An Illegal Vaccine Mandate

An appellate court blocks OSHA in a withering rebuke.

President Biden was warned that he lacked the power to mandate vaccines for private workers, but he ordered the Occupational Safety and Health Administration to do it anyway. Late Friday came a sharp rebuke by the Fifth Circuit Court of Appeals that marks an important check on the runaway administrative state.

“The Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary,” Judge Kurt Engelhardt wrote for the unanimous panel in a withering opinion that extends the court’s earlier stay on the OSHA mandate, which had been challenged by GOP states, numerous employers and individuals.

With his approval numbers sagging, Mr. Biden in early September ordered OSHA to require private employers with 100 or more workers to mandate that their employees be vaccinated or tested weekly. “Our patience is wearing thin,” he declared. The mandate at the time polled well among most Americans.

After the announcement, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.” For “work-around,” read illegal.

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The court’s opinion takes apart the OSHA mandate every which way—on constitutional, statutory and procedural grounds. The Constitution gives states, not the federal government, the police powers to regulate individual behavior to protect public health and safety. The Administration tried to circumvent this limitation on federal power by conscripting private employers via an OSHA “emergency temporary standard.”

Under federal law, OSHA may bypass for six months the notice-and-comment required by the Administrative Procedure Act to respond to emergencies if it determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that such a standard is “necessary to protect employees from such danger.”

As the appeals court explains, OSHA failed to satisfy either condition. OSHA couldn’t show exposure or even the presence of Covid at all covered workplaces. Its “attempt to shoehorn an airborne virus” widely present in society and not life-threatening to most workers “into a neighboring phrase connoting toxicity and poisonousness” is a “transparent stretch.”

The panel also lambastes the mandate as both over- and under-inclusive. On one hand, it covers employees regardless of their risk of exposure and doesn’t exempt those with natural immunity. On the other hand, OSHA sets an arbitrary threshold of employers with 100 workers because they “will be better able to administer (and sustain) the Mandate.”

Even so, the “Mandate flunks a cost-benefit analysis,” the panel notes, because OSHA failed to show that the “protection afforded to workers” would “outweigh the economic consequences” such as unvaccinated workers getting fired or quitting.

As for the alleged emergency justification, some 80% of adults have received at least one vaccine dose. The virus has been spreading in the U.S. for at least 20 months, so it can hardly be defined as a “new hazard” under the law. “OSHA itself spent nearly two months” writing the rule, the panel notes, which suggests it doesn’t perceive a true emergency.

Beyond the statutory violation, the panel held the OSHA rule “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” 

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This judicial smackdown is so overwhelming that it’s fair to conclude the Administration gave only passing thought to the law. It acted for political reasons, but even that has proven to be a mistake. The White House panicked amid the Afghanistan fiasco and Delta variant breakout, but it missed how resistant millions of people are to government orders regarding their health.

The mandates have increased political polarization, and they are becoming less popular as people see that the vaccines, while effective, do not prevent infection as well as we might have hoped. They are still worth getting, but it ought to be a personal choice. Mr. Biden chose the progressive default of coercion.

This is typical of his Presidency, and it’s one reason he has sunk in the polls. The Administration says it plans to continue defending the mandate but it will almost certainly lose if a challenge makes it to the Supreme Court. The Covid scourge has given government a political excuse to exceed its legal powers, and it’s vital that the courts rein it in for liberty’s sake.