The Fifth Circuit has correctly noted that President Biden’s executive order invoking the Occupational Safety and Health Act to mandate COVID-19 vaccinations for large employers raises “grave constitutional and statutory issues.” Biden’s application of the Act’s provision for “emergency temporary standards”–which pertains to exposure to “substances or agents that are deemed to be toxic or physically harmful or from new hazards”–to COVID-19 is a stretch. The Act’s references to substances generally refer to toxic chemicals, while its uses of “agents” almost always deal with “physical agents” such as excessive noise. “Hazards,” meanwhile, are workplace dangers like equipment that could injure employees.
But members of Congress opposed to the order should look to the logs in their own eyes before complaining about the speck in Biden’s. The Occupational Safety and Health Act may be the most sweeping example on the books of legislative abdication to the Executive Branch. It covers anything from safety standards that proliferate so rapidly that employers cannot reasonably comply with them to the emergency powers Biden invoked.
These broad delegations are sometimes necessary in complicated areas of policy, and they may be more so given a dysfunctional Congress. But relying on them simply rewards the dysfunction. Members of Congress tend to like broad delegations because they make it possible to endorse vague policy goals while complaining about the particular tradeoffs needed to attain them. Congressional complaints about Biden’s vaccination order should consequently be directed less at the use of the authority than the scope of the delegation. If Biden overreached–which he very arguably did–Congress gave the White House the flexibility to do so.