In Federalist 48, James Madison observed that “power is of an encroaching nature,” and that it’s the natural tendency of those in power to exceed their authority. Madison must have been thinking about a politician like Joe Biden.
By now, everyone knows that Biden prefers to circumvent the democratic process of legislative lawmaking and to govern by fiat. He signed more executive orders during his first 100 days in office than any of the previous three presidents, and is on pace to issue more executive orders per year than any president since Harry Truman. He has taken a sweeping view of executive agency power and thumbed his nose at the courts in the process – his nationwide eviction moratorium being just the latest example. And he has repeatedly used his executive power to target red states whose laws he dislikes (see here and here and here).
This week, Biden did it again – reneging on an earlier pledge not to impose a federal vaccine mandate and announced a nationwide program which, through executive decree and emergency rulemaking, requires all federal employees and contractors to get the COVID-19 vaccine, and all employers with 100 or more employees to ensure that their employees are either vaccinated or undergoing weekly testing. Businesses that ignore the policy could incur penalties of up to $14,000 per violation.
This mandate will affect up to 100 million Americans – approximately two-thirds of the U.S. workforce.
To begin, vaccines requirements are the province of the states, which can mandate them pursuant to their general police power. As the federal government has no police power, it has no general authority to require people to take certain vaccines.
Biden has tried to get around that problem by casting COVID-19 as a workplace safety issue, and to use the Occupational Safety and Health Act of 1970, or OSH Act, to shoehorn in a vaccine mandate as a workplace safety standard.
Workplace standards are typically issued under Section 655(b) of the OSH Act, whereby interested parties are notified of the proposed rule, data and comments are solicited from the public, objections can be filed, and hearings can be held.
In putting in place this vaccine mandate, however, the Biden administration is relying on Section 655(c) of the OSH Act. That section allows the Secretary of Labor to immediately enact a rule – called an Emergency Temporary Standard, or ETS – that remains in effect for up to six months without going through the normal notice and public comment rulemaking process.
Because this emergency route dispenses with the full panoply of procedural protections, federal courts have described the ETS provision as “the most dramatic weapon in OSHA’s enforcement arsenal” and an “extraordinary power” that should be “delicately exercised.”
Indeed, even though the OSH Act has been around for over 50 years, its ETS provision has been used just nine times – and never to compel workers to take a vaccine.
This infrequency owes to the fact that, under the law, the Secretary can only implement an emergency rule if he first finds substantial evidence that workers are exposed to a “grave danger” from “new hazards” and that the emergency rule is “necessary” to protect them from such danger.
This standard is exceedingly difficult to satisfy. While three of the nine previous emergency rules were not subjected to any legal challenges, courts stayed or struck down five of the remaining six.
That’s not a good batting average, and Biden’s vaccine mandate looks like it’s on track to strike out, as well.
The first requirement for an ETS is that there be substantial evidence that workers are exposed to a “grave danger” from “new hazards.”
While phrase “grave danger” is not defined in the statute or any accompanying regulation, at the time of the OSH Act’s passage, the Senate Committee on Labor and Public Welfare’s Subcommittee on Labor stated that the emergency standards provision should not be interpreted to allow the government “to circumvent the regular standard-setting procedures.” Courts haven’t provided much guidance on what constitutes a “grave danger” either, but what little exists by way of case law suggests that it is a very high bar to clear.
In Florida Peach Growers Ass’n v. U.S. Dep’t of Labor, the Fifth Circuit stated that a grave danger exists where there are “incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health.”
And, in Dry Color Mfrs. Ass’n v. Department of Labor, the Third Circuit stated that a grave danger does not exist where the danger of developing a serious disease is speculative. In Asbestos Info. Ass’n v. OSHA, the Fifth Circuit came to the same conclusion.
To be sure, COVID-19 can, in some cases, lead to death. But with most others, it is treatable and resolves in relatively short order with no lasting sequelae. Further, the virus presents minimal risk to those who have developed a natural immunity to it as a result of having been infected previously. In fact, a recent study out of Israel found that unvaccinated people who survived a COVID-19 infection were significantly less likely than vaccinated people to become severely ill from the virus.
At bottom, the risk of developing long-term complications from COVID-19 is speculative at best, and the number of people who will be spared that outcome if they are inoculated against the virus is uncertain.
These realities compel the conclusion that COVID-19 is not the type of “grave danger” needed to trigger the OSH Act’s emergency temporary standard provision.
Even if the Secretary of Labor could show that workers are exposed to “grave danger” in the workplace from COVID, he would still have to demonstrate that mandating workers to receive the COVID vaccine is necessary to protect them from that danger during the six-month term that the emergency standard would be in effect.
This he cannot do.
First, the CDC admits that “[v]accinated people can still become infected and spread the virus to others.” It therefore does not protect workers from exposure to the virus.
The vaccine also has done little to prevent new cases of COVID-19. According to data published by the CDC, the current 7-day moving average of daily new cases stands at 136,558 – that is 99.3% higher than the average was one year ago, before the vaccine rollout began.
And, while studies show that the vaccine is effective against hospitalization and death from the ancestral strain of the virus, they also show that the vaccine is less effective against most variants of the virus – and, according to the CDC, these variants are the ones causing the most hospitalizations and deaths.
Next, a vaccine is unnecessary if a person has developed natural immunity from being infected with COVID-19. According to studies, natural immunity confers longer lasting and stronger protection against infection, symptomatic disease and hospitalization than a vaccine.
Similarly, the CDC acknowledges that “there are limited data on vaccine effectiveness in people who are immunocompromised.” Such limited data makes it impossible to establish that the vaccine works to protect them from danger.
In addition to all of this, studies show that the risk of COVID infection can be substantially reduced by disinfecting, mask wearing and social distancing. Thus, the goal of reducing the COVID infection rate can be achieved without mandating the vaccine or testing.
Moreover, contemporaneous to the enactment of the OSH Act, the Senate Committee on Labor and Public Welfare’s Subcommittee on Labor stated that where “a determination cannot be made as to whether such [an emergency standard] will protect employees … the Secretary [must] utilize the regular standard-setting procedures … not the emergency standard-setting authority.”
In other words, Congress intended that where, as here, the medical community is divided about the necessity of a particular rule, the federal government is not allowed to impose it under its emergency powers.
Biden cannot establish that workers across the country are exposed to a “grave danger” in the workplace from COVID-19 or that uniformly mandating vaccines and testing for most of the workforce is “necessary” to protect it from such danger. After all, if that were the case, why did he exempt members of Congress and their staff from his program?
Sadly, the law is but an asterisk to Biden. In announcing his nationwide mandate, Biden stated, “My message to unvaccinated Americans is this, what more is there to wait for? What more do you need to see? …. We’ve been patient, but our patience is wearing thin.”
We? Our? Biden plainly believes that the government knows best, and that the benighted masses and their silly laws should always bend to the will of their elected betters, even on issues of personal medical autonomy.
In Federalist 48, Madison cautioned that each branch’s power must be “restrained from passing the limits assigned to it.” In enacting the OSH Act, Congress heeded that advice by conditioning the Secretary of Labor’s emergency power on a showing of “grave danger” and “necessity.”
If the courts honor those statutory restraints, Biden’s mandate will be struck down. But if they allow the mandate to stand, then Justice Scalia was right that “words no longer have meaning.”
And that will be the gravest danger of all.
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