"Have at it": Biden tells Republicans to bring on the lawsuits against his new vaccine mandate

I’ll repeat what I said last night, that the new mega-mandate is firstly a political exercise in trying to shift blame for the lingering pandemic to the GOP and only secondarily an earnest attempt to require mass vaccination by America’s major businesses.


Although Biden’s prime minister does seem jazzed about the prospect of a federal vaccination mandate via the OSHA back door. He “liked” this tweet from an MSNBC anchor yesterday afternoon:

“The ultimate work-around.” Thumbs up from Ron Klain!

Here’s Biden inviting GOP pols everywhere to sue him. If he ends up winning in court, that’s great for him. He gets the policy he wanted. If he ends up losing, that’s also fine. His consolation prize will be campaigning next year on the idea that the pandemic would already be over if Republican pols hadn’t sued him to appease the anti-vax faction in their base:

Serious question: Is Biden’s mega-mandate even supposed to be enforced? What I mean is, how is OSHA going to stay on top of tens of thousands of businesses to ensure compliance? And how are those businesses going to ascertain their employees’ vaccination status? Will the easily faked CDC card suffice? Are they going to make everyone sign affidavits?


Also, how soon realistically will the mandate take effect? The administration will be swamped with lawsuits once OSHA issues its new rule. The litigation will likely take months. By the time we have a SCOTUS ruling, the pandemic may finally be in remission. One would hope that enough Americans will have acquired immunity through vaccination or infection by next summer that major waves of cases just aren’t possible anymore. Will we still be waiting on a verdict from the Supremes on the now unnecessary mandate when that happens?

Philip Klein also wonders how this will work in practice:

Just to think of a few complications, under this order, businesses will now have to set up a system for monitoring who has been vaccinated and who has not. They will also have to facilitate weekly testing for those who choose not to be vaccinated, and keep track of the negative tests. Who pays for the tests? What happens in the time that workers are waiting test results? This remains unclear as of now.

Also, what are businesses supposed to do with employees who refuse to get vaccinated and won’t submit to weekly testing? Can they fire those workers? Are they forced to fire those workers?…

And what happens if the federal government comes around to the view that booster shots are required, either in response to new variants or because of waning immunity over time? Will somebody who was considered fully vaccinated at one point still be considered fully vaccinated?


Maybe it’s not supposed to work in practice. Maybe it’s just a political device aimed at aligning Biden with the 65 percent of adults who are vaccinated and aligning the GOP with the 35 percent who aren’t. I’d put the odds at better than 50/50 that the mandate will never take effect and that the White House quietly doesn’t expect it to. It’s a blame-shifting mechanism, that’s all.

Democratic strategist Steve Schale posted these polling results from last month a few hours ago. I assume the White House was studying these numbers when it devised Biden’s new COVID strategy:

There’s a momentous difference ideologically and legally between businesses choosing to mandate vaccination for their employers and businesses being coerced into doing so by the federal government, but who knows if the average voter will care much about that difference. If the vaxxed are anxious about Delta and inclined to blame the unvaxxed for elevating their (small) risk of infection, they might be fine with coercion to get the policy result they want. Americans aren’t known for being sticklers about procedure.

The court case will be fascinating, though. Anyone who tells you they know how it will play out is lying since it involves novel questions about the president’s authority to regulate public health in the workplace under a very broad grant of power from Congress in the form of the Occupational Safety and Health Act of 1970. SCOTUS could attack that statute on constitutional grounds, with libertarian Ilya Shapiro offering a few angles here. Maybe Congress can’t delegate quite this much power to the president for separation-of-powers reasons. (Unlikely.) Maybe mandating vaccines in the workplace is too far removed from interstate commerce to qualify as a valid regulation under the Commerce Clause. (Preventing economic disruption from a nationwide pandemic isn’t legitimate grounds for regulation?) Or maybe the president can’t properly “commandeer” private actors like businesses to impose a mandate on workers that the federal government couldn’t impose directly.


I doubt the Court will opt for any of that reasoning. They don’t like to issue constitutional rulings if they can avoid it and they’ll be averse to doing so with respect to a statute with as much reach as OSHA. Strike down part of OSHA on constitutional grounds and it’ll potentially open up new grounds for challenging myriad other federal workplace policies unrelated to the pandemic. I think Ed’s angle on Section 6(c) of the OSHA statute is more likely to be how the Court will approach the matter, interpreting the language with an eye to whether it can possibly justify a sweeping employer vaccination mandate:

(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.

How much does the Court want to defer to Biden in how to read that language? If they’re deferential, they might simply say that, yes, a killer virus presents a “grave danger” to employees’ health and since vaccines are assuredly the best way to limit infection they’re “necessary” to protect one’s workers. If they’re less deferential, as Ed was, they might ask whether vaccinated workers are truly endangered by the unvaccinated. (Aren’t unvaccinated workers endangered by each other, though?) Or they might wonder if a mandate is truly “necessary” for those who are unvaccinated but have natural immunity from a prior infection. (Does the testing option provided for in Biden’s policy solve that problem? If someone with natural immunity is reinfected, his colleagues at work would want to know.) It’ll be strange if the Court’s ruling turns on whether Biden’s policy can be justified on epidemiological grounds rather than legal grounds, but if the Court sticks to interpreting Section 6(c) that may be where we’re headed.


In lieu of an exit question, read this thread from David French surveying the legal lay of the land. Congress shouldn’t be able to hand this much power to the president, French notes. But under existing precedent, can it? Or will the Tenth Amendment tradition that police powers governing public health are reserved to the states prevail?

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