On Saturday, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit temporarily blocked Joe Biden’s COVID vaccine mandate on businesses with more than 100 employees. White House Chief of Staff Ron Klain said he’s confident that the mandate will eventually be held up and promised that the Biden administration would fight for the mandate, which was set to take effect in January.
“I’m quite confident that when this finally gets fully adjudicated, not just a temporary order, the validity of this requirement will be upheld,” Klain said on NBC’s “Meet the Press” on Sunday. “If OSHA can tell people to wear a hard hat on the job, to be careful around chemicals, it could put in place these simple measures to keep our workers safe.”
Klain may be acting confident, but, as I said in September, Biden’s mandate is a red herring that will inevitably fail to pass constitutional muster in the courts. The Biden administration most certainly knows that the vaccine mandate won’t hold up. They previously recognized their lack of authority to impose a vaccine mandate. White House Press Secretary Jen Psaki said earlier this summer that vaccine mandates are “not the role” of the federal government. “Well, I think the question here — one, that’s not the role of the federal government,” she said on July 23, offering no exception to this assessment. “That is the role that institutions, private-sector entities, and others may take. That certainly is appropriate.”
Klain himself seemed to acknowledge that such a mandate isn’t constitutional when, back in September, he retweeted a tweet that effectively praised Biden’s use of an OSHA rule as a workaround for enacting an unconstitutional federal mandate.
Constitutional scholar Jonathan Turley thinks that will ultimately doom the mandate. “Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional limits,” Turley told Fox News in September. The “problem is that the thing being ‘worked around’ is the Constitution.”
“Klain effectively became a witness for the challengers in labeling the order an evasion or subterfuge designed for the courts. Klain leaves the courts in the unenviable position of ratifying an order that the administration admits is a mere work around to evade constitutional limits. It is akin to claiming self-defense in an assault case while saying that it was the best way to shoot the guy,” Turley added.
So, why fight hard for a mandate that is doomed? Sure, it’s always possible that, should the Supreme Court ultimately take up the issue, it could rule in favor of the blatantly unconstitutional mandate. Still, I think the Biden administration thinks it’s found a topic to distract the public from its many failings.
Related: Liberal Doctor Gives Liberal Readers Straight Talk on COVID
Constitutional or not, a recent Gallup poll suggests that a majority of the public supports Biden’s mandate. A stunning 58 percent favor requiring private businesses with 100 or more employees to have their employees vaccinated or be tested weekly. Biden may lose in the courts, but a long fight over the mandate could serve as an issue to restore his public approval ratings. His Build Back Better agenda isn’t even popular with the public, so the Biden administration may see the vaccine mandate as their ticket to restoring Biden’s image. Whether it will work remains to be seen. Still, given Biden’s gross incompetence as president, his administration likely sees majority support as something they have to fight for, even if it’s doomed.
