Is the federal government pre-arranging the medical requirements upon which an employment relationship may commence between private individuals?
Back in December of 2020, then President-elect Biden said that he would not make vaccines against COVID-19 mandatory, nor did he think they should be mandatory. Given the new vaccine mandate by the White House, set to affect nearly 100 million Americans by some estimates, one reasonably conclude that Biden misled the people. However, Biden’s actions will likely increase vaccine hesitancy, lead to further distrust of the government, and can expect multiple legal challenges – as well as civil disobedience.
These outcomes can all be expected due to four distinct challenges to the mandate.
1. Disregard for Congress and the Constitution
First, Biden’s executive order is just that – an executive order. Congress, the legislative branch, and thus the entire concept of representative government, has been bypassed by President Biden. The White House has no legislative authority to create an emergency rule under OSHA and it says as much in the U.S. Constitution. Article 1, Section 1 states very plainly, in a single sentence:
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Nowhere in that sentence are legislative authorities granted to the Executive branch. Likewise, the President does not reserve such powers – powers which belong to the states or to the people, as outlined by the Tenth Amendment in the Bill of Rights.
2. Faulty Legal Precedent
Second, proponents of the White House’s actions have cited a legal precedent – the 1905 Supreme Court Case Jacobson v. Massachusetts, specifically – which is unlikely to hold up to any serious scrutiny. In that case, a Massachusetts law passed by a legislature and adhering to the principles of the separation of powers (unlike an executive order authored by the President) allowed local town health boards (not federal agencies run by unelected bureaucrats) to establish mandatory vaccines if it was deemed necessary by local, municipal, elected officials. Those who did not comply were prosecuted with a simple fine of five dollars. A challenge was raised to the law, and the Supreme Court – the Fuller Court specifically – upheld it.
However, when compared to Biden’s new mandate, one can readily see legal issues. Apart from the legislative process that the Massachusetts law first underwent as outlined above, Biden’s executive order places the burden not on the people, but on private companies, effectively turning employer against employee. Certainly, in an employer-employee relationship, and even more so in a government-as-employer setting, vaccine requirements have a clearly established basis. What is not clearly established, if established at all, is the federal government pre-arranging the medical requirements upon which an employment relationship may commence between private individuals.
Furthermore, the appeal to Jacobson v. Massachusetts ought to enrage many Americans, especially women and minorities. Jacobson was decided under Chief Justice Fuller, who presided over Plessy v. Ferguson (1896), when racial segregation was codified under federal law. That decision has now been overturned, but remains held in absolute contempt, and rightly so. In addition, Jacobson was decided nearly 15 years before women received the right to vote at the federal level, and was also later cited as precedent – even served as the basis – for the decision of Buck v. Bell (1927) when SCOTUS allowed for compulsory sterilization of women deemed mentally unfit for motherhood.
3. Ongoing Concerns Surround the Vaccine
Third, and speaking of women, there are still ongoing concerns about the safety of the COVID vaccines. Although the CDC has said there is little-to-no risk, and the FDA has fully approved the vaccine, there have been recent reports that the vaccines have been affecting women’s menstrual cycles, raising serious concerns about reproductive health. As recently as early September, in fact, the National Institutes of Health has approved 1.67 million dollars to investigate those claims. The NIH appears to be taking these reports very seriously – unlike the White House, the CDC, and the FDA.
Given the recent tensions and commentary from the Biden Administration in opposition to Texas’ new 6-week abortion law, we might assume that the Biden Administration would be a little more supportive of both bodily autonomy and reproductive health. However, that does not seem to be the case. Furthermore, we might hope that supporters of the Biden Administration would never dream of giving so much deference to a SCOTUS decision made under a Chief Justice who helped codify segregation, and was later used as the basis for forced sterilization. But that does not seem to be the case either.
4. No Exception for Natural Immunity
Fourth and finally, Biden’s mandate makes no exception for natural immunity against COVID, now believed to be more effective than vaccines. Todd Zywicki, a professor at the Antonin Scalia Law School, has already successfully fought George Mason University’s vaccine mandate after filing a lawsuit against the mandate on the basis of natural immunity. Requiring vaccines for those already immune is unnecessary and a violation of medical ethics, and Zywicki’s previous efforts will likely serve as a basis for legal challenges going forward.
It is astounding, truly, to watch the White House bypass the legislative process, ignore representative government, and disrespect the separation of powers. It is enraging to watch supporters of the Biden Administration cite a Supreme Court decision made under the same Chief Justice who presided over Plessy v. Ferguson, years before women had the right to vote, and later used to support forced sterilization.
It is horrific that vaccines be mandated before a new investigation into their safety for women is concluded. And it is unconscionable that such an executive order would make no provision for those possessing natural immunity. Surely, this cannot stand.
Signs of the Times Comment: The push-back is revving up as many states are in uproar over Biden’s stance:
Twenty-seven Republican governors or attorneys general have vowed to fight the latest executive order issued by President Joe Biden mandating that over 80 million private employees receive COVID vaccinations or undergo weekly testing, or their employer will be fined.
The governors who’ve expressed opposition include those from Arizona, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
Republican attorneys general from states with Democratic governors who also vowed to fight include Kentucky Attorney General Daniel Cameron and Louisiana AG Jeff Landry.
Florida Gov. Ron DeSantis, with whom Biden has sparred over mask mandates and vaccine passports, said Florida would fight back:
“When you have a president like Biden issuing unconstitutional edicts against the American people, we have a responsibility to stand up for the Constitution and to fight back, and we are doing that in the state of Florida,” he said. “This is a president who has acknowledged in the past he does not have the authority to force this on anybody, and this order would result potentially in millions of Americans losing their jobs.”
Texas, which is already embroiled in several lawsuits with the Biden administration, vowed to sue. Texas Gov. Greg Abbott said after hearing Biden’s announcement that
“Texas is already working to halt this power grab” and Texas Attorney General Ken Paxton said Texas would be suing the Biden administration “very soon.”
Missouri Gov. Mike Parson said,
“OSHA cannot dictate personal health care decisions for Missourians. Missouri is not under an OSHA state plan, and Parson will not allow state employees to be used to enforce this unconstitutional action.”
South Carolina Gov. Henry McMaster vowed to fight Biden, saying,
“The American Dream has turned into a nightmare under President Biden and the radical Democrats. They have declared war against capitalism, thumbed their noses at the Constitution, and empowered our enemies abroad. Rest assured, we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian.”
Arizona Gov. Doug Ducey said,
“Governors don’t report to Joe Biden. Governors don’t report to the federal government, the states created the federal government, and Joe Biden has stepped out of his reach. These mandates are outrageous. They will never stand up in court. We must and will push back.”
Indiana Attorney General Todd Rokita indicated he was working with a group of AGs to file a lawsuit.
“My team and I, along with other like-minded attorneys general, are reviewing all legal action on how to stand against these authoritarian actions by the Biden administration.”
In response to Republican pushback, White House senior adviser Cedric Richmond, a former Democratic congressman from Louisiana, told CNN the White House expected the opposition.
“… those governors that stand in the way, I think, it was very clear from the president’s tone today that he will run over them. And it is important. It’s not for political purposes. It’s to save the lives of American people. And so, we won’t let one or two individuals stand in the way. We will always err on the side of protecting the American people.”
What will be Biden’s move?
And…Biden will attempt to implement the employer vaccine mandate and punishments through an Emergency Temporary Standard (ETS). Think of this as a temporary measure that allows the agency to bypass normal rulemaking and regulatory procedures. The ETS is governed by 29 USC 655, which states:
Look closely at part (A), which requires the Secretary of Labor to 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.”
How has OSHA determined ALL large employers are exposing their employees to “grave danger”?
Here’s the answer: they haven’t. And they don’t think they have to. In using the ETS – which are temporary – the Biden Administration is bypassing statutory and caselaw requirements that govern permanent health and safety standards.
Think of that for a moment: that they wish to use temporary regulations to mandate permanent vaccines.