On January 7th, the US Supreme Court justices heard oral arguments in two cases challenging the legality of President Biden's pandemic-related vaccine-or-testing mandate for businesses with at least 100 employees. At issue is whether the Occupational Safety and Health Administration (OSHA) has overstepped its authority in issuing broad emergency action requiring vaccines or weekly COVID-19 tests for more than 80 million U.S. workers. The challengers, which include a collection of business and religious entities and attorneys general from Republican-led states are asking the Court to halt, as they contend, the administration's unconstitutional vaccine requirements.
The nine justices on both sides of the ideological spectrum for over 3.5 hours engaged in the narrow statutory interpretation but failed to grasp the more subtle yet essential question of the nature and extent of state emergency powers, the expiration date of such powers as well as the right to bodily sovereignty, bodily autonomy, and bodily integrity that normally accrue to citizens of established democracies and which sweeping vaccination mandates undoubtedly invalidate. Neither did the justices philosophize much about the hypothetical scenarios their potentially precedent-setting ruling might have on future generations subject to future government actions in other yet unknown future emergencies.
What if sometime in the not too distant future, a federal government agency — under health and safety measures invoked in the present OSHA case — required intravenous implantation of a microchip in an entire adult U.S. population? And what if the justifications for such an intervention in a citizen's physiological life and concomitant radical elision of his or her bodily integrity and autonomy were additionally based on national security grounds? Could the federal government mandate this procedure and will the Supreme Court ruling expected next week set a precedent for such striking interventions in public emergencies?
Brave new world
In December 2021, a Swedish tech start-up, Dsruptive Subdermals, boasted of creating technology that could be implanted under the skin and carry a wide range of COVID vaccination information, measure body temperature, and display up to date test results. A small subdermal grain-sized implant (2 millimeters by 16 millimeters in size) once scanned with a smartphone could yield the essential details in a convenient PDF file. A chip in the arm can also be preprogrammed to display a wide range of desired information including a LinkedIn profile or vaccination status certificates. It can be used for identification, access, payments, and measuring body data. The carrier can use a cell phone app to change, add, and update the information on the chip at any time. The technology is being marketed during the present COVID emergency as accessible and expedient and, as the name suggests, disruptive to the paradigm. The company's webpage highlights promising futuristic headlines hailing injectible chip implants as "innovating in the fight against future pandemics".
Should the administration's mandate be allowed to stand, one might plausibly and without hyperbole imagine a federal agency sometime in the future relying on “health and safety” measures to mandate intravenous implantation of a microchip under a U.S. citizen's skin or engage in other physical interventions regulating work or movement. The government's case might additionally be strengthened if it justified the intervention into the citizen's bodily integrity and autonomy on national security grounds, which might at best be nebulous at worst secret. Will not the government's special counsels of the future then look to this case for guidance and support in tailoring emergency powers necessitated by national security considerations, however broadly or narrowly defined?
One should hope that the Supreme Court does not validate the maxim according to which necessitas legem non habet (necessity has no law).
When does the emergency end?
In his books, HOMO SACER (1998) and THE STATE OF EXCEPTION (2005), Giorgio Agamben laid out a compelling account of implied state powers and the biopolitical terrain upon which they operate. For Agamben, modern democracies have used emergency powers to justify a peculiar state of necessity — a state of exception — where quasi-dictatorial provisions of modern constitutional orders sanction state surveillance, indefinite detentions, trials by military commissions that have been "necessitated" by the terrorist attacks on 9/11. Agamben argues that this "state of exception has reached its maximum worldwide deployment" and has become "the paradigm of [modern] government" that is no less visible during the present COVID crisis. In WHERE ARE WE NOW?: THE EPIDEMIC AS POLITICS (2021) Agamben sees the punishing lockdowns, social distancing measures, vaccination mandates, and all attendant newly enacted state emergency powers as a form of a prolonged suspension of legality in the name of biosecurity.
He builts his thesis of modern governance and its subsidiary juridico-political apparatus upon Carl Schmitt's idea of the sovereign. "Sovereign is he who decides on the exception", Schmitt contended in POLITICAL THEOLOGY, FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY (1934). "He decides whether there is an extreme emergency as well as what must be done to eliminate it...it is he who must decide whether the constitution needs to be suspended in its entirety."
Yet, it is in the nature of the modern constitutional order to be antithetical to an absolutist sovereign so conceived. Admittedly, all volitions and all tendencies of a public grounded in a constitutional tradition conspire against the suspension of the necessary checks and balances with a singular aim of taming sovereign fiat.
In a well-ordered democratic society, the law must serve as a necessary point of reference. The executive branch must not bypass Congress or parliamentary assemblies and insist on shifting the lawmaking powers from the legislative to the executive to levy decrees that impose unprecedented limitations on freedom.
For this reason, the questions posed by the justices in the January 7th oral argument getting at the extent and limits of the government's emergency powers are much overdue and in need of serious (re)consideration. The Supreme Court in reaching its decisions in controversial cases posing real or assumed "grave dangers" to the public ought to insist on reviewing such an extraordinary executive prerogative. Surprisingly, the Court gave scarce attention to the subject on Friday. Justice Kavanaugh, acknowledging that COVID-19 is undoubtedly an emergency, asked the challengers — “Why shouldn’t we defer to the government” in its efforts to combat the spread of COVID-19 in the workplace? While only Justice Barrett's query —"When does the emergency end?" seemed to appropriately motion to the potential perils of emergency edicts.
It is worth recalling that U.S. courts recognize a right of the executive to wield emergency powers if Congress has explicitly granted such powers to the President as it had in 1976 by enacting the National Emergencies Act. However, the legally sloppy consideration to the Court’s inquiry regarding termination of emergency powers given by the Solicitor General representing OSHA in National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al. should not satisfy a democratic public intent on stymying the gradual erosion of its constitutional order.
AUTHOR: DR. JOANNA ROZPEDOWSKI is a political scientist and international law scholar based in Washington, DC. She specializes in international human rights law, humanitarian law, geopolitics, and global security and can be found on Twitter @JKROZPEDOWSKI