And why Kavanaugh may be key. While the Biden Administration tells the public that there’s no time to waste in issuing the mandate, the truth is that OSHA/Labor failed to argue the necessity of a vaccine mandate since the vaccines have been available – a time period approaching one year. Moreover, the Biden Department of Labor is secretly meeting with the US Chamber of Commerce and business lobbyists to gather support for the mandate. As you can imagine, the constitutionality of the vaccine mandate will be litigated as soon as OSHA issues the rules. The media is running interference, telling the public that challenges to the mandate are “unlikely to succeed.” Do not believe them. The legality of the vaccine mandate will be assessed under what is called the major rules doctrine (also known as the major questions doctrine). Under this doctrine, the courts look to (1) whether the agency action is a major rule; and (2) whether Congress has clearly authorized the agency action.
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