To Be (Vaccinated) or Not To Be (Vaccinated): The Question of a Vaccine Mandate

Written by Grant Emerson


On November 5, 2021, under the direction of the Biden Administration with Executive Order 14042, the Occupational Safety and Health Administration (OSHA) implemented a new rule, Standard 1910.501, to aid in the fight against COVID-19. Almost immediately this rule gained national attention. Aimed at reducing disease transmission, the rule mandates employees working for business of 100 or more employees get the COVID-19 vaccine by January 4, 2022. State Attorney Generals in all twelve circuits have filed complaints, alleging that the mandate is a violation of the states’ constitutional rights. Some of states opposing the federal vaccine mandate include Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming, Florida, Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia, and Texas. The 34 cases in each circuit have been consolidated and will be heard by one Circuit court.

Who Gets to Decide?

In a lottery style selection process, the 6th Circuit Court of Appeals was selected to hear the lawsuit. Although many legal issues were raised in the complaint, the two main issues the court will likely resolve are, whether the Biden Administration has the power to issue this Executive Order and whether the  10th Amendment reserves the right for vaccine mandates to the states. Specifically, the 10th Amendment states in part that, “[t]he powers not delegated to the United States… are reserved to the States,” which means that if the right to decide vaccine mandates is reserved for the states, federal intervention would be unconstitutional. While the states argue this act is an overreach of federal power, into an area of state control, the Biden Administration contends it is a legitimate exercise of federal power.

What Authority Does the President Have to Act?

The first question for the court will be whether President Biden has the authority to issue the act. Presidential power is derived from two sources: the Constitution and any power Congress gives the president.

Justice Jackson, in Youngstown Sheet & Tube Co. v. Sawyer, developed a three-part test for determining the extent of Presidential power. First, when the President acts according to congressional authorization his power is at a maximum because he has the power granted by the Constitution and any power that Congress gives him. Second, when statutes are silent on Presidential action it is a zone of twilight, meaning his power is uncertain. Third, when the President acts contrary to the express or implied will of Congress his power is at its lowest, as he must rely only on those powers provided by the Constitution.

While the states will likely argue that the President was acting in the third prong of Youngstown, and therefore with the lowest authority to implement the mandate, the Biden Administration will likely argue they are acting pursuant to the first prong, where their power is authorized by Congress. Since Congress has not enacted any law mandating vaccines, the Biden Administration’s vaccine mandate for this group of individuals is likely operating under the second prong of Youngstown. Therefore, the court will need to determine whether the President has the authority to issue the mandate.

Can the Decision be Left to the States?

The 10th Amendment states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As the Court recognized in United States Term Limits, Inc. v. Thornton, if the act interferes with the rights retained by the states at the ratification of the Constitution, then it is in violation of the 10th Amendment and a court will likely view the act as unconstitutional.

For the states to be successful on their claim that Standard 1910.501 violates the 10th Amendment, they would need to prove that the right to decide vaccine mandates, was a right that was not divested of the states at the time of the ratification of the Constitution. Since the Court has not yet determined this issue, the decision by the 6th Circuit will be foundational in this area of the law.

As the Court held in United Public Workers v. Mitchell, if the government does not have the authority to act, the power is reserved for the states and any action by the government is a violation of the 10th Amendment. Therefore, if the states can prove that the right for vaccine mandates was not divested by the Constitution, the states will be successful in contesting the constitutionality of the act requiring vaccination of employees working for employers of more than 100 employees, because the government is only granted those powers expressly authorized by the Constitution.

Conclusion: Chance for Success?

The 6th Circuit’s decision will shape the landscape for the discussion on the constitutionality of vaccine mandates. On November 12, 2021, the 5th Circuit in BST Holdings, LLC v. OSHA, held to stay, or temporarily stop the November 5, 2021, mandate because of its potential implication of the employees’ constitutional rights. Although the 5th Circuit only granted a stay, their recognition that the mandate implicates constitutional rights could indicate that the states may be successful in the 6th Circuit with their attempt to challenge the constitutionality of the Biden Administration’s vaccine mandate.


Andrea Hsu, 6th Circuit Court ‘Wins’ Lottery to Hear Lawsuits Against Biden’s Vaccine Rule, NPR (Nov. 16, 2021, 4:07 PM),

Lawsuits Over Workplace Vaccine Rule Focus on States’ Rights, Associated Press (Nov. 5, 2021, 6:35 PM),

Joseph Biden, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, The White House (Sept. 9, 2021),

OSHA Vaccination, Testing, and Face Coverings, std. 1910.501,

U.S. Const. amend X

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952).

BST Holdings, LLC v. OSHA, 2021 U.S. App. LEXIS 33698 (5th Cir. 2021).

United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 801 (1995).

United Public Workers v. Mitchell, 330 U.S. 75, 95–96 (1947).

Photo courtesy of PAHO