The Supreme Court’s Covid vaccine mandate hearing reveals the Biden administration’s excessive reach

The Biden administration has adopted several policies that require vaccination against the Covid-19 virus. The administration’s desire to increase the vaccination rate is commendable. Vaccines are essential to limit the spread of the disease and especially to prevent serious illness, hospitalization and death – also against the new omicron variant. But the government must respect the legal limits of its power.

The regulation on large employers is legally questionable and will set a dangerous precedent if maintained.

On Friday, the Supreme Court heard oral arguments in cases challenging two of these policies for not respecting those boundaries. A case brought by the National Federation of Independent Business and 27 state governments called into question occupational safety and health management policies that require employers with 100 or more workers to force almost everyone to be vaccinated against Covid or wear masks at work and take regular Covid tests. The health case challenges policies that require health care workers employed by institutions receiving federal Medicare and Medicaid funds to be vaccinated.

The court should uphold the policy that imposes vaccination requirements on healthcare professionals. But the regulation on large employers is legally questionable and would set a dangerous precedent if maintained.

The broad mandate of large employers effectively gives the president’s administrations a blank check to control almost every aspect of every workplace in the country, which goes beyond the authority that Congress has given to the executive. It also runs counter to long-standing legal doctrines that limit the president’s authority and limit the use of force.

On the other hand, the requirement for healthcare professionals is much narrower, well within the scope of existing legislation and does not threaten to set a problematic precedent. It also focuses on protecting a group – hospital patients and nursing home residents – who are particularly vulnerable and often unable to effectively protect themselves against the virus.

The comprehensive OSHA policy covers around 80 million workers and does so by using a special contingency authority that circumvents normal procedural requirements that normally limit the agency’s action. The 1970 OSH Act authorizes the federal agency to impose these “emergency temporary standard” rules in cases where “employees are at serious risk from exposure to substances or agents that have been determined to be toxic or physically harmful or from new hazards. “

This special temporary provision allows OSHA to impose rules without going through the normal “notification and comment” process and other procedural requirements that require the Agency to carefully consider the issues involved and weigh comments from stakeholders and the public.

For this reason, the courts have subjected previous OSHA emergency rules to strict judicial review, with little or no respect for the Agency’s judgment. Courts often ended up cracking down on these rules. And none of the previous uses of the agency’s emergency power were near as extensive as this one.

The vaccination rule exceeds the agency’s emergency power in several ways. To begin with, a virus like the one that is the cause of the pandemic does not undoubtedly qualify as a “drug or remedy” in the first place. These terms generally refer to chemicals, liquids or man-made hazards, not living things. Perhaps Covid once considered it a “new danger,” but not nearly two years after it arrived. The new omicron variant may qualify as a “new hazard.” But its significantly less virulence weakens the claim that it poses a “serious danger.”

Perhaps most importantly, it is doubtful that Covid poses a “serious danger” to employees, when the vast majority of them can easily minimize the risk of being vaccinated voluntarily, thus almost completely eliminating the threat of serious illness and death.

In Friday’s oral argument, Biden administration lawyer Elizabeth Prelogar admitted that OSHA found that a “serious danger” exists only for unvaccinated workers. However, if a “serious danger” justifying the use of emergency powers existed, even when workers could easily avoid it, OSHA would have almost limitless authority to use its emergency powers to control almost any practice in the workplace. Virtually every activity poses serious dangers to at least some people if none of them take even minimal precautions. For example, parking a car in the employee parking lot creates a serious danger to people who refuse to move off the road when they see it coming.

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Democrats who are willing to trust the Biden administration with so much power should consider whether they have similar confidence in the next Republican administration (which may be Donald Trump’s second coming!). They would do well to remember the Trump administration’s many abuses of “emergency” executive power, such as exploiting the National Emergencies Act to try to build a border wall and exploiting the Covid crisis to shut down almost all immigration.

In fact, the issues raised by the private employer mandate threaten to undermine broader constraints on unilateral executive power. One is the doctrine of “major issues,” the long-standing (and recently repeated) rule that the courts expect Congress to “speak clearly” when it allows for the exercise of emergency powers on issues of “great economic and political importance.” “

This doctrine is a crucial protection that prevents the executive from using ambiguous statutory language to justify massive seizures of power. Here it is obvious that the Working Environment Act at least does not clearly give the agency almost total control over the activities in the workplace. In fact, several judges raised this issue in Friday’s argument.

Another limitation is the constitutional rule that there are limits to the power of Congress to delegate authority to the executive to make new laws and regulations that the latter deems appropriate. The exact limits of non-delegation are highly controversial among experts. But if it has any meaningful bite at all, it certainly prevents giving OSHA the sweeping power it claims.

The OSHA employer rule was recently upheld by a split 2-1 panel from the U.S. Court of Appeals for the 6th Circuit. In an eloquent statement that unsuccessfully urged the entire 6th Circuit to take up the case, Chief Justice Jeffrey Sutton warned: “Shortcuts to promoting preferred policies, even urgent policies, rarely end well, and they always, sometimes permanently, undermine American … separation of powers, the true spirit of the American Constitution, the true long-term guardian of freedom. ” Trump’s many abuses of executive power should have taught us the importance of this principle.

The mandate for healthcare professionals rests on a much firmer foundation. Congress has empowered the Medicare and Medicaid Services Centers to establish rules to protect the “health and safety” of Medicare and Medicaid recipients that CMS used to establish the Covid Vaccination Rule. The exact extent of this authority can be discussed. But it seems obvious that vaccination of healthcare professionals serving these patients can protect their “health and safety” by limiting the spread of a deadly disease. Contrary to the emergency provision of the OSH Act, this authority is not limited to “serious hazards” or to risks created by “drugs or agents” or “new hazards.”

In addition, many hospital patients and nursing home residents, unlike the vast majority of people covered by the workplace rule, cannot readily protect themselves against Covid because of their age or fragile health – making many vulnerable even if vaccinated. And it is essential that this rule does not open the door to great seizures of power because it does not give any federal agency a sweeping power over the entire economy. The Supreme Court would thus be wise to reverse two irrelevant federal court rulings against it.

The Covid pandemic is a dangerous threat and the Biden administration is right to promote vaccination. But it is important that it does so without undermining the legal constraints of the executive. State and federal officials have a number of options to encourage vaccination. They need and should not torture the law and undermine the separation of powers in order to do so.

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