President Joe Biden's efforts to halt the spread of COVID-19 through vaccine mandates are getting the ultimate test — a hearing before the U.S. Supreme Court this past Friday. At the heart of this debate is just how much authority federal agencies have to apply such sweeping orders.
Federal courts have rightly called into question this apparent overreach by the Biden administration, with judges around the country halting all iterations of the mandates, whether for certain health care workers, federal contractors or private employers. Just recently, a judge in Louisiana ruled that Biden can't force teachers in the Head Start early education program to get the vaccine, saying the order illegally bypassed Congress.
It's the mandate impacting private businesses with 100 or more employees that is especially egregious, however. The 500 pages of rules issued in early November by the Labor Department's Occupational Safety and Health Administration require employees at these companies get vaccinated or agree to regular testing. If employers don't comply, they face hefty fines.
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The "emergency temporary standard" rules, which bypassed the typical notice and comment period for rulemaking, as well as Congress, were almost immediately put on hold by the 5th U.S. Circuit Court of Appeals on constitutional grounds.
Then last month, 6th Circuit in a 2-1 ruling allowed the rules to proceed. In her strongly worded dissent, Judge Joan Larsen (a Trump administration appointee who formerly served on the Michigan Supreme Court) wrote the following: "This emergency rule remains a massive expansion of the scope of (the administration's) authority."
She also compared OSHA's far-reaching rules to the Centers for Disease Control and Prevention's eviction ban, which the Supreme Court overturned last year.
Challengers, including business groups, appealed to the Supreme Court. Attorneys general in more than half the states have fought against the mandates.
Many in the business community have argued that while they supports vaccines, mandates are not the answer, and targeting employers with 100 or more workers could harm their ability to keep on or hire workers at a time when many employers are already having difficulty finding staff.
Given the Supreme Court's decision to hear the case, the Biden administration has slightly delayed enforcement to Jan. 10 from Jan. 4, but this still puts employers in a bind in trying to figure out how to proceed.
The nation is already facing a shortage of COVID tests, despite Biden's assurances he'd fix the problem. It's unclear where businesses would acquire the necessary tests to comply with OSHA's rules.
In a call with governors late last month, Biden said "there is no federal solution" to COVID. The president should take his own words to heart.
Breakthrough cases are becoming more common, and vaccines alone will not stop the spread. A better approach would be to focus on ensuring states have adequate access to testing and the early virus treatments that are coming online.
Such expansive federal mandates go against our system of federalism and our constitutional rights, and are unlikely to significantly slow the virus.