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Biden Administration Pushes Mandate Despite Court and OSHA

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The Biden White House is demanding that American businesses comply with a vaccine edict that profoundly affects the lives of 80 million people and massively increases compliance costs for private businesses. And it is doing this despite a court order to the contrary. It is further doing this despite an announcement from the relevant regulatory agency that it will neither implement nor enforce the order. 

“Our message to businesses right now is to move forward with measures that will make their workplaces safer and protect their workforces from COVID-19,” Jen Psaki told reporters. “That was our message after the first stay issued by the Fifth Circuit. That remains our message and nothing has changed.”

The Epoch Times comments:

Despite OSHA’s decision and the legal challenges, Psaki said the Biden administration is confident that it has the authority to implement the rule and confirmed the White House is still working under the guise that businesses will implement the mandate by Jan. 4.

The court said very plainly that it does NOT have the authority. The 6th Circuit is going to hear the case soon too, and it is nearly certain to decide along the same lines at the 5th Circuit. The Biden administration will appeal to the Supreme Court but the logic and arguments of the lower court are so solid that it is highly doubtful that the highest court will reverse the lower courts. 

In other words, the edict seems headed for the dustbin of juridical history. But what does the Biden administration care? 

OSHA has posted on its website as follows

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Despite all of this, the White House is barreling ahead, despite the plunge in Biden’s own popularity. 

It not only makes little political or medical sense; it is contrary to law and tradition. And yet they are doing it anyway. 

If courts cannot control government powers, and even a regulatory agency is being ignored by the occupant of the White House, one wonders what has become of the rule of law in the post-pandemic age. Lockdowns seem to have set a precedent that neither law, nor legislatures, nor even regulatory agencies, much less the will of the people, are capable of restraining power.

Right now, there seems to be no legal basis for any private business in America to impose a vaccine mandate on its workers. And yet they are pushing ahead anyway, with HR departments all over the country pushing for universal vaccines, while accepting few if any medical or religious exemptions. 

Businesses have already adapted to the most far-reaching imposition on worker rights in the postwar period– for a pathogen that few healthy people under the age of 50 are even vulnerable to in terms of severe outcomes. The data have been clear for 20 months: most of the people who are severely harmed by it are not in the workforce. 

Still, there is this presumption in the business world that the mandate is on. The Wall Street Journal this morning reports:

Small-business owners are confronting challenges preparing for the Biden administration’s vaccine mandate, with some saying efforts to comply are exacerbating hiring problems and stoking tensions with and among workers.

Further, we know now that the vaccine itself does not substantially contribute to the realization of endemic equilibrium. That’s because the non-sterilizing shots do not stop infection or spread. At the very least, getting them should be a choice for individuals.

So you have this strange situation in which OSHA, which is supposed to assure worker safety, is forcing businesses to give what might turn out to be unsafe medicine for many. More precisely, OSHA backed down from the demand. The Biden administration insists on moving ahead. 

The pain this is imposing on American workers and business owners is tragic. I receive notes all day with very sad stories of people with various medical conditions that indicate that the risks of this vaccine are too high. Many people have natural immunities, perhaps far more than 100 million people (we do not know precise numbers). They are seeking answers from lawyers and doctors but few are willing to step up and risk their careers. 

Meanwhile, like clockwork, the FDA has approved booster shots just as everyone knew they would. We are not even one year into this. We have one shot. Two shots. And now boosters. 

Just as easily as the White House has pushed a mandate that the court has shot down and the relevant regulatory agency has said it will neither implement nor enforce, the same government could impose a national mandate on children as well. They only need to find a regulatory loophole and claim that White House wishes to override state jurisdiction. 

If OSHA repeals the implementation and enforcement of a major edict, and a court strikes it down,  and no one knows about either rebuke – media hardly reported these events – has it really happened? The White House is presuming not. Many private companies will likely proceed along their merry way to violate the rights of their workers, believing that they are complying. 

Despite every reason for optimism here, we are far from being out of the woods.

Brownstone Authors and Contributors

  • Jeffrey A. Tucker is Founder and President of the Brownstone Institute and the author of many thousands of articles in the scholarly and popular press and ten books in 5 languages, most recently Liberty or Lockdown. He is also the editor of The Best of Mises. He speaks widely on topics of economics, technology, social philosophy, and culture. [email protected]

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