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Where Does Biden Get the Authority To Mandate Vaccination?

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Walter Olson | 9.10.2021 1:35 PM

President Joe Biden decreed on Thursday that private companies with more than 100 workers would have to make it a condition of employment for them to get vaccinated—either that, or take weekly tests for the virus. You may wonder: On what authority can Biden order this?

The White House is relying on the regulatory authority of the Labor Department's Occupational Safety and Health Administration (OSHA), an agency dating back to 1971, and in particular its seldom-used emergency powers. Some backers of Biden's action seem to think waving in OSHA's general direction, together with citing COVID-19's high death toll, is all the answer needed to questions about legality.

But it isn't. Courts have frequently struck down OSHA actions, especially when the agency has tried to issue the type of peremptory decree it calls an emergency temporary standard (ETS).

A word is in order about the two ways OSHA adopts rules. The standard, accepted way is to put them through the process known as "notice and comment," building a record that it is hoped will result in more rational standards and, whether or not it does that, prepares the way for judicial review by, for example, putting the agency on the record against major objections as to its rationale for the rule.

The emergency process bypasses these protections for the regulated and for judicial review as a check. True, the process as foreseen is one in which OSHA is supposed to start developing a rule the regular way, which would at some point catch it up with the need to base its rules on a reasoned public justification. But that comes afterward. In the meantime it can use the excuse of emergency to regulate first and explain later.

To use the emergency decree power, according to the agency's........

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