On March 13, 2020, with Covid-19 surging across the globe, President Trump declared a federal state of emergency under Section 501(b) of the Stafford Act. This declaration unlocked the ability for the Federal Government to move quickly in its response to a seemingly vicious virus that had the potential to wreak havoc through overwhelmed hospitals, depleted workforces, social unrest, and unprecedented deaths of US citizens. Since that state of emergency was declared, we have seen several economic stimulus packages granted, mandated use of masks in public, and lockdowns. Over a year later, the state of emergency is still in place, with the Department of Health and Human Services expected to extend the declaration through the end of 2021.
Recently, under this state of emergency, President Biden announced a new unprecedented vaccine-related mandate that has the potential to impact up to 80 million workers in the United States. The first part of the mandate requires all federal employees to receive a Covid-19 vaccine. The second part requires all employers with more than 100 employees to ensure their organizations are fully vaccinated (or, any employee that remains unvaccinated, must produce a weekly negative test result before reporting to work). With each new Covid-19-related mandate, the overreach of government and ensuing impact on US citizens grows in intensity and implication. And, as each mandate from the President, a Governor, or a government institution is introduced, more and more people are asking if mandates are legally enforceable. Afterall, mandates aren’t laws, are they?
While it’s true that mandates are not laws in the sense that they have been introduced, debated, and passed by the legislative branch of the US Government; they are still legally enforceable, provided they meet a few specific criteria:
- They are instituted during a declared state of emergency
- The agency (or individual) instituting the mandate has jurisdiction to do so (for example, the CDC was able to issue the recent eviction moratorium because it was argued that displacing people during a pandemic would lead to more wide-spread exposure of Covid-19…they would likely not have similar authority to issue a mandate in response to a terror attack)
- The mandate is over when the state of emergency is over
- The mandate does not violate the Constitution of the United States of America
While the citizenry may not like a mandate, we must keep in mind that, once issued, compliance is expected and enforceable by law enforcement or the agency granted the power. When one of these measures appears to violate our civil rights, or the Constitution, the way to fight them is through legal channels. And, while it may seem appropriate to sue an employer for carrying out the order, the best way to challenge the order is to make your voice heard to your State Representative.
(A note about Executive Orders may be necessary as well, since much ado has been made about them since the beginning of the Trump Administration. An Executive Order is a directive from a President (or Governor) that manages the operation of governmental agencies. Like a mandate, it is not a law in the sense that it is not passed by a vote from Congress. Unlike a mandate, they can be written by the President at any time and will last until they are countermanded by another President).
Traditionally, the issuance of states of emergency have been largely regional (a hurricane in Florida does not necessitate a state of emergency in California), and short lived. Most often, state Governors will declare a state of emergency in light of a natural disaster, which helps release funds to help rebuild critical infrastructure, mobilizes FEMA, and makes it easier for various emergency agencies to quickly cut through red-tape in order to help. And, when the flood waters have dispersed, or the fire is under control, the state of emergency (and any related mandate) is brought to an end. In these cases, the constitutionality of mandates issued under states of emergency rarely come under scrutiny. But when a state of emergency lingers, and mandates become more prolific, the potential of governmental overreach increases at an alarming rate.
In the 1920s, a researcher named Theodore Erismann tested the brain’s ability to rewire visual input by strapping a pair of goggles to his colleagues head. In essence, these goggles turned his colleague’s vision upside down. At first, his colleague stumbled and fell as he struggled to position himself in a foreign world. But after ten days of slowly acclimatizing to the change of input, the subject no longer struggled to navigate his way through the day. His brain had gone through the process of reorienting how it processed the upside down information from his eyes. But, the fact still remained that he was seeing the world wrong because of the artificial lenses he was using. The world had not changed, his perception of it had.
As the current national state of emergency keeps getting extended, we must stand vigilant to ensure we don’t find ourselves as frogs in a pot as the water inches toward boiling as more and more mandates are imposed. Afterall, the laws of our nation were never intended to be issued by any single person (President or not) and were certainly not meant to be enacted by bureaucratic agencies. The exercise for laws to be debated, studied, voted on, and passed by a majority of both the House and the Senate is one of the processes that has kept America from slipping back into the type of monarchy from which our forefathers fought so hard to escape.
The system of Legislative, Executive, and Judicial checks and balances instituted by our Founding Fathers is still the system under which our nation operates. There is no “Except for Covid-19” provision in the Constitution. We must ensure we do not let this seemingly endless state of emergency flip our understanding of the constitution, or our acceptance of mandates which have not been fully vetted. If we don’t, we will inevitably see a day when a steady stream of crises serve to give unfettered power to those who may seek to exploit it. Afterall, isn’t it common knowledge that a leader, especially in politics, should never let a good crisis go to waste?