Sunday, September 12, 2021

Is It Constitutional?

Joe Biden has announced that he is ordering the Occupational Safety and Health Administration (OSHA) to develop a rule that will require all employers with 100 or more employees to have all of their workers vaccinated or undergo weekly Covid-19 tests.

The rule would impact over 80 million private sector workers.

Let's take a look at the legal foundation that Biden is attempting to use to support this vaccine mandate in order to assess it legality and constitutionality.

What is OSHA? This article explains.

OSHA is a federal agency that was created with the Occupational Safety and Health Act of 1970 to ensure safe and healthy conditions for workers. The act, signed by President Richard Nixon, aimed to ensure that employers provide workers with an environment that is “free from recognized hazards to safety and health, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions,” according to the U.S. Environmental Protection Agency’s site.

Biden has ordered OSHA to act on the vaccine mandate presumably by using its "Emergency Temporary Standards" authority. OSHA lays out what that authority is on its website.

Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals.

Note that this provision is only to be used under "certain limited conditions", it must be an "emergency temporary standard" and OSHA must determine that workers are in "grave danger".

Considering we are 18 months into the Covid-19 pandemic it seems that using OSHA here is quite a stretch.

In particular, arguing that workers are in "grave danger" now after living and working with Covid-19 for 18 months (and with vaccines available for over 9 months) seems far fetched.

For context, here is a CDC chart that shows deaths by age from Covid from January 1, 2020 to September 8, 2021 for every age from 20 to 85+.

Covid Deaths by Age, 1/1/20-9/8/21

How many workers are there who are 85 years or older? If they are working, how many are unvaccinated?

For perspective, here is a chart that compares Covid deaths to all deaths for those ages 64+. These are people who are not generally in the workforce and yet Covid deaths are still a mere fraction of deaths from other causes. In most cases, the numbers are not even visible in the chart.

Covid Deaths vs. All Deaths by Age (64-85+), 1/1/20-9/8/21

The reality is that there have been more Covid deaths in those 85 years of age and over than all of the deaths for those 67 years and under since the beginning of the pandemic.

Is this a situation of "grave danger" to workers?

What makes even less sense is arguing that VACCINATED workers are in grave danger because of unvaccinated workers.

If the vaccine is as protective as Biden, Fauci, the FDA and CDC argue why would any worker who is vaccinated be in grave danger of a co-worker who is unvaccinated? 

Take a step back and consider why this is being done.

Is this being done because the vaccines work...or because they don't work...for their intended purpose of preventing disease?

If they were working as intended why would you need to protect the vaccinated from the unvaccinated?

How well are the vaccinations working?

No one was vaccinated last year.

74% of the U.S. population eligible for the Covid vaccines has now received at least one dose. 93% of the age 65+ population has received at least one dose.

Almost two-thirds of the eligible population is fully vaccinated as this chart from the CDC shows.

This should have resulted in a massive success in taming the virus based on what we were told.

What has been the actual result?

There are currently 4 times as many cases and two times as many deaths from Covid right now as there were at this time last year.

This is justification for mandating vaccinations for everyone?

Those who argue that the vaccine mandate is constitutional typically point to the U.S. Supreme Court case of Jacobson v. Massachusetts which was decided in 1905.

In this case Massachusetts had passed a law allowing cities to require residents to be vaccinated against smallpox. The city of Cambridge adopted such an ordinance. The ordinance required that all adults over the age of 21 be vaccinated or be fined the sum of five dollars.

Jacobson was a Swedish immigrant who had been vaccinated against smallpox as a child in Sweden and had suffered an adverse reaction. His son also had experienced an adverse reaction when he was vaccinated. This was the basis for the refusal of Jacobson to comply.

Jacobson challenged the Massachusetts law claiming that his 14th Amendment rights had been violated.

There are several distinctions between the Jacobson case and what we see today with the potential Covid vaccine mandates.

First, the Supreme Court was ruling on a state law mandate. Further, that state law only authorized cities to pass a vaccine mandate within that state. That case did not involve a broad national mandate. It was localized and targeted. 

Second, smallpox has a much different risk profile than Covid. Smallpox had a case fatality rate of up to 30%. 

The overall case fatality rate (CFR) for Covid-19 right now in the United States (for all ages) is 1% according to World in Data..

I have seen other estimates that put it as high as 1.5%.

However, that number is heavily tilted upwards due to the mortality risk of those over age 85 where the CFR is over 10%. A large portion of the working age population is well below 1% and a significant number is close to .1%.

As this chart points out, the risk of death from Covid for those under age 40 is less than the risk of dying in an auto accident.


For another perspective, here are California's reported confirmed cases and Covid deaths by age through September 8. This works out to a CFR of 1.5% overall (66,257 deaths/4,322,361 cases).

1.5% is a long way from 30%. 

The CFR for the working age population of .5% is a VERY LONG way from the 30% CFR of smallpox.

Cases and Deaths Associated with Covid-19 by Age Group in California

Finally, we have the penalty for non-compliance with the mandate.

In Jacobson, the penalty was a one-time fine of $5.

Biden, through the OSHA rule and the federal employee and contractor mandate, is suggesting that employees are being threatened with termination of their jobs and their loss of their livelihood.

Let's put that in context.

A $5 fine in 1905 inflated into 2021 dollars would be equivalent to $155.12 today.

If Jacobson is such persuasive precedent why is there not just a fine rather than threaten someone's job?


It doesn't seem that the vaccine mandate penalty proposed by Biden is exactly proportional with what the penalty was in Jacobson.

Of course, it just not the worker who is being threatened in this proposal by Biden but OSHA is threatening all employers with a $14,000 fine for every violation involving each employee in which it does not enforce the mandate.

This employer penalty does not exactly seem proportional with the precedent of Jacobson either.

You can make up your own mind but none of this looks constitutional to me.

That is not to say that there might be times when our government would have the authority to infringe on individual rights for the greater good. It is a question of balance.

However, if this is such a time, and this Covid vaccine mandate is used as precedent for some other mandate or restriction on freedom in the future, I dare say there will not be much left of individual rights in the United States of America. 

If there is any doubt that all of this is a blatant attempt to subvert the U.S. Constitution consider the fact that Ron Klain, Biden's Chief of Staff, approvingly retweeted this tweet on Twitter shortly after the OSHA end-run was announced.

I guess he wanted the world to know how "clever" he was in planning all of this. After all, we know that Joe Biden was not capable of doing this by himself.

The problem is that it is an admission that the White House is trying to subvert the Constitution and individual constitutional protections because that is what they are trying to "work-around".

This may prove problematic when the mandate is challenged in court.


George Washington University Law Professor Jonathan Turley, who also happens to be a Democrat, noticed (the retweet) and is explaining how Klain just created a headache for the administration.

"In the law, it is called an admission against interest or an out-of-court statement by a party that, when uttered, is against the party’s pecuniary, proprietary, or penal interests. In politics, it is called just dumb. White House chief of staff Ronald Klain offered a doozy this week when he admitted that the announced use of the authority of the Occupational Safety and Health Administration (OSHA) for a vaccine mandate was a mere 'work around' of the constitutional limit imposed on the federal government," Turley writes on his website. "The problem is that the thing being 'worked around' is the Constitution. Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional protections."

The sad reality is that Biden, Klain and others who are doing this don't care whether what they are doing is constitutional or not.

Their plan is to just use their power to bully employers and Americans to get vaccinated no matter the facts, the data, the science, the law or the Constitution.

They realize they are in so deep with their Covid narrative that there is no return.

They told everyone that if they got vaccinated they could get rid of their masks and return to a normal life. 74% of eligible Americans believed that and did get vaccinated only to see cases quadruple and deaths doubled compared to a year ago.

They are making a bet to see if they can get a few more vaccinated and hope the numbers will come down (which they definitely will at some point with or without the vaccine) so they can claim that their actions made the difference.

They don't care about any harm they cause. Their only objective is to increase the vaccination rate by a few percentage points. 

Here is another Ron Klain tweet from a couple of days ago citing the vaccine mandate at the Veteran's Administration for frontline healthcare workers at VA hospitals that was announced seven weeks ago. 

He is bragging because they moved the fully vaccinated number from 77% to 82% in two months? 

Five points? Really? What exactly is the point?

Is five percentage points worth the disruption, dissension, division and the denigration of constitutional rights that these mandates cause?

Biden, Klain and the Democrats also need something to turn the discussion away from the failure of the Afghanistan withdrawal.

They would rather have their opposition, the media and the news cycle focused on something else.

We ARE in "grave danger".

However, it is not as a result of Covid-19.

It is because of the authoritarian and totalitarian attitudes that have taken control in the country.

Of course, anytime I hear about "grave danger" I cannot help but think of these lines from the movie, "A Few Good Men" starring Tom Cruise and Jack Nicholson.


If there is a time that we need a few good men (and women) it is now.

It just seems exceedingly difficult to find them.

No comments:

Post a Comment