In an editorial published Thursday, the National Review lays out the risk Joe Biden undertook when he premised his campaign on “shutting down” the virus and how his recent announcement cements his failure to deliver.
After months of lagging vaccination numbers, increasing infections among the vaccinated, and a rejection of his unconstitutional eviction moratorium extension, Biden was left scrambling for a way to appear as taking concrete measures.
Biden’s announcement on Thursday of new federal mandates and rules aimed to increase the number of Americans who receive the vaccine. While the intent is admirable, Biden’s troubles stem from his attempt to seize power that he does not have under the law or the constitution.
The president has a clear argument for requiring federal employees to be vaccinated and private companies receiving government contracts to have their workers vaccinated. Biden flew right past those circumstances by commanding that all private businesses with more than 100 employees require their staff to be vaccinated or tested weekly for COVID infection. According to Biden, the new order will directly impact 80 million citizens who are not government employees.
Vaccination mandates in America have always been imposed by state or local governments and public school districts. Biden has announced something not seen before in our country, a federal order that applies across the nation to everyone who works to earn a living with all but the smallest businesses. The burden of enforcement falls on employers, who must ensure valid vaccination credentials or facilitate the required weekly testing for the unvaccinated.
So far, the administration has disclosed the claimed legal authority for the new mandate under the Occupational Safety and Health Administration (OSHA), which purports to be empowered to issue an Emergency Temporary Standard (ETS) to put the order in place. This method would allow OSHA to bypass the normal process of rulemaking that would include a “comment period” in which anyone affected by the proposed rule could bring up questions or objections in a formal way.
Using OSHA in this manner is an unprecedented extension of its power to create health standards for private workplaces. In the past, federal courts have rejected the use of ETS rulemaking.
The ETS procedure is allowed when workers are “exposed to grave danger” from “toxic or physically harmful substances.” Biden acknowledged in his announcement that the risk of a life-threatening illness from COVID infection is “shallow” for vaccinated people.
Biden told the country before assuming office that he didn’t believe in mandatory vaccinations. His new mandate appears to be as illegal as his decision to extend the eviction moratorium was. It is a sign of a failing administration when knowingly unlawful actions are taken for political advantage. As with the eviction moratorium, this latest overreach will surely land in the Supreme Court soon.