Biden Administration Order Mandating Vaccination of Federal Employees and Contractors

Statement from Jonathan Emord, DC-based constitutional attorney:

(WASHINGTON, DC) Friday, September 10, 2021  – Jonathan Emord, a top-ranked DC-based constitutional attorney, has authored a pathbreaking new book, THE AUTHORITARIANS, on the history and events leading up to the current #GreatReset, which undermines the best attributes of our nation — our faith, liberty, Constitution, and republic. Read his latest statement regarding the Biden Administration’s Executive Order mandating vaccinations.

The Biden Administration’s Order mandating vaccination of all federal employees and mandating that employers of 100 or more require vaccination or weekly testing of employees likely violates the Constitution and several federal statutes, among them are the following provisions.

CONSTITUTIONAL LAW VIOLATIONS

Equal Protection component of the Fifth Amendment.  Those federal and non-federal employees who have natural immunity from prior infection may argue under the Equal Protection component of the Fifth Amendment that there is no rational basis for them to be coercively vaccinated or tested weekly because they have immunity equal to or greater than the vaccinated.

Those who are immunocompromised or otherwise infected with incurable illnesses that make vaccination a health hazard may likewise avail themselves of this constitutional protection against coerced vaccination and weekly testing and of protections in federal law under Rehabilitation Act, the Americans with Disabilities Act, and the Civil Rights Act of 1964 (see below).

Tenth Amendment to the Constitution.  Under Jacobson v. Massachusetts (1905) and Zucht v. King (1922), the power to compel vaccination is a police power reserved to the states.  There is no comparable power delegated in the Constitution to the federal government, and none that permits the Executive Branch (here via a Presidential Order to the Department of Labor, Occupational Health and Safety Administration) to compel employers to coerce their employees to be vaccinated or tested weekly as a condition of employment.

Moreover, if states are deemed employers of more than 100 and subject to the mandate, the anti-commandeering doctrine under New York v. United States (1992) and Printz v. United States (1997) may prohibit the federal government from imposing affirmative, coercive responsibilities on state governments and their officials to implement state employment mandates.

In the absence of law passed by Congress imposing mandatory vaccination and testing on all employers of 100 or more, there is no basis for federal pre-emption of state law, particularly in the 14 states that currently prohibit mandatory vaccination, even were the powers not exclusively deemed those of the states.  Thus, those state’s laws should prevail against contrary federal executive branch requirements.

Separation of Powers Doctrine.  The President’s Order exceeds the power of the Executive under Article II of the Constitution and invades the exclusive law making power of the Congress under Article I.  Thus, it violates the separation of powers doctrine.

FEDERAL STATUTORY LAW VIOLATIONS

Title V of the Rehabilitation Act (incorporating Title 1 of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964).  If any who are immunocompromised or otherwise peculiarly at risk of medical injury due to pre-existing medical conditions are required to be vaccinated, they could argue that they may not lawfully be compelled to be vaccinated under the ADA.  Religious status is protected under the Equal Employment Opportunity Act.  Consequently, if any federal or non-federal employee who has a religious scruple against vaccination is required to be vaccinated, he or she may argue against being compelled to be vaccinated under the EEO Act.

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