byGEORGE NEUMAYR November 9, 2021
The U.S. Court of Appeals for the Fifth Circuit last Saturday suspended the Biden administration’s vaccine mandate on private businesses, saying that “the petitions give cause to believe there are grave statutory and constitutional issues with the mandate.” But the White House is defying the court. “People should not wait,” said White House Deputy Press Secretary Karine Jean-Pierre. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
The arrogance of the Biden White House is on open display. “I’m quite confident that when this finally gets fully adjudicated, not just a temporary order, the validity of this requirement will be upheld,” White House Chief of Staff Ron Klain breezily proclaimed last Sunday. “If OSHA [Occupational Safety and Health Administration] can tell people to wear a hard hat on the job, to be careful around chemicals, it can … put in place these simple measures to keep our workers safe.”
Biden is using the pretext of safety in the “workplace” to stamp out a constitutional freedom beyond it.
Contrary to Klain’s spinning, Biden’s mandate is a blatantly unconstitutional and burdensome imposition on private businesses. It is not a “simple” workplace regulation but an audacious attempt to dictate the personal health-care decisions of millions of Americans.
“The Biden Administration’s vaccine mandate represents the greatest government overreach of our generation and we are elated that the court recognizes the ‘grave danger’ it poses not only to our clients, but all Americans,” said Patrick Hughes, president of the Liberty Justice Center, which, along with the Pelican Institute for Public Policy, filed the petition for a Louisiana business owner and six employees of CaptiveAire Systems before the Fifth Circuit Court of Appeals.
“No matter how you feel about the COVID vaccine, every American should be outraged,” said Daniel Suhr, managing attorney for the Liberty Justice Center. “Apparently, the Biden administration’s COVID strategy is this: circumvent Congress, ignore the Constitution, then threaten and bully millions of Americans to get vaccinated against their will. It’s an assault on the U.S. Constitution, which the President has sworn to uphold.”
The Biden administration’s defiance of the court is part of its unconstitutional bluff. It wants businesses to think that the mandate is sure to pass legal muster. But, as Jacob Sullum points out, courts have tended to view OSHA’s infrequent use of the “emergency temporary standard” (ETS) skeptically:
OSHA rarely issues emergency standards, and it is not hard to see why. Six of the nine OSHA emergency standards issued from 1971 to 1983 were challenged in court, and those challenges were partly or fully successful in all but one case. On July 21, when OSHA published an ETS requiring specific COVID-19 precautions in health care settings, it was the first time the agency had attempted an emergency standard in 38 years. It was also the first time OSHA had cited the danger posed by a communicable disease as the justification for an ETS.
Even the New York Times thinks Biden faces an “uphill battle” in this fight. “It was unclear whether the stay would be a procedural blip for the Biden administration or the first step in the unwinding of the mandate,” it allowed.
“More than two dozen states, businesses, business groups and religious organizations have sued, calling the rule issued by the Occupational Health and Safety Administration an overreach of government authority,” reports NPR.
It obviously is one. Biden is using the pretext of safety in the “workplace” to stamp out a constitutional freedom beyond it. Biden is advancing a tyranny in the name of “public health,” provoking a welcome backlash from patriotic Americans who refuse to surrender their liberty to grasping central planners. The White House’s hectoring of businesses not to “wait” for the courts to rule on the mandate is typical of that tyrannical spirit.
It would have been inconceivable to the Founding Fathers that the executive branch could concoct out of thin air a vaccine mandate and coerce businesses across the country to enforce it or face crushing fines. Biden’s fiat represents the antithesis of that founding vision. Presumably, the case over his mandate will end up before the Supreme Court. The outcome of the case will determine whether we live under a limited federal government or a limitless one.