COVID-19 vaccine mandates are too serious an issue for President Joe Biden to take on alone through an executive order, so the courts may reject them unless they're backed by federal legislative authority, Harvard Law professor emeritus Alan Dershowitz said in a panel discussion on Newsmax Monday.
"I think there are serious constitutional and statutory issues but particularly as to the right of the president," Dershowitz, who appeared with legal experts Victoria Toensing, the former chief counsel of the Senate Intelligence Committee, and with former U.S. Attorney Joe diGenova, on Newsmax's "National Report." "I don't know of any case where so serious a mandate has been imposed only by the president, under a vague OSHA (Occupational Safety and Health Administration) statute."
Under the rule enacted last week, tens of millions of Americans who work at companies with 100 or more employees will need to be vaccinated against COVID-19 by Jan. 4 or get tested for the virus weekly. OSHA said companies that don't comply could face penalties of nearly $14,000 per violation.
"I do think that a proper case that came before the Supreme Court was a case where the legislature approved it, where it was signed into law where there was a real emergency and where the compelling case of scientific efficacy has been made," Dershowitz added.
Meanwhile, the Supreme Court might uphold mandates that have some exemptions, but the current rules came too quickly and involved only Biden's order, said Dershowitz.
Toensing said she agrees with Dershowitz that legislation is needed, only on a state-by-state ruling, but diGenova said he, like Dershowitz, thinks the law needs to be on a federal level.
The Biden administration, however, is "perfectly happy to push the edges of the law over the limits in order to accomplish what they want to do," said diGenova. "I think in this area of public health, however, I just think that there needs to be federal legislation, which I think is unlikely to happen, so it's going to make it to the Supreme Court."
Dershowitz, while arguing further for a national rule, pointed out that viruses "don't recognize state lines."
"Although the Constitution allocated police power to the state, [its writers] recognized through the Commerce Clause that there are certain instances where you just need national legislation," said Dershowitz. "If Congress won't pass it, hey, that's what democracy is all about. We don't always get what we want...I think state by state would be ineffective. People cross over state lines too easily, remember. It's not like getting into the country. There are no restrictions. You can't impose restrictions on people going from New York to New Jersey."
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