The vaccine mandate the Biden administration imposed is one of the more egregious abuses of federal power in recent memory. Nowhere does our Constitution confer upon the federal government authority to force private citizens to inject vaccines into their bodies. Nor does it allow the federal government to dragoon private employers, on pain of massive fines, into compelling that same result.
An absence of legal authority, however, seemingly poses no constraint on the administration’s ambition to decide for all Americans how they should protect themselves from COVID-19. When he announced the vaccine mandate, President Biden said his decision was “not about freedom or personal choice.” “My job as president,” Biden said, “is to protect all Americans.”
That gets it backwards. The Constitution confers only select, enumerated powers on the federal government for the very purpose of making space for freedom and self-government. The president’s job is to faithfully discharge his constitutional duties, first and foremost. If he lacks power to take a certain action — no matter how seemingly urgent — it is his duty not to act, generally in deference to the states to whom the Constitution reserves the power to regulate for the health, safety, and welfare of their citizens.
Some may perceive the concepts of limited government and federalism as quaint, or even dangerous, in the face of a global pandemic. That’s wrong. It’s during times of crisis when those bedrock principles must be most forcefully asserted. And it’s when illegitimate government action comes clothed in the name of public health and safety that those principles must be vigorously defended.
Our government has not been immune to abusing its power in times of danger: The Alien and Sedition Act and President Harry S. Truman’s seizure of steel mills during the Korean War come to mind, to name just a few examples. And now, the federal government seeks to follow suit in the face of COVID-19.
And that is why Alliance Defending Freedom is representing The Daily Wire in its lawsuit against the Biden administration to stop its new mandate. The federal government cannot force Americans to choose between vaccination, constant health testing, or unemployment, and it cannot coerce American employers to enforce any such dictate with the threat of heavy penalties.
This fight is not about whether the COVID-19 vaccine is safe, effective, or ethically produced. Many people of good faith have chosen to be vaccinated — including many at The Daily Wire and ADF (this author among them) — just like many people of good faith have refrained for reasons of faith, conscience, health, or personal choice. Rather, this fight is about whether the decision to vaccinate belongs to the person whose body is most directly affected or to federal government bureaucrats residing in Washington, D.C.
Inherent in our government structure is the principle that most decisions affecting individual citizens should be made at the state and local levels — and by individuals themselves — not by the federal government. The devolution of decision-making to those who most directly bear the consequences of those decisions protects individual freedom. It also produces rational outcomes. According to Mayo Clinic, as of September 2021, more than 80% of adults 65 and older are fully vaccinated. Significant majorities of those aged 18-64 are vaccinated. The only demographic with rates below 50% are minors aged 12-17. In short, “vaccine hesitancy” increases as risk of severe COVID-19 infection decreases.
To the Biden administration, however, this exercise in organic decision-making by free citizens is intolerable. The sledgehammer of federal power must be invoked, even if unlawfully, to supplant free choice in favor of the “vision of the anointed,” to use a Thomas Sowell phrase. But that sledgehammer will plunge millions of Americans into crisis. Employees will be faced with loss of employment or burdensome and costly weekly testing; employers will be saddled with massive compliance costs and impossible decisions about whether to terminate valued employees or face crushing fines.
The vaccine mandate is bad policy. It’s also illegal. If allowed to stand, it will mark a massive transfer of power from individuals and their local governments to the federal bureaucracy. Such transfers are rarely undone and only embolden greater overreach. If Americans can be compelled to undergo a newly developed medical treatment during a time of real or perceived crisis, further encroachments on freedom — including freedom of speech, liberty, and even religion — become more likely. That is why The Daily Wire, with the help of ADF, is challenging the vaccine mandate now.
Ryan Bangert is senior counsel and vice president of legal strategy at Alliance Defending Freedom (@AllianceDefends).
The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.