One Of The Most Conservative Courts In The United States Just Ruled That Biden's Vaccine Mandate Is Not Unconstitutional

     One of the most lasting impacts of the COVID-19 pandemic will be, hopefully, the dismissal of the myth that protecting public health is somehow both fascism and socialism; those two political systems are diametrically opposed, but never mind that. We haven't had a pandemic of this scale since the beginning of the last century, and the Supreme Court ruled over and over back then that measures to stop disease through vaccine mandates were not unconstitutional, most notably in the 1905 case Jacobson v. Massachusetts, and that individual liberty is not absolute. Saying that someone can do whatever they want without consequences is anarchy and neutering the ability of states to implement measures like this is a slippery slope, something the highest court in the land noticed nearly 120 years ago in a seven-to-two decision. 

     Sure, the senators had their little symbolic vote last week. Only two Democrats joined all 50 Republicans and voted in favor of defunding Biden's vaccine mandate: Joe Manchin of West Virginia and Jon Tester of Montana. I can't say I'm mad about it; I understand they both come from red states and want to play just enough political games to get themselves reelected. Democrats raised the debt ceiling that day, and the separate vote against Biden's vaccine mandate would have to first pass the House and then be sent to President Biden's desk. Speaker Pelosi, for obvious reasons, won't be holding a vote anytime soon. 

     In the federal courts, there is a lot more agreement from established legal precedent and common sense: vaccine mandates do not violate the Constitution of the United States. Lawsuits over vaccine mandates for healthcare workers in New York, Maine, Indiana, and Maryland have all been upheld by six-to-three majorities by the U.S. Supreme Court in recent weeks. Aside from Justices Breyer, Sotomayor, and Kagan, all liberals, Justices Kavanaugh, Barrett, and Roberts, all conservatives (the former two being appointed by Donald Trump) repeatedly allowed state and institutional vaccine mandates to remain in place.

     President Biden's vaccine mandate consists of two executive orders: one for federal employees, which is without question constitutional. The president has absolute say over the conduct of federal employees. The second, more controversial one, developed an OSHA rule requiring all companies with 100 employees or more (essentially companies that are involved in interstate commerce, over which the federal government has jurisdiction) to mandate their employees either be vaccinated or get regular COVID tests as part of an emergency rule. That's the rich part: it doesn't even mandate vaccines; it gives you the option to get vaccinated, get regular testing, or work somewhere else. If getting vaccinated is more convenient than the last two, your argument was probably not the great moral, legal, ethical one you made it out to be. If you truly believed getting vaccinated were against your religion or might cost you your life, you wouldn't do so to avoid some time waiting in a line at a drive-through testing site.

     Biden's vaccine mandate, issued in early September, was put on hold in early November by a federal judge in the lower federal district courts. Now, today, the Sixth Circuit Court of Appeals has reinstated it. The Sixth Circuit Court of Appeals has 16 judges, 11 of whom were appointed by George W. Bush and Donald Trump. It has more than a two-to-one majority of conservative over liberal judges, and it ruled in favor of President Biden.

     So, what happens next? Well, it has to go to the Supreme Court. The Supreme Court has repeatedly shown that it will side with states mandating vaccines. Justice Brett Kavanaugh, who is responsible for filtering the cases that come through the Sixth Circuit Court of Appeals, will decide if and when the Supreme Court will hear a challenge to this ruling. There are three possible outcomes: Kavanaugh can essentially deny the request to hear the case, leaving the vaccine mandate in place permanently and avoiding a high-profile court case; he can allow an emergency appeal and make the usual ruling with fellow justices that leaves the mandate in place; or he can bring it before the full Supreme Court and they can strike it down. The key question here is if the same beliefs Justice Kavanaugh has about state power holds true for the federal government.

     I implore the Supreme Court to follow legal precedent, follow the rulings it has repeatedly made this past year, uphold the powers granted to the president over federal rulemaking via executive order, and put public health over partisan politics. This mandate needs to remain in place.