Ohio AG claims Biden coronavirus mandate is illegal, but he won’t get into specifics

Top cop compares not getting vaxxed to having a bad diet

By: - September 16, 2021 12:55 am

Ohio Attorney General Dave Yost. (Photo by Justin Merriman/Getty Images)

Ohio Attorney General Dave Yost insists that President Joe Biden’s new coronavirus order is illegal, arguing that Biden is claiming “monarchical” powers. But Yost’s office didn’t respond when asked to address the fact that the biggest part of Biden’s as-yet-undrafted order will be made under a law passed by Congress in 1970.

And in arguing his point last week, the state’s top cop made an argument that could be seen as undermining any measure meant to protect the public safety.

After subsiding a bit over the summer, the pandemic has roared back into the headlines with a surging delta variant and students returning to schools that often don’t require masks. 

Dayton Children’s Hospital on Tuesday said it had just two available beds and on Monday night, and every emergency room in Lucas County went on EMS bypass. Across the country, the glut of unvaccinated COVID patients is killing people without the disease because they can’t get treatment for other maladies, the news organization Vox reported on Tuesday.

The situation has become so dire that children’s hospitals across the state on Tuesday joined Gov. Mike DeWine to implore local school officials to impose mask mandates. DeWine said he’d re-impose a statewide order from last year, but he was hamstrung by the actions of his fellow Republicans in the General Assembly.

Frustrated with the 80 million Americans who haven’t gotten the coronavirus vaccine, Biden announced his order last week. 

While many are characterizing the biggest part of it as a vaccine mandate, it would actually require those working for companies that employ more than 100 to either be vaccinated or get tested for coronavirus each week. Some have said it could just as easily be described as a testing mandate with an opt-out if you get the vaccine.

Yost took to Twitter Friday to slam the president’s announcement.

“I’m vaccinated, but the President doesn’t get to force me to,” he wrote.

“The Supreme Court just reminded him that he cannot ‘act unlawfully even in pursuit of desirable ends.’

“By ordering employees at private companies to vaccinate, test weekly, or quit, he is acting unlawfully again.”

Yost was referring to an August decision in which a majority of the U.S. Supreme Court ruled that the U.S. Centers for Disease Control and Prevention exceeded its authority by extending a pandemic-related eviction moratorium.

“The C.D.C. has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,” the opinion said. “It strains credulity to believe that this statute grants the C.D.C. the sweeping authority that it asserts.”

The court’s progressives criticized the majority for making the ruling on an emergency basis instead of fully hearing the case.

As for Yost’s argument against Biden’s vaccinate-or-test mandate, Press Secretary Steve Irwin explained further in an email.

“The relevant issues here are 1) who may institute a vaccine mandate and 2) how/by what means it can be done,” he said. 

“On the ‘who’ question, simply stated, the president does not have the power to issue this mandate,” Irwin said. “But a state government probably does have authority to require vaccinations through its elected legislative assembly and the concurrence of its elected governor, given proper exemptions for medical contraindications or religious beliefs.  

Irwin continued: “But the argument that if the people’s representatives will not do so, authority must be seized by the executive for action, is profoundly antidemocratic.”

Irwin seems to be saying that in issuing his order, Biden is seizing authority out of the blue. However, the president said he intends to issue the mandate under the Occupational Safety and Health Act of 1970.

It says, “The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.”

Those all have been consequences of the coronavirus, which has spread in workplaces across the country, likely on an unprecedented scale.

And the law specifically empowers the secretary of labor, who works for the president, “to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act.”

Some legal experts have said the chances of Biden’s order holding up upon review aren’t a slam dunk either way. 

The New York Times reported  that it’s “likely to take at least three or four weeks to write the new standard, partly because it must complete certain time-consuming steps to ensure that the rule passes legal muster. Among them are rigorously demonstrating that workers face a grave danger at work, that the rule is necessary to defuse that danger and that it is feasible for employers to carry out.”

But even in the absence of such an order, Yost is confident it’s illegal. Irwin didn’t respond to a question asking whether Yost believed the law passed by an elected Congress and signed by an elected president in 1970 gave the sitting, elected president authority to issue his order.

Irwin did, however, defend a Yost tweet that compared refusing to be vaccinated to having a poor diet — even though vaccine refusal is widely blamed for the resurgence of a coronavirus pandemic that is now infecting almost 6,000 Ohioans each day and killing 22.

In response to a tweet expressing support for Biden’s vaccine-or-test mandate, Yost wrote, “I respect that. Many share your view.

“Obesity causes widespread disease and early death, and imposes huge costs on the US health system. All preventable.

“May the President unilaterally mandate 30 minutes of exercise and a vegetarian diet for all?”

But there seems to be a huge difference between a bad diet and vaccine refusal.

If you eat dozens of Twinkies every day and wash them down with gallons of Mountain Dew, you probably won’t last very long. But you won’t increase the likelihood that those around you will develop hypertension, diabetes or cancer. 

Meanwhile, if you carry a deadly, infectious disease — or drive drunk, or speed, or recklessly wield firearms — you endanger others.

Indeed, health experts Leana Wen and Sam Wang wrote Wednesday in the Washington Post that being unvaccinated in public is comparable to drunken driving — except that covid killed more Americans last week than impaired driving does all year.

To justify Yost’s Twitter statement, his press secretary fell back on the assertion that Biden is claiming “monarchical powers.”

It is true, and obvious, that obesity is not an infectious disease,” Irwin said.  “But if it is infectiousness that is the basis for the necessity argument, it fails. There are numerous infectious diseases that cause death that are not invoked as a basis to give a president monarchical powers. (e.g., the flu).

“As the Supreme Court recently noted, one may not do good by unlawful means. The President’s means are unlawful.”



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Marty Schladen
Marty Schladen

Marty Schladen has been a reporter for decades, working in Indiana, Texas and other places before returning to his native Ohio to work at The Columbus Dispatch in 2017. He's won state and national journalism awards for investigations into utility regulation, public corruption, the environment, prescription drug spending and other matters.