The Corner

White House

Biden’s Unconstitutional Vaccine Mandate

President Joe Biden delivers remarks about Afghanistan, from the East Room of the White House in Washington, D.C., August 26, 2021. (Jonathan Ernst/Reuters)

I agree with our excellent editorial on Biden’s illegal vaccine mandate. I wish only to reassert an additional, fundamental constitutional objection — the same one I posited, as did Charlie, in connection with Biden’s illegal eviction moratorium. It is unconstitutional.

There is no general federal health-care power. The constitutional exhortation for Congress to “provide for . . . the general Welfare of the United States” (art. I, sec. 8) is not an open-ended authorization. Ours is a federalist system, the states presumptively govern their internal affairs, and Congress’s power to provide for the general welfare is cabined by its enumerated powers.

The relevant one here is the power to regulate interstate commerce. Indeed, the government presumes to regulate medical care, extensively but only indirectly, by regulating health insurance. That this is an interstate market cannot be denied, even if the government’s regulatory targeting of it is largely pretextual – i.e., progressives are more interested in dictating (and eventually rationing) medical treatment than in the insurance market.

Even under the unjustifiably wide berth the Supreme Court has given Congress’s pretextual invocations of commerce power, especially since the New Deal, the justices nevertheless declined in the 2012 Obamacare ruling to approve a mandate to buy medical insurance. That is because the Constitution only permits Congress to regulate ongoing interstate commerce, not to coerce people into engaging in such commerce.

A vaccine is not even commerce, much less interstate commerce.

As I conceded during the eviction-moratorium controversy, because of the hash the Supreme Court has made of the Commerce Clause, the core question of whether the federal government — not just the president or an executive bureaucracy, but the federal government through congressional legislation — has the regulatory power it is claiming routinely gets short shrift. But it should not.

To put it starkly, if the president may order a medical mandate because the federal government (and not the executive, mind you) is supposed to provide for the general welfare, then is there anything the federal government may not do? Is there anything left of the federalist principle that states are sovereign regarding their internal affairs? Absent the assurance of that principle’s vitality, the Constitution would never have been ratified.

The Supreme Court seemed to drift close to this principle in its eviction moratorium opinion a couple of weeks ago. Noting that the regulation of landlord-tenant transactions is traditionally a state-law matter (as is the imposition of vaccine mandates, our editorial explains), the justices asserted that when federal action “intrudes into an area that is the particular domain of state law,” Supreme Court jurisprudence requires “Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power[.]”

Again, I believe that is a second-order issue. Since we are talking in these federal mandate cases about a power Congress does not have, it shouldn’t matter how clear its language may be. Obviously, though, if Congress and the federal government had the power that Biden intends to invoke, then OSHA — to avoid administrative-law requirements — would not need to dust off the moribund Emergency Testing Standard that, as our editorial notes, has not seen the light of day in the nearly 40 years since its last rejection by the courts.


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