Earlier this month, Joe Biden’s vaccine mandate was blocked by the U.S. Court of Appeals for the Fifth Circuit in Louisiana, citing “grave statutory and constitutional issues.” The Biden administration insists that it has the legal authority to impose the vaccine mandate and has promised multiple times to fight on its behalf in court. The court ruled against the mandate again on Friday, arguing that it is “likely unconstitutional.”
I have argued that the Biden administration knows it lacks the authority to impose a vaccine mandate on private businesses because, in part, Biden previously said he wouldn’t do it. “No, I don’t think it should be mandatory. I wouldn’t demand it be mandatory. But I would do everything in my power — just like I don’t think masks have to be made mandatory nationwide — I will do everything in my power as president of the United States to encourage people to do the right thing. And when they do it, demonstrate that it matters.”
White House Press Secretary Jen Psaki also 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… That is the role that institutions, private-sector entities, and others may take. That certainly is appropriate.”
While Biden and Psaki’s comments may not matter to the court, the vaccine mandate may in fact have been doomed by someone else in the administration.
“The Constitution vests a limited legislative power in Congress,” the court explained. “For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy.”
“In seeking to do so here,” the court continued, “OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”
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According to the appellate court justices, the Biden administration is attempting to use OSHA to enact its COVID vaccine mandate as a “work-around” to the federal government’s lack of authority to enforce it.
After the President voiced his displeasure with the country’s vaccination rate in September,12 the Administration pored over the U.S. Code in search of authority, or a “work-around,”13 for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register” if it “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1)
Where did they get such an idea? From Biden’s White House Chief of Staff Ron Klain.
Foolish RT from WH chief of staff. He said the quiet part out loud.
Biden admin knows it’s likely illegal (like the eviction moratorium) but they don’t care. https://t.co/AlfmYtuvhp
— Ted Cruz (@tedcruz) September 10, 2021
Sure enough, footnote 13 in the ruling reads as follows:
13 On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.” See, e.g., Pet’rs Burnett Specialists, Choice Staffing, LLC, and Staff Force Inc.’s Reply Brief at 4 (emphasis added).
Congratulations, Ronald Klain, you may very well have doomed the mandate.