Does Biden’s OSHA Vaccination Mandate Exceed Federal Authority?

Contact Your Elected Officials
The Epoch Times Header

On Nov. 12, a federal appeals court suspended (pdf) the Occupational Safety and Health Administration (OSHA) order fining businesses with 100 or more employees for each employee unvaccinated against COVID-19. This is one of three vaccination mandates issued by the administration of President Joe Biden.

This case will likely go to the Supreme Court. The legal issues include at least the following:

  • Does the mandate exceed the enumerated (listed) powers the Constitution grants to the federal government?
  • Assuming the Supreme Court believes the statute authorizing OSHA is constitutional (which I don’t believe but the justices almost certainly do), did OSHA exceed its authority under the statute? This contains several sub-issues, including how much authority Congress may delegate to administrative agencies.
  • Does the mandate deny individuals due process of law, in violation of the 5th Amendment? This question is not based on the true meaning of “due process,” but on the Supreme Court’s modern case law creating rights of privacy, autonomy, and bodily integrity.

The federal appeals court opinion touches on all three of these issues, although the part most relevant to due process doesn’t actually mention the phrase “due process.”

It would require a short book to analyze these issues in detail. So this essay focuses only on the first: Does the mandate exceed the enumerated powers the Constitution grants the federal government? And what are the chances the Supreme Court will strike down the mandate on that basis?

Reader alert: The discussion below gets technical.

It’s an axiom of American constitutional law—to which the Supreme Court at least gives lip service—that federal officers and entities have only the authority the Constitution grants them. Congress created and authorized OSHA, so the agency can’t exceed the powers the Constitution grants Congress.

In defending the mandate, the U.S. Department of Justice will argue that at least two constitutional provisions justify it. The first is the Commerce Clause:

“The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes ….” (Article I, Section 8, Clause 3)

The other is the Necessary and Proper Clause:

“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ….” (Article I, Section 8, Clause 18).

When you put these two together and clean up the ellipses and archaic typography, you get the following:

The Congress shall have power (1) to regulate commerce with foreign nations, among the states, and with Indian tribes and (2) to make all laws which shall be necessary and proper for carrying that power into execution.

This is the Commerce Power (pdf).

Lawyers and courts (including the appeals court issuing the Nov. 12 stay) often refer to the Commerce Power as the Commerce Clause. But that is inexact. There are two components to the Commerce Power, and the Commerce Clause component is actually the less important one (pdf).

The Commerce Clause grants Congress authority to govern mercantile trade and various related activities, such as negotiable instruments, navigation, and marine insurance. But it excludes other economic activities such as manufacturing, agriculture, and mining, and it also excludes non-economic activities. Until 1944, “commerce” was understood to exclude most forms of insurance. But that year, the Supreme Court—in an extraordinarily specious decision (pdf)—reversed precedent and ruled that “commerce” encompassed insurance of all kinds (pdf).

By Rob Natelson

Read Full Article on TheEpochTimes.com

The Epoch Times
The Epoch Timeshttps://www.theepochtimes.com/
Tired of biased news? The Epoch Times is truthful, factual news that other media outlets don't report. No spin. No agenda. Just honest journalism like it used to be.

The Real Reason Why the Left is Unhinged

Nine out of thirteen of the original states required you to be a Bible believing Christian to serve in government at the time of the founding.

The Sacrificial Lambs of the Riyadh Standup Scene

Which is the greater injustice: jailing political dissidents, or millions dead from pharma crimes with no accountability for those responsible?

No Kings Exposes Odd Things!

The “No Kings” protests held around the nation are not grassroots spontaneous people’s protests but are highly organized events by paid provocateurs.

President Trump Needs Much Better Protection

President Trump faces threats from foreign adversaries and domestic radicals prone to violence, people suffering from severe “TDS.”

Science Has Finally Come For Transgenderism

British biologist Richard Dawkins said “trans women are men,” calling transgender ideology a movement that undermines biological truth.

Texas Appoints Higher Education Ombudsman to Enforce DEI Violations

Texas is moving to enforce bans on DEI practices in universities and potentially restrict college courses focused on gender and race.

House Judiciary Chair Refers Ex-CIA Director John Brennan for Criminal Prosecution

House Republicans referred ex-CIA Director John Brennan to AG Pam Bondi for prosecution over the 2016 probe into alleged Russian–Trump collusion.

FBI Has Arrested 28,000 Violent Criminals Since Jan. 20: Trump

President Trump praised the FBI for doing an “incredible job,” citing thousands of arrests and major disruptions of criminal activity nationwide.

White House Ballroom Project Breaks Ground

Demolition began Oct. 20 on the White House East Wing to make room for Trump’s planned ballroom, with parts of the structure already removed.

Trump Calls off Meeting With Putin, White House Says

White House says Secretary Rubio and Russia’s Lavrov had a productive call; no further meetings or Trump-Putin talks are planned soon.

President Signs Rare Earth Agreement With Australia’s PM

President Trump hosted Australian PM Albanese at the White House, where both leaders signed a new agreement on rare earth mineral cooperation.

Trump Says Insurrection Act Is ‘Strongest Power a President Has’

President Trump detailed plans to invoke the Insurrection Act to address rampant crime, calling it the “strongest power a president has.”

Army Corps of Engineers to Pause $11 Billion in Projects During Shutdown: Vought

Russ Vought, director of the White House’s OMB, has added to the growing pile of federal projects paused during the government shutdown.
spot_img

Related Articles

Popular Categories

MAGA Business Central