Like I Said

The editors of the Wall Street Journal remark on the 5th Circuit’s stay of President Biden’s vaccine mandate:

The court’s opinion takes apart the OSHA mandate every which way—on constitutional, statutory and procedural grounds. The Constitution gives states, not the federal government, the police powers to regulate individual behavior to protect public health and safety. The Administration tried to circumvent this limitation on federal power by conscripting private employers via an OSHA “emergency temporary standard.”

Under federal law, OSHA may bypass for six months the notice-and-comment required by the Administrative Procedure Act to respond to emergencies if it determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that such a standard is “necessary to protect employees from such danger.”

As the appeals court explains, OSHA failed to satisfy either condition. OSHA couldn’t show exposure or even the presence of Covid at all covered workplaces. Its “attempt to shoehorn an airborne virus” widely present in society and not life-threatening to most workers “into a neighboring phrase connoting toxicity and poisonousness” is a “transparent stretch.”

The panel also lambastes the mandate as both over- and under-inclusive. On one hand, it covers employees regardless of their risk of exposure and doesn’t exempt those with natural immunity. On the other hand, OSHA sets an arbitrary threshold of employers with 100 workers because they “will be better able to administer (and sustain) the Mandate.”

Even so, the “Mandate flunks a cost-benefit analysis,” the panel notes, because OSHA failed to show that the “protection afforded to workers” would “outweigh the economic consequences” such as unvaccinated workers getting fired or quitting.

As for the alleged emergency justification, some 80% of adults have received at least one vaccine dose. The virus has been spreading in the U.S. for at least 20 months, so it can hardly be defined as a “new hazard” under the law. “OSHA itself spent nearly two months” writing the rule, the panel notes, which suggests it doesn’t perceive a true emergency.

Beyond the statutory violation, the panel held the OSHA rule “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.”

which you may notice is very much what I said about the vaccine mandate.

Now let’s repeat my question: why is the administration wasting time on this? Why aren’t they wooing states rather than trying to rule by edict? There’s more to politics than having 50%+1 of the votes and then ruling by edict. Why isn’t Congress changing OSHA’s empopwering legislation and courting Republican Congressmen to support the bill?