Dan O’Donnell analyzes the Supreme Court’s decision to block enforcement of President Biden’s workplace vaccine mandate
January 14, 2022
Perspective by Dan O’Donnell
In blocking enforcement of President Biden’s vaccine mandate for businesses of 100 employees or more, the Supreme Court struck an important blow for the separation of powers and against the tyranny of the bureaucracy.
How else could one describe a President bypassing Congress and instead turning to the unelected functionaries at the Occupational Safety and Health Administration (OSHA) to force upwards of 84 million Americans to undergo a medical procedure?
“OSHA has never before imposed such a mandate,” a 6-3 majority noted in its unsigned opinion. “Nor has Congress.”
So sweeping was OSHA’s rule that it forced upwards of two-thirds of all private businesses to require that their employees either get vaccinated against COVID-19 or submit to weekly COVID testing and mandatory masking in the workplace.
OSHA claimed the authority to do so under its power to issue “emergency temporary standards”— rules enacted to protect workers “from grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” When OSHA issues an emergency standard, it must demonstrate that the new rule “is necessary to protect employees from such danger.”
This is such a high standard to meet that the agency has only issued nine emergency temporary standards in its history and of those, six were challenged in court, and only one was completely upheld. Never has it come close to issuing an emergency standard (or a rule of any sort) this wide-ranging or all-encompassing.
“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace,” the Court observed. “This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary [of Labor] now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
“Workplace safety” was always pretextual. The Biden Administration simply wanted a nationwide vaccine mandate and, lacking both the constitutional authority and Congressional approval to issue one, settled on the emergency temporary standard as a means of circumventing both Congress and the Constitution.
Justice Neil Gorsuch certainly noticed that that was the Biden Administration’s intent, citing a tweet retweeted by White House Chief of Staff Ron Klain calling OSHA’s rule “the ultimate work-around for the federal government to require vaccinations.”
There is, of course, no “work-around” to subvert the Constitution’s Separation of Powers doctrine, and Klain’s very public admission that this was precisely what Biden was attempting was nearly as stupid as thinking a rarely used workplace safety regulation could possibly be used to set national public health policy.
“Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Court observed. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.
“Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
Therein lies the rule’s fatal flaw: It is an obvious public health law masquerading as a workplace safety rule. OSHA, the Labor Department, and even the Executive Branch more broadly do not have the authority to enact such a law without Congress. If they could, then Congress itself would be unnecessary.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the Court held. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
This clear admonition of bureaucratic overreach was, however, tempered somewhat by the Court’s ruling in a companion case challenging the Biden Administration’s executive order mandating COVID vaccines for all employees of medical facilities that receive federal Medicare or Medicaid reimbursement
Justices Roberts and Kavanaugh joined the Court’s three liberals in allowing enforcement of said mandate on the grounds that “both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations ‘as may be necessary to the efficient administration of the functions with which [he] is charged.’”
Such an interpretation of the Secretary’s statutory authority grants him nearly limitless power on matters of public health so long as they even tangentially relate to “efficient administration,” but at least this power is tethered to the checks and balances of Congress.
An OSHA that could mandate vaccinations for tens of millions of people would not be. It would be the tool of tyranny; used to evade the limits of the separation of powers and impose a preferred national policy under the guise of a workplace safety regulation.
Thankfully, the Supreme Court stood against this radical reimagining of bureaucratic authority and stood up for the Constitution.