Vaccine mandates, passports, masks, social distancing and everything associated with covid-19 is unconstitutional and therefore unlawful and unenforceable at the federal level. It is also at the state level because of the Bill of Rights, but that requires a future column.
This includes Joe Biden's decree, affecting 80 million Americans, mandating that all employers with more than 100 employees be vaccinated or weekly tested for the virus, or their businesses will be fined. This mandate, said to have originated as an OSHA regulation, did not. Nancy Pelosi knows it is not law and thus has included the mandate in the Infrastructural Bill now before Congress.
Even if OSHA had originated the regulation, or Congress succeeds in passing it, states can still nullify the decree or law within their states, according to the 10th Amendment, which reads: "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." This protects federalism.
The Tenth Amendment restricts the federal government (the executive, legislative and judicial branches) to the enumeration clause of Section I, Clause 8, which lists the areas in which the federal government can legislate, execute and adjudicate? All powers not specifically listed, or added later to the Constitution by way of the amendment process outlined in Article V, are left to the states.
This clause divides all federal power into the four following areas: Congress has the power to tax, pay debt, provide for the general welfare and common defense. So as to restrict the federal government from enlarging its power, which is its natural tendency to do, the last two grants of power of the four each had an additional eight clauses giving clarity to what was meant by general welfare and national defense.
Even with this clarification, states, fearing that the federal government might still grow at their expense, refused to ratify the Constitution without additional restrictions harnessing it more fully to the enumerated powers, hence the Bill of Rights. These ended with Amendment 10 and the deliberate handcuffs on federal power.
The proper constitutional response to federal overreach is to refuse to recognize it in the states and boldly so declare. It is quick and final. No branch of government was empowered to override federalism.
The solution is definitely not to sue the federal government because this only places the decision in another branch of the same federal government which almost always rules to increase federal power. Once a judgment is rendered in court, it only makes it more difficult to refuse compliance later. The solution is not to rescind an executive decree or mandate, because such asks a federal entity to do what the executive branch never had the power to do in the first place. If Congress steps outside the listed powers making a new law, the solution is not to ask Congress to legislate restrictions since that implies Congress does have the power to create law outside of the powers listed in the constitution.
None of these actions preserve the separation of power. What does is to honor the Constitution as written and declare boldly that the federal government has no constitutional jurisdiction because the power exercised is not listed in Article 1, Section 8, Clauses 1-18, and has not been added to the Constitution by amendment. Until the constitutional powers are expanded by amendment, all unlisted power remains with the states.
Founding Fathers James Madison, Thomas Jefferson and Alexander Hamilton were each especially vocal with respect to states having the authority to "Just Say No!" to federal law not enumerated. This was the original view of the Constitution. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina and more successfully with the northern states, especially Wisconsin, in 1854, over the highly unconstitutional Fugitive Slave Act. Without a new amendment to the Constitution, health issues, vaccine mandates, abortion, and many more issues remain entirely within state jurisdiction.
James Madison, the Father of the Constitution, wrote in The Federalist Papers #46. "Should an unwarrantable measure of the federal government be unpopular in particular States ... the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State;" would provide "very serious impediments;" more so if states stood together. This "would present obstructions which the federal government would hardly be willing to encounter."
Thomas Jefferson wrote in agreement in the Alien and Sedition Acts, "where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy" and "that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them." And, Alexander Hamilton shared, "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority" (Federalist Papers #28).
Remember, the states created the federal government in the first place, establishing a system called federalism which recognized the principle of dual sovereignty, neither is master or slave to the other. Each viewed state nullification as an important check on unacceptable federal assumption of state powers. No branch of the federal government, not even the Supreme Court, has the constitutional authority to destroy this check.
The Constitution will recover confiscated state authority if governors have the fortitude to reject immediately any decree, mandate or law not tied directly to enumerated powers. It is time they do it again! A long-term delay gives opponents' past practice supposed legitimacy which, over time, can destroy precious parts of the Constitution if government overreaches are not brought back in line.
Harold W. Pease, Ph.D., is an expert on the United States Constitution and a syndicated columnist. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for more than 30 years. To read more of his weekly articles, visit www.LibertyUnderFire.org. Opinions expressed are those of the author.