Rule of Law and mandatory vaccinations: Clarity from the US Supreme Court

This article was first published on on 18 February 2022

By Robert Vivian

The notion that individuals may be compelled to be vaccinated against Covid raises a number of fundamental legal issues. The recent decision of the United States Supreme Court on this issue assists greatly in disposing of the matter.

To understand the US Supreme Court judgement, it is useful to have some understanding of the American constitutional dispensation. In 1776, the US realised that declaring independence presented the Americans an opportunity to start afresh. And so the US introduced a constitutional democracy – the so-called American experiment. The European countries were bogged down by their histories and institutions such as aristocracies and monarchs which precluded such an experiment. Much of the American experiment embodied existing ideas all underpinned by the then existing English common law.

Without a king, what kind society would it be? Abraham Lincoln noted it “would be a government of the people, by the people for the people”. But without a king, who or what would rule? John Adams had already articulated the guiding relationship between the individual and the government, it would be “… a government of laws and not men.” It would be a society governed by the rule of law.

Individuals’ rights to life, liberty and the pursuit happiness were captured in the Declaration of Independence, and the new state was obliged to safeguard these or face the prospect of being removed by force. So in terms of this dispensation, the only authority anyone could have to act against any individual would be if so authorised in terms of a clear law. Without a clear law, no action could be taken against any individual.

The rule of law stands impenetrably between the individual and others, including the state. This is the clear imagery conveyed by Rex van Schalkwyk’s brilliant definition of the rule of law: “The Rule of Law is the barrier the law sets against tyranny.” Tyranny operates outside of the law. The government, thus, may not under any circumstance operate outside of the law. A vaccine mandate can only be imposed if a law exists allowing that. With this background the decision of the US Supreme Court can be examined.

President Biden, Speaker of the House Nancy Pelosi, and the US Senate, all had indicated mandatory vaccinations would not be introduced and the US Congress did not pass any law authorising mandatory vaccination against Covid. Then, without explanation, the tune changed, and President Biden started to advocate mandatory vaccination.

The Occupational Safety and Health Administration (OSHA), taking its cue from President Biden, decided to impose mandatory vaccinations upon millions across the country. Using its emergency powers, OSHA issued regulations to achieve this outcome. Scores opposed the mandate including 22 states. The courts were then approached to suspend the regulations pending the substantive court case dealing with the merits of the matter. The order to suspend was initially granted, and then overturned, and so an urgent application was made to the US Supreme Court to reinstate the stay of the implementation.

In the end, understanding the US Constitutional dispensation, the case turned out to be a no-brainer. In retrospect, the only surprising aspect is, knowing the above constitutional background that the matter required a court case. Three simple questions arise, only two of which needed to be, and were thus, addressed:

  1. Since the government cannot take any action whatsoever against an individual unless authorised thereto by law, the question is, does a law exist allowing the government to impose mandatory vaccinations?
  2. If such a law exists, was it passed by Congress or by individual states, and if it does not exist, where should it come from, Congress or individual states?
  3. If such a law exists, does that law pass constitutional muster? It was unnecessary to discuss this question.

As far as the first question is concerned, OSHA is the institution that tried to impose the mandatory vaccination by way of a temporary emergency safety standard. OSHA was established by an Act of Congress in 1970 and has only on nine occasions tried to pass emergency standards. Of these, six were challenged legally and of these only one was deemed valid.

On the simple question whether or not a law exists allowing OHSA to impose mandates, the court noted that administrative agencies are creatures of statute. They have no powers not to be found in the law itself; thus “they possess only the authority Congress has provided.” The court noted the imposition of a vaccine mandate was “no everyday exercise of federal power.” To give wide ranging powers to an agency the court noted “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Thus the question was whether or not the Act of Congress authorizes OSHA to impose a vaccine mandate. The court answered “It does not”. The Act authorizes occupational safety and health standards but concluded the vaccine mandate was a public health matter and as such “falls outside of OSHA’s sphere of expertise.”

Covid was not only an occupational hazard but also a hazard of everyday life. The court noted:

“Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs … – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

OSHA, by attempting to impose the mandate, was acting outside of its authority. Indeed, the usual safety precautions can be left at work; but a vaccine “cannot be undone at the end of the workday.” An employee cannot be unvaccinated when he goes home. OSHA was given powers by Congress to regulate occupational dangers, but OSHA was trying to regulate public health. The court noted, “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”

The court found that OSHA no had authority in law to impose the mandate.

A concurring judgment considered the second question and concluded the authority to regulate this public health matter was a state and not a federal matter.

In my view the Supreme Court of the United Kingdom would come to the same conclusion the US Supreme Court came to. Lord Hoffmann, in the case of Secretary of State for the Home Department, Ex Parte Simms 1999, stated the common law position succinctly, clearly and with beautiful simplicity:

“But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words.”

The common law position is clear: Fundamental rights cannot be overridden by general words. To be authorised by Parliament to impose mandatory vaccines, Parliament would have to expressly grant the authority to do so. The authority to do so will not be inferred from general words.

Both the US Supreme Court and the UK House of Lords effectively said the same thing. For a mandatory vaccine to be imposed by law, a specific clear law would be required. This is not a constitutional issue, but simply the run of the mill rule of law 101 matter. In the South African debate there is not yet a clear, specific law authorising vaccine mandates. There are copious references to general statements to be found in safety legislation and reference to regulations promulgated in terms of the Disaster Management Act, but these general statements will simply not do. Further a mandate cannot be imposed by regulation unless the empowering Act clearly authorities the mandate.

Even if a law is passed by parliament, then the third question becomes relevant, would this law pass constitutional muster which is highly unlikely.

So, the idea that in South Africa a lawfully sanctioned mandated vaccination policy exists, is simply fanciful thinking.