On Thursday, Joe Biden gave a historic presidential address. Part peevish lecture and part decree, the speech tried to justify an executive action we will study for years to come. The President warned that “our patience is running thin” with unvaccinated Americans, and this theme dominated both his address and his looming actions.

The President is issuing two executive orders: one requires vaccination for federal employees and contractors, and the other forces employers with more than 100 workers to mandate vaccines or weekly testing. He is on stronger ground with federal employees, though I suspect he will face resistance. Attempting to force private businesses to execute a vaccination regimen will be much more difficult.

The private employer mandate will come through the Occupational Safety and Health Administration (OSHA) rule-making process, which allows the agency to issue an “Emergency Temporary Standard.” An ETS could be in effect for up to six months, though it can be challenged in the US Courts of Appeal. According to the statute, the ETS can be issued when employees face a “grave danger” from exposure to substances or agents that are harmful or toxic and when the emergency action is necessary to protect employees from such danger. When these standards have been issued in the past, they have often been struck down by the courts.

Several problems arise immediately. First, can the administration claim that a grave danger exists for employees? I do not know all the legal arguments that will flow into this. I am sure administrative law experts could weigh in with authority, but I would suspect a highly communicable virus that has caused a global pandemic could qualify as such a danger–though the mortality, hospitalization, and illness rates, and their variability by age and physical condition, would be an issue.

The second challenge would be more difficult. Can the administration argue that this approach is necessary? The executive order will not account for those recently diagnosed with COVID. Would they be required to vaccinate or test, even though the data suggests they are protected already? Also, to what degree is the order necessary to protect those already vaccinated within the workplace? While there is a reasonable basis to argue vaccinating all employees within this sphere (more than 80 million Americans) would benefit the public good, is that the proper goal for a rule that targets employers? In other words, to what degree is this an occupational hazard, which is really what OSHA is designed to reach? This feels more like the federal government using employers to carry out a policy it would not have the power to enforce on its own.

These statutory questions will be heavily litigated, but there are also constitutional matters to consider. Primarily, which element of government has the proper authority to enact vaccine mandates? Typically, states have broad and deep powers to protect health, safety, and welfare. These “police powers” have included vaccination requirements, which have largely been upheld by courts. The federal government cannot easily claim this kind of authority, so the courts could reason that applying the OSHA statute to grant this power is beyond the reach of the national government.

Of course, there is also the looming issue of executive authority. Article 2 of the U.S. Constitution begins, “The executive Power shall be vested in a President of the United States of America.” Unlike Article 1, which displays the exactitude of the arguments that surrounded legislative power, Article 2’s brevity, plus its general descriptions of presidential authority, obscures the roiling debate in Philadelphia. Perhaps the most telling difference between the two articles is that Article 1 has an entire section devoted to what Congress can’t do. There is no such language in Article 2.

The founders envisioned the Executive as “energetic,” and able to deal with crises swiftly and decisively. While there are always checks and balances, and other limitations, the presidency was designed to handle emergencies. The framers were hoping to avoid the administrative quagmire of the Articles of Confederation, while also preventing a monarch with unrestrained will. Against this backdrop, the courts have afforded the executive wide latitude to handle emergencies, including an executive order that ultimately detained Japanese-American citizens during World War II.

I think President Biden has overstepped his authority under the OSHA statute, and his order undermines elements of our constitutional system. The effort to force employers to vaccinate or test their employees is unconstitutional, but it would not stun me if the courts rule otherwise. There is a long, mostly unbroken, tradition of empowering the President of the United States. This case might do the same.

Still, this could be when the Supreme Court decides to chart a new path. With a traditional, originalist majority, SCOTUS could curb executive growth, or, if it really wanted to send a thunderbolt from the skies, limit the amount of power Congress can delegate to the executive via legislation like the OSHA statute. It would be good for the long-term health of the nation if those things happened, though, ironically, that could be poor for the short term health of the citizenry.