There are other actions—such as the evictions moratorium, which was imposed by both Biden and Trump before him—that have similarly been criticized. The relevant question in all these cases is: What does the statute say the agency can do? For the evictions moratorium, the authority lay in the Public Health Service Act, which gives the CDC director the authority “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” The statute also allows the director to employ “any other measures” deemed necessary to achieve this objective. Arguably, forcing landlords to provide free rent is too far afield from the authority Congress delegated in the Public Health Service Act; that was the Supreme Court’s rationale in its decision in August to enjoin the evictions moratorium (pending full argument). Biden’s action under the OSH Act is unquestionably on more solid ground.

Professor Shapiro next suggests that the OSH Act itself is unconstitutional as falling outside Congress’s core authority to regulate interstate commerce. Yet it’s been the law of the land for over fifty years, and has produced reams of regulations governing worker safety in fields from construction work and shipyard employment to longshoring and marine terminals. OSHA has rules about ladders, manhole steps, stairways, scaffolds, exit routes, noise exposure, ventilation, and a slew of hazardous materials including—wait for it—oxygen itself. It strains common sense to imply that regulating oxygen for all these years is constitutionally tolerable but that OSHA cannot regulate a lethal virus that has killed over 656,000 Americans to date, including babies and children who lack agency over their own health and safety and cannot get a vaccine in any event. Shapiro calls these efforts “forcing private business to do the government’s dirty work.” But regarding the constitutional question of interstate commerce, this virus—even if asked politely—is not going to respect state borders. It travels through the air, across state lines, across the globe, and into millions of lungs.