President Biden has a dilemma. He was elected on a promise to “shut down the virus,” but eight months into his presidency, COVID-19 is still raging. With his approval ratings cratering, he is desperate to garner headlines for taking bold action. And so, just weeks after his deserved rebuke by the Supreme Court over his eviction moratorium, he has once again gone too far.
On Thursday, Biden announced a series of unilateral actions aimed at increasing the percentage of Americans who are vaccinated. We obviously do not dispute the idea that it would be a good thing if more people were vaccinated, as the shots have proven to be safe and highly effective at nearly eliminating the risk of hospitalization and death from COVID-19. But the issue here is not what outcomes we may prefer, but what authority Biden has as president.
As chief executive, it is one thing for Biden to require vaccination for federal workers, or even for private companies that are hired as federal contractors. But Biden’s proposal goes way beyond that by ordering all private businesses with over 100 employees to require vaccination or weekly negative tests for all their workers, under the threat of steep fines. He says the order will affect 80 million private employees.
Currently, vaccination mandates that do exist (such as the MMR shot) are requirements imposed by states or individual school districts. There is not anything akin to a sweeping vaccine mandate for private workers at the federal level. This rule imposes a significant compliance burden on employers to not only police who is vaccinated, but also to facilitate weekly testing of workers.
Though we await the full legal rationale, the Biden plan on the White House website says the order will come through the Department of Labor’s Occupational Safety and Health Administration, which will issue an Emergency Testing Standard (ETS) to implement the requirement. In other words, the rule will be expedited to avoid the comment period that typically allows those who would be affected by a given order to weigh in. While OSHA has authority to set certain health and safety standards in the workplace, it would be stretching its authority to claim that it can be used as a means to facilitate broader public-health goals. Just this July, the Congressional Research Service updated a report on the emergency standard and noted that OSHA “has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.”
The report goes on to explain that an ETS requires that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and “that such emergency standard is necessary to protect employees from such danger.” In the case of asbestos, a federal appeals court ultimately said OSHA couldn’t sufficiently support its claim that 80 workers would die from asbestos exposure if the rule were not implemented. In Biden’s speech, he acknowledged that the risk of serious illness is extremely low for anybody who is vaccinated. That means that anybody who enters a workplace and has the choice to be vaccinated can protect themselves from grave danger. So it is unclear how such an emergency order can be justified.
In December, weeks before taking office, Biden said of vaccination, “I don’t think it should be mandatory. I wouldn’t demand it be mandatory.” After his actions today, we can’t help but be reminded of the CDC’s eviction moratorium, which he extended even after declaring that doing so would be illegal. Two weeks ago, the Supreme Court blocked that action, declaring that it “strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” We hope that the Supreme Court will be just as incredulous when it comes to Biden’s latest overreach.