Biden’s Moribund Vaccine Mandate
SCOTUS will concur with the 5th Circuit that this arbitrary edict is fatally flawed.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.”
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.”
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