In his address to the nation four weeks ago, President Joe Biden assured Americans that his business mandate forcing large employers to require their workers be vaccinated was “legal.” No…it’s not legal because you say so, Joe. It’s legal only when the U.S. Supreme Court rules that it is. On Thursday —predictably— a majority of the Justices proved Biden wrong. His order was not legal.
As Supreme Court decisions go, this was surely the easiest call the justices will have this term. Their companion decision involving federal healthcare facilities was also an obvious one. In that case, the government was acting as an employer with the authority to enforce workplace rules requiring workers to be inoculated. Besides, they were doing it on their own anyway. The Supreme Court upheld that smaller aspect of Biden’s order.
So, Joe did it again. He managed to upend workers and businesses all across the nation for the last four months, only to have his actions roundly rejected as lawless. It’s become a pattern with Joe. And a measure of his chronic incompetence.
Let’s revisit what happened. When President Biden, with much fanfare, announced his new nationwide vaccine mandate on September 9th it was destined to be overturned by the Supreme Court. His sweeping and lawless order forcing COVID-19 shots impacted close to two-thirds of the American workforce. He did it without authority, and he knew that what he was doing was lawless. But he didn’t care.
Hours after his announcement, I appeared on Hannity and stated that Biden’s actions constituted “an unconstitutional abuse of power” that would inevitably be rejected by the nation’s highest court. “Under our constitutional system, states are in charge of public health concerns as part of their police power, not the federal government,” I explained. It was an easy call —a no-brainer. Any law student who was half-awake during the professor’s lecture in constitutional law class would know it.
The reason is quite simple. In the history of our republic, the federal government has never ordered compulsory vaccinations because past presidents knew they were not so empowered under the Constitution. States, on the other hand, have undertaken mandatory vaccinations. Twice, the Supreme Court upheld the right of states and local officials to issue vaccine mandates or face a penalty. The first state case was in 1905 in Massachusetts; the second case was in 1922 in Texas. Both involved smallpox vaccines. The Supremes ruled that states have the power to protect the health and safety of the public from deadly contagions, but not the federal government. The state power is derived from the Tenth Amendment, as any semi-lucid law student knows.
But Biden was not much of a law student. He was kicked out for plagiarism. When he was eventually let back in, his academic records show that he managed to graduate near the bottom of his class. It was embarrassing, to be sure. So Biden did what he always does. He lied about it…telling everyone that he graduated at the top of his class.
I’m not leveling a cheap shot…because it’s important. As president, Biden must be able to understand the limits of his power as defined by the Constitution. As a trained lawyer schooled in constitutional restraint, Biden should have known better. In point of fact, there is abundant evidence that he did know. For months he told Americans that he did not possess the authority to impose a national mandate. Then he ordered one anyway. He was told by White House lawyers who were awake and alert during Con Law that he couldn’t do it. But again, Biden didn’t care. Or maybe he couldn’t comprehend.
Perhaps Joe thought he was being clever by forcing OSHA (the Occupational Safety and Health Administration) to issue the mandate for him. But OSHA didn’t have the authority either. Under its rules passed by Congress, the agency can protect workers from —quote— “grave danger from exposure to substances or agents” that are toxic. But viruses are not “agents” under the meaning of the statute. Never have been. During oral arguments before the Supreme Court, justices asked Biden administration lawyers about that. They had no good answer.
In their decision on Thursday, the justices pointed out the obvious. The COVID virus is not strictly an occupational hazard. It’s a hazard everywhere. It’s universal and not unique to the workplace. Biden and OSHA were exceeding the bounds of their authority, which is nothing new for our president.
Moreover, Biden had OSHA issue the unprecedented order under its “emergency temporary standard.” But if it was such an emergency, why did the agency wait for the better part of a year to issue its emergency order? Justices asked that very question. There was no good answer. The truth is…Biden’s mandate was political, not health-based, as Law Professor Jonathan Turley has correctly pointed out.
The folly of Biden’s vaccine mandate was exposed by his own bumbling chief of staff. Shortly after his boss issued the directive, Ron Klain retweeted that it was “the ultimate workaround” of the Constitution. His Twitter blunder prompted a federal court to halt Biden’s vaccine mandate. When the case rocketed to the Supreme Court, Klain’s revealing admission that his boss was trying to circumvent the Constitution was cited by the justices repeatedly. It was, in essence, a confession of lawlessness and abuse of power.
It’s not the first time that Biden has traduced the very law he swore to uphold. Last summer, Joe conceded that he had no authority whatsoever to extend the eviction moratorium imposed during the pandemic. Then he did it anyway, openly defiling the rule of law. It was another transparent “workaround” —getting the CDC to do Biden’s dirty work. The Supreme Court put an end to it pronto.
Joe did the same thing with the pandemic farm loan relief program, deliberately excluding white farmers and ranchers even though the racial rejection blatantly violated the Constitution. Documents show that Biden knew it was an abuse of power, but he did it anyway. As before, he didn’t care. Of course, it was quickly knocked down by the courts as little more than a pernicious attempt at racial discrimination by the federal government. You know, the kind of racial bias that Biden pretends to oppose?
Is this the president America wants or deserves? A man who thinks the treasured document of our nation’s guiding principles should be tossed in a shredder? What is it going to take to get Biden to respect the Constitution? The answer is nothing. Even his abysmal poll numbers have failed to motivate him to change course. The latest poll by Quinnipiac shows that a scant 39% approve of Biden’s handling of the pandemic. That number will continue to sink. His overall approval rating has descended to an all-time low of 33%. His presidency is so atrocious that Joe recently said he stopped looking at the polls. Can’t say I blame him.
And what do we make of the liberal justices on the Supreme Court who mangled COVID data and misrepresented established facts during oral arguments? Justice Stephen Breyer declared that there were “750 million new cases yesterday.” Incorrect and impossible. That figure is more than double the U.S. population. Justice Sonia Sotomayor claimed, “We have over 100,000 children in serious condition, and many on ventilators.” Not remotely accurate. Less than 5,000 children have been hospitalized. Sotomayor’s whopper earned her four Pinocchios from The Washington Post.
Not to be outdone, Justice Elena Kagan said that getting vaccinated was the “best way to prevent the spread of COVID” and “the second-best way is to wear masks.” Both statements were glaringly untrue, as anyone following the Delta and Omicron variants know. Kagan apparently pays no attention to the CDC which has confirmed that masks and vaccines do not prevent spread of the virus.
Fortunately, the six-justice conservative majority on the Supreme Court seemed to have a firm grasp of both the facts and the Constitution. They weren’t buying Biden’s flimsy arguments. His vaccine mandate for private employers is deader than disco.
His mandate for federal health care workers, however, was legally viable because the government was acting with some authority as an employer in Medicare and Medicaid programs. Employers have the right to impose vaccinations on their workers. Many health care facilities have already done so. Virtually none challenged the order. They overwhelmingly supported it.
Hours before the Supreme Court handed down its predictable decision, I spoke with Jeff Landry, the Attorney General of Louisiana who has been leading the fight to oppose vaccine mandates since the first mention of them in the early months of 2020. He was at the forefront of several lawsuits, and he was inside the Supreme Court for the oral arguments.