The ruling against Biden’s private-sector vax mandate shows it’s indefensible
Employers and working Americans got good news on Friday: They likely won’t have to deal with President Biden’s cockamamie workplace vaccine dictate. A federal appeals court suspended his attempt to mandate the shots at private-sector workplaces with 100 or more employees.
Under Biden’s order, to take effect Jan. 4, employees who refuse the jabs must submit to weekly testing at their own expense or lose their jobs.
Vaccinations are not required to collect welfare or food stamps or to come across the southern border and apply for asylum. Just to work. Go figure.
Justifying the mandate, Biden said his “patience is wearing thin” and “too many people remain unvaccinated for us to get out of this pandemic.”
But a three-judge panel of the Fifth Circuit Court of Appeals slammed Biden’s end-justifies-the-means approach. The Constitution limits what the federal government can make people do, even in emergencies.
It’s in the public’s interest, Judge Kurt Engelhardt wrote, to protect “our constitutional structure” and “the liberty of individuals to make intensely personal decisions according to their own convictions — even, or perhaps particularly, when those decisions frustrate government
And exasperate their liberal media allies. CNN bashed the Fifth Circuit as “notoriously conservative.” Vox dismissed it as a “right-wing panel.” Washington Post columnist Ruth Marcus slammed the judges’ “stingy version of the federal government’s powers” and threw up her hands: “Maintaining our constitutional structure? How about saving lives?”
Conspicuously lacking in the left’s response is a legal defense of the mandate. It’s indefensible. Even before Friday’s ruling, White House spokeswoman Karine Jean-Pierre told employers to bulldoze ahead, disregarding legal challenges.
That shows how little the Biden administration and Democrats care about the rule of law and individual freedom.
The Fifth Circuit judges deemed the mandate recklessly “overinclusive.” Rather than using “a delicately handled scalpel” to identify workplaces where unvaccinated workers might pose a severe risk — such as meatpacking plants, where employees work shoulder to shoulder — federal regulators used “a one-size-fits-all sledgehammer.”
At the same time, said the judges, the mandate is inexplicably “underinclusive,” not affecting anyone in smaller workplaces. As if the virus passes over them.
And how about people who don’t work? The judges didn’t raise the issue, but the public keeps asking about it.
The Fifth Circuit also balked at Biden using the Occupational Safety and Health Administration to weasel through a mandate that “grossly” exceeds that agency’s authority and circumvents Congress. White House chief of staff Ron Klain retweeted an MSNBC anchor calling it “the ultimate work-around” — and Engelhardt noted Klain’s “endorsement” in blasting the unjustifiable mandate.
Not that congressional action would have done the trick. The judges doubt Congress has the authority to compel individuals to get vaccinated, like states and local governments do. The Constitution’s commerce clause has been stretched like a rubber band over the last century to support expansions of federal power in economic areas, but it can’t justify mandatory vaccination, which the judges called a “noneconomic inactivity.”
This case is headed for the US Supreme Court, where the mandate is unlikely to survive. As Justice Neil Gorsuch opined in another COVID-19 case, “civil liberties face grave risks when governments proclaim indefinite states of emergency.”
In the meantime, Republicans in Congress are seizing the opportunity to highlight how the mandate makes working people into suckers, while no one else is being forced to choose between their personal freedom and putting food on the table.
Using the Congressional Review Act — a handy tool to overturn agency regulations — Republicans will call for a vote of disapproval against the vaccine mandate. Even if it passes both houses, Biden will probably veto it. It’s unlikely two-thirds of both houses will override the president. Even so, calling the vote will be a pretty sight — with moderate Democrats squirming about forcing vaccine mandates on their constituents when members of Congress and their staffs don’t have to get the jabs to keep their jobs.
It’s the typical Washington hypocrisy: rules good enough for thee but not for me.
Betsy McCaughey is a former lieutenant governor of New York.