The Biden Administration is aggressively testing constitutional limits. Understanding legal precedents and how they interact, particularly on constitutional rights, can be tricky. That said, Biden is going where prior presidents have not – apparent disdain for rights. Examples illustrate.
First, Biden’s federal mandate that employers over 100 enforce COVID vaccinations, absent a religious or health exemption, raises novel legal questions. To many, the mandate is infuriating.
Enforced by OSHA, it will be litigated. What are the big issues? One is this: The Constitution’s 10th Amendment reserves all rights not expressly given to the federal government – to the American people and states. That is bound to be central.
The US Supreme Court has identified narrow federal powers under the “Supremacy Clause,” “Commerce Clause,” and 14th Amendment – with all others left to states and “the people.”
Objectively, while “States rights” have eroded over time, “hard stops” do exist. This vaccine mandate may hit one or more of these “hard stops.”
For reasons tied to Civil Rights and “equal protection,” federal powers are considerable. On the other hand, recent precedents make clear that states and “the people” have rights. Beyond free speech, freedom of worship, right to keep and bear arms, and enumerated freedoms, others exist.
Major Supreme Court decisions point the way. For example, the 1997 Printz v. US decision “reaffirmed states’ rights and the Constitution’s anti-commandeering provisions.” Justice Scalia struck down the Brady Handgun Act – saying it violated the 10th Amendment.
Why? It required local sheriffs to do background checks, “commandeering” law enforcement, telling them what to do – insisting they give up discretion. Scalia cited New York v. US (1992), which says the federal government can incentivize certain actions, not punish non-compliance.
That opinion, written by Reagan-appointee Sandra Day O’Connor, noted the federal government cannot “commandeer” or compel certain actions since doing so “crossed the line distinguishing encouragement from coercion.” See, e.g., New York v. United States; and New York v. United States.
In Printz, Scalia explained “anti-commandeering.” “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program,” adding “such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Boom tick, as they say.
Beyond these cases, a third case may prove dispositive – limiting how far the federal government can go. In Murphy v. NCAA (2017), Justice Alito wrote: “The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”
Alito added: “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States,” so “The anti-commandeering doctrine simply represents the recognition of this limit on congressional authority.” See SUPREME COURT OF THE UNITED STATES.
So, what is the rub?
You may see it. None of these cases is exactly on point. The Biden mandate pushes employers, not states, to demand vaccines – and comes from a president, not Congress.
Counterpoint: Rights assured in the 10th Amendment belong to States and the “people.” The Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And federal enforcement would surely require State involvement.
Similarly, while existing cases address federal overreach by Congress, a presidential order more directly offends the 10th Amendment, as it comes without legislative authority.
In short, the likelihood is high that these “anti-commandeering” cases, and clear protections for States’ and people’s rights, will lead to this mandate being vigorously challenged.
Cases on the opposite side?
Yes, but they suggest little defense for the federal mandate. Prior mandates upheld have been local and state, not federal. So, in Jacobson v. Massachusetts (1905), for example, the state-required vaccines for children. By contrast, a federal mandate usurps state and local powers, themselves limited.
Another issue: OSHA enforcement. OSHA can only enforce an act of Congress, not executive orders. The OSHA Act of 1970 might work, but only allows actions if “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and if “necessary to protect employees from such danger.”
All of this points to knowing overreach. As in other areas, the Biden crowd is pushing constitutional limits, seeking to federalize what has never been federal. See also, Federal Vaccine Mandates Pose a Constitutional Triple Threat; Biden’s wildly unconstitutional vaccine mandate.
Consider other examples.
Second, Biden is pushing federal prosecution of parents speaking up at local school boards. This violates many norms, not least constitutional protections for free speech, federal-local control over school boards, and use of federal anti-terrorism laws, calling parents “domestic terrorists.”
Again, this move contravenes well-established constitutional norms, pushing misuse of federal power (The Patriot Act), unprecedented coercion, intimidation, chilling of speech. States and parents are pushing back. See, e.g., The Patriot Act Wasn’t Meant to Target Parents; Eric Schmitt- Missouri Attorney General; OKLAHOMA PARENTS: SCHOOL-BOARD CRITICISM IS NOT ‘TERRORISM’; Opinion: Democrats have declared war on ‘school board moms’.
Third, consider Biden’s unconstitutional extension of the so-called “eviction moratorium.” The Biden White House boldly ignored the 2021 US Supreme Court ruling that declared only a congressional extension of the moratorium is constitutional.
Stunningly, after that June holding, Biden nevertheless chose to unconstitutionally extend it by executive order until slapped down by the US Supreme Court. Biden knowingly ignored the law. See, e.g., President Biden’s extension of the eviction moratorium is unconstitutional and he knows it; Biden’s eviction moratorium defies the rule of law.
Fourth, in April 2021, Biden issued a series of anti-Second Amendment restrictions on gun ownership. This again pushed limits, ignoring the Constitution’s limits on executive authority.
See, e.g., Stefanik: Biden gun control orders ‘unconstitutional’; Republicans criticize Biden’s gun safety executive actions as an ‘infringement’ of Second Amendment rights; Biden’s false claim that the 2nd Amendment bans cannon ownership.
In truth, the list exceeds examples, but space is limited. What does this overreach mean? Just this: The Biden team appears not to respect constitutional limits. Prepare for more overreach.
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