Most Republicans reflexively decried the COVID-19 vaccination and testing plan President Joe Biden announced on Thursday. South Dakota Gov. Kristi Noem, who proudly hosted the Sturgis Motorcycle Rally/super-spreader event last month, said she would “stand up to defend freedom” and promised Biden she would “see you in court.”
Arizona Gov. Doug Ducey said Biden is “hammering down on private businesses and individual freedoms in an unprecedented and dangerous way.” Georgia Gov. Brian Kemp said his state will go to court to stop what he called a “blatantly unlawful overreach.” They probably should have reviewed the law before shooting from the lip.
Today, legal scholars are saying the legal challenges to Biden’s plan threatened by Republicans likely will fail. That’s because the administration shrewdly crafted the executive orders within the context of workplace safety. The president ordered the Department of Labor to promulgate new regulations that will require businesses with more than 100 employees and all federal government employees and contractors to either provide proof of vaccination against the coronavirus or weekly negative tests for the virus.
Juliet Sorensen, a professor at Northwestern University’s Pritzker School of Law and an expert on health and human rights laws, explains it this way. “President Biden is acting within the authority of the executive branch to impose rules and regulations — sometimes referred to as the regulatory state — and within the rule-making authority associated with a range of federal administrative agencies,” she said.
For the most part Biden’s orders will be enforced by the Department of Labor and the Occupational Safety and Hazard Administration, which both are well within their authority to implement and oversee the orders, Sorensen said. OSHA’s mission is to ensure safe workplace conditions around the country and therefore naturally extends to keeping workers safe from COVID-19, she added.
“The gravity of the pandemic and the fact that it’s persisted without these mandates in place puts the president on solid ground, legally,” she said. The other factor working in Biden’s favor is that his order does not amount to a vaccination mandate since he is giving workers the option of weekly testing.
In remarks at a Washington, D.C. school on Friday, Biden essentially dared Republicans to challenge him in court, saying “Have at it.”
There’s also the fact that the U.S. Supreme Court has ruled in favor of vaccination orders in the past. In the lead-up to a 1905 case, a man named Henning Jacobson refused to get the smallpox vaccine during an outbreak of the disease, even after the health board of Cambridge, Mass., ordered residents to get vaccinated. He was fined and charged under Massachusetts law. He pleaded “not guilty” and argued the mandate violated his constitutional rights. The Supreme Court ruled that wasn’t the case.