The sheer arbitrariness of the 100-employee standard renders the Labor Department’s new rule unlawful, as it violates the
“arbitrary or capricious” standard of the Administrative Procedure Act. Under it, rules are invalid if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Biden’s new rule is promulgated by the Occupational Safety and Health Administration (OSHA) through an emergency temporary standard (ETS), which is exceedingly uncommon. In fact, the Congressional Research Service noted in July that “OSHA has rarely used this authority in the past—not since the courts struck down its ETS on asbestos in 1983.”
It is almost certain that Biden knew well in advance that his latest mandate would face serious legal challenges; it is even probable that he knows his mandate won’t survive them. It is entirely plausible—and, frankly, terrifying—that he is relying on a similar strategy that he used to extend the eviction moratorium on landlords.
“Here’s the deal,” he said last month, “I can’t guarantee you that the Court won’t rule that we don’t have that authority. But at least we’ll have the ability to appeal and keep this going for a while.”
Knowingly engaging in unconstitutional governance because courts take a long time to rule is about as close to despotic rule as this country has perhaps ever seen, and the distinct possibility that Biden is running the same gambit with his vaccine mandate represents a dangerous pattern of autocratic behavior.
“So what if it’s unconstitutional? We can get away with it for as long as the courts deliberate” is no way to govern, and ironically, it will prove to be Biden’s undoing once the courts start ruling on his vaccine mandate.
https://www.maciverinstitute.com/2021/09/bidens-vaccine-mandate-is-grossly-unconstitutional/