“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
That was Supreme Court Chief Justice John Roberts’ majority opinion ruling in 2012 that the individual mandate to purchase health insurance in the Affordable Care Act, or Obamacare, was unconstitutional under Congress’ Article I, Section 8 power to regulate interstate commerce.
And yet, the mandate was rescued in the very same decision by Roberts, ruling that penalty under the individual mandate was a valid exercise of Congress’ Article I, Section 8 power to collect taxes.
As Joe Biden launches via executive order a sweeping vaccine mandate for all federal government workers, and now a brand-new initiative for private-sector mandates, the issue has once again risen to the forefront of the national dialogue.
United Airlines, for example, recently became the first U.S. airline to mandate COVID-19 vaccination for all its employees. United Airlines’ mandate takes effect on September 27, and it might augur a broader trend: A poll conducted last month by insurance and advisory firm Willis Towers Watson, for example, suggests that 52 percent of private-sector employers surveyed expect to have a workplace vaccine mandate by the end of 2021. As Biden’s brand-new announcement of a Department of Labor rule for private sector vaccination requirements now makes clear, that poll was prescient.
Against this backdrop, several Republican-leaning states have advanced laws or executive orders that prohibit private sector vaccine mandates for employees, customers, or in some other respect. That tally is now at least eight states: Arizona, Arkansas, Florida, Idaho, Montana, Texas, South Carolina, and South Dakota. The legal mechanics and specifics differ from state to state. But the highest-profile and most mechanically straightforward Republican-led assault on vaccine mandates is the one in my new home state, Florida.
The Los Angeles public schools opened last month with some of the strictest coronavirus control measures in the country. Students and staff are required to wear masks inside and outside, participate in weekly virus testing, and obey social distancing protocols. District staff are also required to get the COVID-19 shot, and now all Los Angeles public school students ages 12 and over are forced to get the vaccine.
On Thursday, the Los Angeles school board voted to pass the student vaccine mandate, with one board member stating: “So I do not see this as your choice or my choice or about my great nieces and nephews and grandchildren or your children. I see this as a community necessity to protect the children under 12 who cannot be vaccinated.”
Los Angeles public school students have until the end of the calendar year to get fully vaccinated, unless they participate in extracurricular activities which requires full vaccination by October 31st. If they don’t comply, students will be pushed into a district-run online learning program. In 2015, California eliminated its religious vaccine exemption and now only recognizes medical exemptions for schoolchildren.