The president’s vaccine mandate is part of a pattern: He takes illegal actions in hopes that by the time the courts rule, his goals will have been achieved.
The president’s vaccine mandate is part of a pattern: He takes illegal actions in hopes that by the time the courts rule, his goals will have been achieved.
A sked Monday afternoon what the federal government intends to do while the president’s long-delayed vaccine mandate is being litigated in the courts, White House deputy press secretary Karine Jean-Pierre explained that the administration intended to carry on as if nothing had happened. “People should not wait,” Jean-Pierre told reporters. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
So much for a return to those much-vaunted “norms.”
Apologists for Biden’s approach will choose to parse Jean-Pierre’s statement literally. “There’s nothing illegal here,” they will say. “The order has been stayed, and the administration is simply issuing an encouragement in the meantime.” And this is true, insofar as it goes. But there is a clear tactic on display here nevertheless — and its deployment has become something of a habit of this president’s. First, the White House announces that it either cannot, or will not, take a particular action: federal vaccine mandates, Jen Psaki said back in July, are “not the role of the federal government,” but “the role that institutions, private-sector entities, and others may take.” Next, someone close to the president suggests that, actually, there might be a loophole somewhere to exploit, and contends that, irrespective of the legal merits, a mere announcement might move the needle in the administration’s favor. And, finally, the president comes out blazing, in the clear hope that by the time his edicts are struck down they will have changed the facts on the ground. In a formal sense, what Karine Jean-Pierre said Monday is legally acceptable. But it is not normal, and it is not admirable, either. If they are to mean anything, “norms” must preclude the executive branch from using tenuous regulations as a cudgel with which to intimidate the American citizenry.
When it blocked the order, the Fifth Circuit Court of Appeals recorded that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” As, of course, there must be. The Biden administration issued the mandate via the Occupational Safety and Health Administration (OSHA), a federal agency whose sole power under the law is to protect employees from workplace hazards. There is nothing in the Constitution’s Commerce Clause that justifies OSHA’s adoption of generalized police powers, and nothing in its charter that permits it to move from regulating toxic substances at employees’ places of work to regulating any hazard that employees might plausibly encounter during the course of their everyday lives. In a brazen attempt to circumvent the statutorily mandatory feedback period, Biden utilized an “emergency temporary standard” (ETS) as his vehicle. But this, too, seems inappropriate. No ETS in American history has ever been this broad, and the last one that was issued — a 1983 attempt to speed up OSHA’s regulation of asbestos — was struck down by the courts.
While running for president last year, Joe Biden was keen to cast himself as the savior of the American order. “I am not running for office to be King of America,” Biden promised. “I respect the Constitution. I’ve read the Constitution. I’ve sworn an oath to it many times.” These are nice words, but the proof is in the pudding, and thus far at least, Biden has bent the rules whenever he possibly could. Back in August, the president conceded that it would be flatly illegal for him to reissue a national moratorium on evictions, and then did it anyway, in the hope that the inevitably lengthy litigation process would buy the policy some “additional time.” Biden admitted that “the bulk of the constitutional scholarship says it’s not likely to pass constitutional muster,” and his staff confirmed that he’d looked into the question in detail. The president had “not only kicked the tires,” aide Gene Sperling said, he had “double, triple, quadruple checked” with the CDC, and found that he could neither renew the existing order nor narrow it to a more “targeted eviction moratorium that just went to the counties that have higher rates.”
Why, having discovered that he was on the wrong side of the law, did Biden reissue the moratorium anyway? Because while he may not want to sound like a king, he is perfectly comfortable acting like one, and, as Barack Obama and Donald Trump did before him, he knows that it is easier to ask forgiveness than to ask permission. DACA might be struck down? Okay, but by the time it is nixed, its beneficiaries will be harder to deport. The funds used to pay for the border wall were illegally sourced? Tell that to the contractors once the construction work has been done. OSHA has no authority to issue COVID-19 regulations to private businesses, let alone on an expedited basis? Fine, but, with any luck, the businesses in question will have already done what it wishes them to do by the time a judge says as much.
Typically, Americans who have been aggrieved by their government are instructed “to take them to court.” And, indeed, they should. But there is a more effective, and more honorable, way for the people to retain the system of government they’ve inherited, and that is to demand leaders who won’t break the rules in the first instance. If push comes to shove, I daresay that President Biden will abide by the judicial branch’s decisions. But, by taking action he knows full well is illegal, and forcing others to strike it down in turn, he is violating his oath to “faithfully execute” the law. “I respect the Constitution,” insists Biden when asked. As ever, though, actions are worth more than mere words.