Despite Republican Protestations, COVID Mandates Are Entirely Legal, Experts Agree
Prominent atorney points out 1905 precedent
To listen to them, Republicans appear entirely confident that the vaccine and mask-related mandates President Biden announced Thursday are illegal, unconstitutional — and destined for the Supreme Court's garbage bin.
Republican Sen Ted Cruz of Texas has gone so far as to pick out a single retweet by Biden's White House chief of staff as the smoking gun by which to bring down this house of Democratic, socialist overreach — or whatever it is that the so-called “conservatives” are calling it today.
Not so fast, according to legal experts, who not only find Biden on firm legal ground with his mandates — but actual Supreme Court precedent to back him up.
Biden announced a raft of new mandates and initiatives Thursday at the White House aimed at stemming the tide of COVID-19 cases in the United States.
Cases of COVID-19 were on a steep decline in the spring and early summer months — the results of the Biden administration's aggressive vaccination efforts. However, those on the political right began to organize against the vaccines — often spreading misinformation and outright disinformation about them — and that, combined with the more-virulent Delta variant has come together to fuel this recent resurgence of COVID across the country.
That has resulted in these new, stronger measures which Biden outlined in an address to the nation. The most consequential of the actions Biden unveiled will be an emergency regulation from the Occupational Health and Safety Administration (OSHA), mandating that US employers with 100 or more workers must require those employees be vaccinated or produce weekly negative COVID tests.
The Republican National Committee already is suing over that measure.
Biden has ample authority to back up his new mandates, said Elie Mystal, justice correspondent for The Nation and a graduate of Harvard Law School.
“Welcome to the immense reserves of federal power that we have existed under for this entire 250-year experiment. Of course the federal government can mandate basic health and safety regulations,” Mystal said. “The same power that allows TSA to take off my shoes and molest me because I want to go to South Dakota allows the federal government to mandate a vaccine and mandate testing at the employment level.
“For the labor situation, the constitutional authority is a little bit attenuated, but Biden is giving them I think a very interesting choice, right?” Mystal added. “You can have your employees — if you have more than 100 employees — you can have them be vaccinated, you can test them every week, or you can pay them to stay home because they’re sick. Go ahead. If you don’t want to comply, pay your employees to stay home. That’s your option too, employers. So, that really covers all of your legal bounds. There is simply no argument.”
There also is Supreme Court precedent, according to attorney, author and MSNBC legal analyst Jill Wine-Banks.
Wine-Banks tweeted about a 1905 Supreme Court decision.
“This is totally true. In 1905 Supreme Court said: The community has a right to protect itself against an epidemic. What @POTUS did was a brilliant use of his power to protect us from death and prolonged economic harm,” she wrote.
Hypocrisy
Mystal also pointed to hypocrisy from those on the political right who opposed vaccine and mask mandates yet support restrictions on the right of a woman to an abortion, such as the recent abortion ban which went into effect in Texas.
“And I particularly will not stand for -- will not hear it from the forced birth -- aficionados, right? The same people that you just listed over there that are now arguing against the mask mandates are the same people who have been running around for a week saying that it’s okay to force a woman to bring pregnancy to term against her will. That is ridiculous! Those people can take all of the seats, all right?” Mystal said. “[Republican Rep.] Dan Crenshaw needs to sit down before he faints under the weight of his hypocrisy for where we are right now.
“Of course vaccine mandates are legal, and of course forcing women to give birth is not! And if you can’t understand that, I suggest you read this document, which explains it to you,” he added, brandishing a pocket copy of the US Constitution.
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