On January 13th, the Supreme Court blocked President Biden’s executive order directing OSHA to implement mandatory vaccine policies for employers with more than one hundred workers. While this seems like a victory for freedom-loving Americans, the question pertaining to the merits the case was tried on, is a little sketchy. The issue didn’t revolve around the government’s authority to dictate such things on an individual rights basis, rather; it was tried under something called the Major Questions Doctrine. The major issue in question is the economic or political impact Biden’s executive order will have, bringing the case under Article 1, Section 8 of the Constitution. According to The Yale Journal of Regulation, The Major Questions Doctrine is used to find clear legislative intent when there are expected to be economic repercussions. Forcing employees to choose between an unproven vaccine or their job certainly affects the economy. Across the country, people were losing their jobs at an alarming rate as these mandates were implemented. Congress never specifically authorized OSHA to deal with public health issues that are not workplace-related or the general responsibility of employers to deal with. In other words, OSHA has the authority to regulate workplace hazards, which may affect employee safety, that is a direct result of workplace necessity. The authority to deal with public health issues was designated to the Department of Health and Human Services through legitimate legislation passed by Congress. According to The Yale Journal of Regulation, the Constitution’s non-delegation doctrine prohibits Congress from delegating its constitutional authority to any other branch or agency of government.
The Commerce Clause, according to The Heritage Guide to the Constitution, has been the most disputed, and tried in court, than any other in the Constitution. This is because nearly all human activity affects commerce between the states in one way or another. In 1824 (102), Chief Justice John Marshall wrote that the power to regulate commerce may be exercised by Congress to its fullest extent while acknowledging no limits on its power. Only the political checks and balances of the voters will keep this power in check, he wrote. The government narrative concerning Covid-19 and vaccines suggests that the disease poses such a danger, and it was the pandemic itself that caused the economic devastation in the beginning, that Congress could very well attempt to pass a law mandating vaccines under the commerce clause. According to Heritage (102), the Supreme Court, in 1938, took a hands-off approach in monitoring Congress’ delegation of commerce clause authority. This essentially means that the clear purpose of intent language cited by SCOTUS in the vaccine mandate case has virtually been ignored, and federal agencies have been free to interpret congressional intent, making up rules as they go. This dates to 1941 when the court ruled that industry had a national effect on the economy, and any local activity “always had a sufficiently substantial effect on interstate commerce to justify congressional legislation” (103-104). This, according to Heritage (104) is when the power to govern commerce turned into a regulatory power, undoing the founders’ original intent in the Constitution. The question then, under the Major Questions Doctrine, is whether Congress can abdicate its delegative authority, or if OSHA is acting outside the parameters from which it can act under existing commerce clause law, not whether the government has the constitutional authority to issue such mandates.
According to a more liberally biased article on the case, the court didn’t question the so-called danger posed by the pandemic, or that vaccines or masking may not be necessary for fighting it. Vox acknowledged that the case was heard strictly on the merits of OSHA’s regulatory power to issue such a ruling. This is perhaps the most disturbing aspect of the case. Covid-19 has been nothing but contradictions, misinformation, and outright lies. According to an article at AIE.org, OSHA maintains that because 740,000 people died from Covid-19, they are well within their rights to implement such a mandate under the Emergency Temporary Standard to protect the health of workers. First, Covid-19 didn’t kill 740,000 people. According to the CDC’s own documents, more than 94% of the severe illness in the 540, 677 people hospitalized with Covid-19 from March 2020, to March 2021, can be attributed to one or more comorbidities. Furthermore, in this same document, the CDC states that only people at risk, who suffer from the comorbidities listed, should be targeted for vaccination. Why wasn’t this issue argued in front of the court? Why wasn’t the fact that the World Health Organization admitted that the high cycle rate of PCR testing was producing a high rate of false positives and that the Biden administration deliberately lowered this threshold when taking office the main point of focus? Why wasn’t the fact that the FDA admitted, in its Pfizer approval letter, that they didn’t know the long-term health consequences of the shot, and because of this, requirements under America’s informed consent laws were not being met? Finally, a group called the Canadian Covid Care Alliance released a report detailing the flawed trial procedures concerning the approval of the Pfizer inoculation which brings into question its overall safety. Why wasn’t this report mentioned?
The point is the merits of the case were flawed from the beginning. The fact that SCOTUS didn’t dispute Covid-19 as a dangerous pandemic, and based its rulings on commerce clause law, is disturbing. They are essentially telling Congress to pass a law that defines their intent to delegate authority to OSHA to put such rules in place. It is possible that such a law could be tried on its constitutionality if one is passed. So was Obamacare and look how that turned out.
Perhaps the biggest problem with the whole case is the blatant disregard for the fact that Biden’s White House Chief of Staff, Ronald Klain, stated in a tweet that “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate workaround for the Federal government to require vaccinations.” The major question that should be decided under the Major Questions Doctrine is what the difference is between the government forcing you to get a vaccine or fining your employer for not forcing you to. OSHA implementing a policy that fines employers up to thirteen thousand dollars per policy violation is without a doubt government coercion. The idea of employer-mandated vaccines was first introduced in the June 2020 edition of the New England Journal of Medicine. The article explicitly states that there are constitutional, due process issues that can be avoided by taking this route and that people are likely to accept it because of the public school’s role in requiring vaccines for enrollment. This reinforces Klain’s assertion that the mandate is the ultimate workaround. It was planned that way from the beginning before the vaccine was even available. To be fair to the NEJM, they do establish a set of criteria that, if implemented along with the mandate, would make sense. These criteria include employer compensation for adverse effects, implementing the mandate among those considered in the highest risk category and, ensuring that informed consent requirements are clearly met. None of these criteria were implemented in Biden’s one-size-fits-all rule. Employers are in no way able to provide accurate information about the possibility of adverse effects than the FDA was. Furthermore, people most at risk from Covid-19 were not even likely to be in the workforce as it was those above the age of seventy that were most at risk. Younger generations faced very little threat from severe illness due to Covid-19, so implementing a workplace rule to force vaccinations makes little sense.
Our Constitution was written to limit government power and protect the rights of individuals. For years, our power has been incrementally taken from us as the government assumes liberties to govern in ways that were never intended. Evaluating the merits of the vaccine mandate under the tenets of the commerce clause is inherently flawed because the clause itself has been used as a means of transforming government power, giving them license to regulate anything they wish if it affects interstate commerce. Everything people do affects commerce; therefore, all human activity can potentially be regulated. Perhaps another question that needs to be considered is what power employers possess to implement such a requirement as a term of employment? How does requiring a proof of vaccination card not violate HIPPA protections, for example? Is it the employer’s responsibility to provide the worker with information pertaining to the risks, benefits, other potential treatments, and side effects? If an employer, or OSHA for that matter, can implement such rules in the name of public safety, where does it stop? Can they demand that a potential employee provide proof they don’t own guns? The presumption is no because the Constitution protects the right to gun ownership. Doesn’t the constitution protect bodily autonomy? When it comes to abortion rights, the Supreme Court ruled it does. Finally, there is substantial evidence that exists showing Covid-19 to be an over-hyped flu-like illness. The data has shown over and over again that the narrative being pushed by the media to induce fear and compliance does not match the reality. The fact that we are being bombarded with constant propaganda, which very few seem willing to challenge, should be the biggest question of all.
To learn more about this topic and others, check out my book Without a Shot Indeed: Inducing Compliance to Tyranny Through Conditioning and Persuasion.
