Presidential Pandemic Powers: The President the Founders Gave Us for the Era of COVID-19

In Federalist No. 47, James Madison warned, “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.” In 1793, only six years after the ratification of the Constitution, yellow fever waged war in Philadelphia, the de facto capital at the time. Then-President George Washington was concerned about the balance of power between the presidency and Congress and avoiding the appearance of a king, or even worse, as termed by James Madison, a tyrant. He asked Madison for advice as to whether he could call Congress to meet in a place outside of Philadelphia. Madison took a strictly textualist approach – that the president could change the time, but not the place, of Congressional meetings – regardless of the emergency facing the nation’s leaders. Almost 250 years later, the United States is facing an emergency not unlike that faced by the first president – the COVID-19 pandemic – but the concern for the separation of powers and the avoidance of tyranny has seemed to evaporate. On September 9, 2021, President Biden, in one of the broadest strokes of power claimed by a U.S. president, announced a plan to mandate vaccination and testing in private businesses with more than 100 employees. However, the original meaning of Article II informs our understanding of the Founders’ role of the president; especially in times of crisis, the president was expected to and still should keep within the bounds of the Constitution’s explicitly delegated authority, and allow Congress to legislate in response to emergencies facing the nation. This Note will argue that the Biden Administration’s vaccine mandate goes beyond the scope of the original powers of the president, as demonstrated by the early American presidents' responses to epidemics of their day, and is based on unconstitutionally delegated powers from Congress.