Medicine and the Constitution

President Biden has unveiled his six-pronged national strategy to combat Covid-19. His “path out of the pandemic” consists of:

  1. Vaccinating the unvaccinated
  2. Further protecting the vaccinated
  3. Keeping schools safely open
  4. Increasing testing & requiring masking
  5. Protecting the economic recovery
  6. Improving care for those with COVID-19

The most onerous part of Biden’s plan is the first one. It would require:

  • All employers with 100+ employees to ensure their workers are vaccinated or tested weekly
  • Vaccinations for all federal workers and for millions of contractors that do business with the federal government
  • Vaccinations for over 17 million health care workers at Medicare and Medicaid participating hospitals and other health care settings.
  • Large entertainment venues to require proof of vaccination or testing for entry
  • Employers to provide paid time off to get vaccinated

Conservatives are screaming that Biden’s actions are unconstitutional. Republican governors have denounced Biden’s plan and vowed to fight it tooth and nail. Nebraska Governor Pete Ricketts sums things up:

President Biden’s announcement is a stunning violation of personal freedom and abuse of the federal government’s power. This plan isn’t about public health – this is about government control and taking away personal liberties. Americans, not the federal government, are responsible for taking charge of their personal health. It is not the role of the federal government to mandate their choices. Nebraska will stand up to President Biden’s overreach, and we will be working with the Attorney General to explore all our options.

That Biden’s proposals are unconstitutional is a no-brainer.

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison so eloquently explained in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about thirty enumerated congressional powers listed throughout the Constitution, most of which are found in the eighteen paragraphs of article I, section 8. Six of them concern the militia and the military. Four of them concern taxes and money. The rest relate to commerce, naturalization, bankruptcies, post offices and post roads, copyrights and patents, the federal courts, maritime crimes, and the governance of the District of Columbia.

Elsewhere in the Constitution, Congress is given some other powers, things like admitting new states, proposing amendments, regulating national elections, establishing courts, and providing the manner in which public records in each state are accepted by other states.

In article II of the Constitution, the president is authorized to be the commander in chief during times of war, grant reprieves and pardons, commission officers, make treaties, appoint ambassadors, judges, and officials, and “take care that the Laws be faithfully executed.”

There is one thing that is never mentioned nor even remotely referred to in the Constitution: Medicine. There is nothing to be found about medicine, medications, health, health care, health clinics, physicians, medical procedures, medical insurance, medical research, diseases, pandemics, epidemics, vaccinations, medical treatments, hospitals, medical devices, medical licensing, clinical trials, medical laboratories, or medical schools.

Clearly, neither President Biden nor any other federal agency has any authority to mandate that private businesses require any of their employees to take a vaccine, any vaccine.

But this is where most conservatives stop short.

If the Constitution has nothing whatsoever to say about medicine, then the following are also true:

  • Medicare: unconstitutional
  • Medicaid: unconstitutional
  • Centers for Medicare and Medicaid Services: unconstitutional
  • Children’s Health Insurance Program (CHIP): unconstitutional
  • Centers for Disease Control and Prevention (CDC): unconstitutional
  • National Institutes of Health: (NIH): unconstitutional
  • Surgeon General: unconstitutional
  • National Institute of Allergy and Infectious Diseases (NIAID): unconstitutional
  • Coordinating Center for Infectious Diseases (CCID): unconstitutional
  • National Center for Preparedness, Detection, and Control of Infectious Diseases (NCPDCID):
  • National Library of Medicine (NLM): unconstitutional
  • Food and Drug Administration (FDA): unconstitutional
  • Occupational Safety and Health Administration (OSHA): unconstitutional
  • Agency for Healthcare Research and Quality (AHRQ): unconstitutional
  • Department of Health and Human Services: unconstitutional

Most conservatives have for many years accepted these government agencies as legitimate. It’s a little late now to be saying that something related to medicine is unconstitutional.