The best that can be said about the Biden administration’s decision to withdraw the executive order for its COVID-19 vaccine mandate and instead try to enact it through the regular federal rulemaking process is that isn’t as wrongheaded as what it tried to do last year. The administration has grudgingly acknowledged that it cannot enact such sweeping policies with the stroke of a pen, but the policy it is trying to enact is still a bad idea on its own terms.
The courts, including the Supreme Court, handed the administration a pair of defeats for arguing that the Occupational Health and Safety Administration (OSHA) could require any business employing more than 100 people to fire workers who refused to get either vaccinated or engage in regular testing.
The administration has instead begun the process to make the mandate a formal OSHA rule. Such an effort doesn’t change the fact that the courts have already said that OSHA doesn’t have the authority to enact such a rule back when they struck the executive order down.
The federal rulemaking process for OSHA or any other federal agency takes several months to do even when the rule is being rushed through. The administration is obliged to have a notice and comment period and then weigh the reactions that come in. It can ignore every single comment that comes in and do what it was going to do anyway, but it still has to go through the motions. Even under the much faster executive order process, it took months from when the policy was announced to when it was set to take effect.
These delays are a huge deal in the case of a pandemic, which can change rapidly. The Omicron variant didn’t even exist when the initial executive order was announced. Who knows what the situation will be when the OSHA rule is finally enacted? It’s a near-certainty that the policy will be completely outdated by the time it is put into place.
And, finally, even if the intention of the rule is good, it would still be a violation of an individual’s personal rights and apply arbitrarily to workers based on how large their employer is, and it would still likely result in thousands of people becoming unemployed at a time when the economy is struggling with a shortage of labor. But at least the administration is trying to enact a bad policy in the traditional way. That’s progress, of a sort.