Future of Biden’s Vaccine Mandate

In today’s episode, Sarah and David give you everything you need to combat half-baked hot ...

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In today’s episode, Sarah and David give you everything you need to combat half-baked hot takes about the Biden administration’s vaccine mandate as they discuss whether the Occupational Safety and Health Administration (OSHA) has the statutory authority to issue its rule. They then indulge in an exploration of the Commerce Clause. Lastly, our hosts discuss new legal updates to the abortion heartbeat law, as well as some potpourri. 

Show Notes:

–President Biden’s executive order requiring COVID-19 vaccination for federal employees

–Explanation of Biden’s EO in The Morning Dispatch

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Comments (47)
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  1. Avatar photo
    Tuckermail2

    On a completely different topic, we need “Nah Dog” t-shirts.

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    Ben Connelly

    I’ll admit I have mixed feelings on vaccine mandates. On the one hand, our hosts make a good case that they’re not illegal. On the other, I think broad mandates like this one should be unconstitutional, but that the government absolutely should mandate vaccines for federal employees and the military. The states should likewise mandate them for state employees and children in public schools (of age). On the third hand (or first foot), I think businesses should absolutely mandate vaccines for their employees, especially cruise lines and hospitals and nursing homes. On the fourth hand, business should have to make a choice to do that - they should not be forced one way or the other by the government. On the fifth hand (or balanced on my head now), everyone should go ahead and get vaccinated except in certain extreme cases.

    RE: David’s point about the enormous amount of power the administrative state has to regulate our daily lives and the amount of power Congress has delegated to the Executive Branch and courts have allowed through expansive readings of the Commerce Clause, as well as the general acceptance of this by most voters until vaccine mandates show up.

    As a libertarian-leaning conservative, I think it’s one of the greatest problems in America today.

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    Octávio Lima

    As a non-attorney, these podcasts are fascinating and full of information. I like them very much.

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    Bill Dyer (aka Beldar)

    Judge Amul Roger Thapar's job history ticks off all the traditional boxes for up-and-comers who aspire to perhaps someday make the SCOTUS: https://www.fjc.gov/history/judges/thapar-amul-roger

    He actually made Trump's "potential SCOTUS nominee list" while he was still a sitting U.S. District Judge, during the pendency of his actual nomination to his current Sixth Circuit seat. Most of the other names on the list were sitting judges already on either federal circuit courts or state supreme courts, so Thapar's appearance was the FedSoc equivalent of Billboard Magazine's ranking a newly released song "with a bullet."

    And he is indeed of an age which gives him a long window of opportunity for a SCOTUS seat. That's still no guarantee of an actual nomination, much less a confirmation — all of which depend on presidential and senate elections yet to come. Being a presumptive short-lister may never get you anything besides a lot of anticipatory brickbats (I'm thinking here of U.S. Circuit Judge Edith Jones in particular).

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  5. Zack Frank

    The de facto 60 vote threshold is forcing the majority to legislate culturally through the supreme court and fiscally through unnavigable super bills, with the executive overreaching to pick up the slack

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    1. Anonymous

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      1. GregS

        And remember: the filibuster is not one of the rules in the constitution.

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  6. Avatar photo
    Mick Staton

    There seems to be a lot of reliance on Jacobson on the idea that forced vaccination is constitutional, but I think we need to take the Jacobson decision into the proper context:

    This was a city mandate that was approved under appropriate state statute that was voted on and approved by the state legislature.

    Smallpox was a far more deadly virus than covid (30% mortality rate of smallpox vs 0.4% for covid-19).

    The smallpox vaccine was first created in 1798. At the time the mandate discussed in Jacobson was imposed, the smallpox vaccine had been around and been proven safe for over 100 years.

    The mandate was enforced by a misdemeanor. If someone did not comply, they were fined $5 (the equivalent of about $150 today).

    At no point was an employer deputized to enforce this mandate upon its workers or face termination.

    At no time was the Federal government authorized to impose a vaccination mandate.

    The penalty for noncompliance was a slap on the wrist misdemeanor, not the loss of your ability to work and feed your family.

    In addition to the above points, the virulence of the disease and the successful track record of the vaccine need to be considered. We still have no data on long term side-effects of covid vaccines, and only a few months’ worth of data on the efficacy of the vaccine. We are already talking about booster shots after 6 months and have proof that the vaccine still allows people to not only catch covid, but to become contagious.

    If the stated purpose of the vaccine mandate is to promote the health and safety of the workplace, then shouldn’t there be a burden on the government to prove that a permanent, invasive procedure such as an injection of chemicals into your body be not only proven safe, but effective? If you can still spread covid when you are fully vaccinated, then doesn’t that pretty much cause the government to fail that burden? Shouldn’t there also be a burden to show that there are no other acceptable remedies to promote the health and safety of the workplace other than the invasive procedure?

    If the state I live in wants to pass a bill through the General Assembly that permits the health department to force me to take a vaccine or face a fine, then that would be a comparable situation to what was upheld in Jacobson and MAY be upheld by the Supreme Court on precedent as constitutional.

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    1. DJ

      Reminder that the mandate offers weekly testing in lieu of the vaccine.

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        Mick Staton

        I was more focused on the police power of a vaccine mandate and not the OSHA rule. The way I read that is that it is the employer's choice whether or not to provide a testing option, not the employee.

        The problem with a weekly testing regime, or even allowing an employer to make vaccination status a condition of employment, is that it requires the employee to turn over medical records the employer is not entitled to. The Privacy Rule under HIPPA says that your employer does not have a right to see your health and medical records without your permission. That would include vaccination status. They can ask to see it, but you don't have to show it to them.

        If an employer is legally allowed to coerce someone to voluntarily give up their privacy rights under threat of termination, then the concept of these privacy rights is a farce, and your HIPPA protections are meaningless.

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          BWG

          "The Privacy Rule under HIPPA says that your employer does not have the right to see your health and medical records without your permission." This is not true. From Wikipedia, as backed up by numerous references to the law itself: "The HIPAA Privacy Rule regulates the use and disclosure of protected health information (PHI) held by 'covered entities' (generally, health care clearinghouses, employer-sponsored health plans, health insurers, and medical service providers that engage in certain transactions)." And: " It is a misconception that the Privacy Rule creates a right for any individual to refuse to disclose any health information (such as chronic conditions or immunization records) if requested by an employer or business. HIPAA Privacy Rule requirements merely place restrictions on disclosure by covered entities and their business associates without the consent of the individual whose records are being requested; they do not place any restrictions upon requesting health information directly from the subject of that information."

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            Mick Staton

            You are making a semantical argument. The Privacy Rule of HIPAA prevents my boss from contacting my health insurance company or my doctor and getting information about my health records without my consent. They are not legally allowed to share that information unless I specifically grant them permission to. Even my wife cannot get information on my medical records without my consent.

            The Privacy Rule did not need to create a right for me to refuse to provide personal medical information because I already had that right. If my boss asks me if I am vaccinated and I say yes, or refuse to answer, they do not have the right to force me to answer or provide proof if I say yes.

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        2. DJ

          How do you feel about drug testing?

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            Mick Staton

            Good question.

            There are three big differences between a drug test screening and a vaccination mandate. First, a drug test is designed to look for illegal substances you may have taken, not ask about your current health status.

            Second, a drug test is typically performed on an employee, or potential employee, when it has a direct relationship to their job performance. An air traffic controller that is a drug addict would greatly affect their performance, whereas the vaccination status of an individual working a desk job would have no impact on their performance.

            Third, an employer cannot perform a blanket drug test on all employees or do spot random drug tests on all employees. From a helpful web page:

            "In some states, companies cannot conduct blanket drug tests of all employees or random drug tests; the testing must be focused on an individual, either because the employer has a good reason to believe that person is using drugs or because the person's job carries a high risk of injury or damage if performed by someone who is under the influence."

            https://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter5-3.html

            I have been working in numerous different occupations, both retail and corporate, for over 30 years. I have never been requested to take a drug test in order to either get a job or during my time working somewhere (and I have held numerous different clearances at different times).

            I tend to agree with the idea that if there is a reasonable suspicion that an employee is under the influence, and that being under the influence would affect their performance, then a drug test can be requested. I don't believe an employer can just randomly ask employees to pee in a cup just to check.

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  7. Kings Thursday a/k/a Susan

    Unrelated to this podcast, there is a new second amendment case in the Northern District of Illinois; see link at this Capitol Fax article whose headline is: Cook County Forest Preserve District ban on licensed concealed carry overturned partly because it would've been allowed in the year 1791: https://capitolfax.com/2021/09/14/cook-county-forest-preserve-district-ban-on-licensed-concealed-carry-overturned-partly-because-it-wouldve-been-allowed-in-the-year-1791-but-ruling-stayed-to-give-legislature-time-to-respond/

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    Rev Snow

    "It's a constitutional right to not be murdered."

    Show your work.

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  9. anonvet

    Can you guys get Jamal Greene on? He has a new book and I've listened to a couple podcasts with him as he's promoting it and i think it would be amazing to hear you guys talk about where you concur and...don't.

    I'm particularly interested in his notion about rights not being zero sum and that feels like where David is usually coming from, ie how do we reach an accomodating compromise when rights appear to be in conflict.

    So...please?

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    Anne W (Raw5254)

    I get a little lost at times, but thank you!!! This was really helpful, and interesting!

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