Could the OSHA Vaccine-or-Test ETS Fall Prey to the Congressional Review Act?

Several Republicans are seeking to overturn the new OSHA rule. Despite the razor-thin margins in both Houses, a repeal resolution will not get enacted.

The new Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard is already coming under fire. Multiple lawsuits have been filed challenging its legality, and more are on the way as conservative state attorneys general join the fray. (Fortunately for court watchers, these suits will be consolidated.)

Members of Congress are also taking aim at the ETS. Indiana Senator Mike Braun has announced his plans to try and repeal the OSHA ETS through the Congressional Review Act. Under the CRA, Congress may reject a new regulation with a simple majority vote in each house. Of particular importance, procedural tactics like the filibuster are unavailable to block a vote on a CRA resolution. Nonetheless, invocation of the CRA will not result in repeal of the OSHA rule.

The Washington Times reports that Senator Braun already has the support of forty of his Senate colleagues. If he can corral all 50 Senate Republicans, he would need only one Senate Democrat for a CRA resolution to pass the Senate. If Republicans hold ranks, a half-dozen or so Democrat defections would send the resolution to the White House, but that is where the story will end. There is little question President Biden would veto a CRA resolution rejecting the OSHA ETS.

If a CRA resolution cannot pass, why would Republicans push one? Politics. The CRA can be used to force a vote on the resolution and make members of Congress go on record. Insofar as the OSHA ETS is unpopular in some parts of the country or with some constituencies, a CRA vote may have political value.

For more background on the CRA, see this post. Also, I discussed the legal vulnerabilities of the OSHA ETS in this post, which includes an update on my disagreements with my co-blogger Ilya Somin. Time permitting, I will post further on the interesting preemption issues raised by the OSHA ETS.

Comments

[Joe_dallas]

I am pro vaccine

However, evidence is showing that the 3 different vaccines are not really vaccines.

I point to the Israeli study, and the the MN data. In MN the vax rate for age 65+ is 88% and the both the cases in MN for the age 65+ is approx 40% vaxed and vaxed deaths for the age 65 account for approx 35% of the total covid deaths. Those ratios have been rising steadily since early aug as the effectiveness of the vaccines drop off

[Commenter_XY]

I am pro vaccine as well (got jabbed 3X).

What scares me is that the CDC changed the definition of what a vaccine is meant to do. That definitional change was not right; it was done for politics, and nothing more. That is the kind of thing that government bureaucrats do that erodes trust.

[Syd Henderson]

If that's so, then 60 percent of cases and 65 percent of deaths take place among the 12 percent of people who aren't vaccinated. Sounds like a good argument for vaccination.

[Joe_dallas]

Syd on first impression, your analysis is correct. However, the ratios are shifting fairly quickly to heavier weighting to the vaxed.

Back in early August, the ratio of vax infections and death was 15%, 2-3 months later as the effectiveness continues to decline, it is now up to 40%

[Joe_dallas]

Syd - just located partial Massachusetts data.
the covid deaths of the vaxed are now (Oct 2021) accounting for approx 45% of the total covid deaths, with similar vax rates as MN.

[Glaucomatose]

If there are more deaths among the 20% of Massachusetts residents who aren't vaccinated than there are among the 80% who are, that's still an awfully strong argument for vaccination.

[Joe_dallas]

We have gone from less than 5% of cases & deaths being breakthrough 4-5 months post vaccination to 40% 8-10 months post vaccination. That ratio is going to continue to get worse until there is very little difference in the two pools, absent repetitive booster shots. While natural immunity appears to be much stronger long term. The reinfection rate is holding at significantly lower levels than the breakthrough infection rates

[Don Nico]

The problem, Joe, is that there are 3 pools to compare. 1) covid-naive unvaccinated, 2) covid-naive vaccinated, and covid-recovered vaccinated. Comparing all three samples is what makes the data from Israel convincing

[Glaucomatose]

Well, sure. We've gone from 50% of the population a few months ago to 80% today. The fewer people there are remaining who are unvaccinated, the greater the share of Covid deaths will be among the vaccinated, simply because there are so few people remaining in the unvaccinated pool.

"While natural immunity appears to be much stronger long term. The reinfection rate is holding at significantly lower levels than the breakthrough infection rates"

This is not consistent with the latest data.

[Don Nico]

What do you cite as the "recent data?" primary statistical data covering many millions of persons or studies of greatly limited sample size?

[Don Nico]

They are really vaccines, however they have limited time efficacy. Data across a few dozen countries with substantial vaccine programs re evidence of that.

[Commenter_XY]

Don Nico, why did Alycia Downs change the CDC definition of vaccination?

Do you see that as problematic from the perspective that a growing (and substantial number of) people simply do not trust the CDC anymore?

[David Nieporent]

Nobody changed any definition. They changed some words on a website because people were misusing them to make dumb arguments. No vaccine provides complete immunity, but before covid nobody made a big deal of that, so they had never reworded it.

[Don Nico]

C_XY,
I don't know about Ms Downs and I expect that the change was motivated bu the fact that the Pfizer and Moderna vaccines are the first mRNA vaccines generally offered.

[Sarcastr0]

I don't see a lot of threat to a semantic change here. Like what's the sinister scenario here?

[Don Nico]

Agreed.

[Gandydancer]

Nothing wrong with politics as a reason for politicians to do something.

I'm a bit unclear on when Presidential vetos can be applied to resolutions and/or laws, or am I just imagining that sometimes they don't? (It seems appropriate here, anyway, I think.)

[Voize of Reazon]

It's in the Constitution Article 1 Section 7

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment)

gets treated the same as a Bill, with presentment, approval or veto, and veto override. States don't necessarily have the same rule and joint resolutions may have effect without the governor's assent, but Congressional joint resolutions go to the Pres.

[Dilan Esper]

Members of Congress are also taking aim at the ETS. Indiana Senator Mike Braun has announced his plans to try and repeal the OSHA ETS through the Congressional Review Act.

What a douche. Standing up for sociopathy.

[Gandydancer]

Only sociopaths think the OSHA ETS is justified.

[Life of Brian]

What a douche. Standing up for sociopathy.

The only sociopaths in this equation are the ones driving this over-the-top power grab rebranded as a purported and mysteriously never-ending "emergency" -- headed by one Tony "Sand Fly" Fauci.

[Life of Brian]

Corrected link here.

[Alpheus W Drinkwater]

Yes, just like the "power grab" that eliminated polio.

[Life of Brian]

just like the "power grab" that eliminated polio

Please do share with us the particular federal polio vaccine mandate you had in mind, so we can decide exactly how hard to laugh over this stupendously inapt analogy. Thanks.

[Alpheus W Drinkwater]

The analogy has nothing to do with federal mandates, it addresses your inability to understand the necessity for widespread vaccination. I'm not that surprised you failed to realize that.

[Sarcastr0]

Maybe none of you should be pathologizing this political nonsense.

[JohannesDinkle]

Sometimes the point is to get another politician on record - in this case supporting the mandates, which are very unpopular in many areas. It doesn't really matter so much if the repeal attempt fails as having the vote recorded for later use.

[Rev. Arthur L. Kirkland]

" - in this case supporting the mandates, which are very unpopular in many areas. "

Many areas, sure . . . but not the properly educated, reasoning, successful, skilled, modern, economically adequate, well-adjusted areas.

Speaking of 'small town girls gone astray' . . . as all of the smart, ambitious, high-character young people continue to flee the desolate backwaters at high school graduation for education, modernity, and opportunity that must be found elsewhere, and the attractive women leave because they can find much better prospects elsewhere . . . what will communities such as Clarksburg, West Virginia; Blaine County, Oklahoma; East Tennessee; Rawlins, Wyoming; North or South Dakota; and Bob From Ohio's town look like in 15, 30, or 50 years?

There will be only so many dollars to go around from filming Deliverance remakes.

[Jimmy the Dane]

The mandate is pure fascism akin the the Nazi's enabling laws. Biden is now basically Hitler.

[Don Nico]

Jimmy,
Biden has display many flaws as POTUS, but being Hitler is not one of them.

[Jimmy the Dane]

Can you name on thing he has NOT done that Hitler didn't do or would have done? I can't.

[Darth Chocolate]

I am no fan of Hitler, but I would guess he didn't shit his pants.

[Jimmy the Dane]

He had lots of digestive issues so he probably did at some point...

[Commenter_XY]

Jimmy, the Nazi analogies are thrown around way too much.

Biden is many things: old, brain-damaged (literally), corrupt AF, forgetful, affable, protective (of his son Hunter). But he is no Nazi.

[Sarcastr0]

The fact that they took a left turn at poo poo doo doo should tell you they're not being serious at the moment.

[Jimmy the Dane]

You must literally like Hitler!!!!

[Commenter_XY]

Sarcastr0, what annoys me about it is that it trivializes the Shoah. Things like that should not be trivialized. When that trivialization happens, becomes commonplace and entrenched, moral decay is inevitable.

[Sarcastr0]

No argument here.

And I also call out my friends on the left when they throw Nazi around at the GOP.

Just say authoritarian, ffs.

[Don Nico]

Certainly Jimmy.
Old White Joe, has not annexed the Sudetenland, he has not invaded Poland, or launch a blitzkrieg against France, he has not burned down the Capitol, he has no had a US Krystalnacht.
Need I go on?

[Glaucomatose]

Oldie but a goodie:

"You Know Who Else Opposed Vaccine Mandates? Hitler."

[Commenter_XY]

I do not think this ETS survives judicial scrutiny. Why? If it is an emergency, then why did it take months to promulgate the regs? Taking a few months sounds desultory, not emergency.

[Rossami]

The fact that the delay lasted until one day after the elections supports the argument that it's pretext, not mere incompetence.

[Stephen Lathrop]

Yup, pretend dead people by the hundreds of thousands.

[Don Nico]

SL,
Your repeating the 500,000 died under Biden does not make your claim any more convincing.

[Jimmy the Dane]

Seeing we are almost two years into this, yes, I don't think it is an emergency anymore. It is a public health challenge and question. I'm not willing to treat it as an "emergency" situation any longer. Also it looks like we are now going to get at least two effective anti-virals that have numbers similar to the vaccine which makes Covid even less of an "emergency" now.

[Commenter_XY]

The 'emergency' was over last July.

[Stephen Lathrop]

Adler's forthright willingness to consider political motives against vaccination is welcome, but his candor stops short. Anti-Covid vaccine sentiment has been politicized by the political right. The aim has been to make the pandemic worse, and thus to embarrass the Biden administration, and to make Trump's willful mismanagement look less culpable by comparison.

If you doubt that conclusion, check out Dan Goodspeed's bar chart race. That displays state per-capita Covid case data cross referenced to state partisan leanings. It starts in June 2020, and works through to late October 2021, re-sorting the graph bars to show each day's comparative results.

At the beginning the results are mixed; little pattern is visible. As the days go by, red states begin to dominate the high end of case incidence. By October 2021, the pattern is nearly perfect, with almost all the red states at the higher-incidence end, and almost all the blue states at the lower-incidence end.

To find it, Google "goodspeed bar chart race" See if you can think of any explanation except purposeful political resistance to explain what the bar chart race shows.

============

[Joe_dallas]

https://91-divoc.com/pages/covid-visualization/

Lanthrop - looks like driven more by mother nature/ geography

Nice try at blaming your imaginary demon

[Don Nico]

More of the same, making this matter all about partisan politics.
Plain, old BS

[ReaderY]

While the Congressional Review Act may prove an effective way to undo a previous administration’s policy, it’s not surprising that it’s use against a President of the same party would rare if ever.

Maybe someday a President will do something so out of line that members of his own party will check him. But it’s very unlikely they would undo administrative policies roughly aligning with the party platform and consistent with the campaign message, even if there might be an element or two that might be disagreed with.