Coronavirus, Domestic Policy

Protecting America and Its Workers

[With] the recent discoveries of physicians and neurologists, engineers and economists, the public can formulate minimum occupational standards below which, demonstrably, work can be prosecuted only at a human deficit. [We] hold that all industrial conditions which fall below such standards should come within the scope of governmental action and controlled in the same way that subnormal sanitary conditions are subject to public regulation and for the same reason – because they threaten the general welfare.

Theodore Roosevelt, Presidential Nomination Acceptance Speech at Progressive Party Convention, August 6, 1912

Hospitals at crisis care levels. Children increasingly infected and hospitalized by the new Delta COVID-19 variant. States forcing businesses to assume the risk of employee and customer infections due to masking prohibitions. 

President Biden’s vaccination plan attempts to address these new threats from the coronavirus pandemic. Americans are understandably weary of all of the restrictions and frustrated by the failure of our federal and state governments to develop a clear path out of them. The way to examine the necessity of the plan is to ask three questions:

  1. Is it a good idea?
  2. Is it legal?
  3. Is there a better way to do it?

Is it a good idea?

As I said in my post Wasting America’s Moment, the vaccination program is an effective and uniquely American response to the pandemic. Vaccinations significantly reduce the likelihood of hospitalization and eliminate the risk of death not only for recipients, but also potentially for the unvaccinated. They are also our best way to achieve a return to normality in life by allowing business and government to reopen by lessening their liability for workers compensation and customer liability.  The toll on our children should also concern us and supports a masking mandate in at least elementary schools.

Is it legal?

The Occupational Safety and Health Act of 1974 grants the Federal government the power to regulate workplace safety to reduce workplace hazards, including illnesses.  This law has existed for over three decades and it’s legality has repeatedly been upheld.  In particular, section 6 (c)(1) gives the President through the Department of Labor’ Occupational Safety the right to issue Emergency Temporary Standards (ETS) when 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.  29 U.S.C. § 655(c)(1). This cannot be done by mere executive order.  The proposed ETS must be reviewed by an advisory committee, drafted and then published in the Federal Register.  While it becomes immediately effective at upon publication, it expires after six months if not renewed through the usual notice and comment procedure under the federal Administrative Procedure Act. See this description of the process on OSHA’s website.

Thus, it will be at least a week before any rule or mandate is adopted. Based on the statement from the White House, the rule will allow employees to escape the vaccination requirements through weekly negative COVID-19 testing. Many other issues will need to be addressed and the President has met with business and labor leaders to begin to resolve them.  They will also be hashed out by the advisory committee.

Is there a better way do it?

The new emergency standard is unique since it will apply not just to certain industries, but to to almost every type of workplace in the nation.  Imposing a mandate of this breadth should be the province of the Congress, not an administrative agency.  Acting through legislation instead of an OSHA rulemaking would have allowed the administration to include measures that are outside of the agency’s power, such as providing federal financial support for the small number of employees who may suffer adverse reactions to the vaccine.  Even more importantly, it would have forced Republicans and Democrats in Congress to confront the issues, both specious and valid, about our pandemic response.  Such a debate would have exposed the weaknesses in both the anti-vaxxer and permanent lockdown camps, which may be why both sides want to avoid it. The eventual result would not fully satisfy either the Dr. Anthony Faucis or Rep. Marjorie Green’s of the world, but it might satisfy the average American trying to run his or her life in a responsible and caring manner. 

Nevertheless, we appear to be stuck with the OSHA emergency standard as the only likely method of spurring vaccinations and stopping the surge in the current Delta variant of COVID-19. If opponents want to be helpful, they will start demanding that the Biden Administration set a clear metric for when vaccination and masking mandates will end. What number they pick – whether it is cases, hospitalization rates or death rates – matters less than the simple courageous act of making a decision and setting a goal for the American people to rally around. Only then will we move beyond irresponsible political rhetoric and see the light at the end of this dark tunnel. 

Coronavirus, Domestic Policy

A Stimulus Plan Only a Pandemic Hero Could Love

President Biden’s $1.9 trillion coronavirus response plan is better thought of as a stimulus bill designed to lift the economy out of the recession caused by the pandemic. In that manner it serves the same purpose as the Trump economic stimulus plan of 2018. In contrast to the Trump program, the Biden plan stimulates the economy through government spending and redistribution of the wealth towards the poor and middle-class rather than tax cuts and regulatory relief.

A good way to understand and justify the over 500-page bill is to distill it down into four subject areas:

  • COVID-19 response –   These provisions include not only the marquee $1,400 per person stimulus checks and funding for vaccines and testing, but also increased unemployment assistance, extended food stamp assistance and housing aid as well as extending the temporary right to paid sick leave through September.  This article from CNBC is a helpful guide on how the recipients can best use these aid programs.  
  • Social welfare – The bill essentially implements Biden‘s promise to expand Obamacare coverage during the campaign, but also increases the child tax credit to $3,600 per child and allows those payments to be paid monthly rather than once a year. It also expands the earned income tax credit for childless individuals. In addition, $86 billion is earmarked for shoring up approximately 200 underfunded pension plans. This is essentially a rescue of the federal Pension Benefit Guarantee Corporation, which is currently insolvent because of past rescues of bankrupt employee pension plans.   
  • Education – The legislation grants $130 billion to K-12 schools and $40 billion to colleges and universities. The K-12 money could be used for long-overdue classroom expansion and capital improvements to schools. 
  • State and local government aid – Probably the most controversial provision of the bill is the $350 billion in aid to state and local governments to make up for revenue losses caused by the pandemic. These grants come with no strings attached. 

I criticized Washington last year for wrangling over political details and delaying help for those suffering from the pandemic-caused recession (see here). Despite the excesses of the bill, Roosevelt’s advice remains sound. Assisting the poor and lower middle class who have borne the brunt of this crisis is the best form of politics because it is decent thing to do. The remainder of the bill should simply be considered the fulfillment of a four-year set of Democratic and Biden spending promises in one year.  

It now falls on Congress to oversee these new programs and prevent them from expanding into new entitlements that institutionalize these huge expenditures and thus risk inflation and a collapse of the dollar. Today, however, we should concentrate on the aid to those in hardship due to the pandemic and the programs necessary to defeat it. This bill accomplishes this goal and is thus worth celebrating. 

Coronavirus, Domestic Policy, Government

The Dangers of Executive Overreach

Theodore Roosevelt at his desk with papers

As this helpful article from the Smithsonian Magazine illustrates, the debate over the use of presidential executive orders to end-run Congress originated with Theodore Roosevelt.  In his conservationist zeal to protect unique land and monuments, TR pushed the limits of the Antiquities and Reclamation Acts. While we are all blessed by the resulting preservation of sights like the Grand Canyon, his expansive view of presidential power also resulted in abuses like FDR’s internment of Japanese-Americans and President Truman’s attempt to seize the steel mills to prevent a strike. President Trump’s recent orders to provide partial relief for workers hit by the COVID-19 pandemic shows the limitations of the practice and its danger to our constitutional democracy.

This story from CNN sets forth the problems with these orders and why congressional action was required. The new $400 per month unemployment benefit may never materialize since it was not authorized to be distributed through the current unemployment insurance system. The payroll tax cut is really a deferral and so worker could be on the hook for a huge catch-up payment next year. Finally, the eviction protections simply consist of a study by the Secretary of Health and Human Services of ways to provide such protection.

When the last coronavirus relief effort stalled in March, I criticized both the President and Congress over their failure to reach agreement under the headline “Leaders Don’t Dither. They Decide”.  This relief bill should be more targeted toward the unemployed and essential workers on the front lines of combating the disease and supporting American society in dealing with it. However. dangling partial relief for them by a questionable legal method is not real leadership.  Leadership in our system of separation of powers often involves compromise. TR’s sympathy for those workers would probably drive him to swallow his pride to provide a “square deal” for them in time for destitute and heroic workers to receive the meaningful help they need.