President Biden’s sweeping COVID-19 vaccine mandates affecting federal employees and private sector workplaces with 100 or more people have been praised as an example of “leadership” and criticized as “un-American.”
Legal challenges are forthcoming, both around the scope of the president’s authority and claims of religious liberty, according to Wendy Parmet, a leading public health law expert and director of Northeastern’s Center for Health Policy and Law.
Biden clearly has the legal standing to require federal workers and contractors that do business with the government to get immunized. “The president is the boss of the federal workforce and he sets the rules,” Parmet says.
Whether that authority extends to the healthcare arena is somewhat less certain. Biden ordered the Department of Health and Human Services to require
hospitals, nursing homes, and other entities that receive federal money to require vaccination.
“Most nursing homes are very dependent on Medicaid and most hospitals are very dependent on Medicare,” Parmet says of the federal healthcare programs for people with low incomes and the elderly, respectively. The federal government has long set conditions for receiving that money. Still, there may be disputes as to whether the president’s directive goes too far, Parmet adds.
The most controversial aspect of Biden’s plan, and the one likely to face legal blowback, requires companies with 100 or more people to either vaccinate workers or have them undergo weekly testing. An agency within the Labor Department, the Occupational Safety and Health Administration, has been tasked by the White House to write the workplace rule.
“This is new for OSHA,” Parmet says. “There are strong reasons to believe that he has that power, but I can imagine a court going the other way.”
News@Northeastern sat down with Parmet to learn more about presidential authority on national health matters. Her comments were edited for brevity and clarity.
There are some 80 million Americans who haven’t received their COVID-19 vaccinations, by White House estimates. Why didn’t Biden just order all of them to get their shots?
The president doesn’t have the power to order everyone to be vaccinated. What he has done instead is a far more targeted, and legally more secure, approach. He was careful to try to tie each of the sectors he was requiring vaccination to to some preexisting hook of federal authority.
If he had just said “everybody needs to do it,” the Supreme Court almost certainly, on the basis of the NFIB case, would have said “no.”
[In 2012, in National Federation of Independent Business v. Sebelius, the Supreme Court ruled in a 5-4 decision that Congress lacked authority under the Commerce Clause to require everyone to have health insurance, but that the Affordable Care Act’s minimum coverage provision, commonly known as the individual mandate, was justified as an exercise of congressional taxing power].
A year ago, I would have said “sure thing, slam dunk,” but reading the way the courts have gone in the last nine months or so since the Supreme Court’s first COVID-19 decision after Justice Barrett joined the court, I’m not quite so sure. There are questions now where they would not have been questions nine months ago.
What was your initial reaction when Biden announced the federal vaccine mandate on Sept. 9?
My initial reaction was this should have happened a few weeks ago, if not several months ago. There were very strong reasons to wait, particularly for the Pfizer vaccine to get full approval by the FDA, but it’s also late in the game.
The [delta variant] surge has been going on for weeks now, and the country is in a not very good place now. I have been somewhat disappointed that the administration has not been more aggressive and taken more actions. So that was my initial reaction. My second reaction was, unfortunately, in this day and age, given the way the courts are reacting, and given the politics, you almost have to wait until a disaster to do something.
One of the country’s problems, both in our politics and in our law, is we don’t embrace prevention. We don’t embrace prevention as individuals or as a society.
The Supreme Court really did a 180-degree shift after Justice Barrett replaced Justice Ginsburg. And in the case of Roman Catholic Diocese vs. Cuomo, the court in effect said, “Well, the state can’t show any deaths specific to this building.” It’s like you have to wait till somebody dies before you can act.”
I also think politics was involved in the decision to mandate vaccines now. The White House was concerned that some of the support they were losing was actually from their own supporters.
The problem with doing this now is that the virus is so prevalent across the country that at this point, you’ve got to wonder whether this new policy is going to be very efficacious.
Can’t OSHA require masks in the workplace too?
Yes. Every place that OSHA is requiring vaccines, it could require masks. And I don’t know why the president didn’t include masks, too. But that indirect vaccination hook has more spillover than masks, because you just wear the mask in the factory and then you take it off when you go to the supermarket, well, that’s still a problem. But not so much if you’re vaccinated.
Northeastern tells me I need to be vaccinated. That’s not just to benefit from my interactions at Northeastern, it’s good for my interactions everywhere. So the vaccination mandate has somewhat of a spillover effect, but masking has a spillover effect too. Every case prevented is five plus more cases prevented. That’s what people don’t understand. Everything’s been about personal responsibility and personal risk, but every case causes more cases.
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