On September 15, I wrote a column responding to President Joe Biden’s announcement of a new federal mandate that large employers, federal contractors, and certain other business establishments require their employees either to be vaccinated or to undergo frequent COVID-19 testing.
“Although an advocate of vaccination,” I stated, “I strongly oppose President Joe Biden’s attempt to force private companies to make vaccination or weekly testing a condition of employment. His order violates fundamental principles of federalism and the separation of powers. It is also a violation of the statutes governing federal rulemaking.”
Many readers disagreed. Of course the president has the authority to impose a vaccine 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 fared poorly in the courts. Two judges struck down the mandate on federal contractors. Two other judges struck down the mandate on medical providers receiving federal funds. And citing both statutory and constitutional violations, the Fifth Circuit Court of Appeals struck down the president’s attempt to use OSHA to compel vaccine compliance at large employers.
The issue here was never the effectiveness of COVID-19 vaccines or even the legality of vaccine mandates. Under America’s constitutional order, the federal government enjoys only those powers specifically enumerated in the United States Constitution. State governments, however, possess a general “police power” to enact laws to protect “public safety, public health, morality, peace and quiet, [and] law and order,” as a 1954 U.S. Supreme Court decision put it.
In other words, while I might argue on prudential grounds that North Carolina shouldn’t require vaccination against COVID-19 in order to work or go to school, I must grant that our state government does indeed possess the power under the state constitution to impose such rules. I can grant that and still deny that the federal government has or should possess such power.
Whether it be abortion practices, vaccine mandates, utility regulations, school curricula, or a host of other often-controversial issues, my position remains the same: unless the U.S. Constitution specifically grants Congress the power to act, these matters should be left up to state governments to sort out for themselves.
No serious person disputes that within its constitutional purview, federal law reigns supreme. And no serious person disputes that our federal constitution and its duly enacted amendments ensure federal protection of individual rights — speech, press, assembly, trial by jury, etc. — from encroachment by state or local governments. But these cases are supposed to be the exception, not the rule.
Federalizing so many of our political disputes has produced horrible consequences. It makes every presidential or congressional election feel like a high-stakes poker game 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 one answer that can or should be imposed across our sprawling country by a federal government few of us really trust.
In his brilliant new book I, Citizen: A Blueprint for Reclaiming American Self-Governance, Tony Woodlief calls Washington, D.C. “an imperial city” that resembles more a circus than a capital. The showmen who populate the place clearly want it to remain the center ring of our political life. It serves their interests. But it doesn’t 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 the boiling point.
“When real authority resides in communities, citizens are more likely to engage, to express their values and views, to hold government officials accountable, and even to become elected representatives themselves,” writes Woodlief, the executive vice president of State Policy Network (where I serve on the board of directors).
Federal courts have done the right thing in blocking Biden’s vaccine mandates. It’s best to make such policies closer to home. It’s also what our constitutional order requires.
John Hood is a Carolina Journal columnist and author of the new novel Mountain Folk, a historical fantasy set during the American Revolution.