The Morning Dispatch: What Will OSHA’s Vaccine/Testing Rule Look Like?

Plus: U.S. gymnasts who were molested by former team doctor Larry Nassar testify before Congress about the institutional failures that abetted their abuse.

Happy Thursday! On this date 401 years ago, the Mayflower set sail from England bound for America. If those 130 brave passengers didn’t make their journey that day, the Chicago Bears likely would never have been in a position to draft Justin Fields this year. Thank you, pilgrims.

Quick Hits: Today’s Top Stories

  • President Joe Biden announced a new trilateral security agreement with Australia and the United Kingdom on Wednesday with the aim of helping Australia develop nuclear submarine capabilities. Although China was not directly mentioned in Biden’s remarks, the partnership—which will also include coordination on cybersecurity, artificial intelligence, and quantum computing—is clearly intended to challenge its hegemony in the Indo-Pacific region.
  • Both North and South Korea fired test ballistic missiles on Wednesday, with South Korea testing a submarine-launched ballistic missile and North Korea firing two ballistic missiles that flew several hundred miles and landed in the ocean. The State Department condemned North Korea’s launch as “in violation of multiple U.N. Security Council resolution.”
  • Pope Francis on Wednesday waded into the debate over administering Communion to Catholic politicians who support abortion, saying that—while he is not up-to-date on the specifics of the situation with President Biden—bishops should minister with “compassion and tenderness” rather than condemnation. He maintained that accepting abortion is “accept[ing] homicide,” but reiterated his belief that the Eucharist “is not a prize for the perfect” but rather “a gift of the presence of Jesus in the church.”
  • A spokesman for Joint Chiefs Chairman Gen. Mark Milley issued a statement on Wednesday that did not dispute the premise of Bob Woodward and Robert Costa’s reporting on his communication with Chinese military officials, but added that Milley “regularly communicates” with his counterparts across the world and that all such calls are “staffed, coordinated and communicated with the Department of Defense and the interagency.” A defense official familiar with the calls told Politico the reports are “grossly mischaracterized,” as Milley reportedly asked acting Defense Secretary Chris Miller for permission to make the call. Miller said yesterday that there was likely “a perfunctory exchange between us and our staffs about coordinating phone calls and messages for the day,” but added that, although he didn’t know if Woodward and Costa’s account is true, it would be “completely inappropriate” on Milley’s part if it is. The White House made clear Wednesday that President Biden has “complete confidence” in Milley’s “leadership, his patriotism, and his fidelity to our Constitution.”
  • U.S. Citizenship and Immigration Services announced this week that, beginning October 1, new immigrants to the United States must be fully vaccinated against COVID-19 to pass the mandatory immigration medical examination. Immigrants had already been required to be vaccinated against mumps, measles, polio, and countless other diseases.

What’s Actually Happening With Biden’s ‘Kind Of, Sort Of’ Vaccine Mandate?

(Photo by Steve Pfost/Newsday RM via Getty Images.)

When President Biden announced his administration’s plans last Thursday to tighten the screws on the unvaccinated, Republican elected officials were quick to denounce the moves, promising to fight them in court.

Twitter avatar for @govkristinoemGovernor Kristi Noem @govkristinoem

South Dakota will stand up to defend freedom. @JoeBiden see you in court.

But it’s been a week, and no serious challenges to the employer vaccine/testing mandate have been filed. For good reason: It doesn’t exist yet.

“The Labor Department is working on an emergency rule that will require all employers with 100 or more workers to ensure their workers are fully vaccinated and regularly tested,” Biden reiterated yesterday at a meeting with business leaders and CEOs. “It’s going to take a little bit for them to put those requirements in place under the law.” White House Press Secretary Jen Psaki didn’t put a firm timeline on the Occupational Safety and Health Administration (OSHA) rule, telling reporters Wednesday the administration will “hopefully” have more information “in the coming weeks.”

Several constitutional and regulatory scholars tell The Dispatch it’s almost pointless to speculate how the judiciary will handle inevitable challenges to the rule until we have a full grasp on what it entails. “The devil will be in the details,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute.

President Biden laid out his directive to OSHA pretty clearly last week: Issue a rule mandating that businesses with 100 or more employees require them either to get vaccinated or to submit to weekly COVID tests, with a penalty of $14,000 per violation. How much leeway does OSHA actually have in crafting the regulation? A lot, it turns out.

“We don’t know whether they’re going to go broad or narrow,” Cato’s Walter Olson told The Dispatch earlier this week. “Each time they go narrower, they potentially make it more effective to resist a group of challengers.”


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Olympic Gymnasts Testify on Sexual Assault Allegations

In a Senate Judiciary Committee hearing Wednesday, four elite U.S. gymnasts took direct aim at organizations they said failed to protect athletes after allegations of sexual assault emerged against former national team doctor Larry Nassar.

In unflinching testimony, Olympians Simone Biles, McKayla Maroney, Maggie Nichols, and Aly Raisman called out USA Gymnastics (USAG), the United States Olympic and Paralympic Committee (USOPC), and the FBI for failing to act quickly to protect hundreds of girls from Nassar’s molestation.

The four were among the first elite gymnasts who in 2015 emerged as victims of Nassar, who committed repeated acts of sexual abuse against them and numerous other young girls under the guise of medical treatment.

Since the abuse scandal broke, victims have come forward from more than two decades of U.S. gymnastics, including the 2010 and 2011 world teams and the 2000, 2012, and 2016 Olympic teams.

“I blame Larry Nassar,” a tearful Biles told the committee, “and I also blame an entire system that enabled and perpetuated his abuse.” She added that “this is the largest case of sexual abuse in the history of American sport.”

Maroney, a member of the U.S. Olympic team in 2012, recounted that when she reported Nassar molesting her “hundreds of times in my bed” to the FBI, “they betrayed me, they betrayed my trust, and they sat idly by, as dozens of girls and women continued to be molested.” She described specific instances of abuse, including one where Nassar drugged her with a sleeping pill and she awoke to find herself “completely alone with him on top of me, molesting me for hours.”

Worth Your Time

  • Writing in PoliticoNational Review’s Rich Lowry argues that Larry Elder’s recent embrace of former President Donald Trump’s election lies was a costly mistake—and a warning sign of something that could plague Republicans for years to come. “It’s not as though Elder, a talk-radio show host with no political experience who was running in a deep blue state, was going to cruise to victory regardless,” he writes. “But when he got pushed by Trump supporters into endorsing the stolen-election narrative, he ran directly into a Newsom political buzz saw linking him with Donald Trump and the Jan. 6 riot. In the Georgia special Senate elections earlier this year, Trump himself divided the party and suppressed GOP turnout at the margins by trying to make the election about November 2020 as much as possible and accusing Republicans who didn’t go along with his allegations of partisan treason. There may be other costs to come, perhaps up to and including the 2024 presidential election if Trump is the nominee again.”
  • We don’t know about you, but we spent a significant amount of time yesterday reading Norm Macdonald obituaries and remembrances. This one, from Dan Brooks, is one of our favorites. “Norm Macdonald died less famous than he should have been,” Brooks writes. “He cared about jokes too much, when the business of comedy is not actually about jokes so much as audience shares and sponsors and streams and tickets. The comedy-consuming public claims to care nothing for these matters, of course; we only want funnier and funnier jokes. That is the theory, anyway, but in practice, the public is depressingly susceptible to hype. Fake funny sells. It often sells better than real funny, and it is significantly easier to produce. Norm despised fake funny, both in the industry and in daily life. It troubled him, the way you imagine that song coming out of the ice cream truck would trouble Mozart.”

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Toeing the Company Line

  • On Wednesday’s Dispatch Podcast, Sarah, Steve, Jonah, and David discuss the latest allegations regarding Gen. Mark Milley, the Biden administration’s vaccine/testing mandate, the California recall election, and more.
  • Jonah’s Wednesday G-File(🔒) is about rules: where they came from, why they’re important, and how partisanship has rendered them meaningless. “My point isn’t about hypocrisy,” he writes. “The hypocrisy is bad, but it’s only smoke generated by a far more dangerous fire. People are putting torches to the rules, but all they know how to do is complain about the other teams’ smoke. … When you embrace the idea that rules are important for constraining your opponents but trivialities to be circumvented or rolled over otherwise—the way Biden wants to rollover governors in the way of his proposed vaccine mandate—you’re telling your opponents to adopt the very same tactic.”
  • Scott Lincicome’s latest Capitolism did not delve into Met Gala fashion as we promised Tuesday, but rather his issues with President Biden’s vaccine mandate. “I wish everyone would get vaccinated—really I do—and you’d blush if you heard some of the things I’ve yelled at my TV over the last couple months,” he writes. “But there must be limits to even the best intentions in even the worst times, and President Biden has in my view exceeded those limits significantly.”

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).