On September 9, President Biden announced a bold six-pronged plan to steer America out of the pandemic. I’ll focus mostly on the first prong of his plan, which involves a series of mandates to vaccinate the nearly 80 million eligible Americans who remain unvaccinated. We’ve tried masking, distancing, and even full lockdowns, and the virus keeps roaring back. Vaccines remain our best, perhaps only, tool to contain SARS-CoV-2 and get back to a semblance of normal life.
The plan is audacious, affecting virtually every part of society, and has no precedent in modern American history. But each step is fully lawful and, more importantly, vital for the public health and the economy. GOP leaders are challenging the mandates in the courts, calling them an overreach. They are not. In fact, the President is acting at the very height of his constitutional powers. I’ll explain why.
Let’s first dispel widely held myths about presidential powers. Biden has no power to issue a national COVID-19 vaccine mandate. States hold the primary public health powers and could issue population-wide vaccine mandates in their jurisdictions. For example, the Los Angeles Unified school board has already required vaccines for all their students and many cities and states have required teachers to be vaccinated. In 1905, the Supreme Court in Jacobson v. Massachusetts upheld a smallpox vaccination mandate in Cambridge. While this case has often been used as evidence that a president could issue such a mandate, it is not applicable to the federal government. But Biden’s plan cleverly employs three clear legal authorities.
Federal Workers and Contractors
Biden issued executive orders requiring all federal workers and contractors to be vaccinated; workers can no longer skirt the mandate though frequent COVID-19 testing. These orders will apply to an estimated 4 million federal employees and workers on government contracts. Here the president is simply exercising his power as the head of the federal workforce. Many cities, states, businesses, and universities have already mandated vaccines for their workforce. Courts have uniformly upheld these vaccine requirements. Even conservative Supreme Court Justice Amy Coney Barrett, JD, refused to block Indiana University’s COVID-19 vaccine mandate for students and employees. Biden’s orders to vaccinate federal workers and contractors is unequivocally lawful, just as he has already required masking in federal office buildings.
Businesses With 100 or More Employees
Perhaps the most contested part of Biden’s plan would require all businesses with 100 or more employees to require vaccines for their entire workforce or subject them to regular weekly testing. This rule would apply to the private sector and to public sector state and local government workers, including educators and school staff, in the 26 states and two territories with a state Occupational Safety and Health Administration (OSHA) plan. Here, the President is acting at the peak of his authority. It’s not a unilateral move but has the full and explicit backing of Congress. In 1970, Congress enacted the Occupational Safety and Health Act in response to a patchwork of weak state worker safety regulations. It gave the president the power to set rigorous uniform workplace safety standards.
Under the 1970 Act, OSHA has unquestionable authority to issue emergency temporary standards that become immediately effective upon publication in the Federal Register, where the standard is necessary to protect employees from grave danger from exposure to a harmful substance. OSHA used this authority to require employers to provide healthcare employees with certain protections like personal protective equipment back in June. And let’s be clear, SARS-CoV-2 puts employees (and business clients, customers, and patrons) at risk every day when they mix with others at work, forcing many to choose between health and income security. So long as employer vaccine mandates incorporate necessary exemptions for medical and religious reasons, they are lawful. And any exemptions can, and should be, narrow.
Could such a broad mandate that reaches deep into the private and public sectors be effectively enforced? Surprisingly, the answer is yes. In most settings, businesses begin to comply with OSHA standards when they are announced, even before the standards go into effect. While OSHA is short-staffed, Biden will probably make enforcement a priority. The agency, moreover, can require all businesses under its purview to state, under penalty of law, whether they have complied with the standards. OSHA also can inspect workplaces to ensure compliance. And the employer mandates will provide grounds for employees to submit a complaint to OSHA if their employer refuses to comply. In states that ban employer vaccination mandates like Florida and Texas, the federal standard will override state law, finally giving employers the legal ground to require vaccination. Most employers want to do what’s right and keep their employees safe.
Republican governors from Florida and Texas to Mississippi, Missouri, and Georgia have expressed outrage. Texas Gov. Greg Abbott called the mandates “an assault on private businesses” and “a power grab.” There is a certain hypocrisy here. Abbott and Florida Gov. Ron DeSantis banned businesses from requiring mask and vaccination mandates to keep their workers safe. Mississippi Gov. Tate Reeves ranted on Twitter, “this unconstitutional move is terrifying. This is still America, and we still believe in freedom from tyrants.” Yet, his state requires a series of standard childhood vaccines for school entry, and grants no religious exemption at all.
CMS will issue a rule requiring vaccinations for workers in most healthcare facilities that receive Medicare or Medicaid reimbursement, including hospitals, dialysis centers, ambulatory surgical settings, and home health agencies — about 17 million healthcare workers. Many hospitals already have issued mandates and the courts have upheld them, including for Houston Methodist Hospital, which now has a vaccination rate of over 99%. The Supreme Court has repeatedly upheld so-called “conditional spending.” That is, the federal government can set reasonable conditions on the receipt of federal dollars. But the loss of funding may not be so extensive as to be coercive, so ruled the Supreme Court in striking down the withholding of all Medicaid funding for states that refused to expand Medicaid under the Affordable Care Act.
Biden’s plan uses a layered approach, including vaccines, indoor masking, and testing. Most of the rest of his plan uses federal dollars to support rigorous COVID-19 mitigation measures. The goal is to make masking, testing and, above all, vaccinations the new norm. So, wherever you work, learn, or recreate safety will be the default. Taken as a whole, his plan could pave a path out of the pandemic, finally giving us the tools to achieve reasonable containment of the virus by the spring, or sooner.
I mentioned the scathing criticism from the political right. But he is also taking heat from progressives for not doing more. He could (and really should) require vaccines as a condition of interstate or international travel. And he should order the CDC to provide technical guidance and funding for proof of vaccination systems that are reliable, secure, and confidential.
But make no mistake. This is the single greatest stand the president has taken to fight COVID-19. It is the most audacious and sweeping federal public health action in modern history, and he has taken this action at considerable political risk. Let’s give him credit for his domestic response. Up next, is what he will do to vaccinate the world. That will be the subject of my next MedPage Today opinion piece.
Lawrence O. Gostin, JD, is university professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute for National & Global Health Law. He is also director of the World Health Organization’s Collaboration Center on Public Health Law & Human Rights. He is the author of the forthcoming book, Global Health Security: A Blueprint for the Future.