Commentary On Nov. 12, a federal appeals court suspended (pdf) the Occupational Safety and Health Administration (OSHA) order fining businesses with 100 or more employees for each employee unvaccinated against COVID-19. This is one of three vaccination mandates issued by the administration of President Joe Biden. This case will likely go to the Supreme Court. The legal issues include at least the following: Does it exceed the enumerated (listed) powers the Constitution grants to the federal government? Assuming the Supreme Court believes the statute authorizing OSHA is constitutional (which I don’t believe but the justices almost certainly do), did OSHA exceed its authority under the statute? This contains several sub-issues, including how much authority Congress may delegate to administrative agencies. Does the mandate deny individuals due process of law, in violation of the 5th Amendment? This question is not based on the true meaning of “due process,” but on the …
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