As we all know by now, President Joe Biden intends to mandate COVID-19 vaccines for millions of Americans by using the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) power that allows the bureaucracy to implement new workplace rules without the usual lengthy public comment process:
On the private-sector vaccine requirement, Biden is acting through the Occupational Safety and Health Administration's "emergency temporary standard" (ETS) power. Here is *some* of what OSHA says about ETS.https://t.co/o1sEf48zJB pic.twitter.com/YSbh4qurxT
— Olivier Knox (@OKnox) September 9, 2021
According to the president, the “grave danger” standard has been met that will allow the agency to do this:
On OSHA mandate, the @PressSec defends it this way: If the Labor Secretary "determines workers are in grave danger, he has an obligation to issue an emergency temporary standard. That's exactly what he did."
— Philip Melanchthon Wegmann (@PhilipWegmann) September 10, 2021
And here’s the exact language from OSHA’s ETS on its recent ruling on COVID-19 and health care workers:
Now, first up, there aren’t even any details yet on what exactly will be in this mandate or how it will be enforced and according to CNN’s Kaitlan Collins, that’s still weeks away:
White House still figuring out details about new vaccine mandates @kaitlancollins reports pic.twitter.com/5QGLRtZIkH
— The Lead CNN (@TheLeadCNN) September 10, 2021
But even when they do get around to writing this rule that has us all fighting with each other, there’s a really good shot that it fails in the courts. From former Assistant U.S. Attorney Andrew McCarthy:
Good editorial on Biden’s vaccine mandate. There are a lot of process problems here and process does in fact matter. https://t.co/IpvC8F6pt3
— Liz Mair (@LizMair) September 10, 2021
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From his analysis:
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 Temporary 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.”
And the president’s own words *should* work against him as he said the vaccinated are at low risk from the unvaccinated:
Biden "acknowledged that the risk of serious illness is extremely low for anybody who is vaccinated. That means that anybody who has the choice to be vaccinated can protect themselves. So it is unclear how such an emergency order can be justified."https://t.co/MY1ZcuF02o
— Christina Pushaw (@ChristinaPushaw) September 10, 2021
The Cato Institute’s Walter Olson also pointed out that “courts frequently strike down emergency OSHA rules”:
Courts frequently strike down emergency OSHA rules. The new Biden vaccine mandate may face the same fate. https://t.co/LgQZnCKQI5
— reason (@reason) September 10, 2021
“If someone tells you that what Biden announced Thursday rests only on OSHA’s accepted and uncontroversial legal powers, they’re scrubbing away a whole lot of legal complication”:
"If someone tells you that what Biden announced Thursday rests only on OSHA's accepted and uncontroversial legal powers, they're scrubbing away a whole lot of legal complication." My new piece for @reason https://t.co/ZRkV1Qoa3P /1
— Walter Olson (@walterolson) September 10, 2021
Not so fast, Mr. President:
"Some backers of Biden's action seem to think waving in OSHA's general direction, together with citing COVID-19's high death toll, is all the answer needed to questions about legality. But it isn't."@walterolson on Biden's employer vaccine mandate:https://t.co/Uf8fXd49qD
— Suderman (@petersuderman) September 10, 2021
And OSHA’s track record in court is not so great:
That includes the agency's poor track record of defending its emergency orders in court: of the six challenges heard before this summer, OSHA managed to defend its order in full only once. (Three others weren't challenged.) /2 pic.twitter.com/ntL7MDp1lD
— Walter Olson (@walterolson) September 10, 2021
Well, this is *exactly* what Biden wants to do:
Standard rulemaking builds a record that allows judges to review agency rationality and legality. "Emergency powers bypass that. Were courts to adopt a posture of abject deference to claims of emergency, they'd leave OSHA in a position to order around the nation by diktat." /3
— Walter Olson (@walterolson) September 10, 2021
Conservative attorney Gabriel Malor predicts an immediate temporary restraining order:
Good read. I would add that the other thing not to be surprised about is when the ETS is immediately or near-immediately blocked by TRO and PI in some litigation.
I do not expect implementation and enforcement of the ETS (or later full notice/comment reg) to go well. https://t.co/rfJLe7ExBf
— Gabriel Malor (@gabrielmalor) September 10, 2021
And law professor Jonathan Turley pointed out that the “work around” that White House chief of staff admitted to with the ruling is that “the thing being ‘worked around’ is the Constitution”:
In the ultimate admission against interest, Klain admitted that the OSHA vaccine mandate was a mere “work around” limits imposed on the federal government. The problem is that the thing being “worked around” is the Constitution…https://t.co/6VK9JUu8a7
— Jonathan Turley (@JonathanTurley) September 10, 2021
He also thinks it could fail in the courts:
…The question is whether this clever work around will in fact work. It might, but there are ample grounds from challenge. OSHA could impose a federal mandate for any measure that impacts workers, including public health measures not directly linked to a given workplace or job.
— Jonathan Turley (@JonathanTurley) September 10, 2021
The move is unnecessary and therefore reckless. There are already challenges to the law which the Justice Department could join as amicus. It would then not have to risk the creation of additional losses in court after the impressive litany of losses of the Biden Administration.
— Jonathan Turley (@JonathanTurley) September 10, 2021
…For a department known for its reluctance to bring such test cases to avoid negative precedent, the declaratory judgment says more about the political than legal priorities of the Administration.
— Jonathan Turley (@JonathanTurley) September 10, 2021
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