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Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

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President Biden last week issued a sweeping coronavirus mandate directing employers of more than 100 to require vaccinations for their employees.

Proposed penalties for non-compliant employers are draconian — nearly $14,000 per violation, dramatically higher for those deemed in wilful compliance.

Naturally, there’s pushback — primarily from employers who contend the mandate will be harmful and Republican attorneys general in more than 20 states.

It’s a policy dispute. Is Biden’s mandate a good idea?

It’s a political dispute — Democrats in favor and Republicans against.

It’s a legal dispute. To what lengths can the executive branch go to address an “emergency” public-health issue.

The coronavirus is a new pandemic phenomenon — dating back to 2020. But the legal argument raised is centuries old.

How much authority does the executive branch possess? Critics charge Biden cannot impose by fiat what Congress must address by legislation or the states can do on their own.

Once again, the three separate and co-equal branches of government — the executive, legislative and judicial — are drawn into a struggle over who does what.

So far, the Biden administration is losing on points.

Acting in response to a flurry of lawsuits, the 11th Circuit Court of Appeals in New Orleans temporarily blocked enforcement of the mandate. It said arguments challenging Biden’s authority raise “grave statutory and constitutional issues.”

As part of the process by which the appeals court will decide whether to issue an injunction blocking Biden’s decision, it directed the warring parties to file legal arguments beginning Monday.

A quick decision can be expected. But a final decision will take longer. Lawyers are expected to ask the U.S. Supreme Court to review whatever decision the appeals court makes.

The question before the court is clear — does the Occupational Safety and Health Administration possess inherent “emergency” authority to pursue the vaccination mandate in the midst of a pandemic?

The “emergency” argument is interesting because Biden first raised the subject of a mandate in early September. His proposed mandate will not become effective until early January — a three-month delay.

OSHA lawyers argue federal law gives OSHA the “authority to act quickly in an emergency where the agency finds that workers are subject to a grave danger and a new standard is necessary to protect them.”

Certainly OSHA possesses emergency powers. But, as courts have noted, pandemics do not trump the U.S. Constitution’s Bill of Rights.

Also notice the language employee by OSHA’s chief lawyer, Seema Nanda.

She argues OSHA has the authority to claim this mandate power “when the agency finds that workers are subject to a grave danger” and determines that a “new standard is necessary to protect them.”

The courts will examine those words with care. How does OSHA define “grave danger”? How far does OSHA’s “new” protection standard extend?

New means never been done before. If OSHA is claiming vast new authority, shouldn’t that authority be granted by federal law passed by Congress and signed by the president?

What of the 50 states’ role in our federal/state system?

Kansas Gov. Laura Kelly, a Democrat, argues a federal standard is “too late” because “we (in the states) have already developed systems and strategies that are tailored for our specific needs.”

Many people will look at the combatants — Biden on one side, mostly business and Republican attorneys general on the other — and choose a side in accord with their political leanings.

But this is not a partisan ballgame, it’s a legal one that goes to the roots of the U.S. Constitution’s clearly defined separation of powers.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-393-8251.

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