Biden administration vaccination mandates may place employers, in some states, between the proverbial “rock and hard place” of federal pronouncements and state regulations, if they survive court challenges. In the interim they create uncertainty for businesses and employees alike.
The mandates, issued by executive orders, for federal and government contractor employers are vague, deferring the actual policy to guidance which will be provided by the Safer Federal Workforce Task Force at a later date. Both will likely be the subject of intensive court challenges. An announced Department of Labor rulemaking is poised to also create vaccination and testing requirements for many companies.
While the future of the two orders and the rule are uncertain, they are projected to impact nearly a third of Americans. Instead of creating a requirement for citizens to be vaccinated directly, they force employers to enact and enforce policies to require employee vaccinations or testing. If they don’t, employers risk fines and lose government contracts.
It seems all but certain that some Republican controlled states will attempt to combat these orders with state-level laws or regulations. Depending on the final rules, some states may already have conflicting regulations in place.
While federal laws typically override state ones, the federal government must have the legal authority to issue them – also, executive orders aren’t laws, they are directives to agencies. While this is an intricate topic, at least one challenge may be presented by the Supreme Court’s decision in South Dakota v. Dole, where it held that regulations tied to funding must be “germane to the federal interest in the particular national projects or programs to which the money is directed” and “not cross the line from enticement to impermissible coercion.” Depending on what they say, the labor regulations may suffer from federal power limitations. They could potentially even result in federal liability as a seizure of personal liberty over citizens’ bodies.
Forcing people to choose between employment and personal medical decisions, for most, is not really a choice. While the very wealthy may not be employees (rather business owners or investors) and others from affluent backgrounds may be able to resort to personal savings, most Americans need their job to survive. Those from economically disadvantaged backgrounds and members of minorities who have a heightened level of government distrust will likely be among the most negatively affected.
Ironically, while using federal spending power as a basis for control, the Biden administration fails to take an approach which could be far less objectionable: pay people to be vaccinated. Instead of heavy-handed regulations, the federal government could implement a market-based solution that provides citizens with a clear incentive while maintaining personal choice over health decisions. Biden could follow the lead of numerous private sector firms and state governments and create a national vaccination incentive plan. The government could offer whatever it feels is justified compensation to individuals to get vaccinations while leaving citizens – and their doctors – free to make health decisions. NDSU offered students an incentive and nearly half of on-campus students have already signed up, only weeks into the program and over a month-and-a-half before it ends.
While there is clear precedent for using spending power to promote change – one example is the use of highway funding to get states to raise their legal drinking ages – the recent announcement sets a precedent that everyone should be concerned about. While many Democrats may support the current mandate, they likely would oppose a future president’s use of this technique to promulgate an abortion ban or numerous other regulations. Offering an incentive is simply better policy and aligned with key American concepts like states’ rights and personal liberty.
Jeremy Straub is an assistant professor at North Dakota State University and a NDSU Challey Institute Faculty Fellow. The opinions expressed are his own.
This letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.