Biden's Vaccine Mandate

 

Presidential Executive Orders (EOs) are tricky things. On one hand, they are not legislation, but on the other hand, they carry the weight of law. Most recently, Biden's order for companies employing over 100 persons to require vaccination by January has come under scrutiny. At the time of this writing, the order has been halted in the courts as 27 states filed suites against the requirement. 

This is good. We need to be constitutionally cautious and this is a first for our nation. Slowing things down to evaluate and ensure legality is a responsibility of government. Plus, things like vaccine mandates have historically been state and local matters. It's one thing for the federal government to require its personnel and contractors to get vaccinated, but entirely another for the feds to make the local lumber mill or pizza chain abide. That seems like an overreach and runs afoul of our dual-federal model, with its checks and balances. 

Initially, when I heard that the President was requiring vaccines for private companies not on the federal payroll, I cringed and stood against Biden with his detractors. An executive order used this way would be to use it as if the President had legislative powers. But then I learned that it was an OSHA policy. The Occupational Safety and Health Administration is an executive agency of the Department of Labor and within the cabinet control of the President. It has been authorized by Congress to enforce emergency matters within the workplace, and with that in mind, covid-19 is arguably a workplace concern. If the President's EO mandated that OSHA enforce covid vaccinations as an emergent matter, then it is -- from my understanding -- a legal use of an EO. 

Article II, Section 3 of the Constitution, which defines the President's role and powers, ends with this:

"[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

This is called the Take Care clause. It basically requires the President to ensure that congressional legislation is carried out and enforced. OSHA exists to ensure that Congress's work place safety laws, including the emergent requisites, are followed. Since an EO is not legislation, it cannot be used by the President to write laws, but when used in-house as an order for an Executive branch agency to enforce or enact existing congressional legislation, it carries the weight of law -- namely the congressional act it enforces. Since Biden's EO was directed at OSHA and this is potentially an urgent matter, it is possible that the EO was and is within the bounds of the Take Care clause and will stand up. 

Just an analysis from an armchair political scientist. ;)