On Sept. 9, President Biden announced his overreaching plan to "fight the COVID-19 pandemic" in the United States by demanding all employers with 100 or more employees guarantee their workforce is fully vaccinated with one of the EUA "vaccines" or tested weekly for COVID-19. Instead of issuing an Executive Order (EO) mandating his vaccine narrative—as he did for all federal employees—Biden declared that the Department of Labor, specifically the Occupational Safety and Health Administration (OSHA), is developing an emergency law to dictate the command.
Since federal agencies like OSHA do not typically create regulations until after a law has been passed or an EO has been issued, many have questioned the motive behind putting the agency in charge of drafting the regulations and fines for non-compliance that outline Biden's vaccine directive. After all, how can an agency legislate against a rule—affecting over 80 million workers—that doesn't exist?
In a seldom-used move, to circumvent the lack of an EO and attempt to establish the first-ever general federal vaccination requirement, Biden directed OSHA, on its own initiative, to promulgate a federal "emergency temporary standard" (ETS) to carry out his mass vaccination mission targeting private businesses with 100 or more employees. The last time an ETS was issued was in 1983 for asbestos.
Emergency Temporary Standard" (ETS) rules are rare. Rarer still is an ETS that survives a legal challenge. OSHA has issued nine in its 30-year history and six were challenged. Of the six, only one was allowed to go into effect. Bloomberg Law
Unlike traditional OSHA regulations that can take years to become final, emergency temporary standards (ETS) bypass the lengthy rule-making process that normally requires public comments and hearings. The rarely used ETS measure—which must include a statement of reasons for the actions—allows the agency to execute "urgent six-month safety standards" that are valid until "superseded by a permanent standard, which OSHA must promulgate within six months of publishing the ETS in the Federal Register."
Having issued just nine emergency temporary standards in its 30-year history, OSHA has the authority to issue an ETS only if doing so is "necessary to protect workers from grave danger from exposure to substances or agents determined to be toxic or physically harmful from new hazards."
Screenshot / Congressional Research Service (CRS) Report, Updated Sept. 13, 2021; Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19
The determination of the term "grave danger," as outlined in a Sept. 13 Congressional Research Service (CRS) report, is not defined in a statute or regulation. The report states history is unclear as to how Congress intended the term grave danger to be determined but adds that the ETS process "not be utilized to circumvent the regular standard-setting process."
Besides addressing a grave danger to employees, the CRS report explains an ETS must also be necessary to protect employees from that danger. In 1984, the U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass'n v. OSHA ultimately rejected the ETS, partly because OSHA's reasoning that the ETS was justified—despite already having some of the emergency measures in place permanently—failed to demonstrate the necessity of the EST. The court ruling determined:
"[OSHA's argument] hardly justifies resort to the most dramatic weapon in OSHA's enforcement arsenal."
In addition to signifying a "grave danger" and being "necessary" to enact an ETS, OSHA (established in 1970 by the OSH Act) must prove there exists "exposure to toxic substances or agents determined to be toxic or physically harmful." An Oct. 3 research paper by Paul J. Larkin, Jr. and Doug Badger, both Senior Fellows at The Heritage Foundation, highlights the problem this creates for the Biden administration. They assert it is not clear for purposes of the OSH Act if a "virus" qualifies as either a toxic material or a harmful physical agent.
The paper explains that a "virus" is a transmissible pathogen with a protein coat encapsulating an RNA or DNA genetic material that replicates within a host or dies. A toxin is different, and since the OSH Act does not define the term, Larkin and Badger assert it should receive "its ordinary dictionary meaning," which defines a "toxin" as a "poisonous" substance, which "refers to an element or compound such as arsenic or chemical waste that, though often hazardous, does not replicate within a human host." Therefore—acknowledging an overall lack of coherence in the OSHA rule—the paper asserts the terms "toxin" and "toxic substance" are not readily interchangeable with the terms "contagious" or "communicable disease," which refer to viruses like COVID-19 that spread from person to person.
In their 26-page preprint paper, the pair also emphasizes that "assignment of responsibilities" is critical. Indeed, federal agencies only have the authority that Congress vests them by law. Elaborating further, Larkin and Badger describe how Congress awarded the FDA the power to approve and regulate vaccines and their subsequent use for distribution in interstate commerce. However, Congress did not grant the agency the authority to compel the public—or any class of the population—to be vaccinated (or be subject to periodic testing) by force of law. They affirm:
"If Congress had granted the FDA Commissioner that power [to mandate vaccination], the President would have simply directed HHS Secretary Xavier Beccera, not Labor Secretary Marty Walsh, to require every adult to be vaccinated. Easy-peasy. Yet, that is precisely what Biden did not do."
Besides the legal community's immediate interest in the President's unprecedented plan to mandate vaccines, Biden's maneuver to accelerate his vaccine agenda was immediately met with opposition by twenty-four Attorney's General. Led by South Carolina Attorney General (AG) Alan Wilson, the AGs from across the country sent a letter to the President on Sept. 16 warning that litigation will follow the implementation of the proposed "illegal" vaccine mandate. Noting that history has shown the judicial branch to be highly skeptical of the use of OSHA's ETS, Wilson stated:
"Regardless of how you feel about vaccines, President Biden's edict is illegal and if the administration doesn't change course, we'll pursue every legal option to strike it down. I'm fully vaccinated and encourage everyone who can to get the shot, but this is a question of following the law. We think it will also mean fewer people will get vaccinated, which we've already seen in New York, where healthcare workers quit because of New York's vaccine mandate."
As pointed out by retired OSHA attorney Charles Gordon, the nonexistence of a mandate protects the Biden administration from legal challenges that may ultimately restrict OSHA's authority. Speculating in an op-ed for the WSJ, Gordon shared the fictional "mandate" suggested by Biden forcefully compels industries and companies into compliance, as it leaves room for any eventual issuance to target non-compliant companies.
According to Gordon, "This implied cudgel is particularly effective on industries and companies that are dependent on federal spending or the goodwill of federal regulators." He continued, "The nonexistent mandate enables so-inclined state and local governments and companies to issue their own mandates, seemingly in lockstep with Washington." Gordon declared:
"The Biden White House has been well-served by presenting a nonexistent mandate as a done deal."
Certainly, Biden's stratagem appears to be paying off. Despite the fact the Dept. of Labor is still drafting OSHA's emergency temporary standards (ETS), on Thursday, Biden said the sheer announcement of the mandate alone has already driven some of the largest companies in the U.S. to launch their own in-house mandates "ahead of the new federal rules." Reeling off a list of companies that have already issued internal vaccine mandates or plan to very soon, Biden quipped that "even Fox News requires vaccination for all their employees," adding:
"When I announced the first requirement, that encouraged businesses to feel they can come in and demand the same thing of their own employees. More people are getting vaccinated, more lives are being saved."
Once finalized, the ETS takes effect immediately and remains in place until there's a permanent rule to take its place (meaning a permanent vaccine mandate), which, as previously mentioned, is within six months of the emergency standard being set. Still, the ETS will not affect each state the same. Twenty-four states, two territories, and Washington D.C. are federal OSHA states and the standard will affect them immediately. Twenty-six states and two territories have OSHA-approved state plans, giving them thirty days after the OSHA rule is final to implement their own standards, which must be at least as protective as OSHA's.
Consistently absent from the Biden administration's COVID-19 "Vaccinate America" action plan is a responsible discussion surrounding the power of natural immunity. Frustrated with this conundrum, Dr. Marty Makary, a professor at John's Hopkins University School of Medicine and editor-in-chief of MedPage Today, has spoken out numerous times about the sweeping vaccine mandates that are "ruining lives."
Makary told "Morning Wire" on Thursday that public health leaders' position on natural immunity and vaccinated immunity has proven to be "backward." Speaking of the studies that have shown natural immunity to be 27 times more effective than vaccine immunity, Makary asserts, "this is a failure of government, not a failure of science," adding:
"The data on natural immunity are now overwhelming. It turns out the hypothesis that our public health leaders had that vaccinated immunity is better and stronger than natural immunity was wrong."
"Nurses, who are heroes, are now getting laid off. Soldiers are getting dishonorably discharged. They've got immunity. It's just not the type that our public health officials have sanctioned."