Thread by @DavidAFrench

I'm not seeing a lot of threads diving into the constitutionality of the proposed Biden OSHA vaccine mandate. So here's a general overview (it's Twitter, so it will be basic-more details upcoming in podcasts and in print). /1

Vaccine mandates are both common and constitutional, when implemented by proper authorities. There is SCOTUS authority on this dating back more than 100 years, and that same authority has been cited to support COVID restrictions during this pandemic. /2

However, the authority issue is key. As we've seen from the start of the pandemic, governors/state legislatures possess far more power to order lockdowns/masking/vaccines than the federal government. I explained why all the way back in March 2020 /3 thedispatch.com/p/the-police-p…

So what's the source of Biden's constitutional power to order businesses to mandate vaccines? If you answer the "commerce clause," that's probable but hardly certain (under existing precedent) if we were dealing with an explicit, targeted act of Congress, but . . . /4

We're instead dealing with OSHA, a regulatory entity created by act of Congress that Congress has granted really super-duper broad regulatory authority over private businesses. How broad? I'll let @CassSunstein explain /5: chicagounbound.uchicago.edu/cgi/viewconten…

Statutes like that cause those of us who decry the administrative state and the supremacy of the executive branch to chant geeky but important things like "nondelegation doctrine now!" or "down with Chevron!" Congress shouldn't be able to delegate so much power to POTUS. /6

But despite recent SCOTUS hints that nondelegation might make a comeback, in general the court has allowed Congress to delegate lots of its lawmaking power (that's one thing wrong with our democracy), so it's far from certain that SCOTUS would strike down Biden's mandate. /7

That doesn't mean courts always roll over for OSHA, however. I recommend this Congressional Research Service paper on OSHA, Emergency Temporary Standards, and COVID. sgp.fas.org/crs/misc/R4628…. This appendix is interesting. Not every ETS survives court challenge /8

So there you have it. In the absence of a specific congressional vaccine mandate enacted under the commerce clause, the legal debate is likely to center around constitutional/statutory questions that have received minimal public attention and have minimal public understanding. /9

All that's separate from the prudential question. Even if Biden can do this, should he? Absent compelling exceptions (teachers, military, health care workers), I think the carrot is more prudent than the stick. Give businesses choices, with incentives, rather than mandates. /10

In conclusion, I can't say it better than @JonahDispatch did below. Get vaccinated. Please.