President Biden appears to view Americans not as free citizens but as disobedient subjects. In September, he informed the millions of Americans who remain unvaccinated that “our patience is wearing thin.”
The mandate covers more than 80 million Americans. And it violates the Constitution and other federal laws. That’s why Alliance Defending Freedom is challenging this order on behalf of several groups in courts around the country.
Within a day of the order being issued, a federal court stayed the rule, citing “grave statutory and constitutional issues.” But the fight is only beginning.
Congress empowered OSHA to protect employees from toxic substances or hazards in the workplace. But, here, the agency essentially defined employees themselves as the hazard. This greatly oversteps its authority. The Supreme Court has said that, if Congress wants to give bureaucrats authority over major questions of “vast economic or political significance,” it must do so clearly.
The Supreme Court recently invoked this doctrine to end the national eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed, reasoning that its authority to prevent disease did not extend to such large sectors of the economy. OSHA has turned a workplace law into an ability to mandate medical procedures on any citizen, even when they’re not in the workplace, just because they have a job.
The president is effectively telling the American people, “You can keep your job only if you do exactly as we say, even when not at work.”
Beyond that, this case is about the Constitution, which gives the federal government limited powers. Whether to get vaccinated is a deeply intimate and personal decision for many. If the federal government can mandate medical procedures that encompass your whole life on the theory that, since you have a job, you’re engaged in “interstate commerce,” federal power will not have any apparent limit. The Supreme Court recognized in its 2012 decision regarding ObamaCare that the federal government has no “general license to regulate an individual from cradle to grave.”
OSHA’s order is also plainly arbitrary, which is also prohibited by law. OSHA claims its overreach is “necessary” to prevent “grave danger.” But why is the mandate necessary for companies with 100 employees but not those with 99? How about those who have natural immunity? How are vaccinated employees at grave risk? And under what metric will the risk ever be deemed not grave? In June, OSHA itself declined to impose a COVID-19 vaccine mandate “in non-healthcare settings.”
OSHA’s overbroad mandate isn’t supported by substantial evidence because it isn’t entirely about reducing workplace risk. It is about the president imposing his will on the citizenry at large. This is a political motive, not a scientific one. And it fits a theme: Overreaching officials often label people who don’t comply as threats to society.
Thus, as far as OSHA is concerned, a person recovering from COVID-19 who chooses not to be vaccinated is a threat to himself and others and a threat from which only the government can save them. But the best thing the government can do for workers is getting out of the way.
We must not let Americans be held hostage by bureaucrats set on massively expanding federal power over our lives. Nor can we ransom our freedom when COVID-19 may be with us for many years to come. It’s up to the courts to remind the administration that no government has the right to force people to choose between their freedom and their livelihood.
Matt Bowman is senior counsel and director of the regulatory practice team with Alliance Defending Freedom (@Alliance Defends)
