thehill | We are now entering the “coerced consent" stage. Unable to persuade or purchase consent, many are arguing to make it difficult to be gainfully employed or functionally active without proof of vaccination. It is a type of de facto pandemic passport. After indicating the administration was considering a federal vaccine mandate, CDC Director Dr. Rochelle Walensky said this week, “I was referring to mandates by private institutions and portions of the federal government. There will be no federal mandate.”
Unwilling to face the legal or political challenges of mandating a vaccination program, the Biden administration has actively encouraged companies to bar unvaccinated people from planes, restaurants and other venues. The danger is that using companies to censor opposing views and restrict people can amount to a type of government-by-surrogate, a shadow state.
There clearly are good reasons why many companies and schools demand vaccinations to rejoin workplaces or classrooms. As expected, those rules have been upheld, including a recent favorable ruling for Indiana University.
More concerning are those calls to use mandates to make life miserable for anyone who still has doubts. German Chancellor Angela Merkel told her citizens that they will have fewer “freedoms” until they consent. Some in the media have echoed these calls, and some private organizations are following the same strategy. The NFL, for example, has been openly making life “a living hell” for NFL players who prefer to be tested but not vaccinated.
For the most part, the motivation behind government and private mandates are hard to litigate. Courts tend to defer to measures ostensibly protecting others from risk of illness; even in criminal cases, the government has been allowed to conduct “pretextual traffic stops” if it can cite an objective basis.
There may be new legal challenges ahead, however. First, those with religious or medical concerns can challenge mandated vaccination programs. CNN’s Don Lemon this week called for barring unvaccinated people from offices and businesses, insisting “It has nothing to do with liberty. You don’t have the freedom and the liberty to put other people in jeopardy." In truth, there are constitutional questions when you force people to take medications or vaccinations that violate their religious beliefs or that fail to satisfy a rational basis.
States also are moving to counter private mandates or to bar mandatory masking rules; Florida Gov. Ron DeSantis (R) just signed an executive order allowing parents to ignore masking orders for their children in the state’s public schools. That could force the hand of the Biden administration on implementing federal mandates or executive orders — a conflict that would raise core federalism issues.
The federal government is on shaky ground in mandating hood behavior or inactivity. In 2012 in NFIB v. Sebelius, Chief Justice John Roberts declared that “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
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