In January of this year, on the eve of then-President Trump’s second impeachment, I wrote a piece about the intricacies of the impeachment process as set forth in the U.S. Constitution. I called it a civics lesson.
It was well received, and even gave rise to correspondence with some of you – exchanges I thoroughly enjoyed.
Although I have a law degree, I am not anywhere near an expert in such narrow and specialized legal matters. As the saying goes, I know only enough to be dangerous.
Like many of you, however, I am a student of the news, and I am a reader. What I wrote in January was based on some cursory research and reading I had done.
Today, a week out (as I write this) from President Biden’s order directing the Department of Labor to develop a regulation that would require businesses with 100 or more employees to mandate vaccines or require weekly testing for COVID, I am once again going to attempt to enlighten a bit, this time on what this unusual process might look like, and the almost certain legal hurdles it will have to withstand.
Let me preface that with two disclaimers.
First, this is not an opinion piece. Regular readers know my feelings on the pandemic and the vaccine (as a reminder, I am pro-vaccine), but I’m not going there today. This is going to be another civics lesson, if you will, again based on research and reading I have done.
Second, this is much more complicated than impeachment. I will go ahead and apologize for what I might get wrong. As always, I welcome your correction. Also, some of what I will write will be conjecture on my part.
As the president stated a few days ago in answer to a question about his announcement, “the Labor Department is working on an emergency rule that will require all employers with 100 or more workers to ensure their workers are fully vaccinated and regularly tested.”
Companies fitting the description (having 100 or more employees) are quickly seeking counsel as to how they will comply.
The answer is there is no answer. Not now anyway.
Yes, the president has directed the Labor Department, through its Occupational Safety and Health Administration (OSHA), to make the rule. Specifically, per the president’s directive, companies with 100 or more employees would be required to have employees vaccinated or submit to weekly COVID testing, with a penalty of a whopping $14,000 per violation.
But nothing is yet on the books, and how it will play out remains to be seen. There is a big old devil -- if not a legion of them -- in the details.
You can be sure Biden consulted with a team of labor law experts before announcing his order. He must have received some assurance that what he is proposing has a good chance of surviving inevitable lawsuits.
OSHA’s rule will have to be implemented via an Emergency Temporary Standard (ETS). With emergency status, once it’s on the books (the Federal Register), it is virtually final, unlike other regulations that are subject to a comment period before becoming permanent. (I’m skipping over a lot, but that’s a summary of how the rule would become law under the ETS).
Interestingly, OSHA has invoked these powers only a handful of times since the Occupational Safety and Health Act was implemented in 1970. The most recent was only a few months ago (which was the first time since 1983) and was also COVID-related.
Under that regulation, certain health care providers are required to implement various COVID-19 safety protocols, but not mandatory vaccination, to protect health care workers in their employment settings from the virus.
To merit an ETS, OSHA must determine “(a) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (b) that such emergency standard is necessary to protect employees from such danger.”
That comes straight from the Act. (I’ll spare you the precise legal citation).
As I said, the most recent ETS was used to protect health care workers. According to an article from The National Law Review, there was pressure from labor unions to apply the ETS to all sectors, but there was apparently concern, with the broad availability of vaccines, about OSHA meeting the “grave danger” and “necessary” criteria.
In other words, with vaccines available to anyone, it would have been a steep burden to demonstrate a grave danger to non-health care workers, rendering such drastic action necessary. But now the president has obviously decided all workers are in grave danger, and believes this action is in fact necessary to protect them from the virus, notwithstanding the broad availability of vaccines.
The regulation can be challenged at any of the 13 circuits of the United States courts of appeals. That gives it a direct path to the United States Supreme Court, where, in my view, it will likely end up.
Enforceability of the rule raises numerous questions. Will there still be religious or health exemptions? Will there be weekly reporting of vaccine status and testing? Will OSHA dispatch officials to conduct onsite audits or examinations?
What if an employee has had COVID and has the antibodies to fight it? Does that person have to be vaccinated or tested?
And why 100 or more employees? Why should businesses with 99 employees get a pass? How does the government show this number is not arbitrary?
Along those lines, a business with 100-ish employees is vastly different from one with thousands, especially as it relates to meeting heavy regulatory burdens and the resources required for same.
Governors of red states (including Governor Bill Lee of Tennessee, who refused to establish a statewide vaccine mandate and entered an executive order stating parents of children in school districts that require masking should be able to opt out) have already voiced their disapproval of Biden’s order. While many of them describe themselves as favorable to the vaccine, they believe this action would constitute gross overstepping by the federal government.
Then there is the matter of the U.S. Constitution, which is what the more vocal opponents of Biden’s proposal are citing.
Of course, it is easy to say something is or is not constitutional, while it is quite another to prove it. It seems to me (and this is the conjecture I was talking about) challenging the proposed rule under the OSHA standards would have sounder legal footing than throwing a constitutional kitchen sink at it.
However, constitutional experts have already weighed in on possible problems under Separation of Powers, the Interstate Commerce Clause and the Necessary and Proper Clause. Space does not permit going into the details. But do your own research and you will find an abundance of information.
Clearly, the stage is set for battle. The ink will not be dry on the regulation before the lawsuits are filed, and my guess is some are already in the works, with savvy legal analysts considering the feasibility of pre-emptive relief.
Politically, Biden has taken his lumps after a brief honeymoon period. With a pandemic that won’t go away and the widely criticized withdrawal from Afghanistan, the president is bowing his neck.
“Many of us are frustrated with the nearly 80 million Americans who are still not vaccinated,” he said when announcing his proposal. “This is not about freedom from personal choice. It’s about protecting yourself and those around you.”
That sounds good, but he knows it’s not that easy. This is a political gamble.
What happens in the weeks ahead, and whether he is successful in implementing what many – even strong vaccine proponents -- consider a Draconian regulation, could go a long way in defining Joe Biden’s first year, if not his first term, if not his presidency.
Bob McKinney is a longtime Brentwood resident, happy husband and proud father, father-in-law and grandfather. Email him at [email protected].