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In Biden v. Missouri, the Majority opinion never established the constitutionality of an agency, unelected by the people __ the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS) ___ to adopt a rule demanding and enforcing medical facilities nationwide to order their employees, volunteers, contractors, and other workers to receive a COVID–19 vaccine. And, that such employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements.
So, just what are the constitutional issues raised by the CMS vaccine mandate which have not been addressed in the Majority’s opinion?
The first question raised is, by what authority does an unelected government agency (CMS) issue such a sweeping mandate, one which intrudes upon the people’s elected representative’s exclusive power to make law, and especially so when the people’s Representatives may not lawfully delegate their power to set standards, principles, or general public policy?
To allow this mandate to stand is to undermine our Constitution’s guarantee to a “Republican Form of Government” in which our elected Representatives, and only our elected Representatives, are entrusted to make law.
Considering the fact that the mandate issued by CMC involves such an extraordinary set of circumstances, and, in the words of Justice Thomas, “. . . compels millions of healthcare workers to undergo an unwanted medical procedure that “cannot be removed at the end of the shift … ” it seems only too clear that to be within our Constitution’s framework that Congress, the people’s elected Representatives, and only the people’s elected Representatives, are constitutionally authorized to address this unique set of circumstances.
Neither the President, nor Congress may lawfully do indirectly, that which our Constitution forbids directly.
The second question raised is, does the mandate issued by an unelected government agency infringe upon a fundamental right of healthcare workers?
In Washington v. Harper, 494 U.S. 210, 229 (1990) we find “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty."
And when a person’s liberty is infringed upon by a government act, we have been rightfully informed by our Supreme Court that a government-imposed act which “impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.” See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)
And, finally the mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional., Shapiro v. Thompson, 394 U.S. 618
So, the answer the second question is a resounding yes! The mandate issued by an unelected government agency, the Centers for Medicare and Medicaid Services, infringes upon a fundamental right of healthcare workers.
And what is the proper course of action? It is the Supreme Court’s duty, by a Majority Opinion, and to be within the four corners of our Constitution to:
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declare the Centers for Medicare and Medicaid Services does not have authority to issue such and extraordinary and sweeping mandate
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make it abundantly clear that whenever a fundamental right hangs in the balance with respect to the use of government force, such as the fundamental rights of our nation’s healthcare workers, the Supreme Court is obligated to apply the protection of Strict Scrutiny to such force.
JWK
“If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”___ Justice Story
