The courts will likely agree that the federal government has the authority to enforce COVID-19 vaccine mandates, but will argue that the rules and penalties can’t be enforced, says Harvard Law School professor emeritus Alan Dershowitz.
President Joe Biden said on Sept. 9 that he'll direct the Occupational Safety and Health Administration (OSHA) to mandate that employees at companies with 100 or more workers will have to either submit to weekly testing or get a COVID-19 vaccine. White House officials have said that fines will be handed down to those who don’t comply with the rule, which will impact about 80 million private-sector employees.
“No. 1, is this something the federal government can do as compared to the states?” Dershowitz told Newsmax. “The states have police power. The federal government doesn’t have police power. The federal government’s powers have to derive from the text of the Constitution.”
It’s likely that the courts will say that the government can enforce vaccine mandates, but will argue that only Congress can order punishments and fines, he said.
“I think the courts will say the federal government does have the power, because this is a national issue across the state lines. It’s not limited to states. It’s contagious,” Dershowitz said. “I think they will say that in the event that science supports it, there can be mandated vaccinations with exceptions.”
But such mandates are “generally relegated to the legislature in our system of government, so I think the courts will focus on that issue first and say that the president may not have the authority to do this without congressional authorization,” according to Dershowitz.
“You can’t say it’s an emergency,” he said. “This problem has existed since the first day of the Biden administration, and it will continue to exist on the last day of the Biden administration, because we’re not going to see an end of COVID.
“We’re going to see COVID become like the flu. Seasonal different variations, different vaccinations, so it shouldn’t be done under the rubric of emergency. It should be done under the rubric of ordinary congressional power.”
When the mandates are handed down to companies under Biden’s order, Dershowitz said that it'll be a “big payday for lawyers,” who will likely file numerous lawsuits on behalf of businesses and other entities.
“There will be individuals who will be fired, and they'll sue immediately,” he said. “There will be companies—and I know there are some already who said we refuse to obey this mandate—and we’ve had companies and states indicate they’re going to file suit.”
