(UnitedVoice.com) – In September, President Joe Biden chose to pursue another potentially lawless path. He ordered the Occupational Safety and Health Administration (OSHA) to implement and execute a workplace safety COVID-19 vaccination mandate for businesses with over 100 employees. On November 5, OSHA regulators approved the provision. Almost immediately, the lawsuits started flying from Republican states and businesses that questioned the mandate’s legality.
On Friday, November 12, the US Fifth Circuit Court of Appeals granted a motion to halt the workplace vaccination mandate set to impact over 80 million Americans. The court stated the vaccine order has serious Constitutional flaws, signaling plaintiffs are likely to win the case based on the merits. Soon after the ruling, OSHA posted that it was pausing enforcement of the mandate per the court order and pending a ruling. The order is a temporary halt, will it last? If so, is OSHA in potentially bigger trouble over other safety workplace regulations?
Supreme Court Likely to Play a Large Role
Joe Biden’s big decisions have a habit of making their way before the Supreme Court over Constitutional questions. The high court overturned several of Biden’s immigration orders and the eviction moratorium, and those court rulings could be the tip of the iceberg.
In recent years, the court has been throwing out presidential executive orders and agency regulations over a Constitutional concept known as the Nondelegation Doctrine, which is at the heart of the case against Biden and OSHA. The question is, did Congress provide OSHA with legal standing to create and execute a vaccination mandate?
The Nondelegation Doctrine says Congress cannot delegate its powers to the executive branch, and the executive branch cannot do an end-around Congress, even if the legislative body agrees with the regulatory actions in principle. In reality, the Nondelegation Doctrine upholds the separation of powers established in the US Constitution.
Regulations have the weight of law. In the case of the workplace mandate, OSHA can fine employers up to $14,000 per violation. Laws need to come from Congress.
Did Congress Authorize OSHA to Act?
The simple answer is, no, Congress did not authorize the Biden administration to act. The people’s representatives did not pass a law authorizing the Biden administration to enact a workplace safety COVID vaccination mandate. It’s really that simple. Democrats can scream public safety all they want, but the Constitution did not cease to exist during the pandemic.
Proponents of the vaccine mandate say the 1970 OSH Act allows the Secretary of Labor to authorize it under an “emergency temporary standard.” The law gives the secretary flexibility if “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” The question is, what is a workplace hazard, and was the danger created as a condition of work, or could it be anything, such as the flu, common cold, or COVID-19?
Critics say the vaccine-or-test mandate exceeds those matters, and it’s too broad and vague. If Congress wants a workplace mandate, then it should pass a law.
What Biden did was unknowingly set up OSHA and every other federal agency to fail. They set their own trap and then fell into it. If the Supreme Court ultimately rules OSHA’s authority to create the regulation is vague, imprecise, and violates the separation of powers, it could trigger a mountain of challenges to OSHA’s rules relating to workplace safety because those rules have gone without challenge for decades.
OSHA wouldn’t be alone. Congress usually creates broad laws giving extreme deference and leeway to the executive branch. The Supreme Court has been chipping away at the practice for several years, and it’s not likely to stop anytime soon.
The bottom line is the Constitution is clear about the separation of powers, and the Supreme Court exists in part to enforce the Nondelegation Doctrine. If the High Court follows its set pattern, this mandate, much like the eviction moratorium, is likely dead on arrival.
Don Purdum, Independent Political Analyst
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