In a rebuke of the Biden administration, the Fifth Circuit Court of Appeals reaffirmed its stay of the Occupational Safety and Health Administration’s (OSHA) workplace Covid-19 vaccine mandate. The decision highlights the contrast between the Biden administration’s dangerously expansive vision of federal power and the Trump administration’s more traditional understanding of constitutional limits.
The Constitution reserves general “police powers” to the states, which have traditionally exercised authority over public health matters, including vaccination. The nonpartisan Congressional Research Service reported in April that federal authority over health care is more constrained, limited to the powers enumerated in the Constitution, and that no federal statute expressly authorizes vaccination requirements on the general population.
The Biden administration initially said that the federal government could not and would not impose a vaccine mandate. Yet when the president declared that his patience with the unvaccinated was “wearing thin,” the administration devised—in the words of chief of staff Ron Klain—a “work-around.” OSHA issued an emergency temporary standard (ETS)—a rarely used rulemaking shortcut available when “necessary” to protect against a “grave danger” in the workplace. The standard required businesses with 100 or more employees to ensure that workers either get vaccinated or undergo weekly testing.
As the Fifth Circuit noted, this was not the first time OSHA had considered using an ETS during the pandemic. In the spring of 2020, OSHA denied a petition from labor organizations to issue an ETS for Covid-19. The D.C. Circuit Court of Appeals agreed with OSHA that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.”
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