In considering President Biden’s proposed OSHA vaccine mandate, it should be possible to distinguish intention from mode of action.
I think it’s very important that more people get vaccinated against Covid-19. And while it seems to me that offering people some financial or other enticement for getting vaccinated would be a better way to help that happen than mandating it, I can certainly see how workplace mandates for vaccination can play a legitimate and constructive role too. Employers are generally within their rights to require vaccination of their workers, and more employers should do so.
I can also see how the president might think that requiring large employers to impose such mandates could be a helpful thing for him to do. The intention behind such a move would be not just to get more people vaccinated (which is important in itself) but also to take upon himself the blame for workplace vaccine mandates—large employers could then say they had no choice, the president was making them do it. For the president to do that knowing there would probably be a political cost for him would be to take responsibility for the coercion involved in a way that could make other people’s lives easier by making his harder. If that’s his intention, which at least at some level it seems to be, then it’s an admirable intention.
But our system of government doesn’t just empower the president to do whatever he thinks is right, or even to do whatever actually is right. It gives him a particular role—which is rooted in the obligation to take care that the laws are faithfully executed—and it circumscribes that role in particular ways.
Mandating that employers above a certain size require their employees to be vaccinated against a particular disease as a condition of employment seems plainly to exceed the president’s authority, and to fall outside the framework of his role in our system. And it does so not only as a technical legal matter. Using OSHA’s regulatory power in this way very likely goes well beyond anything that could have been envisioned by the legislators who delegated that power to the agency, exceeds the bounds and character of the power that our president is given under our Constitution (and even the power that our Congress is given), and may well get thrown out by the courts even despite the staggering vagueness of the OSHA statute.
But even if the courts don’t throw this out, it seems plainly to violate the spirit of the Constitution in a way that should have kept President Biden from doing it. Judges are required to make a particular kind of assessment of the propriety of a president’s actions, and their assessments are uniquely significant and powerful as a practical matter of course. But citizens, and legislators, and indeed the president himself also have a responsibility to render their own judgments, and these different kinds of judgments are distinct. Judicial scrutiny is not the only sort of constitutional scrutiny.
As University of Virginia political scientist James Ceaser has put it, the Constitution needs to be understood in two separate if related senses:
The first sense — legalistic constitutionalism — understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense — political constitutionalism — understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.
We now lean very heavily in the direction of a legalistic understanding of the Constitution. This is not a mistaken understanding but it is an incomplete one. As Ceaser notes, the political understanding is at least as crucial. It is an understanding that should leave us less willing to overlook obvious constitutional improprieties because they can technically be justified by obviously cynical and manipulative lawyerly gimmicks. These aren’t acceptable when President Trump engages in them and they aren’t acceptable when President Biden does. And whether a judge could be legitimately persuaded to allow them is not the only question that matters. At least as significant is the question of whether this is how our system of government is meant to work. Surely in this case the answer is no.
There is a further prudential problem with the president’s action that flows from this constitutional problem. By tying the practice of workplace vaccine mandates to his extra-constitutional overreach, he threatens to make such mandates (which have been imposed in many workplaces, including many in red states) all the more politically explosive and contentious. He threatens to entangle them in the public mind with constitutional improprieties when in fact they are perfectly proper in themselves, and this could make it harder for employers acting on their own to use such mandates to encourage vaccination. That would be tragic precisely because the president’s intentions may well be commendable. Pursuing good ends by bad means is not just an abstract moral failure; it can sometimes be a very practical failure of prudence.
The president should not have done this. But do get vaccinated. It’s important.
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