OSHA Employer Mandate Temporarily Blocked/ Comments on EO 14042 - federal contractors.
As we predicted last week when discussing the OSHA mandates, The United States Court of Appeals for the Fifth Circuit temporarily blocked them. The Court ordered the Biden Administration to respond to an Emergency Motion to Stay the OSHA employer mandates filed by employers and some states. The response is due Tuesday 11-9-2021 at 5pm.
In December 2020, then President-elect Biden said that he would not make COVID-19 vaccines mandatory. By issuing an an executive order, he broke his promise, bypassed Congress, and challenged the concept of representative government. The President has no legislative authority to mandate vaccines. As the U.S. Constitution, Article 1, Section 1 states: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Additionally, the President has no reserved powers as those belong to states or the people under the Tenth Amendment to the Bill of Rights.
Traditionally states, not the federal government, are empowered to promote the people’s health. Defenders of vaccine mandates cite, Jacobson v. Massachusetts, 197 U.S. 11 (1905) but it is narrow and irrelevant to what we face today. Mr. Jacobson was not even facing forced vaccination for smallpox during the outbreak. The Massachusetts Supreme Judicial Court said: “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of $5.
Smallpox was a terrible and dangerous disease with an almost 30% fatality rate. Covid-19 is treatable, generally survivable, presents no danger to healthy children, and little danger to adults without underlying conditions. Some statistics are here and here.
We find it curious that Executive Order 14042 does not mention vaccines. Instead, it states that “…the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.”
Normally, agencies have power conferred by Congress through an authorizing statute but the “Task Force” is an amalgamation of federal agencies. From its website: “The Safer Federal Workforce Task Force is led by the White House COVID-19 Response Team, the General Services Administration (GSA), and the Office of Personnel Management (OPM). Task Force members include: the Centers for Disease Control and Prevention (CDC), the Department of Veterans Affairs (VA), the Federal Emergency Management Agency (FEMA), the Federal Protective Service (FPS), the Office of Management and Budget (OMB), and the United States Secret Service (USSS).” This unprecedented Frankensteinian arrangement greatly expands the federal government’s involvement in our private lives and employment relationships.
This arrangement, if it stands, greatly expands administrative rulemaking power flowing from the White House. It is the Task Force that issued rules mandating vaccines.
Guiding principles of the EO 14042 are to promote economy, safety, and efficiency. The Task Force rule will do none of that. We have taken calls from contracted national security personnel, nuclear energy workers, and military contractors—thousands will leave their jobs or be fired. These security cleared employees are not going to be replaced easily and this endangers our national security. How is that economical, safe, or efficient?