The Case Against The OSHA Vaccine Mandate

President Biden's Proposed Mandate Is Unnecessary And Unconsitutional

While the world has yet to see the emergency rule proposed by OSHA mandating COVID vaccinations or weekly testing in all companies with more than 100 workers, we should pause to remember that many—perhaps even most—Americans are at the very least troubled by the vaccine mandate. Being told by an impersonal government that we must accept an injection of anything strictly on the basis of government saying we must cuts against the grain of our notions of personal liberty and bodily autonomy.

Nor should we be so blithe as to believe the arguments in favor of the OSHA vaccine mandate are undeniable and unassailable. In truth, they are neither, and a substantial body of fact and law argues against any such OSHA mandate. A review of the facts and existing relevant court rulings and precedents shows an OSHA mandate is unnecessary and unconstitutional.

The Claim: The United States Has Yet To “Turn The Corner” In The Pandemic

In his September 9 speech outlining his plans to seek an OSHA Emergency Temporary Standard to mandate either vaccination or weekly testing for all businesses with 100 or more employees, President Biden’s main contention was that the COVID-19 pandemic is still a rising crisis in the United States:

Good evening, my fellow Americans. I want to talk to you about where we are in the battle against COVID-19, the progress we’ve made, and the work we have left to do.

And it starts with understanding this: Even as the Delta variant 19 [sic] has — COVID-19 — has been hitting this country hard, we have the tools to combat the virus, if we can come together as a country and use those tools.

If we raise our vaccination rate, protect ourselves and others with masking and expanded testing, and identify people who are infected, we can and we will turn the tide on COVID-19.

There is one small problem with this presentation of the COVID-19 pandemic in the United States: it does not reflect the current reality.

At the time President Biden gave his address, daily COVID-19 cases per one million people in the United States were down from the September 2 peak of 495.34. Following a brief uptick in the days immediately after his address, COVID-19 cases per one million people have been trending down and are now less than half of the September 2 peak at 244.36 as of October 19.

Weekly hospitalizations for COVID-19 in the United States peaked on August 29 at 86,995, and have been trending down ever since.

While the standard of “turning the corner” is subjective, over a month of declining cases and hospitalizations surely meets any reasonable interpretation of that standard.

President Biden’s pursuit of a vaccination mandate is addressing a crisis that, to the extent it existed at all, has already begun to recede. Irrespective of either the propriety or the legality of the mandate, the plain reality is that it will have zero impact on a crisis that, in large measure, has already passed.

The Claim: The Unvaccinated Are “Overrunning” US Hospitals

In his September 9 speech, President Biden also made the following statement:

The unvaccinated overcrowd our hospitals, are overrunning the emergency rooms and intensive care units, leaving no room for someone with a heart attack, or pancreatitis, or cancer.

First we must be clear on what is meant by “overrunning”. Merriam Webster’s Dictionary gives us this most applicable definition of “overrun” as a transitive verb:

2a : to run or go beyond or past

b : exceed

Merriam Webster’s Thesaurus shows us that words related to “overrun” include “overwhelm”, which the Dictionary gives the following applicable definition:

2a : to cover over completely : submerge

b : to overcome by superior force or numbers

Thus, we may be reasonably assured that President Biden made a claim that US hospitals and ICU facilities were saturated and operating at maximum capacity due to unvaccinated COVID-19 patients.

This claim is not substantiated by any data.

ICU utilization for the United States is not now saturated nor has it been saturated going back at least to last summer.

If we drill down into various states, the same is still true.

Florida ICUs are not and have not been saturated.

Massachusetts ICUs are not and have not been saturated:

New York ICUs are not now and have not been saturated.

Texas ICUs are not now and have not been saturated.

Simply put, a claim the US healthcare system is under abnormal duress because of COVID-19 patients is flatly rejected by the capacity utilization data.

An examination of ER visits across the US similarly rejects President Biden’s claim. Based on hospital data reported to the Department of Health and Human Services, ER departments across Florida are not seeing COVID patients make up the majority of ER visits. The same is true for ER departments across Texas.

Moreover, even last summer, the hospitalization data did not align with what was being reported by the legacy media. As I pointed out at the time, COVID patients in multiple states were quite emphatically NOT winding up in the hospital, a phenomenon distinctly at odds with the media narrative.

With capacity to spare, it is simply not possible for any one disease or condition to be “overwhelming” the US hospital system at either the local or state level. The data shows that such a crisis is not happening now, nor has it happened.

The Claim: The Delta Variant Is An Epidemic Of The Unvaccinated

President Biden also claimed the current outbreak was a “pandemic of the unvaccinated”.

This is a pandemic of the unvaccinated. And it’s caused by the fact that despite America having an unprecedented and successful vaccination program, despite the fact that for almost five months free vaccines have been available in 80,000 different locations, we still have nearly 80 million Americans
who have failed to get the shot.

Again, the facts and the data simply do not support this claim.

Since July 1 of this year, 40% of COVID-19 patients in Onondaga County, New York were vaccinated.

Since July 1, nearly 40% of all Onondaga County residents who tested positive for the novel coronavirus had been fully vaccinated.

On September 7, the Maryland Department of Health reported that COVID hospitalizations among the vaccinated were on the rise.

Infections, illness and hospitalizations are increasing rapidly among fully vaccinated people, according to data from the Maryland Department of Health and new research.

Even if we concede that the data shows a majority of COVID-19 cases and hospitalizations are among unvaccinated individuals, we are still faced with a significant—and growing—minority of cases among vaccinated individuals.

The pandemic is demonstrably of both the vaccinated and the unvaccinated. It is disingenuous and dishonest to state otherwise.

The Claim: OSHA Has The Authority To Order Vaccination

While President Biden is either unaware or uncaring of the current facts of the COVID-19 outbreak here in the US, he seems equally unaware and/or uncaring of the current state of the law regarding vaccination mandates in the United States, and that state is that the Federal government has zero authority in this realm. Nevertheless, President Biden insists the Department of Labor (OSHA) has the capacity to issue emergency rules over the spread of SARS-CoV-2.

So, tonight, I’m announcing that the Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.

There’s just one problem: As Paul Larkin and Doug Badger of the Heritage Foundation argue, the Occupational Safety and Health Act does not grant the Department of Labor that authority.

Here, the question is whether Congress has assigned to OSHA the authority to
impose a mandatory vaccination or testing requirement. It turns out that the an-
swer is, “No.” That conclusion follows from the text of the relevant section of the
OSH Act, from the text of the entire statute when read as a whole, and from the
role that the OSH Act plays in the overall congressional effort to protect employees
and the public from harmful viruses.

Even if there were an ongoing crisis (which there is not), even if unvaccinated individuals were placing inordinate strain on the healthcare system (which they are not), and even if the unvaccinated were the overwhelming majority of current infections and hospitalizations in this country (which they are not), the state of US law is still such that OSHA lacks the statutory authority for President Biden’s desired remedy.

As President, Biden may issue executive orders in furtherance of the faithful execution of the laws, but he may not issue executive orders in defiance of those laws, nor may any agency or department of the executive branch issue regulations which exceed the authority granted them by those laws. However much he may genuinely believe in the necessity of a vaccination mandate, OSHA lacks the authority to impose one.

(Side note: I encourage everyone to download and read Larkin and Badger’s paper in full, for a complete legal analysis of the mandate issue, which I merely reference here).

The Claim: Federal Mandates Trump State Bans On Mandates

If President Biden had merely used the Oval Office as a “bully pulpit” to argue for increased vaccinations, that would have been well within his prerogative. However, he is claiming Presidential authority to act unilaterally, and without regard to the policies and positions of the several states.

We cannot allow these actions to stand in the way of protecting the large majority of Americans who have done their part and want to get back to life as normal.

As your President, I’m announcing tonight a new plan to require more Americans to be vaccinated, to combat those blocking public health.

However, as I have written previously, the existing case law establishing government authority to mandate vaccinations derives that authority from the general police power of the states—something that does not exist at the federal level.

The legal basis for this authority is stated most clearly in the case Jacobson v Massachusetts (197 US 11).

The authority of the state to enact this statute is to be referred to what is commonly called the police power,—a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description;' indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.

When Governor Abbott of Texas issued a state-level executive order banning vaccination mandates within Texas on October 11, he wielded that police power in reverse—using the power to ban rather than to compel. However, the police power remains a state-level power, and the federal government has no comparable authority outside the ennumerated powers of Congress.

When questioned on the Abbott ban, Press Secretary Jen Psaki flatly stated that it was of no consequence, as the OSHA rule would supersede the Abbott ban.

Psaki also says the health administration rule will override Abbott’s executive order.

“We know that federal law overrides state law,” she said. “I would note that earlier when we put out our guidance on the president’s announcement about mandates several weeks ago, it made clear that … requirements are promulgated pursuant to federal law and supersede any contrary state, or local law or ordinance.”

However, for that assertion to be true, OSHA has to have jurisdiction. If OSHA does not have jurisdiction, the assertion is false. Remember, the federal government possesses no general police power and cannot make law that relies on a general police power.

The claims the Biden Administration are making, both regarding the facts of the COVID pandemic and their legal authority to act, are demonstrably false.

OSHA Has Already Issued COVID Emergency Rules

We should also note that OSHA has already issued an emergency rule (“Emergency Temporary Standard”, or ETS) regarding COVID-19 in the workplace. On June 17, OSHA published an ETS for healthcare (29 CFR 1910, Subpart U) in the Federal Register.

Most notably, the healthcare ETS requires employers to provide paid time off for employees to both receive a vaccination and to recover from any side effects.

The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from any side effects. Covered employees who have coronavirus or who may be contagious must work remotely or otherwise be separated from other workers if possible, or be given paid time off up to $1400 per week. For most businesses with fewer than 500 employees, tax credits in the American Rescue Plan may be reimbursed through these provisions.

Note, however, that mandating employers accomodate the efforts of employees to become vaccinated is different from mandating that employers require the vaccination.

Were President Biden to order OSHA to broaden the scope of the healthcare ETS to include all of American business, there would likely be no great controversy. A President is well within his rights and prerogatives to use the bully pulpit to recommend and encourage various behaviors by the American people, even when those behaviors are beyond the scope of what a President may legally compel.

A Vaccine Mandate ETS CANNOT Improve Workplace Safety

A final damning nail in the coffin of the proposed OSHA vaccine mandate is that, regardless of its legality or the existence of the crisis it purports to address, it cannot possibly succeed in the one thing it must to be a proper exercise of OSHA authority: it cannot make the workplace safe from COVID infection.

This is not speculation, but acknowledged fact, one that is not contested even by the head of the CDC, Dr. Rochelle Walensky, who on August 5 acknowledged that the vaccines do not stop transmission of the “Delta” variant of COVID-19.

"Our vaccines are working exceptionally well," she said. "They continue to work well with delta with regard to severe illness and death, but what they can't do anymore is prevent transmission."

Dr. Walensky was restating a conclusion from a study published in Scientific Reports the previous week.

Counterintuitively, when a relaxation of non-pharmaceutical interventions happened at a time when most individuals of the population have already been vaccinated the probability of emergence of a resistant strain was greatly increased.

“Non-pharmaceutical interventions” are face masks, social distancing requirements, and other disease containment measures besides vaccines.

The CDC revised its guidance on COVID-19 at the same time Dr. Walensky made her remarks on CNN to reflect that vaccinations do not stop the transmission of “Delta”.

Fully vaccinated people with Delta variant breakthrough infections can spread the virus to others. However, vaccinated people appear to be infectious for a shorter period: Previous variants typically produced less virus in the body of infected fully vaccinated people (breakthrough infections) than in unvaccinated people. In contrast, the Delta variant seems to produce the same high amount of virus in both unvaccinated and fully vaccinated people. However, like other variants, the amount of virus produced by Delta breakthrough infections in fully vaccinated people also goes down faster than infections in unvaccinated people. This means fully vaccinated people are likely infectious for less time than unvaccinated people.

This is relevant because, at the present time, the Delta variant represents 100% of SARS-CoV-2 sequenced strains in the United States. If a person is gets COVID in the US, it is the Delta variant.

Even if there were 100% compliance with a vaccination mandate—which is an impossibility if only because some people are unable to be vaccinated for medical reasons—COVID transmission within the workplace would still occur in the US.

People Must Be Free To Choose.

At issue here is not the particular wisdom or unwisdom of the vaccine itself. People who conclude their health is best served by getting the vaccine should be at liberty to do so.

Yet we must not discount that some people will conclude their health is best served by not getting the vaccine, and others will express reservations about the vaccines for reasons of religion and/or personal conscience. Each person is entitled to the liberty to make their own choices in matters of personal health and bodily integrity, and government should not to presume to take away that liberty, particularly when government has no authority in such matters to begin with. Government should especially not presume to do so in response to a crisis that has not existed, if it existed at all, for quite some time.

President Biden’s proposed OSHA vaccination mandate must not stand.