Can he do that? Biden's new vaccine mandates
No one is being forced to take the vaccine against their will.
In a speech on Thursday, President Biden unveiled a series of new federal actions designed to encourage vaccine skeptics to just get the shot already! While there is widespread support for vaccine requirements, the obvious question is whether Biden and the federal government have the authority to make the changes that he proposes.
Biden’s plan, the “Path Out of the Pandemic,” includes several new policies aimed at encouraging and requiring vaccinations. These are:
Requiring all employees of companies with more than 100 workers to be vaccinated or tested weekly
Requiring vaccinations for federal workers and contractors
Requiring vaccinations for healthcare workers
Calling on entertainment venues to require proof of vaccination or testing
Requiring employers to provide paid time off for vaccinations
While I am sympathetic to the need to persuade the unvaccinated to get their shots, I am also an opponent of government overreach. If the government acts illegally to do a good thing, it is still an overreach and that makes it a bad thing overall.
As I pointed out several months ago, vaccine mandates are not new. Neither are they unconstitutional. The Supreme Court has upheld the concept of vaccine requirements going back more than a hundred years and several recent decisions have affirmed the right of private employers to require vaccines for their employees. But, with most of the statutory authority for fighting epidemics and pandemics resting with the states, federal authority is limited. So, where does Biden get the authority to make these mandates?
There are several answers to that question so let’s start with the easy ones first. The part of the plan that addresses entertainment venues is a request, not a mandate. Since nothing is being mandated, there is obviously nothing illegal here.
Almost as easy is the mandate for federal workers. The president is the head of the executive branch so Joe Biden can set standards for federal workers by Executive Order as long as those standards don’t violate other laws. The president also has the authority to set standards for federal contractors as well.
Other presidents have taken similar actions to impose requirements on federal workers and contractors in the past. For example, several presidents have signed Executive Orders that raised the minimum pay for federal contractors. President Obama also used an Executive Order to require that federal contractors report compensation data by sex and race, a measure aimed at boosting the pay of women and ethnic minorities.
The mandates for private employers are a little more tricky, but the Biden plan tells us exactly how they intend to enact the requirements. The mandate for companies of more than 100 workers and the requirement for paid time off will be enacted by the Occupational Safety and Health Administration through Emergency Temporary Standards (ETS). OSHA has issued emergency temporary standards for the COVID-19 pandemic in the past.
Federal paychecks and contracts can be lucrative, but they do come with strings attached. The government can impose requirements and recipients of federal money have to comply to keep those dollars coming.
The first Coronavirus ETS became effective when it was published in the Federal Register on June 21, 2021. A second ETS issued on July 13, 2021 explains the authority for making such temporary rules in its introduction, saying, “The Occupational Safety and Health Act of 1970 (OSH Act) gives OSHA the ability to promulgate an ETS that would remain in effect for up to six months without going through the normal review and comment process of rulemaking. OSHA, however, has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.”
The Coronavirus vaccine mandate will not be the first OSHA vaccine requirement. The federal agency has mandated inoculations for hepatitis B for certain workers for years so there is a precedent for both emergency health standards for the workplace and federal vaccination mandates for workers,. There has never been an emergency vaccine requirement for so many workers by the federal agency, however.
It is important to remember that there is relief for workers who don’t want to get vaccinated. Per the White House plan, “any workers who remain unvaccinated” must “produce a negative test result on at least a weekly basis before coming to work.” As a federal judge noted in a ruling back in July, the EEOC permits vaccine requirements if allowances are made for disabilities and deeply-held religious beliefs. The testing alternative is an example of this sort of allowance.
The requirement that healthcare workers be vaccinated is slightly different. This requirement will be published by the Centers for Medicare & Medicaid Services (CMS) and will apply to “most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.”
As with federal employees and contractors, it is federal dollars that give the government the authority to mandate vaccinations for healthcare workers. The CMS regulates healthcare facilities that receive Medicare and Medicaid funds. If facilities don’t meet the standards set forth by the CMS, the federal funds can be cut off.
It is a virtual certainty that the federal actions will be challenged with lawsuits. Georgia Gov. Brian Kemp has already threatened to “pursue every legal option” to oppose the new requirements and he probably won’t be the only one. The obvious course would be for opponents of the plan to seek an injunction in federal court to stop the requirements from going into effect.
While the rationale and the legal basis for the mandates seem to be firm ground, there is a possibility that the courts could see the mandates as going beyond the scope of federal authority. It is not unlikely that we could be hearing a Supreme Court ruling on such a request relatively soon.
Personally, I’d put my money on the courts upholding the mandates since the law seems to allow the measures and there is a clear need to nudge more Americans to get the vaccinations. It isn’t a sure thing, however. In the early days of the pandemic, the courts were deferential to state and local government emergency powers, but as the emergency became more normal, the courts often struck down restrictions that went too far, especially those that singled out places of worship.
A bigger concern is the possibility that government mandates will lead to more resistance and possibly provoke violence on the part of vaccine resisters. Many of these people are convinced that the vaccines are dangerous or are part of some sort of dystopian plot. They don’t understand the law and precedent and are being whipped into a frenzy by conspiracy-peddling pundits and politicians. The nation is already a tinderbox and the vaccination requirements could be the spark that ignites it.
In the end, to call President Biden’s plan a vaccine mandate is a bit of a misnomer. Most workers will have the option of being tested weekly as an alternative. If workers don’t want to be tested or if they are federal workers and contractors, people for whom the testing alternative was not mentioned in preliminary reports, they have the option to refuse to comply and find another job. No one is being forced to take the vaccine against their will.
I am unabashedly pro-vaccine. I also acknowledge that various levels of government have the authority to enforce public health regulations that include mandating vaccinations. The really sad part is that so many people are afraid of vaccines that have been proven to be safe and effective that a mandate is necessary.
As an addendum, some people are under the impression that postal workers are exempt from the vaccine mandates. While it is true that the Postal Service is exempt from the mandate for federal workers, it is not exempt from the OSHA mandate.
The New York Post reports that an Administration official clarified the point, saying, “USPS is strongly encouraged to comply. Also, [the Labor Department’s Occupational Safety and Health Administration] will cover USPS through the [emergency temporary standards], meaning that postal workers will be subject to the vaccination or testing policy announced today.”
California’s gubernatorial recall is next Tuesday and it occurred to me that I don’t think either Steve or I have written about it. It may be because we are both in Georgia and California is all the way across the country. It may be because I never really thought Californians would dump Gavin Newsom for Larry Elder. The very idea is too farfetched for me to take seriously.
At any rate, polling that was tight back in August has shifted to favor the incumbent governor. We’ll find out for sure next week (or whenever all the votes get counted), but my money is on Newsom retaining his office.
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When it comes to that Supreme Court decision that many pro-mandatory vaxxers often point to, it ascertained whether states had the plenary authority to mandate its residents get the vaccine. And as we know(I personally have my disagreements with the ruling on several grounds, but that discussion is for another day), the court ruled in Jacobson v. Massachusetts that states can mandate vaccinations on the public. It is important for people to make the distinction that this ruling applied to states, and not the federal government.
As for Biden's mandates, I don't have a problem with mandating the federal workforce be vaccinated or those who contract with the Feds(with vaccine mandates as a condition for contracts). It also makes sense that the Feds have the authority to mandate that health care entities receiving Medicare/Medicaid funds require vaccination among health care workers. Where I do have a major problem is the mandates on the private sector employers >100 employees, and the requirement that these employers provide paid time off for employees getting vaccinated. That would require an inordinately elastic and overly generous reading of the OSHA statute(sadly, Presidential administrations often have their legal advisors parse over every word, as to see whether they can get away imposing their policy proposals in absentia of Congress. It was all too common especially in the Obama and Trump presidencies, and seems to be the case with the Bidenites). Oftentimes, ambiguity in wording often results in the Feds interpreting on the side of power(not surprisingly), as a means to concoct and defend new regulations that springs up from that ambiguity. As a limited government conservative myself who is a strong proponent of Federalism, I find the idea of the President can have that much power to force the hand of the private sector in such an intrusive way very troubling and Constitutionally dubious. Add to the fact that Congress is not involved in legislating private sector mandates. That aside, I find that to be unnecessary since many businesses are already making the decision to require their employees and customers be vaccinated. Most of the public want a safe working environment, and companies are responding to that demand accordingly. If there should be any private sector mandate requiring businesses of a certain size to require their employees be vaccinated/tested or provide paid leave, it ought to be done by states and local governments, not the Feds. I'm of the view that it is unconstitutional if the Feds impose, but not if states do such. With that said, I'm firmly on the side of businesses having the freedom to make that decision, as I trust that most of them will do the prudent thing and require employees to get vaxxed/tested minus government coercion.
My money is on SCOTUS partially siding with the Biden administration on mandating those receiving federal dollars and federal workers getting vaccinated. That is a no-brainer. However, I'm going to bet around 75-25 percent odds of SCOTUS striking down the mandates on the private sector as far as forcing larger employers to mandate vaccination or testing, and give paid time off(Then again, I'm going to wait and see what the actual private sector mandate from OSHA is). In many court cases involving laws that amount to extraconstitutional overreach, the court will often agree that that the law goes too far, but sometimes leaves it up to Congress to rectify the overreach as opposed to striking down the offending parts of the law. This could very well happen with Biden's coercive private sector mandates.
If in the event though, SCOTUS upholds the mandates on the private sector, then that would be a sad example of Congress having delegated too much power to the Executive Branch, resulting in a very powerful administrative state that can concoct far reaching regulations without legislative involvement from Congress. If anything, I've long considered OSHA to be an example of federal overreach and (passed by a Democratic controlled Congress on a bipartisan basis, and signed by President Richard Nixon into law in 1970) that was all too common during the 1960s and 1970s. It really should be states that craft laws regarding workplace safety for workers not in the federal workforce or contracting with the Feds. This should also be a clarion call for Congress to claw back a lot of the powers it unwisely delegated to the executive branch over the past many decades, leading to unintended consequences that are constitutionally dubious. It's too bad that we live in a hyper-partisan era, where those on the left love executive power if the ends justify the means, and those on the right love executive power in a similar manner if one of their own is in the White House. In any case, I'm opposed to runaway executive power, no matter which party controls the presidency.
So my answer to the question "can he do that?", would be yes and no.
Good post David, as it was certainly thought provoking, and I did agree with a solid majority of your points.
Excellent take as usual David and even better deeper dive by HCI and Chris. Last night my wife came in and said, "did you watch Biden's remarks?" When i told her no and that i have grown weary of all of it and asked what he said i was stunned to hear, "he said all private employers with more than 100 employees would have to get the shot or be tested weekly. " My response was short, "he can't do that?" The OSHA angle is interesting but i agree with HCI, probably will be overturned.
What makes all of this so pathetic is that every battle these days is waged in a courtroom. The DOJ's attempt to thwart the Texas ban on abortion is yet another reduced to legal challenges. Minds far smarter than mine will hash it out so why bother wasting time, sleep or what little brain cells i have left over Perry Mason like fights. Just well beyond my pay grade.
I am curious though about this: How many of those who haven't gotten vaccinated are simply part of the trump cabal of followers who bought the big lie? And to show how much they hate Biden and his phony election win, they just won't take the shot? My guess would be too many.
All of which brings me to a Vanity fair article i read last week. Here's a part of the first paragraph: "Conservative radio hosts all across America are losing their lives for the cause. In the past month alone, five talk radio personalities who were vocal COVID-19-deniers, anti-vaxxers, or anti-maskers have all died after contracting the virus."
Fascinating read and the article never really answers the question...did they die for trump? Several of them as they were going out called for people to get vaccinated. Nothing new there as it has been almost boiler plate for people on their death bed that believed it was a hoax. That was until they caught it and were heading off to the deep sleep. Wouldn't it be a hoot if they had to get vaccinated to get into heaven (sorry, just how my twisted mind works these days).
It is tragic and it was so preventable. Biden's legal manuvering should never have to been the case. Common sense should never be overridden by the legal system but that too is part of the new normal.