Biden Admits He Can’t Mandate Masks. Why Does He Think He Can Mandate Vaccines?
The most audacious part of the COVID-19 plan that President Joe Biden announced today is a rule demanding that every U.S. company with 100 or more employees require them to be vaccinated or submit to weekly virus testing. In contrast with that bold assertion of federal regulatory power, Biden is still stopping short of a broad face mask mandate, which he has said is beyond his powers as president.
The difference between these two approaches is hard to understand based on what the law allows—or, more to the point, what the Biden administration has said the law allows. Biden’s sudden embrace of a federal vaccine requirement seems inconsistent with his acknowledgment that he cannot mandate every COVID-19 precaution he’d like people to follow.
The White House says the Occupational Safety and Health Administration (OSHA) “is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” That rule, which “will impact over 80 million workers in private sector businesses,” relies on OSHA’s statutory authority to issue an “emergency temporary standard” if it decides the regulation is “necessary to protect employees” from a “grave danger” posed by “exposure to substances or agents determined to be toxic or physically harmful.”
When it comes to face masks, however, Biden is not claiming OSHA has the power to require them in private workplaces. Instead, he is extending orders that require masks on federal property and in interstate transportation, including airports and airplanes. The transportation rules, previously scheduled to expire this month, will now be in effect at least until January 18, regardless of how many Americans are inoculated between now and then. The Transportation Security Administration is doubling the fines for violators, from $250 to $500 for the first offense and from $1,500 to $3,000 for repeat offenders.
Nor is Biden claiming he can simply order public schools across the country to require “universal masking.” Instead, he has instructed the Department of Education to investigate whether states that prohibit mask mandates in schools are violating federal laws that ban discrimination against students with disabilities. Assuming the department concludes that’s the case, that dubious legal interpretation, which would in effect make federal COVID-19 guidelines for schools mandatory, will bear fruit only if it is accepted by federal courts in the inevitable litigation.
During his presidential campaign, Biden repeatedly promised that he would force all Americans to wear face masks in public places but eventually conceded that the president does not have the power to do that. “I cannot mandate people wearing masks,” he said on CNN last September.
Yet in defending the nationwide eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed in the name of fighting COVID-19, the Biden administration argued that the Public
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