On November 12, a federal appeals court suspended the Occupational Safety and Health Administration (OSHA) order fining businesses with 100 or more employees for each employee unvaccinated against COVID-19. This is one of three vaccination mandates issued by the administration of President Joe Biden.
This case will likely go to the Supreme Court. The legal issues include at least the following:
- Does the mandate exceed the enumerated (listed) powers the Constitution grants to the federal government?
- Assuming the Supreme Court believes the statute authorizing OSHA is constitutional (which I don’t believe but the justices almost certainly do), did OSHA exceed its authority under the statute? This contains several sub-issues, including how much authority Congress may delegate to administrative agencies.
- Does the mandate deny individuals due process of law, in violation of the 5th amendment? This question is not based on the true meaning of “due process,” but on the Supreme Court’s modern case law creating rights of privacy, autonomy, and bodily integrity.
The federal appeals court opinion touches on all three of these issues, although the part most relevant to due process does not actually mention the phrase “due process.”
It would require a short book to analyze these issues in detail. So this essay focuses only on the first: Does the mandate exceed the enumerated powers the Constitution grants the federal government? And what are the chances the Supreme Court will strike down the mandate on that basis?
Reader alert: The discussion below gets technical.
It is an axiom of American constitutional law—to which the Supreme Court at least gives lip service—that federal officers and entities have only the authority the Constitution grants them. Congress created and authorized OSHA, so the agency cannot exceed the powers the Constitution grants Congress.
In defending the mandate, the U.S. Department of Justice will argue that at least two constitutional provisions justify it. The first is the Commerce Clause:
“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes . . . .” (Article I, Section 8, Clause 3)
The other is the Necessary and Proper Clause:
“The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .” (Article I, Section 8, Clause 18).
When you put these two together and clean up the ellipses and archaic typography, you get the following:
The Congress shall have power (1) to regulate commerce with foreign nations, among the states, and with Indian tribes and (2) to make all laws which shall be necessary and proper for carrying that power into execution.
This is the Commerce Power (pdf).
Lawyers and courts (including the appeals court issuing the November 12 stay) often refer to the Commerce Power as the Commerce Clause. But that is inexact. There are two components to the Commerce Power, and the Commerce Clause component is actually the less important one (pdf).
The Commerce Clause grants Congress authority to govern mercantile trade and various related activities, such as negotiable instruments, navigation, and marine insurance. But it excludes other economic activities such as manufacturing, agriculture, and mining, and it also excludes non-economic activities. Until 1944, “commerce” was understood to exclude most forms of insurance. But that year, the Supreme Court—in an extraordinarily specious decision (pdf)—reversed precedent and ruled that “commerce” encompassed insurance of all kinds (pdf).
The other component of the Commerce Power is the Necessary and Proper Clause. Its original purpose was to clarify that under some circumstances Congress may regulate activities subordinate (“incidental”) to its granted powers. For example, regulating commerce may require prescribing standardized labels for goods. So although labeling is not commerce—it is part of the manufacturing or packing process—labeling is incidental to commerce. The Necessary and Proper Clause, therefore, gives Congress power to regulate it.
However, during the 1930s and 1940s, the Supreme Court stretched the Necessary and Proper component of the Commerce Power far beyond recognition. It held that Congress could govern any economic activity that “substantially affected” commerce, whether or not that activity was truly incidental. This converted the Necessary and Proper Clause from a clarifying rule into a license to manage the entire national economy.
The upshot is that the Necessary and Proper Clause component of the Commerce Power is much more far reaching than the Commerce Clause component.
Now let’s return to OSHA’s vaccination mandate.
The mandate is a regulation of employment and/or of health, not of commerce. If OSHA has authority to issue it, it must be because Congress gave OSHA that power under the Necessary and Proper component of the Commerce Power.
Thus, those challenging the mandate must argue that it is neither necessary nor proper to carrying out the regulation of commerce.
The challengers can employ at least two lines of attack. The first is to cite the no-pretext rule. This is a rule that applies only to the Necessary and Proper Clause. When Congress is regulating commerce per se, it may do so for any reason. For example, it may ban the transportation of lottery tickets across state lines, even if its purpose is moral (anti-gambling) rather than commercial (pdf). But when Congress oversees other activities under the Necessary and Proper Clause, then it must act to further the regulation of commerce—not to achieve other ends.
The no-pretext rule is based both the Founders’ understanding (pdf) and on a pronouncement by Chief Justice John Marshall, traditionally the greatest authority on the Necessary and Proper Clause. Writing for a unanimous court in McCulloch v. Maryland (1819), Marshall stated:
“Should congress . . . under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted [sic] to the government; it would become the painful duty of this tribunal . . . to say, that such an act was not the law of the land.”
Obviously, the purpose of the vaccination mandate is not to regulate commerce. Its purpose is to promote health, expand political power, or both. That violates the no-pretext rule.
The Department of Justice can respond to the challengers by claiming the Supreme Court has abandoned the no-pretext rule. For example, in Hodel v. Indiana (1981) (pdf), the justices upheld a congressional strip mining law even though (1) strip mining is not commerce and (2) Congress’s real purpose was not commercial but environmental. The challengers can answer by pointing out that Hodel did not address the no-pretext rule directly. They also can point out that Hodel erroneously focused on the Commerce Clause rather than the Necessary and Proper Clause.
The second line of attack against the mandate is to assert that it is not an economic regulation. When the late William Rehnquist was Chief Justice (1986-2005), the Supreme Court stressed that when the government used the Commerce Power to address an activity other than “commerce,” the activity at least had to be economic in nature. The court struck down laws pertaining to firearms possession and violence against women, because, generally speaking, neither mere gun possession (pdf) nor gender violence (pdf) are economic activities.
The November 12 federal appeals court order relied partly on the conclusion that refusing to be vaccinated was not an economic activity, and therefore outside the Commerce Power.
Of course, the mandate’s defenders will respond that the mandate governs business employment and therefore is economic in nature.
Probably the best approach for those challenging the mandate is to blend the no-pretext rule and the requirement that the subject matter be economic. They can argue that:
- The no-pretext rule is based on excellent authority and has never been explicitly reversed.
- The requirement that the regulated activity be economic is a modern variation of the no-pretext rule: It prevents the federal government from regulating matters that have nothing to do with commerce under the guise of regulating commerce.
- The federal government’s claim that the mandate is economic is mere pretext: a fig leaf for intruding into health matters the Constitution reserves to the states.
What are the challengers’ chances of persuading the court that the mandate exceeds the enumerated powers the Constitution grants the federal government? I wish I could say the chances were good. However, most of the justices in the so-called “6-3 conservative majority” thus far have proved unwilling to confine the federal government to its enumerated powers.
In this respect, most of the allegedly “conservative” justices are more liberal than their predecessors during the Rehnquist era.
By: Rob Natelson