Recently, President Joe Biden announced a mandate emanating from the Occupational Safety and Health Administration for any company with more than 100 workers: Employees must be vaccinated or undergo weekly testing. Failure to comply with these demands would lead to fines — up to $13,653 for serious violations — for the employer.
This mandate has been questioned by Republicans and legal scholars.
In September, House Minority Leader Kevin McCarthy of California tweeted “NO VACCINE MANDATES.” More recently, professor of law John Yoo published an opinion about why the mandate is unconstitutional.
On Sept. 10, Missouri Attorney General Eric Schmitt tweeted “Joe Biden doesn’t have the legal authority to force COVID vaccines on millions of Americans. His proposal is unlawful and historic in its overreach. Lawsuits are coming.”
Schmitt, who is running for U.S. Senate, has a history of combating COVID-19 regulations. In July, he filed a lawsuit against mask mandates in St. Louis County. He also filed one in August against Columbia Public Schools.
On Nov. 5, Schmitt followed through with his promise and the state of Missouri became one plaintiff in a lawsuit alleging that the Biden administration’s mandate is unlawful and unconstitutional. Missouri joins 10 other Republican-majority states in this lawsuit.
In an interview with St. Louis Public Radio on Nov. 5, Schmitt said, “Broadly speaking, it’s an unconstitutional, unlawful, unwise, unprecedented, breathtaking federal overreach.”
Many scholars agree with Schmitt’s argument. But some disagree, including Lawrence O. Gostin, a law professor at Georgetown, and Dorit Rubinstein Reiss, a professor of law at UC Hastings College of Law. They argue in an opinion that “the president is acting well within the powers that Congress has delegated to him.”
The mandate was issued as an Emergency Temporary Standard (ETS), which means that it bypasses usual steps to authorization. This means that OSHA must prove that workers are “exposed to grave danger” and that the regulation is “necessary to protect employees from such danger.” Thus, OSHA must prove that without the mandate, employees are in grave danger.
The mandate also raises theoretical questions. Should the executive branch have the power to regulate private American businesses?
The Constitution gives the executive branch enumerated powers in Article II. Section 2 of Article II lists the president as commander in chief and gives the president the power of pardon, making treaties, appointing ambassadors and federal judges. In Section 3, the Constitution allows the president to receive ambassadors. In none of these sections does the president have the power or duty to regulate the health of employees of private companies.
However, the powers and duties listed above are only enumerated powers. One must also examine those powers that are not explicitly listed in the Constitution.
Two clauses in the Constitution — the “Vesting Clause” and the “Take Care Clause” — expand the president’s powers and duties beyond the pages of the document.
The “Vesting Clause” is the first sentence of the Constitution. It reads that “The executive power shall be vested in a President of the United States of America.”
The “Take Care Clause” states that the president “shall take Care that the Laws be faithfully executed.” In examining the Biden administration’s mandate, the “Take Care Clause” is the focus. Essentially, the use of the word “shall” makes it the duty of the president to make sure the laws of the country are executed. Congress creates the laws, and the executive department, in a way, makes sure that these laws are being followed. The executive branch cannot create new laws, but it can create different procedures and mandates falling within the laws already established by Congress.
Now, Congress did authorize the creation of OSHA in December 1970 with the Occupational Safety and Health Act signed into law by then-President Richard Nixon. According to the OSHA website, the goal of the administration is to “ensure that employees work in a safe and healthful environment by setting and enforcing standards, and by providing training, outreach, education and assistance.”
OSHA’s other standards include regulating fire extinguishers, exit signs and other safety precautions. Some legal health scholars, however, believe the mandate does fall into OSHA’s parameters based on the past use of the administration to regulate contaminates, chemicals and other health risks in the private workplace.
The Biden administration clearly believes that mandating COVID-19 vaccination or weekly testing is in line with OSHA’s goals. The mandate is being challenged in court, as it stretches the guidelines of an Emergency Temporary Standard and stretches the power of the executive branch under the Constitution.
Lindsey Bennett studies history and political science at Westminster College in Fulton.