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Is President Biden's proposed vaccine mandate constitutional?

A person receives a COVID-19 vaccine dose in Arkansas (Photo: KATV)
A person receives a COVID-19 vaccine dose in Arkansas (Photo: KATV)
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Last week, President Joe Biden announced his most aggressive vaccination effort yet.

“I would say it is unprecedented in the sense that the law that the President is using has never been used for vaccines, however, there's a pretty solid legal ground for it,” John DiPippa, a dean with UALR William H. Bowen School of Law said.

The proposed mandate would require COVID-19 vaccines and eliminate testing options for federal government employees—including those in the health-care sector.

Companies with more than 100 employees would also have a vaccine mandate or require weekly testing for those with religious or health exemptions.

“Congress has always had the power to protect interstate commerce and one of the ways to exercise that power is, it created the occupational safety and health authority,” DiPippa said.

He said the law gives the president the power to put safety measures in place if there’s significant danger to employees.

“The president is saying that the infection is a grave danger to other workers in the same way that other workplace conditions might be dangerous to others,” he said.

DiPippa said while there are arguments that can be made that the mandate goes further than the law allows, and that you can’t force people to take a vaccine in order to regulate commerce. However, he said the better arguments are that the president does have the constitutional authority.

“The only question is whether congress can actually give the president authority to require vaccines by using this law.”

His belief? They can, and it is constitutional.

Companies could face a 13,600 dollar penalty per violation of the osha rule if passed.

“There are tools built into the law already, that allow the department of labor to enforce their rules by imposing fines on businesses.”

Congress does have the power to veto the mandate—but DiPippa said he doesn’t think they will. The courts could also put a stop to it.

“If they do, it's going to be on the grounds that the law that authorizes the department of labor to protect workers from grave risks, doesn't include requiring them to get vaccinated.”

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The mandate has to be written and go through at least 30 days of public comment before it could go into effect.

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