If Biden wants a vaccine mandate, he should ask Congress to pass one

·4 min read

The American system of government consists primarily of a series of process requirements. The Founders believed that these process requirements would guard against concentrations of power and thus protect liberty.

In the modern era, regard for the importance of process requirements has been largely abandoned. Government action is judged almost exclusively, by all sides, by whether people agree or disagree with the outcome, irrespective of whether the process guardrails that are the foundation of American government were respected.

There are serious long-term ramifications of that.

President Joe Biden’s recently announced COVID-19 response plan contains a number of process violations. This should be of concern even if you agree with the policies he announced.

This is not why we have OSHA

President Joe Biden speaks in the State Dining Room at the White House on Sept. 9, 2021, in Washington. Biden announced sweeping new federal vaccine requirements affecting as many as 100 million Americans in an all-out effort to increase COVID-19 vaccinations and curb the surging delta variant.
President Joe Biden speaks in the State Dining Room at the White House on Sept. 9, 2021, in Washington. Biden announced sweeping new federal vaccine requirements affecting as many as 100 million Americans in an all-out effort to increase COVID-19 vaccinations and curb the surging delta variant.

Biden wants the federal government to require that all eligible Americans get vaccinated. However, he is not directly ordering that.

Perhaps the president doesn’t believe he has the authority under public health laws to directly order people to get vaccinated. If so, and he believes that the federal government should have that authority, the proper course would be to ask Congress to pass a law granting it.

Instead, Biden is misusing the Occupational Safety and Health Act to compel employers to make vaccinations a job requirement.

OSHA’s writ is workplace safety. It is intended to regulate risks endemic to the worksite, not as a backdoor way to address a general public health concern such as COVID-19.

Moreover, Biden is instructing OSHA to issue an emergency temporary standard that doesn’t go through the usual rule-making process, where it is subject to public comment. In its five-decade history, OSHA has rarely issued such emergency regulations, and a significant number of those it has issued have been struck down by the courts.

The delta variant is causing another COVID-19 surge. But hospitalizations and deaths are still well below previous surges, during which OSHA didn’t issue an emergency standard compelling employers to make vaccinations or weekly testing a job requirement.

If it was not an emergency then, how is it an emergency now? Other than Biden’s declaration that his patience with those not getting vaccinated has run out.

Biden wants to pick a fight

Biden wants to pick a political fight with Republican governors, such as Arizona’s Doug Ducey, who have imposed bans on vaccination or mask mandates. If state funds are withheld from schools under such bans, Biden vowed, the federal government will make up the difference.

The Arizona mandate ban doesn’t include a financial penalty for schools. Instead, Ducey has made receiving federal COVID-19 relief monies he controls contingent on adhering to the vaccination and mask mandate ban. However, Attorney General Mark Brnovich has opined that violating the ban does jeopardize state-shared revenue for cities.

According to Biden, schools can use the money already allocated directly to them under the American Rescue Plan to make up for any withheld state funds. In addition, the federal Department of Education will establish a grant program through which schools can apply for additional money.

Perhaps the statutory constraints on the already appropriated American Rescue Plan funds are flexible enough for Biden to make that assertion. But the grant program would constitute a new appropriation, and appropriations are the purview of Congress, not the president.

It's a public health, not a national security, issue

Biden said he would invoke the Defense Production Act to compel the manufacture of rapid COVID-19 testing kits, including for home use.

The Defense Production Act gives the federal government extraordinary power to commandeer the manufacturing capacity of private companies to produce things essential to defense and national security.

COVID-19 is a public health issue. It does not threaten national security except metaphorically. And certainly not in the sense contemplated by the Defense Production Act.

President Donald Trump also improperly invoked the act to compel the production of ventilators, which generally went unused.

My own view is that there shouldn’t be a federal vaccination or mask mandate. Nor a state ban on local governments or private employers adopting such requirements. Risk profiles and risk tolerances differ. A one-size-fits-all approach in either direction doesn’t match the current public health situation.

If Biden wants a federal mandate, however, he should seek authority to impose one directly, not misuse existing authorities intended for very different purposes.

Robert Robb is a columnist for The Arizona Republic, where this column originally appeared. Follow him on Twitter: robert.robb@arizonarepublic.com

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This article originally appeared on Arizona Republic: Biden's vaccine mandate misuses his authority. That should worry you.

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