Will the COVID-19 Special Session Be Special Enough?

Oct 14, 2021 by David Fowler

Will the COVID-19 Special Session Be Special Enough?
For all its deleterious effects on individuals’ lives, COVID-19 has had one potential salutary effect: It has prompted citizens to put a much-needed focus on the abuse of powers by our state and federal governments. As a result, a special session related to COVID-19 will convene by the end of the month. But of all the issues that could be considered, I think one is particularly important to the preservation of our civil, religious, and political liberties.

The Importance of States to Preserving Civil Liberty

Esteemed United States Supreme Court Justice Joseph Story, in his famed Commentaries on the Constitution of the United States, stressed why our system of federal and state sovereigns is so important with these words:
Each, by the theory of our government, is essential to the existence and due preservation of the powers and obligations of the other. The destruction of either would be equally calamitous, since it would involve the ruin of that beautiful fabric of balanced government, which has been reared with so much care and wisdom, and in which the people have reposed their confidence, as the truest safeguard of their civil, religious, and political liberties. (emphasis supplied)

What is important about the preservation of this federal-state balance is liberty itself—civil, religious, and political. 

The United States Supreme Court, in its unanimous decision in Bond v. United States, 564 U.S. 211, 221-22 (2011), extoled the importance of our nation’s system of dual sovereigns for the same reason:
Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: `Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (quoting Coleman v. Thompson, 501 U.S. 722, 759, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (Blackmun, J., dissenting)) . . . . [It] protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. (emphasis supplied)

Liberty suffers when the federal government expands its power by any degree greater than is necessary to carry out its delegated and limited powers and states do not fulfill their duty to check that abuse of power.

Why is this so? Because, when the federal government usurps powers from the states, and the U.S. Supreme Court allows it, there is no place to which we can go to escape the federal government’s clutches—there is one law for all the people of all the states. My state government and its laws become irrelevant.

Vaccinations Requirements and the Commerce Clause

Quite apart from whether the Biden administration, as the executive branch, can promulgate a rule or regulation requiring a vaccination, any such federal requirement will have to be based on some power granted by Congress.

The only power that could conceivably justify a vaccine mandate is the Commerce Clause. For that reason, President Biden has said the requirement will only apply to employers and their employees.

The Supreme Court’s construction of the Commerce Clause has vacillated over the years. Sometimes its construction has been extremely broad and sometimes far less so. That should not be particularly bothersome to those who understand that the Court’s only power is to determine whether a particular law grounded in a particular power applies to the particular facts of a dispute between particular parties in a courtroom and, if so, how it applies to that particular dispute.

In other words, every federal mandate, including this particular federal vaccine mandate, must factually stand on its own two constitutional feet.

What Federal Meddling in Personal Health Decisions is Next?

But if, for the sake of “commerce,” the federal government can require a COVID-19 vaccine as a condition of continued employment, what else could such an expansive understanding of the Commerce Clause allow? Here are just two possibilities.
  • Could the federal government impose dietary and exercise regimens on employed individuals to provide a more stable and healthier workforce for the sake of “commerce”?
  • Could the federal government require single payor health insurance for all employed persons for the sake of solving health care costs and insurance problems within the sphere of “commerce”?
That is why I will be looking to see if our state government leaders do anything to challenge the power of the federal government, particularly the non-law and -policy making executive branch, to require employees to submit to a COVID-19 vaccination.

What the Legislature Must Do.

In my opinion, the legislature must enact a law that, at a minimum, says something like this:
Any rule or regulation of the federal government requiring any person to submit or consent to or receive a subcutaneous injection of one or more drugs related to COVID-19, as designated by the World Health Organization, as a condition of continued employment or of engaging in any economic or commercial activities carried on in the state of Tennessee’s jurisdiction, is null and void and shall be unenforceable.

Many businesses will hate such a state law. It would directly conflict with the federal vaccine mandate policy being considered, and many employers want to hide their vaccine mandate behind the skirts of the federal government. The state law could also provide employees a reason for refusing a vaccine mandate unless it is clearly mandated by the employer independent of federal law.

But businesses are composed of individuals, and the individuals behind the businesses need to understand that their civil, religious, and political liberties are at stake, too.

The federal government has demonstrated time and again that it thinks the Commerce Clause allows it to do as it pleases, and with this particular mandate, it has outgrown its “Commerce Clause britches.”  In the words of the Declaration of Independence, when “a long train of abuses and usurpations . . . evinces a design to reduce [all of us] under absolute Despotism,” it is our “right” and “duty” to resist.  

Will our state political leaders resist this mandate on our behalf? We will soon find out.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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