Sunday, September 12, 2021

Possible Avenues For Legal Challenges to Vaccine Mandate

The challenges will come to the mandate's legal mechanism: an emergency rule issued by the Occupational Safety and Health Administration.

In other words, legal challenges were partly or fully successful 83 percent of the time.

Walter Olson, a senior fellow at the libertarian Cato Institute, says the OSHA emergency rule "Regulates first, and asks questions later." After the mandate goes into effect, OSHA is supposed to go through the motions of issuing a standard regulation, including the allowance for public comments and hearings.

He points to some other areas of possible challenges.

Another possible basis for challenge arises from the limits of the federal government's authority over interstate commerce, an area where, as in the Affordable Care Act individual mandate case, the Supreme Court's thinking has evolved since OSHA was founded.

If someone tells you that what Biden announced Thursday rests only on OSHA's accepted and uncontroversial legal powers, they're scrubbing away a whole lot of legal complication.

The question then becomes: Will the courts rule that the mandate can go into effect while all these challenges are working their way through the system? The effort to block implementation while the question is being litigated is a long shot since any plaintiff will have to show that harm resulted from the implementation of the rule. 

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