U.S. President Biden’s Workplace COVID Vax Mandate Faces Constitutional Questions

Posted on 11/07/2021


The Biden administration is using its executive power to force U.S. workers to take the COVID mRNA vaccine or face losing their jobs and likely unemployment benefits. The controversial order has caused frictions between U.S. labor, the healthcare lobby, big business, and the U.S. government. The White House wants to have nearly the whole U.S. population vaccinated with the COVID-19 mRNA shots as a public policy goal. The Biden administration is using laws in Occupational Safety and Health Administration (OSHA) and the United States Department of Labor to force compliance. OSHA wants businesses with at least 100 employees to ensure they are vaccinated or submit to weekly testing and wearing a face covering. Fines for willfully failing to comply with the mandate could reach as much as US$ 14,000 per violation, which could greatly impact U.S. small businesses. The White House has ignored issues with the COVID shot mandates including people who already contracted COVID and survived who have natural immunity and the potential lethal side effects accompanied with the COVID vaccines such as myocarditis. Furthermore, scientific studies have shown that the COVID shots will likely need boosters to prolong immunity.

For institutional investors, the issue is a major concern if U.S. defense contractors, truckers, blue collar workers, and other key companies in the U.S. economy decide to not comply. These measures would likely further exacerbate the already constrained issues facing the U.S. supply chain.

The Emergency Temporary Standard (ETS) setting forth the mandate was published in the Federal Register on November 5, 2021. The vaccine requirement would apply to about 84 million workers across the country and go into effect January 4, 2021. Historically, OSHA had issued nine emergency temporary standards since it was set up in 1971. Of those, six were challenged in court and only one survived. These measures of executive power mimic what the CDC did to real estate. Are these regulatory agencies operating outside of their bounds? Many people think so, including a number of states that have filed lawsuits against the COVID vaccine worker mandate. Earlier, Georgia Governor Brian Kemp and Georgia Attorney General Chris Carr filed a lawsuit challenging the Biden administration’s employer vaccine mandate. The constitutional question lies whether a federal agency has the statutory authority to force healthcare decisions on employers and employees under the guise of workplace safety.

In a two-page order, the U.S. Court of Appeals for the Fifth Circuit cited “grave statutory and constitutional issues” with the federal COVID-19 vaccine rules developed by Biden’s OSHA. The court did not provide details. In a statement, Seema Nanda, the chief legal officer for the U.S. Department of Labor, disclosed that the federal government is prepared to defend the rule in court.

Scott Gottlieb, the 23rd Commissioner of the FDA and Pfizer Inc. board member. Gottlieb tweeted and warned about the unintended consequences of these forced mandate actions, “As a fight over the federal OSHA mandate unfolds, we should remember 80.5% of responsible adults 18+ already had at least one dose of Covid vaccine. What level do we need to get to? What will the OSHA provision accomplish? And were there less divisive ways to achieve these goals?”

He adds, “The risk is organized opposition to this OSHA mandate starts to bleed into broader opposition to vaccination and vaccine mandates more generally, and mandates society long embraced become part of this new political fashion. And a whole generation starts to turn against vaccines.”

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