In all of the controversy over the Biden Administration’s regulatory vaccine mandates, the country has almost entirely overlooked a rather obvious alternative: legislation. This oversight is strange in a democracy such as ours. Reflecting on this oversight can teach us something about the health of that democracy.
Thus far, the mandates Joe Biden has put forward depend on assertions of his presidential authority. They are therefore of somewhat dubious legality and hence subject to court challenges and the accompanying delays—such as the recent Fifth U.S. Circuit Court of Appeals’ stay on the implementation of OSHA’s vaccination rule. This is a big problem when you claim to be dealing with an emergency!
To understand the problem with the government’s approach, it is necessary to begin from an observation that, on the one hand, is often left unstated by constitutionally sophisticated Americans, and that, on the other, is probably unknown by many constitutionally unsophisticated Americans: the president has no constitutional authority to require anybody to get vaccinated. Any such power in the president would have to be derived from some delegation of authority from the Congress. In our system, the president is the executive: he executes but does not make the laws. For him to require people to get vaccinated, he would have to be carrying out some law that has been enacted by Congress.
There is, however, no existing law that in express terms requires anybody to get any of the COVID vaccines. The virus, after all, only appeared last year; and much of Congress’ COVID legislation was enacted before any vaccines were available. Accordingly, the president has to rely on long-existing statutes that empower him in some ways to take steps to protect the public safety in certain defined areas. His invocation of these authorities may be more or less plausible, but not so certain as to preclude legal challenges that are themselves plausible enough for courts to take seriously.
In contrast, Congress has a much more robust authority to require vaccination. This is not to say that Congress could constitutionally enact a comprehensive requirement of all Americans to get vaccinated. The federal government’s legislative authority derives from the enumeration of powers in Article I, Section 8; and those specific powers do not include broad jurisdiction over the public health and welfare, or what has been termed the “police powers,” which are instead reserved to the state governments.
Nevertheless, Congress has an enumerated power to regulate commerce “among the several states.” That power has been interpreted liberally by the courts, and it could be wielded in such a way as to require many Americans to get vaccinated. Congress could legally require all businesses operating in interstate commerce to make sure that their employees are vaccinated. This would cover a lot of Americans.
But Congress could go even further. It could enact legislation requiring everybody using the “instrumentalities of interstate commerce” to be vaccinated. This would reach to everybody who wants to use the airlines, or ride on interstate buses or trains. Moreover, the health insurance companies operate in interstate commerce. Congress could require them to demand vaccination of all of their policy-holders—or at least require the companies to impose on the unvaccinated an insurance premium high enough to induce most of them to get vaccinated.
The spending power would also be a fruitful source of authority to mandate vaccination. Congress could require the recipients of Medicare and Medicaid to be vaccinated. After all, those programs depend on congressional appropriations of money, and Congress could allege that the unvaccinated will, in the aggregate, run up unacceptable costs. Indeed, Congress could condition all kinds of federal aid on vaccination. It could require, say, schools that receive federal support to require vaccination of their employees and students. It could condition welfare payments on vaccination.
Such laws could only reach people engaged in activities that Congress may regulate, such as interstate commerce, or people who rely on spending programs that Congress enacts. That leaves whatever slice of America falls into neither of those categories. But, as we learned from NFIB v. Sebelius (the “Obamacare” case), Congress’ taxing power may reach where its regulatory powers do not. Thus, Congress could impose a punitive tax on all Americans who do not get vaccinated—or, alternatively, levy a tax on everybody in order to pay the costs of COVID mitigation, but exempt from the tax everybody who has been vaccinated.
The point of listing all these possible acts of legislation is not to recommend them! It is only to observe that they are constitutionally possible, although they have not been pursued, and then to think through what it means that they have not even been seriously proposed by anybody in a position of political responsibility.
Nobody—or at least nobody noteworthy—in Congress has proposed such legislation. Certainly the Democratic leadership has not done so. Biden could have proposed legislation in his scolding COVID speech of a few weeks ago, but he laid out the aforementioned series of (imperfect) executive actions instead.
Why this reluctance to invoke the ample legislative powers of Congress? One might suggest that our leaders think that Congress could not act quickly enough. This is hard to believe. Congress was able to move fast in the spring of 2020, when there was an opportunity to spend hundreds of billions of dollars. If the pandemic is an emergency, why wouldn’t Congress act quickly? At any rate, it is not clear that Congress would move more slowly than the court cases that will likely arise from Biden’s executive actions.
The more plausible explanation is not that our leaders think Congress would not act quickly but that they think Congress would not act at all. This, in turn, tells us something about the politics of vaccine mandates. Their proponents believe, or pretend to believe, that they are popular, but the facts suggest otherwise.
Biden does not have to stand for reelection for another three years—if ever. He is so old and so evidently in decline that it is not certain he would seek a second term. In contrast, the vast majority of Congress—all members of the House of Representatives and one-third of the Senate—have to face the voters in less than a year. And evidently, they don’t want to take responsibility for imposing vaccines on the unwilling.
If the public supported the use of legal pressure to induce vaccination in those who do not wish to get vaccinated, members of Congress would be lining up to impose the requirement and take credit for it. That they are not doing so tells us they do not believe the voters would tolerate it.
This political calculation in turn raises an important normative question: If the public does not support vaccine mandates, why don’t we just drop them? Would that really be so terrible? Of course, majority opinion is not everything. There are moral principles that any political community must respect. No polity could responsibly just decide to do nothing to mitigate the pandemic. But how much has to be done, how much the government should intrude on individual liberty in order to protect public safety, is a prudential question to which there is no absolutely correct answer. In a democratic republic, the steps to be taken, and the steps that might be taken but that had better be omitted, has to be determined by the sense of the people.
That our elites don’t understand this, or don’t care, says something about their commitment—or their lack of commitment—to self-government. The pandemic has not only made a lot of people sick but has revealed a certain sickness in our democracy. That democracy cannot recover its health until our elites relearn that their job is not to rule the people but to govern them by consent.
