Where does Biden get the authority?

By Walter Olson
Posted 9/14/21

President Joe Biden decreed on Thursday that private companies with more than 100 workers would have to make it a condition of employment for them to get vaccinated — either that, or take …

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Where does Biden get the authority?

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President Joe Biden decreed on Thursday that private companies with more than 100 workers would have to make it a condition of employment for them to get vaccinated — either that, or take weekly tests.

You may wonder: On what authority can Biden order this?

The White House is relying on the regulatory authority of the Labor Department’s Occupational Safety and Health Administration (OSHA), and in particular its seldom‐used emergency powers. Some 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. Courts have frequently struck down OSHA actions, especially when the agency has tried to issue what it calls an emergency temporary standard (ETS).

To use the emergency decree power, according to the agency’s website, “OSHA must determine that workers are in grave danger” and that an emergency standard “is needed to protect them.” That is a vague and open‐ended standard, but even so it opens up one set of possible challenges. Is a test‐or‐vax mandate that applies even to employees who work from home, or who have already contracted the virus and recovered, truly needed to protect other workers from “grave danger”?

Even when OSHA makes rules through its conventional process, there are real constitutional questions about the limits of its authority. In 2008, Harvard University law professor Cass Sunstein, who went on to serve as former President Barack Obama’s regulatory chief, published an article entitled “Is OSHA Unconstitutional?”

Courts have applied tougher scrutiny to OSHA’s emergency decrees than to its garden‐variety rules.

As attorney Michael Schearer points out, of the nine times OSHA used its emergency power until this summer, three went unchallenged, but of the six that went to court, only one instance was fully upheld.

And this makes sense. Ordinary OSHA rule making builds a detailed record and rationale, including time for objections, which allows judges to hold the agency to some semblance of legality. Emergency powers bypass that.

In short, don’t be surprised when the new Biden vaccine mandate ends up in court.

Should it reach the Supreme Court, it will be amid fresh memories of the eviction moratorium debacle, in which a majority of justices clearly signaled that it would be unconstitutional for the Biden administration to renew the expiring decree, and the White House went ahead and did so anyway. Slapping that down took less than a month.

A lot of the blame here lies with past Congresses, which saw fit to arm this agency with grossly overbroad powers. How about we make it an agenda item for a future Congress to rein in OSHA’s purported emergency powers to rule the workplace by decree?

Walter Olson is a scholar at the Cato Institute (cato.org) in Washington. A longer version of the article appeared in Reason (reason.com).

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