President Joe Biden declared Thursday that he had directed the U.S. Department of Labor (DOL) to create an “emergency rule” requiring all private businesses with more than 100 employees to impose new vaccine mandates on their employees.
There is a federal law empowering a federal agency, in this case the DOL’s Occupational Safety and Health Administration, to take emergency measures in the event of a major workplace hazard that appears unexpectedly and requires immediate action.
However, the coronavirus was declared a public health emergency in January 2020, and then a national emergency by former President Donald Trump in March 2020, and it appears that this statutory authority has never been invoked to deal with a workplace condition that has already existed and been dealt with for almost two years.
This raises the immediate legal issue that the statute might provide no authority for this mandate.
Biden did not cite any particular federal legal or constitutional authority to impose such a mandate on private companies, absent explicit authorization from Congress to do so.
Biden also announced that he had issued an executive order requiring vaccine mandates at all companies who receive reimbursement from Medicare or Medicaid. While the legality of that measure, too, is in doubt, there is at least some relationship between the businesses and the federal government.
In 2019, long before the pandemic, the Congressional Research Service published “An Overview of State and Federal Authority to Impose Vaccination Requirements.” It noted:
Except for certain populations, including immigrants seeking permanent residence in the United States and military personnel, the federal government has not sought to invoke its authority to impose federal vaccination requirements on the populace. Nonetheless, Congress has “granted broad, flexible powers to federal health authorities who must use their judgment in attempting to protect the public against the spread of communicable disease” under the Public Health Service Act (PHSA). This authority to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession” could conceivably be used to mandate vaccinations, provided that the authority is not exercised in a way that otherwise violates the Constitution or fails to comply with other statutory requirements, such as the Administrative Procedure Act. Current regulations issued pursuant to this authority, however, are limited to measures that include quarantine and isolation measures to halt the spread of certain communicable diseases.
Biden did not limit his proposed emergency rule to businesses operating across state lines; nor did he explain how the rule would comply with patient privacy laws, or with existing administrative laws and procedures.
It appears that Biden is attempting to use the same strategy he deployed when he had the Centers for Disease Control and Prevention (CDC) declare an eviction moratorium that the Supreme Court had already said was unconstitutional, absent congressional action.
Biden acknowledged that he did not know if what he was doing was unconstitutional, but suggested that by the time the Supreme Court heard legal challenges to the moratorium, he would at least have kept tenants safe from eviction for a short time.
Biden appears to be using the bully pulpit of the presidency to push private companies to follow his direction, hoping that by the time any legal challenges to enforcement surface, enough employers will have fallen into line that it will not matter.
It may achieve the desired policy result, but at the expense of Biden’s oath of office, in which he swore to uphold and defend the Constitution.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.