Can Biden's Vaccination Rule for Private Employers Survive Judicial Scrutiny?

A broad standard with no exceptions better serves his goals, but it will be harder to defend in court.


The White House says a COVID-19 mandate that President Joe Biden plans to impose on private employers, which "will impact over 80 million workers," is all about "Vaccinating the Unvaccinated." But officially, that mandate is aimed at protecting workplace safety, and the difference between those two descriptions could make it vulnerable to the flood of litigation it will provoke.

A month after he was elected, Biden called vaccination against COVID-19 "a patriotic duty" but said, "I don't think it should be mandatory." On July 23, White House Press Secretary Jen Psaki reiterated that position, saying it's "not the role of the federal government" to require vaccination.

A week later, Rochelle Walensky, director of the Centers for Disease Control and Prevention, insisted "there will be no federal [vaccination] mandate." Last month, Anthony Fauci, Biden's top medical adviser, agreed that "you're not going to get mandates centrally from the federal government."

If you are determined to reconcile those assurances with the rule that Biden announced last week, which applies to all businesses with 100 or more employees, you could note that it does not technically require people to be vaccinated, since they can submit to weekly COVID-19 testing instead. But the choice between those two options—especially if employees have to foot the bill for testing—is likely to encourage vaccination, which is what Biden wants.

The problem is that the Occupational Safety and Health Administration (OSHA), the agency that Biden has charged with imposing the vaccination/testing rule, does not have broad authority to fight epidemics or promote public health. Its mission is limited to protecting employees from workplace hazards.

Ordinarily, it takes years for OSHA to finalize new regulations. But the approach Biden has chosen, an "emergency temporary standard" (ETS), allows OSHA to bypass the usual rule-making process: It can issue a rule that takes effect immediately without advance notice, public comment, or hearings.

Although the ETS option is undeniably convenient, it requires a special justification. OSHA must "determine" that its ETS is "necessary" to protect employees from a "grave danger" caused by "new hazards" or by "exposure to substances or agents determined to be toxic or physically harmful."

Those assessments are subject to judicial review, and OSHA's track record in defending emergency standards suggests why it rarely takes this route. Six of the nine emergency standards that OSHA issued between 1971 and 1983 were challenged in court, and those challenges were partly or fully successful in all but one case.

On July 21, when OSHA published an ETS requiring specific COVID-19 precautions in health care settings, it was the first time the agency had attempted an emergency standard in 38 years. It was also the first time OSHA had cited the danger posed by a communicable disease as the justification for an ETS.

Whether COVID-19 constitutes a "grave danger" to employees depends on conditions that vary widely from one workplace to another. The danger is greater, for instance, when work requires a lot of close interaction (as in meatpacking plants), when the vaccination rate is low, or when many employees are relatively old or have preexisting medical conditions that make them especially vulnerable to COVID-19.

In a workplace where the employees are young and healthy, by contrast, their risk of dying from COVID-19 is very low even if they are not vaccinated. And if someone's work does not entail close contact with fellow employees, his risk of catching COVID-19 from unvaccinated colleagues may be negligible or nonexistent.

Considerations like these also factor into the question of whether OSHA's ETS is "necessary." It would be hard to justify a rule that made no exceptions for employees who work from home, for example, or for employees who are resistant to COVID-19 because of their immune responses to prior infections.

A broad rule with no exceptions better serves Biden's goal of increasing the overall vaccination rate. But it will also be harder to defend in court.

© Copyright 2021 by Creators Syndicate Inc.

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    1. Waaahhh! Stop being so mean to Biden, who I’m not defending.

      —Lying Jeffy

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    2. Fuck Joe Biden
      *clap, clap, clap-clap*

    3. Peril Hardcover – September 21, 2021
      The transition from President Donald J. Trump to President Joseph R. Biden Jr. stands as one of the most dangerous periods in American history.

    4. Fuck Joe Biden

    5. With a telephone pole, sideways.

    6. If you’re over 13, your chances of sex with Biden are slim.

  1. O/T – Did Milley commit treason, or is Woodward making shit up to sell his new book?

    1. If Milley did what Woodward says he did he broke several regulations and provisions of the UCMJ, not to mention his oath as an officer of the USA. Rather you like a President or not the Constitution is clear he is the commander in chief and all the military is subordinate to him. The only exception is if the order is illegal according to the UCMJ. And the burden of proof that the order is illegal is upon the one who claimed the order was illegal. Basically, you can refuse an illegal order but you best be damn sure it was illegal and you can prove to a courts martial that it was an illegal order.

      1. If he truly felt Trump was crazy, as he told Pelosi in a private conversation, that is what the 25A is for.

        1. Neither Nancy Pelosi nor the CJCS has any operational command authority, and neither one of them has any authority in the chain for the nuclear launch protocol. There was no reason for either of them to be discussing this.

          If it weren’t so terrifying, it would be funny how this is being portrayed as Trump being unstable, and not Pelosi being batshit insane. She’s the one who brought up nukes.

          1. Power hungry leeches. The gallows await.

          2. All these people should be executed for high treason.

      2. Final thought, for everyone who poo-poos the idea of the deep state, if this is true, this is what the deep state looks like. And even noted anti-Trump Vindman is calling for Milley to resign or be court martialed if this is true.

        1. LOL

          They’ll find Vindman hanging by his neck in a seedy hotel room before the year is out.

          “A tragic suicide ….”

        2. Deep state? This is what a gods-be-damned coup d’etat looks like!

          1. Next up: Disbanding congress!

            1. Then executing Congress.

      3. And since Trump didn’t actually give any such orders…

        1. That is the big issues. You can’t preplan to disobey an order. You can’t get your subordinates to swear an oath to you as a leader, or to tell them to ignore an order from the CiC on a purely conjecture. If Milley was an E-1 he would be facing a general court martial and a long term in Ft. Leavenworth doing hard labor.

          1. “After Milley was nominated, he headed a commission that was responsible for designing a report on the country’s impending near-term impacts from climate change. The report, which was released in August 2019, stated that the country and its military could experience a total collapse within the next two decades due to the effects of climate change.”

            Seems to have his priorities straight. Global warming, unruly citizens and LBGTQ pronouns.

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              1. Peril Hardcover – September 21, 2021
                The transition from President Donald J. Trump to President Joseph R. Biden Jr. stands as one of the most dangerous periods in American history.

            2. stated that the country and its military could experience a total collapse within the next two decades due to the effects of climate change.”

              That may be one of the most over the top climate predictions I’ve ever seen.

              1. A total collapse of the USA within two decades is not an unreasonable forecast, but it won’t be because of climate change.

      4. And just like Peter Strzok mentioning an “insurance plan”, Nancy Pelosi mentioning that she had no worries about Trump launching a nuclear attack indicates that she knew what Milley had done. This kind of crap is nothing less than a treasonous act of cutting Trump out of his role as President. Once again, we see that the Democrat’s claim that January 6th was an attempted coup was just projection – whatever they accuse their enemies of plotting is exactly what they themselves have already done.

        1. This has to end, and there is no way around it getting really ugly. It is no longer a question of whether democrats will need to be put down, but how many.

      5. He could have, if he REALLY felt as the book said he did, resign his position, as somebody with honor would have done.

      6. What he did was illegal and unnecessary.

        He really thought Trump was gonna invade China? Really? Grandstanding.

        And unnecessary. The people in the upper COC ain’t gonna launch nukes just ’cause the President calls in War Plan Romeo absent some already serious shit going on.

        You don’t go from peace to nukular armageddon in one go.

    2. I’m going to bed, but I’m sure we can have a more thorough discussion tomorrow in Reason’s article on the subject.

    3. That fat fuck Milley should be summarily dismissed.

    4. I think Miley did it; whether that amounts to treason – giving aid to ones enemy and/or levying war – I am not so sure; mutiny or sedition charges would be more apt. Coupled that with the James Jeffery’s (Syrian Envoy) quote, “We were always playing shell games to not make clear to our leadership how many troops we had there,” and we have a real big problem on our hands (understatement).

      It’s why I am not to keen to criticize Biden on the Afghan withdrawal; Biden may have made every correct decision (however unlikely) and the top brass just wanted to tank the withdrawal to keep America in the region and most importantly keep those defense contractors happy.

      1. Fuck Joe Biden

        1. Yes indeed. Fuck Joe Biden.

      2. Since no actual war exists and therefore no enemies, treason wouldn’t stick, but it’s lining up a coup d’etat, and if that’s not as bad as or worse than treason, what would be?

        1. As pointed out, the Left will condemn their opponents for not actually doing things the Left HAS done.

          Trump had no plans for a coup. The Democrats sure as shit did.

        2. Yes. Sedition, not treason.

    5. LOL. It’s amazing that your response to the entire world seeing Trump lose his shit on January 6 and the Chinese becoming concern he would start launching nukes is to attack the guy (Milley) who did reasonable things to make sure those in three military chain of command knew the seriousness of the situation and who helped reassure China that there wasn’t going to be a nuclear war.

      I’m guessing you also critical of Stanislav Petrov who disobeyed orders and helped avert nuclear war during the Cold War.

      Lol you are too much.

    6. Did Milley commit treason…?


      If he was having discussions with his Chinese military counter part about which orders he was or wasn’t going to follow, he should have a cot waiting for him in Leavenworth.

      Luckily for him, a tale will be manufactured of resisting Trump and averting nuclear war. The piece of shit will then instead have a lucrative advisor job waiting for him at Raytheon, Lockheed-Martin, etc with the rest of his retired brass drinking pals. And when they get bored laughing it up over Afghanistan they can bring up how Milley got away with colluding with the CCP while Chairman of the Joint Chiefs of Staff.

      1. Lol. Nice deflection from trump becoming a deranged lunatic.

        1. Nice projection of fantasy versus reality.
          Senile Joe should be a resident at one of your elder care facilities.

        2. I must have missed when Trump attacked China and used nuclear weapons. Oh wait it never happened you say. Than what was the point of your stupid post?

  2. There’s nothing like having leftist shits in power to really fuck things up. Murderous fascist treasonous and unholy evil fuckwads.

  3. Likely not. And fuck Joe Biden.

  4. Covid-19 vaccine’s workplace safety is based on the wrong assumption that vaccinated workers can’t transmit the virus.

    1. Or get the virus.

    2. That’s not true. It’s based on the (correct) premise that vaccinated employees are much less likely to get infected and infect others than unvaccinated employees are.

      Just like OSHAs hard hat regulations which operate under the premise that hard hats greatly reduce risk of head injuries even though people wearing hard hats can still get head injuries.

      1. How many COVID hospitalizations are from the workplace after vaccinations have become widely available?
        And given the increased risk of COVID and other ailments, when is OSHA implementing the “no fatty” workplace requirement?

        1. Or the “no pregnancies” requirement. That’s a very high-risk activity that’s very disruptive to the workplace.

  5. So when the virus mutates, like it will and has, and the vaccine is no longer viable, will we be mandated to get the next vaccine too? You’re never going to get 100% vaccination rates. If some estimates that up to 20% of the population can’t take the vaccine for a variety of health and age related issues, that is 64 million unvaccinated people in the US. Since we are not allowing, currently (and with no scientific basis) those previously infected to refuse the vaccine, we can assume under the current rules a good portion of those unvaccinated will not be naturally immune. That is a big number. Even if it is only 10%, that is still 32 million people. And that is just legal citizens and residents. The Whitehouse has confirmed that migrants coming from Afghanistan and illegals detained by DHS are not being mandated to get the vaccine (even though detention facilities and refugee camps have long been known as breeding grounds for communicable disease, they’ve already had a measles outbreak in one of the Afghani refugee camps). Are prisoners being mandated to get vaccinated? I haven’t heard but prisons are also a breeding grounds for communicable diseases. These mandates are purely to get the numbers up for political readons and nothing to do with stopping the spread of the virus, otherwise there would not be so many categories who are exempted from them.

    1. So when the virus mutates, like it will and has, and the vaccine is no longer viable, will we be mandated to get the next vaccine too?


      And, with time, and sufficient conditioning, the government will assume the power to make every medical decision for people relying on increasingly intrusive measures of coercion. Eventually, it will be an entirely Soviet landscape in which anyone refusing or disobeying “public health orders” is snatched up by the secret police in the middle of the night and committed to a psych ward or some other camp “without the right to correspond.”

      This is a power grab and the people grabbing the power realize they have just enough power now such that their justification for grabbing more power need not be any more nuance or disguised than their express desire to grab more power.

      There is no political solution when the government has dispensed with politics and crudely relies on force. The rule of law no longer exists. The sooner the people realize this, the sooner the people will take the necessary steps to correct the situation.

      1. Peril Hardcover – September 21, 2021
        The transition from President Donald J. Trump to President Joseph R. Biden Jr. stands as one of the most dangerous periods in American history.

      2. take the necessary steps to correct the situation.

        It’s too late. Welcome to East Germany.

    2. There are some hints that the boosters will not be needed. The flu vaccines just doesn’t last due to the nature of vaccine. Even without seasonal variation, you catch the flu you’re just as likely to catch it next year as well. But COVID is different. Each virus has an immunity duration. Many viruses (chicken pox, pertussis) it’s forty or fifty years. You get a vaccine as a kid, and another as an adult. For the flu is only a couple of years. But for COVID it’s going to be somewhere in between. Most likely longer than nine months, and probably shorter than fifty years.

      A yearly booster doesn’t bother me, as I get a yearly flu vaccine anyway. Just combine the two. For all other mandatory vaccines (for children in school, or military personal, or hospital workers) it’s the more standard long term vaccines that don’t need yearly boosters.

      1. That’s rank guesswork.

  6. ETS = Emergency permanenT Standard.

  7. Jacob: They don’t care if it’s constitutional or not. It’s the one issue they have been remarkably candid about. They don’t care.

    1. Exactly. This is just like the eviction moratorium. They know it’s unconstitutional, they know it won’t hold, but by the time it gets to the court and the court strikes it down, it will be too late. The damage will already be done.

      Also, I anticipate this will be decided mostly along the expected lib/conservative split, so it gives them a nice, tidy little package they use to further attack and degrade the legitimacy of the court.

      1. I’m sure glad we got that guy who ignored the Constitution and wiped his butt with it out of office, amirite guys?

        Trump, unlike Biden, abided by SCOTUS decisions.

      2. Nailed it. They don’t care about the long-term consequences because they get the short-term gains they want.

        1. It’s worse than that. The DESIRE the long-term consequences.

  8. ETS…..Meet APA (in a courtroom near you). 🙂

  9. The problem with the declaration that the coronavirus affects workplace safety and therefore is within OSHA’s purview is that, even if it is struck down as unconstitutional, Biden can simply declare that the coronavirus affects interstate commerce and therefore is within the ICC’s purview and issue a second order. After that, well, sick people don’t eat as much and therefore the coronavirus affects the nation’s food supply and therefore falls within the Department of Agriculture’s purview and Biden can issue a third order. After that, well sick people don’t get out and travel as much and this affects the amount of people visiting our national parks so the Forestry Service can issue a fourth order, and so on. Everything affects everything else so I’m pretty sure you can find a more or less tenuous connection that can be used as a justification for having a thousand government agencies issue an order.

    But every justification is just a work-around for getting past the Constitution which shows just how much contempt Biden has for the Constitution and the oath he took to protect and defend it. This is what a post-Constitutional dictatorship looks like.

    1. “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total. The governors know that.”

      1. …yet Trump did not do it. Weird.

      2. Fuck off and die, faggot.

    2. Whether COVID-19 constitutes a “grave danger” to employees depends on conditions that vary widely from one workplace to another.

      “Ah, but it constitutes a ‘grave danger’ to *all of us*.”

    1. I bet he lip syncs too.

      1. I wonder if he’s flammable? That should be tested.

  10. Fauci weighs in on Nicki Manaj’s cousin’s friend’s nuts:

    “Dr. Anthony Fauci on Nicki Minaj’s false claim that Covid-19 vaccines cause reproductive issues: “She should be thinking twice about propagating information that really has no basis… except a one-off anecdote, and that’s not what science is all about.”

    1. She should be thinking twice about propagating information….
      No more first amendment I guess.

    2. Except that tweeting about your friends nuts isn’t science. It is sharing a story about your friends nuts.

      1. If we can’t have conversations about our friends nuts we are living in some kind of theocracy.


    Wapo is concerned that “micro-influencers,” people with 10,000 to 50,000 followers, are peddling vaccine misinformation.

    This is the diabolical scheme to censor covid skeptics. Every time they go after a big name with millions of followers on social media, there is immediate backlash. So they go after the amplifyers- smaller presences with lower numbers of followers, who repost and amplify the bigger personalities.

    1. Same method the IRS uses.

  12. Probably with the political sycophant hacks we have for Supreme Court Justices. They are frightened of force retirement, term limits and court packing and are caving.

  13. Anti-vaxxers are non-partisan. Sure there are hordes of Trumpistas who refuse it on political grounds, but don’t forget all the teachers unions, who after insisting they be first in line to get the vaccine, are now demanding they not be required to be vaccinated. These are government employees, and the government has ever right to require that they be vaccinated, just like they have required routine vaccinations for everything else for decades with no squeaks. And don’t forget the hippie nature loving leftists who balk at anything resembling modern medicine. Vaccines are bad because vaccines come out of factories, because they are medicine and not homeopathy, because big pharma is involved.

    So what does this “mandate” achieve? Just more polarization. It’s going to drive more on the right to refuse, simply because it’s now a partisan issue. It’s going to embolden the crankmongers on the left who want to sell whole earth remedies. It’s such a major fuckup, when virtually no one cares about normal routine vaccinations. No one launches protests over the yearly flu vaccine, or Texas’ mandated HPV vaccine (which used to be controversial once up on a time), or mandatory vaccines to attend school. Now it’s become a Democrat Party issue so all good thinking Trumpistas must kneejerkingly reject. Imagine if Biden required helping old ladies cross the street, suddenly it would be Republican plank to trip them up instead. So sad.

    You’re going to see fake religious exemptions based on nothing at all present in their religion. You’re doing to see chiropractors and other charlatans issue medical exemptions. It will be a fucking shitshow. You have an actual religious issue, then show where in your religious texts it says no vaccines. Sorry Southern Baptists, it’s not in your Bible. You have an actual medical issue about vaccines, then get a signed document from your doctor who needs to be your ACTUAL doctor and not some homeopath without medical certification, or some exemption mill doctor selling exemptions.

    But yes, Biden was a dick for mandating this. Public health rules such as this have always belonged to the state or local jurisdictions.

    1. You’re a collaborator piece of shit, brandy

    2. I was planning to use my medical marijuana doctor. Totes legit.

    3. There are also a lot of libertarians and others who have always been against mandated vaccinations, by any level of government.

    4. Unstated assumption here is you seem to think Biden is pursuing this policy for the sake of its real world effects. He’s not. It’s a wedge issue. Median white suburban housewife wants to keep her family safe and thinks people bitching about vaccine mandates are an irritating risk to that.

      Biden just highlighted the issue championed by the loudest and dumbest of the right. It’s the same reason Hillary picked Trump. It’s a pretty good gamble when the opposing party still runs below their historical mean because their focal point is objectively retarded. If the Republican party is running on anti-vax in 2022 it’s going to do a lot worse than if it was running insert-generic-Republican-platform-here.

      Before Trump there was at least some chance the Republican party wouldn’t be goaded into fighting pitched battles on enemy ground. Not lately though, the idiots.

  14. A broad rule is alsomuch harder to ram through the special interests.

    Hence why Congress and the USPS, among others, are exempt from the rule.

  15. So still no coverage of medical workers quitting their jobs instead of agreeing to mandatory vaccinations?

    1. Dead on arrival. Zero percent chance this becomes reality.

      1. 100% chance it has been happening. Numerous hospitals have already come forward and admitted they are facing staffing shortages due to people quitting due to mandates. This article is way behind the curve. However most are lying and saying people are quitting due to “burnout”

  16. A broad standard with no exceptions better serves his goals, but it will be harder to defend in court.

    And by “his goals”, you mean propaganda and virtue signalling unmoored from science and reason?

  17. If I may be permitted an on-topic comment, Biden’s testing mandate is legal. It has a very broad exception. If you get vaccinated, you don’t have to take a test.

    Biden calls it a vaccination mandate because vaccination mandates are popular except among the MAGA bozos. But in court, it will be a testing mandate with a vaccination exception. How it will fare remains to be seen, but it hardly seems onerous considering the benefit to UNVACCINATED employees of knowing that their colleagues have tested negative or been vaccinated.

    1. So you don’t acknowledge a basic human right to bodily autonomy, the basis of all other rights?

    2. A recent pole shows that only 1/4 of Americans support vaccine mandates, so you are implying that 3/4 of the population are MAGA bozos. Also, given the fact that people who are vaccinated carry and spread the virus, if they are going to mandate testing, they should do it for everyone so they can better track the viruses’ adaptation to the genetic marker created by the mRNA vaccines. They should be testing people with these vaccines regularly given the highly experimental nature of mRNA vaccines and the fact the the virus is adapting to them so rapidly.

  18. The vaccine mandate should be unconstitutional under Roe v Wade – my body, my choice. It is a terribly slippery slope. Suicides are at epidemic proportions. If the government decided that there was a depression pandemic in this country and the non-depressed only exacerbated the condition of the depressed so to fix it, ordered everyone to take Prozac everyday, would you?

    1. You’re right—Roe v. Wade enshrines a right to medical privacy. It’s no one else’s business who is vaccinated and who isn’t.

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