Friday, September 10, 2021
President Joe Biden decreed on Thursday that private companies with more than 100 workers would have to make it a condition of employment for them to get vaccinated—either that, or take weekly tests for the virus. You may wonder: On what authority can Biden order this?
The White House is relying on the regulatory authority of the Labor Department's Occupational Safety and Health Administration (OSHA), an agency dating back to 1971, and in particular its seldom-used emergency powers. Some backers of Biden's action seem to think waving in OSHA's general direction, together with citing COVID-19's high death toll, is all the answer needed to questions about legality.
But it isn't. Courts have frequently struck down OSHA actions, especially when the agency has tried to issue the type of peremptory decree it calls an emergency temporary standard (ETS).
I haven't found much commentary yet on the legal basis of the mandate. Fortunately, Walter Olson provides a typically thoughtful take.