On Friday the US Supreme Court heard oral arguments in a case challenging the constitutionality of President Biden’s order that all businesses with 100 or more employees must compel their workers to be vaccinated or required to submit to weekly covid testing.
Scott Keller, attorney for the National Federation of Independent Business, argued that “the power to make getting vaccinated the law of the land is clearly reserved to Congress in Article I of the US Constitution.” Several of the Justices questioned this argument.
Justice Elena Kagan posited that “the general welfare clause of the Constitution’s preamble seems to trump the delegated powers argument advanced by Mr. Keller. Since getting vaccinated is essential for stopping the spread of covid the specific means for accomplishing this ought to override the President’s lack of delegated powers. Why should there be any limit to what he can do in order to promote the general welfare?”
Justice Stephen Breyer claimed “the 750 million new cases of infection with the Omicron variant reported yesterday demands immediate action. This isn’t the time to be nitpicking arcane 18th century language in a mostly obsolete document looking for authorization. Why isn’t the fact that the President declares his mandate necessary sufficient to carry out his wishes?”
Justice Sonia Sotomayor said “the insistence that the President should be limited to his delegated authority in the face of the dire crisis facing the nation is foolhardy. The President has no delegated authority to push a child out of the way of an onrushing bus, but we should not impede his heroic effort to save a life. As Justice Breyer has pointed out, 750 million people have already tested positive and 100,000 kids are on ventilators. Must the President be forced to wait for Congress to act while the unvaccinated are permitted to continue to infect and decimate our population?”
Justice Clarence Thomas, on the other hand, questioned the wisdom of “ignoring a document that serves as a barrier to tyrannical one-man rule. The President may assert that his policies are necessary and try to persuade Congress to act to legalize the impositions he says are needed, but I see no legitimate authority for him to bypass the representatives that the people have elected to defend their rights and interests. After all, 70% of the adult population is already vaccinated. Yet, even those who have received the vaccines are still coming down with covid and spreading it to others. Rather than abiding another unconstitutional abuse of power doesn’t it make more sense to allow a robust debate of various options in Congress to consider whether a strategy focused solely on vaccination might be too narrow to yield the best results?”
In related news, the Massachusetts state government has issued an ultimatum to Nicole Coughlin, a Department of Developmental Services employee, to get fully vaccinated or be fired. Coughlin already received the front end of the two-dose Moderna vaccine, but had a severe allergic reaction. Her request for a medical exemption was denied. Donna Daniels, the secretariat director of the Office of Diversity, Equity and Inclusion explained that “granting your request would increase workplace safety risks and negatively impact operational factors. It is better for you to bear the individual risk of an adverse reaction than for the state to have to put up with an exemption from rules meant to be universal to every member of the collective.”