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OSHA’s Big ‘Oops’

The bureaucracy's reversal on the vaccine mandate for businesses is a win for state sovereignty, not to mention the American people.

After delaying two months before producing a rule pursuant to the White House’s September announcement that businesses with 100 employees or more would have to require the Covid-19 vaccine, the Department of Labor has now suspended enforcement of the Biden administration’s vaccine mandate for private businesses.

The rule was initially challenged by Texas Attorney General Ken Paxton, along with the states of Louisiana, Mississippi, and South Carolina, who filed a lawsuit requesting a preliminary and permanent injunctive relief to stop the mandate from being enforced. A total of 12 states are suing to block the federal vaccine mandate for employers. After the federal appeals court temporarily halted the order, the Department of Justice requested the halt to be lifted, but the appeals court upheld the stay.

The 5th Circuit Court of Appeals said in its ruling that the Occupational Safety and Health Administration (OSHA) should “take no steps to implement or enforce the mandate until further court order,” writing that the administration’s vaccine and testing mandate was “fatally flawed.” The court ordered OSHA not to enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction. The court’s decision prompted OSHA to suspend the rule.

The court’s shutdown confirms what many suspected when OSHA delayed for weeks before publishing the rule: The legal grounds for enforcing a federal vaccine mandate on private businesses seems to be shaky at best. And yet, does it matter? Plenty of private businesses have already required their employees to take the shot, and are unlikely to roll that back, even in the wake of OSHA’s reversal. The Biden administration, too, is still pushing ahead, urging businesses to continue to implement an employee mandate, even if the state lacks the power to enforce it. Besides, how many people, besides those who are paid to read the news, are paying close enough attention to know the difference?

Once again, what matters seems less and less to be the actual tenets of law, and more and more to be who holds the reigns of power. Like with the eviction moratorium extension, the Biden administration has effectively said “maybe it’s illegal, but we’re going to try anyway.” Except this time, a few states rattled the cage.

The key silver lining here, thus, is a glimmer of state sovereignty. The pressure of a handful of states saying no, thank you, we’ll decide if we want to mandate a vaccine in our state, is significant, whether it weighed directly or indirectly on the decision. This was a win for localism, and it can and should be the model for governors and state legislatures going forward. Appeals to constitutionalism may fall of deaf ears, but four states—or 12—can keep the bureaucratic arm of the federal government out of local affairs if they have the courage to take serious action.

about the author

Carmel Richardson is the 2021-2022 editorial fellow at The American Conservative. She received her B.A. from Hillsdale College in political philosophy with a minor in journalism. She firmly believes that the backroads are better than the interstate, and though she currently resides in Northern Virginia, her home state will always be Tennessee.

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