"The time for waiting is over": Biden announces massive new employer vaccine mandate

“My business, my rules.” It’s been an unpleasant surprise to find that some Republicans no longer believe in that but we always knew Democrats had contempt for the idea.

Just not this much contempt.

I’m guessing the White House lawyers see this as a 50/50 shot at best of being upheld by SCOTUS but believe there might be political gain to be had by making the attempt. More on that later. As others on Twitter have noted this afternoon, it fits with the presidential approach to policymaking over the last decade in which the executive grabs power brazenly and simply hopes that the Court will land on his side. Obama did it with DACA, Trump did it with his emergency wall-building measure, Biden’s already done it with the eviction moratorium. Now he’s going to try to impose a de facto vaccine mandate on 80 million people by slapping their employers with steep fines if an employee isn’t either vaccinated or being tested regularly.

He opposed federal mandates not long ago, believing he lacked the power to implement them. Just like Obama initially believed he lacked the authority to grant legal status to DREAMers before he decided that he had it after all.

He’s emulating the NFL with today’s rule, notes Derek Thompson, not directly ordering people to get vaccinated but threatening to punish their employers if they refuse to get their shots. Either way, whether this is a federal vaccine mandate through the front door or the back, it’s further evidence a la the eviction moratorium that Biden’s campaign promises about a return to “norms” were an inch thin. It turns out that by “norms” he meant not sending obnoxious, misspelled tweets. He’s fine with the norm in which the executive dubiously tries to aggrandize his institutional power.

Norm-breaking is for voters to punish. Lawbreaking is for courts to punish. Does Biden’s new policy break the law? Libertarians and conservatives are insisting this afternoon that of course it does but there’s at least debatable statutory justification for it. Section 6 of the Occupational Safety and Health Act of 1970, which gives OSHA its authority over American workplaces, contains this provision:

(1) The Secretary shall provide, without regard to the requirements of chapter 5, title 5, Unites States Code, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines —

(A) 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
(B) that such emergency standard is necessary to protect employees from such danger.

Will that hold up before SCOTUS? It’s easy enough to make the case that the virus is a physically harmful substance that exposes employees to grave danger and that vaccination (or regular testing) is necessary to protect them from it. The Court could find that Congress lacked power under the Commerce Clause to grant the president the authority to regulate such things via OSHA, but I wouldn’t bet the mortgage on that. Workplace safety obviously bears on commerce and large companies like the ones targeted by Biden’s mandate are the most likely to have an interstate presence.

The famous ruling in the ObamaCare case found that the individual mandate was unconstitutional as an exercise of the Commerce Clause because it didn’t regulate already existing commerce. Rather, it attempted to force Americans to start engaging in a certain type of commerce by compelling them to buy insurance. In the case of Biden’s vaccine mandate, the businesses to which it’ll apply are already engaged in commerce.

So what will the Court do with this? Do note that OSHA has issued regulations before pertaining to “respiratory protection.”

In a way, all of this is beside the point, though. Maybe Biden wins in court, probably he doesn’t. Regardless, there’s a political strategy to the new policy that’s plain as day. The key bit from this afternoon’s remarks:

That’s an obvious jab at Ron DeSantis. What Biden’s trying to do with his new mega-mandate for large employers is shift blame to the GOP if the pandemic doesn’t begin to improve over the next six months. He knows that every Republican politician in America will howl and file a lawsuit once the new OSHA rule takes effect. He also knows that our conservative Supreme Court will likely rule against him. When it does, he’ll turn around and say, “I had a plan to get us out of this mess but the right fought me every step of the way. Blame them, not me, for the fact that we’re back to averaging 2,500 deaths per day.” In particular, he’s going to take the anti-mandate rhetoric coming from the GOP in the coming days and weeks and present it to swing voters as evidence that Republicans are anti-vaccine. And being anti-vaccine is a bad thing to be politically in a country where 75 percent of the adult population has already had at least one dose and where a majority favor workplace vaccine mandates.

The court fight is a sideshow to some extent, in other words. What he wants first and foremost is to position Republicans as the main stumbling block to America’s recovery from COVID so he baited them with the new mega-mandate. In fact, I’d guess that the reason he limited the mandate to large employers with more than 100 people is itself partly a political exercise. He knows that small businesses are popular with Americans whereas faceless corporations are not. If he picked a fight with mom-and-pop proprietors to get their employees vaxxed too, he’d potentially get more Americans immunized that way but he’d also damage himself politically by taking on a sympathetic cohort. So he did the politically smart thing even at the cost of accepting a lower level of population immunity.

Same here:

It’ll be fun watching his lackeys try to explain why the USPS is exempt on the Sunday shows this weekend. I’ll leave you with this.