The Occupational Safety and Health Administration (OSHA) should be abolished. But it should not be abolished because of anything to do with COVID-19.
In response to President Biden’s national strategy to combat COVID-19 by vaccinating the unvaccinated, on November 5, 2021, OSHA issued an “Emergency Temporary Standard” (ETS) requiring that businesses with 100 or more employees either require all their employees to get the COVID vaccine or elect to undergo “regular” testing for COVID after January 4 (of 2022) and wear a face mask at work beginning on December 4. This ETS is estimated to cover over 84 million American workers. Businesses that refuse to abide by the rule face heavy fines, up to $136,532.
Almost immediately after the release of the rule, 26 states sued to stop its implementation. A day later, on November 6, the Fifth Circuit Court of Appeals—covering Texas, Louisiana, and Mississippi—issued a stay on enforcing the vaccine mandate pending “expedited judicial review” because it found cause to believe there were “grave statutory and constitutional issues with the Mandate.”
According to legal scholar James R. Rogers of Texas A&M University: “OSHA has tried to use the ETS process only nine times in its history. Of those nine ETS attempts, six were challenged in court. And of those six challenged, only one ETS was upheld.”
In a decision issued on November 12, the Fifth Circuit Court of Appeals further ordered that “OSHA take no steps to implement or enforce the Mandate until further court order.”
The court addressed the “grave statutory and constitutional issues with the Mandate”:
The Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.
The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.
But the court also found that the mandate is “nonetheless fatally flawed on its own terms.” The mandate’s
strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).
The mandate’s promulgation grossly exceeds OSHA’s “statutory authority.”
OSHA then announced that the agency was suspending its ETS. However, the Sixth Circuit Court of Appeals lifted the stay of the Fifth Circuit on December 18, allowing the OSHA rule to take effect. This set up the recent challenge at the Supreme Court over the vaccine mandate.
On January 13, the Supreme Court blocked the mandate from taking effect, concluding:
The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.
After the Supreme Court’s decision, U.S. Secretary of Labor Marty Walsh said he was “disappointed in the court’s decision, which is a major setback to the health and safety of workers across the country.” He maintained that “OSHA promulgated the ETS under clear authority established by Congress to protect workers facing grave danger in the workplace.”
This authority was instituted over 50 years ago.
President Nixon signed the Occupational Safety and Health Act on December 29, 1970. It took effect on April 28, 1971. OSHA “sets and enforces protective workplace safety and health standards” and “also provides information, training, and assistance to employers and workers.” From the beginning, OSHA has always been concerned with things like hazardous chemicals, safety equipment, and workplace injuries. It has never been charged with overseeing or concerning itself with public health in general or the personal health of individual Americans—whether they have been vaccinated against various diseases, are overweight, or whether they are getting enough exercise.
Regardless of the noble mission of OSHA, the agency is clearly exercising an unconstitutional use of federal power. It infringes on the traditional authority of the states to exercise their general “police powers” concerning public health and safety. This doesn’t mean that the states have always acted wisely or prudently, or never infringed on individual liberty and private property. But the federal government has never been afforded general police powers by the Constitution.
This is what is missing from all the analysis about the Supreme Court overturning the Biden mandate. OSHA should have been abolished long before COVID-19 came on the scene.
Accordingly, several Republican members of Congress have introduced a bill (H.R. 5813), the “NOSHA ACT,” to abolish OSHA. According to Rep. Thomas Massie:
One of the most troubling things about Biden’s … unconstitutional vaccine mandates that have been stopped by the courts is that the agencies who were tasked with enforcing them did not even question the fact that they were illegal. He told them to do something that was illegal; they carried it out, and they carried it out until the courts stopped them.
It’s almost Orwellian. The very agency that’s supposed to protect you from your employer doing something to you that you don’t want is forcing you to have your employer do something to you that you don’t want.
According to Rep. Andy Biggs, the primary sponsor of the bill:
OSHA’s existence is yet another example of the federal government creating agencies to address issues that are more appropriately handled by state governments and private employers. Arizona, and every other state, has the constitutional right to establish and implement their own health and safety measures, and is more than capable of doing so. It’s time that we fight back against the bloated federal government and eliminate agencies that never should have been established in the first place
And that is the bottom line: the federal government is full of agencies that should never have been established in the first place. OSHA is just simply one of them.