So sue me? Why the legal process may not resolve disputes over federal vaccine mandates
Recent patterns of Biden’s court defiances spell potential trouble for those hoping judges strike down mandates
I spend a fair amount of time pondering the effects of inflation. Most of my recent posts cover that subject as it’s front-of-mind in our daily lives. While it’s a serious problem, my biggest worry is the deterioration of our social structures. Without sound common principles, societies risk slipping into disarray.
It’s no coincidence many seemingly disconnected events are occurring simultaneously. Social unrest, irreconcilable political tensions, and a general sense of struggle abound. Inflation exacts a heavy toll on society. Lacking honest money, dishonesty is injected into every transaction. Such poison leaves behind social rot decaying the core principles of a virtuous people.
The United States’ legal system is the crown jewel epitomizing those virtues. That goodness underpins our every interaction and is the foundation for durable commerce. Unfortunately, circumstances are sapping the vitality of these social norms. This is leading to a rise in dishonorable characteristics and effects. I wrote about how I think our fastest growing shortage is not a physical product at all, but the rule of law itself.
These conditions are converging with a mighty legal spat between the states and the federal government. In an extraordinary move, the Biden Administration determined the executive branch has authority to issue general vaccine mandates for any worker in the country. Their argument seizes upon narrow authority granted to OSHA on regulating grave threats in workplaces. What was once understood as a process to protect workers from exposure to toxic industrial chemicals is now contorted to justify protecting workers from themselves. The OSHA Emergency Temporary Standard rests on the notion that in your natural state, you’re a grave danger to your own health. Curiously, they wrote the standard outlining the risks unvaccinated workers pose to themselves rather than others. Thus far, 27 states disagree and have sought legal recourses in the courts.
I am certain the states have sound arguments to which they will be successful as the cases run the judicial circuits. I contend, however, that doesn’t matter. The plaintiffs are correct in pursuing legal remedies by asserting the Biden Administration is grossly violating the law. The problem is they assume a court ruling affirming that will matter. I don’t think it will.
Throughout the COVID-19 pandemic, the executive branch voided millions of contracts. The CDC insisted it could halt evictions unilaterally nationwide for anyone claiming COVID hardship. The Supreme Court 5-4 on June 29, 2021 declined to vacate the DC Circuit’s ruling allowing the eviction moratorium to stay in place. The argument by Justice Kavanaugh was while he agreed the CDC overstepped, the moratorium was set to sunset on July 31. The reasoning was, eh, the CDC acted unlawfully, but we’ll put up with it for a few more weeks.1
This emboldened the Biden Administration. The eviction moratorium was renewed on August 3.2 The same day Biden publicly stated the order likely would, “Not likely pass constitutional muster,” so he did it anyway.3 The Supreme Court followed up on August 26 to finally put the issue to rest by issuing a 6-3 decision blocking the CDC’s authority.
Biden openly challenged the Supreme Court just a few months ago. He did so in bad faith. The circumstances for the vaccine mandates are worse; the political calculus having changed substantially since August’s brief defiance of the judiciary.
Since then, we had the Afghanistan withdrawal catastrophe. Recent newscasts highlight deteriorating economic conditions. Biden’s poll numbers are tanking, and for those reasons, I believe there is substantial risk of this administration disregarding the courts.
This has already evidenced itself. The Fifth Circuit quickly paused the OSHA vaccine mandate on employers pending further court proceedings.4 Following that legal development, the Biden Administration defiantly insisted businesses should continue with the mandated protocols anyway!5 This certainly forebodes ominous contention by the executive branch if they are struck down in court.
I’ve had conversations with Attorney General and governor offices articulating these risks. The consensus seems to be naive assumptions the Administration will respect court decisions. Looking at the plunging poll data for Biden, I know how desperate politicians act. And on this issue, the most tyrannical in my lifetime, I don’t see him backing off.
The rule of law seems to be strained at the moment. Dishonorable actors are carrying on with blatant power grabs. When checked, they thumb their noses. They actively encourage others to listen to them and not the legal process. This is why I’m more concerned not necessarily with the outcome of the rulings, but how they will be ignored. That’s a wild card I think few realize is in play. It’s one potentiality we cannot ignore.
Burr & Forman. July 9, 2021. Supreme Court Leaves Eviction Moratorium in Place Pending Appeal in Alabama Association of Realtors v. U.S. Department of Health and Human Services. JDSupra. https://www.jdsupra.com/legalnews/supreme-court-leaves-eviction-3083921/
Sprunt, Barbara. August 3, 2021. The Biden Administration Issues a New Eviction Moratorium After A Federal Ban Lapsed. NPR. https://www.npr.org/2021/08/03/1024345276/the-biden-administration-plans-a-new-eviction-moratorium-after-a-federal-ban-lap
Collins, Kaitlan, et. al. August 3, 2021. CDC announces limited, targeted eviction moratorium until early October. CNN. https://www.cnn.com/2021/08/03/politics/eviction-moratorium-high-covid-spread/index.html
Paul, Melanie. November 8, 2021. Fifth Circuit Hits Pause on OSHA COVID-19 Vaccine or Testing Emergency Standard. Jackson Lewis. https://www.jacksonlewis.com/publication/fifth-circuit-hits-pause-osha-covid-19-vaccine-or-testing-emergency-standard
Kimball, Spencer. November 8, 2021. White House tells businesses to proceed with vaccine mandate despite court-ordered pause. CNBC. https://www.cnbc.com/amp/2021/11/08/biden-vaccine-mandate-white-house-tells-business-to-go-ahead-despite-court-pause.html