Congress Didn’t Give OSHA Authority to Impose Vaccine Mandates

The Occupational Safety and Health Administration is about to require 80 million working Americans to get vaccinated. You may be among them.

There’s just one catch: OSHA lacks the legal authority to impose a vaccine mandate. 

Declaring that his patience was “wearing thin” with unvaccinated Americans, President Joe Biden on Sept. 9 announced that OSHA would require companies with at least 100 employees to mandate that workers either get vaccinated or submit to weekly COVID-19 tests.

OSHA sent a draft mandate to the White House on Oct. 8. Once the White House completes its review, OSHA will issue the order.

And then get sued.

As we detail in our legal analysis, the courts will almost certainly strike down the OSHA vaccine mandate. Here are a few reasons why:

  • Congress did not place vaccines within OSHA’s purview. OSHA is establishing the vaccine mandate through an “emergency temporary standard.” This highly unusual process allows OSHA to bypass public notice and comment. Federal agencies, including OSHA, typically must submit major rules to public scrutiny before finalizing them.

To take the “emergency temporary standard” shortcut, the agency must persuade a court that workers are in “grave danger” and that it is “necessary” to protect them against that danger.

The “grave danger” that an emergency temporary standard must address must come from “exposure to substances or agents determined to be toxic or physically harmful or new hazards.” A toxic substance or agent is a poisonous element or compound. A substance or agent can be “physically harmful” because it is flammable, explosive, or carcinogenic.

The danger a virus causes, by contrast, derives from its ability to replicate within a living organism.

Congress created OSHA to promote workplace safety. OSHA inspectors look for hazards that can potentially harm employees, such as improperly stored chemicals, inadequately lighted or ventilated workstations, or lack of protective equipment (e.g., gloves and hard hats). Vaccines against viruses are an entirely different form of protection and are beyond the scope of OSHA’s mandate.

  • Congress tasked the Department of Health and Human Services (HHS) with determining the safety, efficacy, and appropriate use of vaccines. Congress authorized the Food and Drug Administration to determine whether vaccines should be allowed in interstate commerce. It empowered the Centers for Disease Control and Prevention to recommend who should receive such vaccines.

Both agencies are within HHS. OSHA resides in the Department of Labor. Congress has given neither OSHA nor the Labor Department authority over vaccines.

  • Congress did not give HHS the authority to impose a general vaccine mandate. While HHS has regulatory jurisdiction over vaccines, it has no power to impose a general vaccine mandate. If it had, the president would have directed HHS to tell employers to require their workforces to be immunized.

If Congress did not authorize the agency it empowered to regulate vaccines to mandate their use, OSHA—which has no such power—certainly lacks that authority.

  • If Congress meant to give an agency authority to issue a general vaccine mandate, it would have enacted a law conferring and defining that authority.

The U.S. has suffered through smallpox, polio, and a raft of other diseases—including the seasonal flu—for which vaccines are available. The federal government has never imposed a general vaccine mandate. Nor has any agency claimed authority to issue such a sweeping mandate.

If Congress had authorized a mandate, it would not have encrypted it and concealed it in an obscure subsection of the OSHA statute. Congress does not, as then-Supreme Court Justice Antonin Scalia wrote, “hide elephants in mouseholes.”

In charging ahead with a legally dubious mandate, the Biden administration is repeating a familiar pattern. Last summer, the CDC renewed an eviction moratorium that faced certain judicial doom. The agency nevertheless issued the moratorium on Aug. 3. The high court enjoined it on Aug. 26.

There you go again,” Ronald Reagan might have said of OSHA’s vaccine mandate.

Defenders of the mandate will note that OSHA has established standards regulating bloodborne pathogens like HIV and various forms of hepatitis. Nurses, medical technicians, and others must follow those standards when they draw blood or start IVs, for example.

Those are distinguishable from the proposed vaccine mandates in at least two ways. First, OSHA followed a notice-and-comment rulemaking process and did not resort to an emergency temporary standard. Second, Congress took the extraordinary step of rewriting the regulation in 2001, leaving no doubt that it intended for the agency to exercise that authority.  

The bloodborne pathogen standard requires health care facilities to offer free hepatitis B vaccines to employees at risk of contracting that illness from needle sticks. Health care workers can decline those hepatitis B vaccines. Thus, even where Congress has given OSHA authority to issue narrowly targeted standards dealing with bloodborne pathogens, the agency did not mandate that workers be immunized.

In short, Congress has not given OSHA license to mandate COVID-19 vaccines.

Lawmakers needn’t prohibit OSHA from imposing a mandate that they never authorized the agency to issue in the first place.

On the contrary, if Congress wants a general vaccine mandate, it must pass a law establishing one.

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Biden Pick Becerra’s Indecent, Indefensible Legal Assault on Nuns, Human Life

The following is excerpted from Trump White House press secretary Sean Spicer’s new book “Radical Nation: Joe Biden and Kamala Harris’s Dangerous Plan for America.“ It is available here and elsewhere.

Founded in France in 1839, the Little Sisters of the Poor is a Catholic order of nuns who operate 29 care homes across the United States. The nuns take vows of chastity, poverty, obedience, and hospitality, and they serve Christ by serving the elderly poor. 

When the Patient Protection and Affordable Care Act (aka ACA or “Obamacare”) was enacted in March 2010, it required employers to offer health insurance plans that included contraceptives, abortifacients, and sterilizations—all of which violate the precepts of the Catholic Church.

Though the ACA exempted churches, it did not exempt faith-based ministries such as the Little Sisters of the Poor. These ministries were subject to fines if they did not comply—and the Little Sisters refused to comply.

St. Paul once wrote that all who will live godly in Christ Jesus will suffer persecution. The Obama administration was determined to make good on that biblical promise and proceeded to persecute the Little Sisters all the way to the U.S. Supreme Court.

In 2016, the Supreme Court directed the Obama administration to compromise with the Little Sisters and “arrive at an approach going forward” to end the standoff. The Obama administration failed to achieve that goal before leaving office.  

In 2017, the Trump administration took over and structured an accommodation that resolved the Little Sisters’ problems with the ACA mandate. In October of that year, the Department of Health and Human Services issued an updated religious-exemption rule that protected religious nonprofit organizations such as the Little Sisters of the Poor.  

Case closed, right? Wrong.  

The next month, November 2017, attorneys general from several states, including Pennsylvania and California, ramped up the persecution of the Little Sisters. They went to court and obtained a nationwide injunction against the new HHS rule. Pennsylvania and California sued the federal government, asking the judges to force the Little Sisters to comply with the Obamacare mandate or face millions of dollars in penalties.

In July 2019, the 3rd U.S. Circuit Court of Appeals ruled against the Little Sisters in the Pennsylvania case. In October 2019, the 9th U.S. Circuit Court of Appeals ruled against the Little Sisters in the California case. At that point, the Little Sisters asked the U.S. Supreme Court for a definitive ruling.  

On July 8, 2020, the Supreme Court delivered a decisive 7 to 2 ruling in favor of the Little Sisters of the Poor. The court affirmed the religious liberty exemptions for faith-based organizations. The Little Sisters of the Poor would not have to pay for abortions under the Obamacare mandates. After spending over a decade fighting federal and state governments in the courts, the Little Sisters could finally get back to serving the poor in peace. 

The Little Sisters set an example for us all, refusing to back down in the face of government pressure. They were determined to serve the elderly poor without lending support or endorsement to abortion. They correctly understood that the assault on their freedom was an assault on the sanctity of human life. 

Is this really why government exists? To harass and intimidate nuns who are simply living out their faith and serving the poor? It’s hard to believe, but there are people in government who get up in the morning and say, “I’m going to punish a Catholic ministry today! I’m going to scare nuns and force them to pay for abortions!”

I mean, such a person would have to be a mustache-twirling villain of the Snidely Whiplash variety, right? 

Well, meet one of the persecutors of the Little Sisters of the Poor—namely, President Joe Biden’s secretary of health and human services, Xavier Becerra. In November 2017, after the Little Sisters had already prevailed once in the Supreme Court, it was Becerra [then the state attorney general] who made the decision for California to sue again in federal court to take away the nuns’ religious exemption. He lost that case in 2020—but the following year, Biden tapped Becerra to lead the Department of Health and Human Services, the very agency he had unsuccessfully sued in 2017. 

In February, Becerra was in a Senate confirmation hearing for the Biden Cabinet post, trying to explain away his relentless pursuit of the Little Sisters of the Poor. Sen. John Thune, R-S.D., said to him, “It does seem like, as attorney general, you spent an inordinate amount of time and effort suing pro-life organizations, like Little Sisters of the Poor, or trying to ease restrictions or expand abortion.” 

Apparently realizing how bad his pursuit of the Little Sisters looked, Becerra replied, “I have never sued the nuns, any nuns. I’ve never sued any affiliation of nuns, and my actions have always been directed at the federal agencies.” 

It’s a flimsy alibi. Becerra did, in fact, sue to force a religious order of nuns to pay for Obamacare’s contraceptive and abortifacient mandates. Moreover, the case is named State of California v. Little Sisters of the Poor. It doesn’t get any plainer than that. Had Becerra won his case, the Little Sisters would have lost millions of dollars, along with their First Amendment rights. Becerra pursued the nuns in court for three years. 

Despite his evasive testimony, Becerra did sue nuns, an act of cold-hearted villainy that would have done Snidely Whiplash proud. As Sen. Tom Cotton, R-Ark., tweeted on Feb. 24, “Xavier Becerra is now claiming he didn’t sue nuns because he wants to get confirmed. But Becerra did sue nuns. He repeatedly harassed the Little Sisters of the Poor. That’s why he should be rejected by the Senate.”  

In selecting Becerra to head HHS, Biden signaled his intention to move America to the extreme edge of pro-abortion policy. No American politician has ever demonstrated more enthusiasm for unrestricted abortion than Becerra.  

The Daily Signal publishes a variety of perspectives. Nothing written here is to be construed as representing the views of The Heritage Foundation.

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