However, the Court in recent decades has also implemented some limitations on Congress’ commerce power in landmark cases United States v. Lopez and United States v. Morrison. The Court in National Federation of Independent Business v. Sebelius also addressed Congress’ ability to compel commercial activity and again limited its authority. While the general governmental authority to mandate vaccinations has been recognized by the Court since Jacobson v. Massachusetts, the central question to be examined is whether there exists a provision in the Constitution that affords Congress itself the authority to mitigate one of the most potent public health threats to the nation in recent memory, and specifically whether that power is included under Congress’ general authority to regulate those subjects which “substantially affect commerce.” In light of business closures and labor shortages, this Article argues that Congress’s interest in protecting the economy affords it the authority under its commerce power to mandate vaccinations. INTRODUCTION On January 13 of this year, the Supreme Court ruled in National Federation of Independent Business v. Occupational Safety and Health Administration, holding that the Emergency Temporary Standard (ETS) adopted by the Occupational Safety and Health Administration (OSHA) which, inter alia, mandated that most workers in the United States receive vaccination against COVID-19 fell outside its statutory authority as set by Congress.1 Preempting contrary state laws, OSHA attempted to use its existing authority to regulate workplace safety and issued an order which would have applied to “roughly 84 million workers, covering virtually all employers with at least 100 employees.”2 While OSHA has been granted discretionary authority to regulate workplace
1
Nat’l Fed’n of Indep. Bus. v. Occupational Safety and Health Admin., No. 21A244 (U.S. Jan. 13, 2022) [hereinafter NFIB v. OSHA] (per curiam). 2 Id., slip op. at 1.
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