President Joe Biden delivers remarks on the Delta variant and his administration’s efforts to increase vaccinations from the State Dining Room of the White House in Washington, D.C., September 9, 2021. (Kevin Lamarque/Reuters)
President Biden has a dilemma. He was elected on a promise to “shut down the virus,” but eight months into his presidency, COVID-19 is still raging. With his approval ratings cratering, he is desperate to garner headlines for taking bold action. And so, just weeks after his deserved rebuke by the Supreme Court over his eviction moratorium, he has once again gone too far.
On Thursday, Biden announced a series of unilateral actions aimed at increasing the percentage of Americans who are vaccinated. We obviously do not dispute the idea that it would be a good thing if more people were vaccinated, as the shots have proven to be safe and highly effective at nearly eliminating the risk of hospitalization and death from COVID-19. But the issue here is not what outcomes we may prefer, but what authority Biden has as president.
As chief executive, it is one thing for Biden to require vaccination for federal workers, or even for private companies that are hired as federal contractors. But Biden’s proposal goes way beyond that by ordering all private businesses with over 100 employees to require vaccination or weekly negative tests for all their workers, under the threat of steep fines. He says that the order will affect 80 million private employees.
Currently, vaccination mandates that do exist (such as the MMR shot) are requirements imposed by states or individual school districts. There is not anything akin to a sweeping vaccine mandate for private workers at the federal level. This rule imposes a significant compliance burden on employers to not only police who is vaccinated, but also to facilitate weekly testing of workers.
Though we await the full legal rationale, the Biden plan on the White House website says that the order will come through the Department of Labor’s Occupational Safety and Health Administration, which will issue an Emergency Testing Standard to implement the requirement.
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