The conservative 5th U.S. Circuit Court of Appeals dealt President Joe Biden an embarrassing setback.
In September, Biden issued an executive order directing the Occupational Safety and Health Administration (OSHA) to mandate that each company with 100 workers or more ensure that its employees are vaccinated or tested for COVID-19 on a weekly basis. Such a measure would cover about two-thirds of all workers in the country and could transform employers into vaccine enforcers.
While this elicited predictable protests, there are serious questions about whether it passes constitutional muster. In a stinging opinion, the 5th Circuit three-person panel wrote, “The mandate is staggeringly overbroad,” and “is a one-size-fits-all sledgehammer.” These are fair points. However, what is missing from much of the national discussion is the problem with presidents’ overreliance on executive orders. The OSHA mandate is a prime example of this issue.
For years, presidents have increasingly ruled by unilateral edicts—known as executive orders—rather than within our traditional constitutional framework. This is not a new concept. Presidents George W. Bush averaged 36 executive orders a year, Barack Obama 35, Donald J. Trump 55, and at this rate, Joe Biden is on track to average 88.
Many executive orders are innocuous, but too often, they are issued in lieu of legislative action because Congress chooses not to act for whatever reason. In response, administrations tend to scour the federal code to concoct a legal basis—however specious—for issuing executive orders. These overstep their bounds sometimes, which brings us to the OSHA mandate.
Facing unsatisfactory vaccination rates, President Biden exclaimed, “Our patience is wearing thin,” and he looked to OSHA to boost vaccination numbers. OSHA’s primary goal per its website is to “ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance.”
Given that people can contract COVID-19 at work and that vaccines and frequent testing reduce the likelihood of spreading the illness, the Biden administration apparently hoped that his directive would be constitutional and fall under OSHA’s purview. But his order seems like little more than a form of questionable legal gymnastics.
To begin with, OSHA generally places restrictions on employers. For instance, in hazardous working conditions, employers must supply employees personal protective equipment, like hard hats, and they must provide safety training in a language understood by its employees. That’s not to say that OSHA does not institute rules that govern employees; they certainly do, like requiring them to take necessary precautions while in the workplace.
Yet the vaccine mandate is far different. If ruled constitutional, OSHA would restrict employees, more so than employers, in a way that may impact personal autonomy beyond the workplace and lead to inoculations contrary to some workers’ preferences. Whether you believe people ought to be vaccinated or not, this is far beyond OSHA’s jurisdiction. After all, it impacts people’s lives outside of work.
While not a perfect apples to apples comparison, imagine this: A presidential administration incorrectly determines that pregnancy leads to hazards within the workplace—whether due to a tripping risk or something else—and through OSHA, ruled that women must submit to regular pregnancy tests or take birth control—a chemical they may not want to ingest. There would be an uproar, and rightly so. Women should be able to make up their own minds, but most importantly as it pertains to this article, requiring women to take birth control doesn’t fall within OSHA’s purview.
Instead of pursuing his current path, Biden could have more easily tasked OSHA with requiring employers to ensure masks are worn, social distancing is respected, sanitizing stations are easily accessible, and that employers offer COVID-19 testing within the workplace. Yet by including vaccines into the calculus, Biden may have overstepped his bounds, and faces stiff opposition.
As it stands, states are lining up to enact legislation to limit vaccine mandates—be it from the government or private businesses. Florida recently finished a special session to do just this, and Georgia is likely to introduce such a proposal too.
In the meantime, 27 states, including Georgia, have filed suits to halt Biden’s directive. Time will tell how the courts will rule on President Biden’s executive order, but it seems that the 5th Circuit can read between the lines. In their opinion, “The Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”
That is not OSHA’s role, but we would not even be having this discussion if the executive branch weren’t so doggedly married to the idea of ruling by edict and ordering agencies to enforce rules outside of their jurisdiction.
Marc Hyden is the director of state government affairs at the R Street Institute, and he is a long-time Georgia resident. You can follow him on Twitter at @marc_hyden.