Legal experts say it's 'fundamentally undemocratic' and unconstitutional for Biden to use emergency orders meant for asbestos to compel workers to get the vaccine
President Joe Biden announced his unprecedented COVID vaccine order on Thursday, and within moments it brought an onslaught of legal threats and accusations of executive overreach.
As part of the White House's aggressive new approach to fighting the pandemic, the president directed the Labor Department's regulatory agency, the Occupational Safety and Health Administration (OSHA), to mandate all businesses with at least 100 employees either require all of them to be vaccinated or submit to weekly COVID testing.
The agency has the authority to issue an 'emergency temporary standard' (ETS) if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it.
They are expected to issue it 'in the coming weeks,' the White House said.
More than 80 million workers will be affected.
A Congressional report updated in July notes how rarely emergency standards are used. Before the COVID pandemic the last OSHA ETS was struck down in 1983, when a federal court said the agency failed to support its claim that asbestos exposure in the workplace needed to be further reduced due to a significant adverse impact on employees' health.
OSHA issued an ETS in June to protect health care workers from COVID by mandating workplaces like hospitals and nursing homes to draft a plan on keeping employees safe, improving ventilation, supply adequate PPE and implement social distancing measures or build barriers where that's not possible.
It also requires relevant companies to give employees paid time off to get vaccinated or paid leave in the event they test positive.
And while the idea might be 'well-intentioned,' a Friday morning op-ed claims, Biden also risks 'shredding the social fabric' of an already divided country by stretching the bounds of constitutionality.
'The president should not — and likely does not — have the power to unilaterally compel millions of private sector workers to get vaccinated or risk losing their jobs,' Republican commentator Robby Soave wrote in the New York Times.
Biden's Thursday announcement prompted an onslaught of legal threats
Businesses that don't comply will face fines of up to $14,000.
Soave argues it's 'fundamentally undemocratic' for a president to enable a federal agency to direct and oversee a new law - labeling OSHA an 'unaccountable bureaucratic agency.'
Duke University senior lecturing fellow Dan Bowling pointed out to McClatchy News that OSHA's investigative and enforcement capabilities are relatively weak compared to the IRS or Securities and Exchange Commission.
'If somebody falls off a ladder that was broken in a place of business and breaks his or her leg, that's pretty easy to prove employer liability. The employer would have to report the accident under OSHA,' Bowling said. 'If someone catches COVID who works somewhere that doesn't follow the vaccine mandate, how do you prove that?'
Among the parties challenging the strict measure in court are the Republican National Committee, as well as the governors of at least nine states.
South Dakota Governor Kristi Noem, who's resisted implementing a mask mandate even when its COVID hospitalizations and deaths were among the highest in the country, promised to see Biden 'in court.'
Georgia's Gov. Brian Kemp vowed to 'pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach.'
But in states like Montana, Texas and Florida, which all said they intend to sue, OSHA's ETS rules predate similar existing state guidelines - which would make a legal case more of an uphill battle than states that created their own OSHA-approved regulatory bodies after the fact.
According to a political expert at Cedarville University, it'll be up for the court to decide whether Biden's interpretation of the OSHA statute in question is correct and if it's feasible for employers to enforce.
If not, he could be violating his executive powers under the Constitution.
'Legislation doesn't really unpack what that phrase should be in terms of 'grave danger' so it's going to be interesting to watch,' Center for Political Studies Director Dr. Mark Caleb Smith told an NBC affiliate.
'For the president to do this just with his own power through executive power, no legislation in place, without the typical notice and comment period connected to federal bureaucratic decisions, it's a huge bypass of the typical process.'
He predicted the mandate will likely face too much resistance to stick.
'I think the opposite might happen, a lot of people are going to draw a line in the sand and say I'm not going to do it, you're not going to order me to do it,' Smith said.
Meanwhile Republican lawmakers, including Senator Ted Cruz, are upset with Biden's Chief of Staff Ronald Klain after he retweeted a post saying President Biden's new vaccine mandate is the 'ultimate work-around.'
Chief of Staff Ronald Klain retweeted a post saying President Biden's new vaccine mandate is the 'ultimate work-around'
Klain retweeted MSNBC anchor Stephanie Ruhle Thursday after Biden made the announcement
'Biden admin knows it's likely illegal (like the eviction moratorium) but they don't care,' Cruz wrote
Klain retweeted MSNBC anchor Stephanie Ruhle Thursday after Biden made the announcement.
'OSHA doing this vaxx [sic] mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt [sic] to require vaccinations,' Ruhle wrote and Klain retweeted.
Republicans were quick to jump on the retweet, including Texas Senator and former presidential candidate Ted Cruz.
'Important,' Cruz tweeted. 'Foolish RT from WH chief of staff. He said the quiet part out loud. Biden admin knows it's likely illegal (like the eviction moratorium) but they don't care.'
This followed up complaints from Republicans, including Arizona Governor Doug Ducey, about the mandate's constitutionality.
Biden on Thursday announced an aggressive new plan to get 100 million employees across the federal government and private sector vaccinated against COVID as the case rate continues to rise due to the Delta variant.
To reach his goal, Biden will use the sweeping power of the federal government, ordering companies to vaccinate workers or face fines of up to thousands of dollars. If the administration hits its 100 million mark that means two-thirds of the country's workforce would be vaccinated.
The Labor Department issued an emergency, temporary order to require all businesses with 100 or more employees to ensure every worker is either fully vaccinated or gets tested at least once a week.
The order covers over 80 million employees and it will require employers with 100 or more employees to give employees paid time off to get vaccinated.
Any business that violates the new rule will face substantial fines, up to $14,000.
He also required all workers in healthcare settings that receive Medicaid or Medicare reimbursement to get vaccinated, which will apply to 17 million healthcare workers.
That is in addition to his executive order requiring all federal workers and contractors to get vaccinated.
A senior administration official described it as an 'aggressive, comprehensive' plan to fight COVID as part of their mission to 'vaccinate the unvaccinated.' The official estimated nearly 80 million Americans are eligible to receive a shot but have not.
Additionally, the roughly 300,000 educators in headstart programs will be required to be vaccinated.
'It's simple - if you want to work for the federal government, you must be vaccinated. If you want to do business with the government, you must vaccinate your workforce,' the senior administration official said on a briefing call with reporters previewing the president's remarks.
Additionally the TSA is doubling fines for people who refuse to mask on planes. The new range of penalties, which take effect Friday, September 10, 2021, will be $500-$1000 for first offenders and $1000-$3000 for second offenders, the Department of Homeland Security announced.
Biden also called on governors to require vaccinations for all school teachers and staff.
Republican members of Congress and state governors promised to challenge the mandate.
Biden was praised by supporters for striking a more urgent tone. These supporters insist that one of the key reasons cases are spiking in the U.S. is due to the 80 million who have refused the jab.
Arizona Republican Gov. Doug Ducey vowed fight back.
'This is exactly the kind of big government overreach we have tried so hard to prevent in Arizona — now the Biden-Harris administration is hammering down on private businesses and individual freedoms in an unprecedented and dangerous way,' Ducey wrote. 'This will never stand up in court.'
In Florida, Republican Gov. Rick DeSantis has threatened to with hold funding from school districts that require face masks.
To counter moves like that, the Department of Education will make additional funding available to help local school districts backfill salaries and other areas where it has been with held.
'This will never stand up in court,' Ducey tweeted
Biden also addressed booster shots in his remarks, leaving the details of timing to the FDA and CDC but noting preparations are underway to get another round of shots in arms.
He also ramped up testing by using the Defense Production Act to accelerate the production of rapid tests, including at home test, and purchase $2 billion worth of rapid tests e and over the counter at home COVID tests for a total of 280 million tests.
'The president's plan, as you can see, it's comprehensive, it's aggressive, and will ensure that we make more progress in our fight against the virus to save even more lives in the months ahead, while also keeping schools open and protecting our economy from lockdowns,' the official said.
As part of the sweeping mandates, Biden will require all of the roughly 2.1 million federal workers to be vaccinated as part of a series of new mandates.
There will be limited exceptions but any federal employee who refuses the shot can be fired, White House press secretary Jen Psaki said Thursday.
Federal employees and contractors will have 75 days to get vaccinated.
The executive order will not include an option of being regularly tested to opt out of the vaccine requirement. The orders will apply to workers in the executive branch but not the congressional or judicial.
White House press secretary Jen Psaki said any federal employee who doesn't get vaccinated can be fired
'There will be limited exceptions for legally recognized reasons disability or religious objections,' Psaki said. Anyone who 'fails to comply, they will go through the standard HR process, which includes counseling and face disciplinary action,' she added.
She confirmed that action could include termination of employment.
'Hopefully it won't come to that,' she said.
She said the administration wanted the federal government to serve as an example for other businesses and organizations when it comes to vaccines.
'Obviously the federal workforce is one of the largest in the country and we would like to be a model to what we think other businesses, organizations should do,' she noted. 'The expectation is that if you want to work with federal government or be a contractor, you need to be vaccinated unless you are eligible for one of the exemptions.'
Republican Congressman Rob Wittman of Virginia, who has federal workers in his district, said he objected to the forced vaccines.
'Although I have personally been vaccinated and regularly encourage those I represent to get vaccinated as well, I fundamentally disagree with forcibly injecting America's public servants,' he told DailyMail.com in a statement.
'Our government was founded to secure the individual liberties of all. We should instead continue educating the public that the COVID-19 vaccines are both safe and effective. Resorting to forced vaccinations, and returning to unnecessary restrictions, only serves to eliminate critically important vaccination incentives and undermine public confidence in the vaccines' efficacy,' he added.
The American Federation of Government Employees, the largest union of federal workers, said they would bargain over the order.
'Workers deserve a voice in their working conditions,' the group said in a statement. 'Neither of these positions has changed. We expect to bargain over this change prior to implementation, and we urge everyone who is able to get vaccinated as soon as they can do so.'
And the National Federation of Federal Employees, another government workers union, said they didn't receive advance notice of the executive order.
Psaki dismissed questions about the unions not being consulted. The Biden White House has bragged about its pro-union stance. At a Labor Day event on Wednesday, Labor Secretary Marty Walsh said President Biden told him: 'This is labor's house.'
'We have a range of consultation with labor unions, and that has been the case for several weeks and months as we have worked to implement additional steps,' Psaki said.
'But our objective here is to continue to save lives.'
The president is putting more pressure on states, businesses and schools to get people vaccinated as the Delta variant causes the case rate to continue to rise in the United States.
But Republican-led states including Texas and Florida have pushed back and are in the process of trying to ban the orders being imposed.
Psaki indicated in interviews on Thursday morning that more mandates were coming.
'What we've seen work over the past couple months are mandates, requirements, making it so workers in the federal government or others have to get vaccinated. We've seen it work and we've seen it become more popular,' Psaki said on MSNBC's Morning Joe.
'He's going to speak directly to vaccinated people and their frustrations and he wants them to hear how we're going to build on what we've done to date to get the virus under control,' she said.
The Department of Health and Human Services and the Department of Veterans Affairs already mandate vaccines for their employees. The military also has issued a vaccine mandate.
There have now been more than 40 million cases of COVID recorded among Americans, which is nearly one-fifth of the global total of cases.
President Biden and administration officials have repeatedly emphasized the best way for life to return to normal is for people to get vaccinated.
Biden also plans to call for a global summit, to be held during the U.N. General Assembly later this month, to respond to the pandemic and talk about how to get more vaccine supply to the developing world.
About 27 per cent of the eligible U.S. population age 12 and older have not received any COVID vaccine, according to data from the Centers for Disease Control and Prevention. Meanwhile about 75 per cent of Americans have received at least one shot and 53 per cent are fully vaccinated.
In December 2020, after he was elected but before he took office, Biden said he didn't think COVID vaccines were necessary.
'I will do everything in my power as president to encourage people to do the right thing and when they do it, demonstrate that it matters,' he said at the time.
Meanwhile, Dr. Anthony Fauci said this week Americans are getting infected with COVID at 10 times the rate needed to end the pandemic.
'We're still in pandemic mode, because we have 160,000 new infections a day,' Fauci told Axios. 'That's not even modestly good control.'
Dr. Anthony Fauci said this week Americans are getting infected with COVID at 10 times the rate needed to end the pandemic
'In a country of our size, you can't be hanging around and having 100,000 infections a day,' he continued. 'You've got to get well below 10,000 before you start feeling comfortable.'
The vaccination rate among Americans has increased since July, which is when the Delta variant caused case rates to spike, but it remains low in Southern states like Florida and Texas.
The Biden administration has already taken steps to try and stop Republican-led states from rolling back COVID mandates.
Last month, the Education Department announced civil rights investigations into five states that banned schools from imposing mask mandates, claiming their stance could discriminate against students with disabilities or health problems.
Education chiefs in Iowa, Oklahoma, South Carolina, Tennessee, and Utah have been told they are under investigation.
'It's simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,' said Education Secretary Miguel Cardona.
'The department will fight to protect every student's right to access in-person learning safely.'
'My message to unvaccinated Americans is this: what more is there to wait for? What more do you need to see? We have made vaccinations free, safe, & convenient. The vaccine is FDA approved. Over 200 million Americans have gotten at least one shot. We have been patient, but our patience is wearing thin, and the refusal has cost all of us,' Biden said.
No comments