The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On September 9, President Biden called on OSHA to implement a vaccine mandate for employers. In the ensuing days, I wrote several blog posts that parsed a non-existent rule (1, 2, 3, and 4). I fully expected the rule to be issued imminently, which would trigger a mad dash to the courts. Yet, 28 days later, we still do not have a proposed rule. What is going on? Where is the urgency?
I have a few tentative thoughts. First, OSHA planned to adopt an Emergency Temporary Standard (ETS). This fast-track process bypasses the usual notice-and-comment process. Perhaps the agency determined that it needs more time to make its rule iron-clad. Admittedly, this process is very complicated. And the need for deliberation counsels in favor of seeking public comments, not rushing through the policy unilaterally. Ultimately, this delay undermines the case for emergency action.
Second, thankfully, COVID numbers have declined precipitously over the past month, as the Delta surge has peaked. And vaccine rates have increased in the absence of a federal mandate. The longer this process takes, the less essential a federal mandate becomes.
Third, the mere announcement of the rule is having its intended effect. Employers nationwide are adopting vaccine mandates to get ahead of an actual rule. As more employees get the jab–in the absence of a federal mandate–resistance to the inevitable rule declines. In this fashion, Biden's announcement has a strong ad terrorem effect: the government can get its way without actually doing anything. By the time the rule is finally released, the vaccination rate will have increased substantially. This approach reminds me of the eviction moratorium: the government adopted a policy that would likely be halted in the court, to ensure enough time to distribute funds. Biden can win, even if he loses.