In a breathtaking assertion of authority, the federal government says that every 100-person plus private employer must require employees to be vaccinated for COVID-19, test weekly, or lose their job. While the federal government is within its right to encourage vaccine development, distribution, and inoculation, it cannot ignore constitutional protections and safeguards, even during national emergencies. That is what this federal vaccine-or-test mandate does, and why it’s unlawful.
The first problem with the vaccine-or-test mandate is that Congress has said nothing about one. Instead, it is a federal agency, composed of unaccountable bureaucrats, that has promulgated the mandate. This is problematic because federal agencies sit uncomfortably within the constitutional framework: They are generally considered to be part of the executive branch, but the executive branch is only given the power to enforce—not to make—law. And no one denies that the vaccine mandate has the force and effect of law; it currently threatens the livelihood of millions of American workers.
Given that federal agencies often exercise what looks a lot like a law-making power, the Supreme Court has imposed some limits on them. Under the major questions doctrine, when agencies make important policy decisions in areas that have highly significant economic, political, or social consequences—areas in which you’d expect Congress and not a bureaucrat to have the last word—the Supreme Court has required an explicit delegation of such authority from Congress. This so-called clear statement rule ensures that Congress is at the helm and superintending agency action.
Yet in this case, Congress has had nothing to do with OSHA’s vaccine-or-test mandate. The Occupational Safety and Health Act limits OSHA’s authority to workplace hazards; it does not give OSHA the authority to regulate general health hazards or general life hazards. OSHA has never required nationwide vaccination, regardless of occupation, even from illnesses that come with a higher morbidity than COVID-19. Neither has any other agency—or Congress for that matter.
Moreover, the emergency mechanism that OSHA used to impose its mandate allowed the agency to evade ordinary public notice and comment requirements. But COVID-19 cannot be considered an emergency that permits the evasion of procedural requirements two years into the pandemic.
In short, the vaccine-or-test mandate is unlawful because Congress has not itself required nationwide inoculation and because the federal courts do not lightly presume that agencies have the power to make law on issues of such social and political significance.
But there’s another problem with the mandate, and that…
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