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RNC, GOP governors to Biden: "See you in court"

And that’s yet another arena where Joe Biden has not managed well of late. The reaction to Biden’s announced vaccination mandate via OSHA was predictable, swift, and strong among Republicans. Not only does Biden not have the authority to order employers to enforce a vaccine mandate, it’s too arbitrary to stand.

The RNC announced late yesterday that attorneys are standing by to take his call. “He lied,” RNC chair Ronna McDaniel tweeted, but more to the point, he’s abusing his authority with this OSHA order:

Several Republican governors also pledged to fight the mandate in court. “See you in court,” South Dakota governor Kristi Noem tweeted:

Noem followed up on Fox News Channel’s Hannity later in the evening:

“This is not a power that is delegated to the federal government,” Noem told Fox News’ “Hannity” Thursday night. “This is a power for states to decide. In South Dakota, we’re going to be free and we’re going to make sure that we don’t overstep our authority. So we will take action. My legal team is already working, and we will defend and protect our people from this unlawful mandate.”

Some of them also objected to Biden’s strange pledge to “get [the governors] out of the way.” That’s one hell of a thing for a president to say, Nebraska governor Pete Ricketts told Laura Ingraham, when Biden hasn’t even bothered joining the regular White House calls with governors on COVID-19:

Nebraska Gov. Pete Ricketts called the president’s words “absolutely outrageous” Thursday night.

“The president’s forgotten we live in America,” Ricketts told Fox News’ “The Ingraham Angle”. “He thinks we live in the Soviet Union. And the hypocrisy of this is just unbelievable. We have weekly phone calls with the governors and the White House staff. The president has never once been on any of those, and yet he’s got the gall to tell us that we’re not fighting the pandemic? … I can tell you, Nebraska will push back, fight back with any tool we can find against this huge, stunning overreach of federal power.”

The question will be just what authority Biden has to order OSHA to enforce a vaccine mandate. As it turns out, Congress did grant OSHA emergency powers to address “grave dangers” in the workplace through a mechanism called “Emergency Temporary Standards” (ETS). This is the mechanism on which Biden and the White House will rely to impose the mandate, and perhaps the only possible authority on which one can be based.

Will that work, however? A Congressional Research Service report updated two months ago casts strong doubt on the premise. In the first place, ETS does not apparently deal with public-health issues per se but only those issues confined to the workplace. That may not be a fatal defect to Biden’s mandate, but it’s a real problem:

Section 6(c)(1) of the OSH Act requires that both of the following determinations be made in order for OSHA to promulgate an ETS:

  • 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 emergency standard is necessary to protect employees from such danger.

How exactly does vaccination play into such a “standard”? Who does it protect? If it only protects the worker from himself as an unvaccinated person, a court is not going to look at that as a workplace issue. If the Biden administration argues that it protects vaccinated workers from the unvaccinated, then courts will ask the obvious questions: why would vaccinated workers need protection? And if they do, then what good does the vaccine do in the first place? The answers are that the vaccine does tremendous good, and it’s not necessary to protect them by forcing others to vaccinate.

There’s also the problem of grave danger, too. That doesn’t get defined in the OSHA Act or anywhere else, but courts have been skeptical of this claim in the past. Back to the CRS report:

The term grave danger, used in the first mandatory determination for an ETS, is not defined in statute or regulation. The legislative history demonstrates the intent of Congress that the ETS process “not be utilized to circumvent the regular standard-setting process,” but the history is unclear as to how Congress intended the term grave danger to be defined.

In addition, although the federal courts have ruled on challenges to previous ETS promulgations, the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in the workplace.23 In its decision, the court stated that “gravity of danger is a policy decision committed to OSHA, not to the courts.” 24 The court, however, ultimately rejected the ETS, in part on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would ultimately die because of exposures to asbestos during the six-month life of the ETS.

And finally, Biden has already shot himself in the foot on the next issue, necessary determination:

In addition to addressing a grave danger to employees, an ETS must also be necessary to protect employees from that danger. In Asbestos Info. Ass’n, the court invalidated the asbestos ETS for the additional reason that OSHA had not demonstrated the necessity of the ETS. The court cited, among other factors, the duplication between the respirator requirements of the ETS and OSHA’s existing standards requiring respirator use. The court dismissed OSHA’s argument that the ETS was necessary because the agency felt that the existing respiratory standards were “unenforceable absent actual monitoring to show that ambient asbestos particles are so far above the permissible limit that respirators are necessary to bring employees’ exposure within the PEL of 2.0 f/cc.” 25 The court determined that “fear of a successful judicial challenge to enforcement of OSHA’s permanent standard regarding respirator use hardly justifies resort to the most dramatic weapon in OSHA’s enforcement arsenal.

Biden’s mandate will fail in two ways here. First, the mandate has no provision to account for natural immunity, which in some studies has proven as good or better than induced immunity through vaccination. (If you get both, immunity appears to be amazingly robust.) Is it “necessary” to mandate vaccination for someone who has acquired and survived a COVID-19 infection? Good luck proving that in court.

Second, Biden began carving out exceptions almost in the same breath he used to announce the mandate. The 600,000-worker US Postal Service will not be subject to the OSHA enforcement (although apparently still under a federal employee vaccine mandate), nor will some other unionized workplaces. Why? If it’s not “necessary” to enforce an OSHA ETS at the USPS, why is it “necessary” anywhere else? This is practically the definition of “arbitrary and capricious,” one of several grounds on which these lawsuits will target Biden’s mandate.

Finally, this is about the dumbest possible approach Biden and his team could have taken to vaccinations. The rate of vaccinations has been climbing again for weeks, hesitancy had dropped to a pandemic low in polling, and people appeared to be voluntarily complying with new efforts at social distancing. Biden has torched all of that in order to look tough for two seconds after his cowardly abandonment Americans in Afghanistan. Now people will dig in their heels and refuse vaccinations again on principle — a misguided but understandable reaction to an attempt at tyranny.

Perhaps OSHA’s ETS can be used to haul Biden into a psychiatric examination to see if he has two brain cells still operating in his skull. I can write up a “necessary determination” for that “grave danger” at any time.