During consideration of the Omnibus Appropriations bill (H.R. 2471), Senator Mike Lee (R-Utah) offered an amendment “to prohibit funding for COVID-19 vaccine mandates.” When speaking in favor of his amendment on the Senate floor, Lee stated, “a few short months ago, President Biden issued a series of Executive orders. These Executive orders … proposed some pretty sweeping mandates on the American people, mandates insisting that covered persons, including for our purposes today military employees, Federal workers, employees of businesses with government contracts with the Federal Government, and medical professionals who contract with CMS — basically anyone involved with the provision of services through Medicare or Medicaid must get the COVID-19 vaccine on condition of termination…. That is not right, it is not American, and it is not constitutional, but more than anything, it is not moral.”
The Senate rejected Lee’s amendment on March 10, 2022 by a vote of 49 to 50 (Roll Call 75). We have assigned pluses to the yeas because, as Lee pointed out, “the very first clause of the very first section of the very first article [of the Constitution] says that ‘all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’”
This means that a president has no lawmaking power via executive orders, and therefore cannot impose vaccine mandates without an act of Congress. Even with an act of Congress, Covid-19 vaccine mandates would not be automatically considered constitutional due to the lack of constitutional authority for Congress to pass such a law.
