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Injecting a Little Lawlessness

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President Joe Biden delivers remarks on the coronavirus response and vaccinations during a speech at the White House, August 23, 2021. (Leah Millis/Reuters) The administration’s vaccine mandate is likely yet another episode of legally unauthorized Biden overreach that could impair economic growth.

The most far-reaching and questionable part of the Biden administration’s six-pronged COVID-19 Action Plan directs the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) mandating that private employers with 100 or more employees ensure that all employees are fully vaccinated or undergo weekly negative COVID-19 tests with potentially hefty fines for each violation. While the specific ETS provisions and requirements are as yet unknown, this new directive — which will affect more than 80 million private-sector workers — is probably yet another episode of legally unauthorized Biden overreach that could impair economic growth.

Vaccination is the most effective way to limit the spread of the virus that causes COVID-19 and to mitigate the severity of the disease. As I discussed in an October 2020 study for the Competitive Enterprise Institute, well-established precedent gives states broad authority to issue vaccine mandates. Employers also have the ability — subject to compliance with various anti-discrimination statutes and the Americans With Disabilities Act — to require employee vaccinations. The pertinent question is: Does the federal government have authority to require employers to ensure their employees are vaccinated?

As with the CDC’s nationwide eviction ban — which the president acknowledged he lacked legal authority to extend, only to renew it days later — the Biden administration has repeatedly said that the federal government could not and would not impose vaccine mandates. On July 23, White House press secretary Jen Psaki said that mandates are “not the role of the federal government; that is the role that institutions, private-sector entities, and others may take.” A week later, CDC director Rochelle Walensky confirmed there would be no nationwide vaccine mandate.

Yet Biden seems unconcerned with legal niceties, evidently believing that his laudatory goal of increasing vaccination rates gives him the authority to

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