The Volokh Conspiracy

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My Newsweek Op-Ed: "Biden's Vaccine Mandate Is Counterproductive and Likely Illegal"

"I have yet to find any historical precedent for such an invasive regulation of workers nationwide."


Newsweek published my new op-ed, titled "Biden's Vaccine Mandate Is Counterproductive and Likely Illegal." Here is the introduction:

With the stroke of a pen, the Biden administration will impose a vaccine mandate on 100 million Americans. Soon, workers from coast to coast will be faced with a choice: get jabbed, undergo weekly testing at their own cost or lose their job.

As a public health measure, Biden's orders may be salutary. But they stand on shaky legal ground. Historically, vaccine mandates have been imposed—if at all—by state governments, and not by the federal government. The new regulations invert this feature of our federalist constitutional structure: Biden's orders trump state policies that provided workers with the choice to get vaccinated. Moreover, the president acted unilaterally: Congress has not expressly authorized this sweeping expansion of federal power. Rather, to justify his edict, Biden reached back to a Nixon-era workplace safety law. I am skeptical that this half-century-old law can support Biden's novel mandate.

My reaction to the vaccine mandate resembles my reaction to other recent audacious executive actions: the President was faced with a problem; Congress refused to address that problem to the President's satisfaction; the President reached to the open-ended language of old statutes to find the power needed to address that problem. My general presumption is to be skeptical of these presidential discoveries.