The Biden administration will inevitably ask the Supreme Court to review last Friday’s decision by the 5th Circuit Court of Appeals to halt its vaccine mandate. The effort is likely to be futile, however. Writing for the appeals court, Judge Kurt Engelhardt confidently predicted that the mandate’s challengers “are likely to succeed on the merits” under judicial review. Engelhardt took particular exception to the attempt to impose the mandate through the Occupational Safety and Health Administration (OSHA), pointing out that the Constitution’s Commerce Clause and the nondelegation doctrine preclude OSHA from making such “sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”
The decision also declared the mandate “fatally flawed on its own terms,” emphasizing that it purports to “save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat.” This seriously undermined the administration’s claim that the purpose of the mandate is a response to a genuine national emergency: “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.” This created questions concerning OSHA’s use of the emergency temporary standard (ETS):
As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’” But the Mandate at issue here … is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
The appeals court goes on to point out that President Biden and OSHA have both undermined the legitimacy of the mandate by contradicting their own prior positions concerning the need to impose such a measure. Judge Engelhardt quotes Biden’s answer to a question posed to him on December 4 of last year concerning whether vaccines should be mandatory: “No, I don’t think [they] should be mandatory. I wouldn’t demand it be mandatory…” The judge also quotes a D.C. Circuit Brief filed by OSHA in May of 2020: “Based on substantial evidence … an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive.”
At length, the 5th Circuit points out what should be a blindingly obvious practical dilemma associated with the vaccine mandate — it is far too unwieldy to implement efficiently. As the decision phrases it, “The Mandate is staggeringly overbroad, applying to 2 out of 3 private-sector employees in America in workplaces as diverse as the country itself.” Nor was it lost on Judge Engelhardt that the hare-brained scheme to implement the mandate using OSHA was hastily cobbled together by staffers. As Constitutional scholar Jonathan Turley points out, the decision includes a footnote indicating that White House Chief of Staff Ron Klain was foolish enough to advertise it as an end run around the Constitution:
Klain acknowledged that the use of OSHA was a “work around” in light of the constitutional barriers preventing President Biden from ordering a national mandate directly.… The Fifth Circuit decision could now lead to a showdown in the Supreme Court where Klain’s tweet could be again highlighted. This is a challenge that alleges that the OSHA rule was a thinly disguised attempt to circumvent the Constitution. Klain then rushed to remove even that thin veneer by heralding the “work around” of the constitutional limitations. It is an “admission against interest” that is likely to be repeated in litigation in a variety of cases.
This blunder will raise eyebrows at the Supreme Court when the Biden administration appeals the 5th Circuit ruling. Even the Court’s most liberal justices will take a dim view of such contempt for the Constitution. Yet the Biden Department of Justice insists that it will “continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.” Their argument, however, depends less on the constitutionality of the mandate than the manipulation of public opinion: “With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming.”
But, as Judge Engelhardt writes, “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions — even, or perhaps particularly, when those decisions frustrate government officials.” That, in the end, is exactly what the entire controversy is about. No president possesses the authority to order private citizens to get vaccinated or command private businesses to enforce a vaccine mandate. Moreover, when Congress created OSHA, it didn’t authorize the agency to enforce anything resembling such an edict. Thus, the mandate will be DOA when it hits the SCOTUS docket.
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