On September 15, I wrote a column in response to President Joe Biden’s announcement of a new federal mandate that large employers, federal contractors and certain other business establishments require their employees to be vaccinated or undergo frequent COVID-19 testing.
“While a supporter of vaccination,” I said, “I strongly oppose President Joe Biden’s attempt to force private companies to make vaccinations or weekly testing a condition of employment. His order violates the fundamental principles of federalism and the separation of powers. It is also a violation of laws governing the making of federal rules.
Many readers disagreed. Of course, the president has the power to impose a vaccination mandate on companies receiving federal contracts or Medicare dollars, my critics insisted, or to impose such a mandate on any private employer via the Occupational Safety and Health Administration (OSHA).
Well, so far Biden’s policy has held up poorly in court. Two judges invalidated the mandate of the federal contractors. Two other judges invalidated the mandate of the medical providers. And citing both statutory and constitutional violations, the Fifth Circuit Court of Appeals struck down the president’s attempt to use OSHA to compel large employers to comply with vaccines.
The question has never been the effectiveness of COVID-19 vaccines or even the legality of vaccination mandates. Under the U.S. constitutional order, the federal government only enjoys those powers specifically enumerated in the U.S. Constitution. State governments, however, possess general “police power” to enact laws to protect “public safety, public health, morals, peace and quiet, [and] law and order,” as a 1954 U.S. Supreme Court decision put it.
In other words, while I can argue for prudential reasons that North Carolina should not require the COVID-19 vaccination to work or go to school, I have to admit that our state government has effectively the power under the state constitution to impose such rules. I can grant that and still deny that the federal government has or should have such power.
Whether it’s abortion practices, vaccination mandates, utility regulations, school curricula, or a host of other often contentious issues, my position remains the same: unless the U.S. Constitution does not specifically grant Congress the power to act, these matters should be left to state governments to settle on their own.
No serious person disputes that, within its constitutional jurisdiction, federal law reigns supreme. And no serious person disputes that our federal constitution and its duly enacted amendments guarantee federal protection of individual rights – speech, press, assembly, trial by jury, etc. – against encroachment by state or local governments. But these cases are meant to be the exception, not the rule.
The federalization of so many of our political disputes has produced horrific consequences. This makes every presidential or congressional election feel like a high-stakes game of poker that no one can afford to lose. It guarantees constant and debilitating chaos. For most of the big political questions we face, there is no single answer that can or should be imposed across our sprawling country by a federal government few of us truly trust.
In his brilliant new book “I, Citizen: A Blueprint for Reclaiming American Self-Governance,” Tony Woodlief calls Washington, DC “an imperial city” that feels more like a circus than a capital. The showmen who populate the place clearly want it to remain the center of our political life. It serves their interests. But that does not serve ours. Only by devolving power to states, localities and voluntary institutions can we truly accommodate difference and thus defuse political tensions before they reach boiling point.
“When true authority resides in communities, citizens are more likely to engage, voice their values and opinions, hold government officials to account, and even become elected representatives themselves,” Woodlief writes. , executive vice president of the State Policy Network (where I sit on the board).
The federal courts did the right thing by blocking Biden’s vaccination warrants. It is better to make such policies closer to home. This is also what our constitutional order requires.
John Hood is a board member of the John Locke Foundation and author of the novel Mountain Folk, a historical fantasy set during the American Revolution (MountainFolkBook.com).