In his Wall Street Journal column William Galston does the same analysis I did, makes the same points I did, and reaches much the same conclusion I did:
In other words, President Biden’s proposal raises a real controversy. But it isn’t a moral controversy: Liberty is limited when the exercise of my liberty affects others. Nor is it a constitutional controversy, because the American system divides authority to promote health and safety between the states’ police powers and the federal government’s power to regulate interstate commerce. The controversy is over the interpretation of a federal law whose constitutionality is unchallenged. The courts will determine the proper application. Everything else is political theater.
Yes, the government has the authority to mandate vaccinations. State and local governments do and the scope is limited to their jurisdictions. Yes, the federal government has the authority to regulate interstate commerce. Is that enough to empower President Biden’s decree? I think it’s self-evident that the president cannot on his own authority produce such decrees under emergency powers. That’s too open-ended. It means he could do anything at any time to anyone which is rather clearly beyond his power.
That’s not a partisan pronouncement. It shouldn’t matter whether you agree with the president or not or like him or her or not. It’s a completely legitimate legal question and I hope the court will rule on it quickly.
Kind of interesting that we’ve seen an increase of vaccinations since Biden’s decree.
Even if he has overstepped his authority, he may have moved the needle as some people may have just needed that push to choose to vaccinate.
(Local hospitals have put out notice as of Thursday that they are full, please make other arrangements.)