All the petitioners needed was for the Supreme Court to enter a stay to prevent the Occupational Safety and Health Administration vaccination rule from taking effect, but, truly, was it too much to ask for a defense of limited government, separation of powers, and federalism?
Apparently so, because on Friday, over more than two hours of argument in National Federation of Independent Business v. Department of Labor, lawyers pushing the Supreme Court to delay the regulation circled and sidled rather than state clearly that the rule, OSHA, the Biden administration, and the entire federal government represented a mockery of our constitutional order.
On November 5, 2021, OSHA issued the rule under review, framing it as an “Emergency Temporary Standard” or ETS. The ETS required all employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy,” which required employees to either be fully vaccinated or submit to weekly COVID-19 testing and to wear face coverings at work.
Congress authorized OSHA to issue “an emergency temporary standard to take immediate effect,” and without the traditional notice-and-comment process, if it “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”