been issued by the federal government. Opponents of the mandates argue that President Biden’s vaccination mandates interfere with the individual states’ powers under the Tenth Amendment of the U.S. Constitution. Under the Tenth Amendment, any powers that the Constitution did not delegate to the federal government or prohibit for the states are reserved specifically for the states or people.  
Authority for the Federal COVID-19 Vaccine Mandate
The Biden Administration is pointing to its emergency powers, case precedent under Jacobson and Zucht, and the Occupational Safety and Health Act of 1970 to support its authority to issue and enforce the COVID-19 vaccine mandates. On April 2, 2021, the Congressional Research Service issued an analysis of the laws that underlie the power of the state or federal governments to issue vaccine mandates. The CRS found that case precedent shows that governments have the power to enact vaccine mandates, but there is no express federal law that gives the federal government the power to issue mandates for the general public.
However, the Biden Administration argues that the Occupational Safety and Health Act of 1970 does provide the federal government the power to issue mandates. This law gives the Department of Labor and OSHA the ability to issue an Emergency Temporary Standard. An Emergency Temporary Standard can be issued if the DOL determines that employees are in danger from exposure to agents or substances that have been determined to be physically harmful and to enact emergency standards that are necessary to protect employees from those dangers. An Emergency Temporary Standard can remain effective for six months without having to undergo the normal rulemaking process that would otherwise be required.
Opponents have raised questions about OSHA’s authority to issue an Emergency Temporary Standard for the COVID-19 vaccine. They might argue that the pandemic does not meet the standards required under the OSH Act for the DOL to issue an Emergency Temporary Standard. Under this idea, Republicans might argue that a virus is not a substance or agent as contemplated by the OSH Act.
OSHA has also not issued any Emergency Temporary Standards since 1983. At that time, the agency issued an Emergency Temporary Standard for workplace asbestos exposure. In Asbestos Information Association v. OSHA, 727 F.2d 415 (5th Cir. 1984), the U.S. Court of Appeals for the Fifth Circuit struck down the Emergency Temporary Standard for asbestos, holding OSHA has a heavy burden of proof when arguing that an ETS is necessary to protect the health of employees. While a decision from the Fifth Circuit only covers the federal U.S. District Courts in Texas, Louisiana, and Mississippi, opponents of the federal COVID-19 vaccine mandate will likely argue that other circuits should give the decision deference even though it is not binding on other states.
The Biden Administration might have a couple of other arguments available for its vaccine mandates. It could argue that it is using its commerce powers to regulate the COVID-19 vaccine within interstate commerce. For example, the government could require vaccination as a condition precedent before people might be allowed to engage in different economic activities across state lines. However, the federal government cannot force people to engage in interstate commerce, so some people might still not be reachable.
If the Biden Administration’s COVID-19 vaccine mandates are not ultimately upheld by the courts, the government could still offer financial incentives to states to encourage them to issue their own mandates. This power falls under the federal government’s spending powers under the Spending Clause.
Currently, it is unclear whether the federal vaccine mandates will withstand constitutional scrutiny by the courts. Multiple lawsuits have been filed and are pending in different federal courts. It is possible that some decisions issued by the various federal Circuit Courts of Appeal will conflict, leaving the ultimate decision about whether the federal government has the power to issue vaccine mandates up to the U.S. Supreme Court. However, state, and local governments do have the power to issue vaccine mandates under Supreme Court precedent.
Regardless of what ultimately is determined about the federal government’s authority to issue vaccine mandates, it is a good idea for people to get the vaccine so that they can protect themselves and their loved ones. The pandemic continues to threaten everyone and waiting for the various cases to wend their way through the federal court system to decide whether or not the federal government has the power to issue and enforce national vaccine mandates does not make much sense.
Author Bio: Steven M. Sweat is a California employment lawyer and legal author. He is based in Los Angeles, CA, and has over 25 years of experience in the areas of employment law and personal injury.