President Biden’s decision to compel 84 million Americans who work for companies with 100 or more employees to either get vaccinated against COVID-19 or lose their jobs provoked an uproar.
While President Trump downplayed the virus in the early part of 2020, his Operation Warp Speed accelerated the development of COVID-19 vaccines. Those vaccines have been a pandemic Godsend.
Biden missed his goal of getting 70% of adults vaccinated by July 4 but proclaimed victory nonetheless.
Then came the more transmissible Delta variant with daily death tolls exceeding 2,000 – more than twice as many as a year earlier.
In September, Biden informed millions of Americans who remained unvaccinated that “our patience is wearing thin.” He blamed GOP governors and derided unvaccinated conservatives, even though blacks and young people demonstrated reluctance to get vaccinated as well.
In December 2020, Biden expressly opposed mandatory vaccinations. In September, Biden told administration officials to issue a vaccine mandate.
Notably, vaccine mandates do not necessarily violate liberties secured for every American under the Constitution. The law is clear that state-required mandatory vaccinations are constitutionally permissible.
That issue was resolved in Jacobson vs. Massachusetts (1905), when a citizen challenged a required smallpox inoculation. The Supreme Court upheld the state’s constitutional power to act as it did.
The court concluded: “The liberty secured by the Constitution to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”
The Jacobson case is regularly cited in upholding state government adopted vaccine mandates of many types.
With his poll number sagging as a result of Afghanistan and border policy failures, Biden in September ordered OSHA to draft a rule requiring private employers with 100 or more workers to mandate their employees be vaccinated – or be fired. The mandate at that time polled well among most Americans.
On Nov. 4, OSHA rolled out an “emergency temporary standard” requiring companies with 100 or more employees to mandate that workers get vaccinated – or test weekly and wear a face mask.
Biden was warned that he lacked the power to mandate vaccines for private workers. The OSHA rule is a clear overreach of federal power.
On Nov. 12, a unanimous Fifth Circuit Appeals Court panel blocked the OSHA rule.
“The mandate’s true purpose is not to enhance workplace safety, but to ramp up vaccine uptake by any means necessary,” the court concluded in a sharp rebuke.
The Constitution gives states, not the federal government, the police power to regulate individual behavior to protect public health and safety, the court affirmed.
OSHA’s authority to set “emergency temporary standards” is limited to employees “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Such a standard must be “necessary to protect employees from such danger.”
OSHA failed to satisfy either condition, the court concluded.
The OSHA rule put in place by the Biden administration was never passed by Congress. OSHA does not have the authority to enforce a vaccine mandate on its own.
The draft rule is also a legal overreach because it extends beyond the workplace. The mandated vaccine would apply everywhere – not just in the workplace.
And, what about companies with 99 or fewer employees? If COVID-19 poses a “grave danger” in the workplace, as the order claims, then OSHA should seek to shield employees at smaller companies.
Individuals should be strongly encouraged to get vaccinated. But, in the end, it’s a personal choice. Research shows vaccine mandates actually discourage compliance.
The Fifth Circuit Appeals Court decision was an important check on the runaway administrative state.
If the Biden administration continues defending its OSHA rule, it will almost certainly lose in the Supreme Court — as it should.
Jim Hartman is an attorney in Genoa. E-mail email@example.com.
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