Why the Vaccine Mandate Is Illegal and Why It Will Still Be Imposed

AP Photo/Damian Dovarganes

Yesterday’s ruling in a federal appeals court in New Orleans granting a temporary injunction against the vaccine mandate was encouraging to those who oppose the federal overreach it represents.


But despite solid arguments against the mandate’s legality, it will likely go forward anyway. The injunction imposed by the appeals court yesterday was temporary. At some point, an appeals court will rule that the requirements of the mandate can go forward while the OSHA rule is litigated.

That’s going to take a while. In fact, the delay between cause and effect is part of the Biden administration’s strategy. By the time the issue is decided by the Supreme Court—almost certainly in favor of the states suing the administration—it may well be next fall. The suing states could ask for an expedited Supreme Court hearing, but that’s almost never granted.

By then, the “temporary” legality of the mandate will have resulted in millions of people being forced to get jabbed or lose their jobs. Biden will have accomplished his mission, employers will be relieved of the burden of having to enforce an unpopular rule, and we can all go back to living our normal lives just like we did before the pandemic began, right?

That’s the plan, anyway.

The mandate is illegal because the OSHA standard it’s based on is not being met. The federal government assumes the authority to impose the mandate based on the “general welfare” clause of the Constitution and its clearly defined power to regulate interstate commerce. But the administrative law under which OSHA operates only justifies federal action in the workplace, such as a vaccine mandate, under certain specific conditions.


And the epidemic doesn’t meet them.

The Federalist:

“Courts are skeptical because the law demands it,” the attorneys general wrote in a letter to Biden in September. “To justify an emergency temporary standard, OSHA must determine 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 it must conclude that ‘such emergency standard is necessary to protect employees from such danger.’ You cannot plausibly meet the high burden of showing that employees in general are in grave danger.”

Although the Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the OSHA-enforced vaccine mandate, Republican-led groups have been questioning and denying its legality since it was implemented on Nov. 4.

“The federal government can’t just unilaterally impose medical policy under the guise of workplace regulation,” Governor DeSantis said on Thursday.

The Washington Post points out that vaccine mandates increase vaccination rates. Does that mean they should be legal?

Mandates appear to have helped drive an increase in vaccinations. United Airlines, which had one of the strictest mandates for a major air carrier, said its employee vaccination rate increased to more than 99 percent. Delta, which used financial penalties and testing requirements, saw the employee vaccination rate jump to 90 percent from 75 percent. Tyson Foods said recently that at least 96 percent of its employees were vaccinated in advance of its Nov. 1 deadline — up from under 50 percent before it announced the mandate in August.

Many hospitals in New York saw vaccination rates increase to more than 95 percent by the deadline of the state’s mandate for health-care workers, up from the 70 percent to 80 percent range before the rule was announced. In California, major hospitals saw vaccination rates increase to about 90 percent after a similar, albeit slightly less stringent, mandate.


“The requirement is supported by a majority of the American public according to public opinion surveys and is a critical step to increasing vaccination rates and getting the pandemic under more firm control, according to public health experts,” writes the Post. Are we to surrender our judgment and liberties to the whims of public opinion or the opinion of “experts”?

The Biden administration’s cynical strategy to impose a mandate they know won’t pass constitutional muster with the Supreme Court may indeed work. But considering what we’re losing bin the process, it seems a ghastly price to pay for “normalcy.”


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