Biden uses a range of legal tools to impose vaccines and test the limits of his power


WASHINGTON – President Biden’s sweeping assertion of executive authority to demand Covid-19 vaccines for 100 million American workers hinges on a complex set of legal tools that will test the power – and limits – of the federal government to compel personal decisions about health care.

To face the coronavirus pandemic more aggressively, Mr. Biden pulls several levers of presidential power: he uses an emergency provision in the Occupational Safety and Health Act of 1970; threatens to withhold federal funding from hospitals and other health care organizations; and he embraces his authority as general manager of the sprawling Federal Workforce and its contractors.

Taken together, the President’s actions constitute an asserted use of his jurisdiction over American life as occupant of the Oval Office. Until Thursday, under the leadership of Mr. Biden, the White House had been much more cautious about the vaccine requirement than its counterparts around the world, especially in Europe.

Faced with accusations of abuse of power by Republicans and threats of legal action on Friday, Mr. Biden had a simple retaliation.

“Wait a minute,” he said.

The government’s right to impose vaccines has been in place since at least 1904, when the Supreme Court handed down a 7-2 ruling that Cambridge, Massachusetts could require all adults to be vaccinated against smallpox. But more recent cases – including the Supreme Court’s first ruling on the Affordable Care Act – question whether Mr. Biden or a president could simply order all Americans to get vaccinated.

That’s not what Mr. Biden does. In demanding that companies maintain safe workplaces through vaccination, legal experts said on Friday that the president was relying on the federal government’s well-established constitutional power to regulate commerce and on the 51-year-old law establishing the Occupational Safety and Health Administration.

Once OSHA drafts an “emergency interim standard” and is reviewed by a White House regulatory office, officials said the agency will begin enforcing the rules: collecting reports on violations and sending inspectors to empowered to impose $ 13,650 in fines for offenses and up to $ 136,500 for those which are deliberate or repeated.

“The constitutionality of this regulatory effort is quite clear,” said Donald B. Verrilli Jr., who served as Solicitor General under President Barack Obama. “In a situation like this, where we are in the midst of a public health emergency, the courts recognize that they do not have the institutional jurisdiction to make judgments about what is in the best health interest. and public safety. “

Biden’s opponents are already accusing him of abuse of power, saying he has gone too far in the face of a virus that has claimed the lives of more than 600,000 Americans. Texas Republican Senator Ted Cruz called the president’s actions “completely illegal.” Gov. Brian Kemp, Republican of Georgia, said the move was “patently illegal and Georgia will not tolerate it.”

In a fundraising email sent Friday, Governor Ron DeSantis of Florida, a Republican who has issued anti-mask orders, wrote: “Joe Biden has declared war on constitutional government, on the rule of law, on jobs and livelihoods of millions of Americans. “

But the president’s main collaborators do not seem to be shaken by what they say is an expected response from these quarters. White House officials believe he clearly has the power to compel federal workers to be vaccinated as a condition of their government employment. And they say requiring hospitals and other healthcare organizations to vaccinate their workers – a mandate that covers up to 17 million people – is a reasonable condition in return for federal healthcare reimbursement.

The most original part of the president’s announcements on Thursday concerns his use of the emergency authority provided by Congress under the Occupational Safety and Health Act of 1970 as a means of forcing most American workers to undergo vaccination against the virus.

White House officials have said OSHA will likely take at least three or four weeks to draft the new standard, in part because it has to take some tedious steps to make sure the rule passes legal scrutiny. Among them, they rigorously demonstrate that workers face a serious danger at work, that the rule is necessary to defuse this danger and that it is possible for employers to execute it.

OSHA must also sort out a number of practical matters, such as who pays for the tests and what types of tests are acceptable.

In the case of the Covid-19 vaccine, the administration will argue that the death and illness caused by the Delta variant of the coronavirus poses a “serious danger” to workers across the country, and that the vaccine is an extremely effective means prevent serious illness, hospitalization and death.

These arguments are likely to be included in the preamble to regulatory language that OSHA and Labor Department officials are drafting, according to a White House official, who spoke on condition of anonymity to discuss the regulations. in development.

Former OSHA officials in contact with former colleagues said the agency had only been made aware of the standard’s plans in about the last week or so, so current OSHA officials OSHA didn’t have a chance to thoroughly prepare before Mr. Biden’s announcement.

“The White House asks OSHA how fast they can do it, and OSHA said, ‘Who the hell knows? “said Jordan Barab, deputy director of the agency under Mr. Obama.” They only had a week’s notice.

A White House official said Labor Secretary Martin J. Walsh was at the heart of policy making.

The agency has clear authority to issue an emergency standard. But before issuing an emergency coronavirus standard in June that required employers to provide protective equipment like masks and ensure adequate distance and ventilation, the agency had not tried to use that authority. for decades. Some attempts in the 1970s and early 1980s, such as a asbestos emergency standard, were put aside by judges who said the standard did not cross the required legal thresholds.

OSHA has not previously written a standard requiring vaccinations, although a rule of 1991 required that some employers make the hepatitis B vaccine available to workers who might come into contact with blood in the line of duty, such as dentists and hygienists.

Once the rule is published in the Federal Register, employers will likely have at least a few weeks to comply before OSHA begins to apply, although they may need to put in place an even more policy. early. The application can be done in several ways: the agency can prioritize one or more problematic industries and concentrate inspections there. It may also conduct inspections in response to reports of outbreaks or worker complaints.

And because the rule is likely to require employers to keep records of workers who have been vaccinated and those who have been recently tested, the agency could ask inspectors who track unrelated concerns to check records to verify compliance with them. the vaccination rule.

But OSHA only has a small number of inspectors relative to the size of the workforce. A recent report by the National Employment Law Project, an advocacy group, found that the agency had fewer than 900 inspectors as of January 1, 2020, up from more than 1,000 in 2012, and that it would take more than 150 years to complete a only inspection of each workplace under its jurisdiction.

While the coronavirus relief plan Mr Biden signed in March includes funding for additional inspectors, few or none are likely to be deployed by the end of this year.

This means the app will likely be strategic, focusing on a small number of high-profile cases where large fines can grab attention and send a message to other employers. A workplace that did not adopt the vaccination or testing requirement could in principle pay a fine for each worker involved, although OSHA rarely offers such aggressive fines.

But even in the absence of aggressive enforcement, employers tend to follow OSHA rules.

Experts said the administration appeared to be on a solid legal footing.

“OSHA law gives employees the right to a safe and healthy workplace,” said Robert I. Field, professor of law at Drexel University. “Having a vaccinated workforce is an essential part of having a safe and healthy workplace. “

Mr. Biden’s call to use that authority was a dramatic change in tone and approach. For months, the president tried soft persuasion. Anything more, the White House feared, would backfire in a polarized country where tens of millions of people viewed the Covid-19 vaccine as a political Rorschach test.

But on Thursday, he said he was at the end of his patience with the unvaccinated.

“It’s not about freedom or personal choice,” he said. “It’s about protecting yourself and those around you.”

The argument may cause exactly the kind of backlash that Mr. Biden’s team worried about.

“The federal government mandates, of questionable legality, will further alienate skeptics, undermine our institutions and punish ordinary business owners and their employees,” said Senator Patrick J. Toomey, a Republican from Pennsylvania, on Friday.

But in a statement, White House officials said the president was “determined to pull all possible levers” in the fight against the pandemic.

“This action is both clearly legal and necessary to help save lives and stop the spread of Covid-19,” he said.

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