The Wall Street Journal asks an intriguing question: “What legal sage advised President Biden to impose vaccine mandates?” They reason that legal adviser needs to have his law license pulled because the courts are repudiating the Biden Administration’s mandates at every opportunity.
A federal judge in Georgia is the latest to block the Administration’s vaccine requirement for employees of federal contractors – the fifth judicial rebuke in less than a month. Judge R. Stan Baker ruled in a challenge brought by seven states that the Administration had exceeded its authority under the Federal Property and Administrative Service Act. The President claimed his executive order would “promote economy and efficiency in procurement” by contracting with sources “that provide adequate Covid-19 safeguards for their workforce.”
Judge Baker went on to say the law does not give the President “the right to impose virtually any kind of requirement on businesses that wish to contract with the Government (and, thereby, on those businesses’ employees) so long as he determines it could lead to a healthier and thus more efficient workforce or it could reduce absenteeism.”
Judge Baker is not alone. Last week federal Judge Gregory Van Tatenhove enjoined the Administration from enforcing the contractor mandate in Kentucky, Ohio, and Tennessee. While conceding that Congress delegated broad power to the president, the judge noted that his “authority is not absolute” and the President’s overreach raises “several concerning statutory and constitutional implications.” The mandate “intrudes on an area that is traditionally reserved to the States,” wrote this judge, noting the Constitution grants the states general police powers to regulate public health and welfare.
Two judges recently scored the Centers for Medicare and Medicaid Services (CMS) for exceeding its authority by mandating vaccines for employees of healthcare providers that receive government funds. The Social Security Act authorizes CMS to prescribe rules and regulations that may be necessary to carry out the Medicaid and Medicare programs. But these judges both noted the Supreme Court has said that Congress must “speak clearly if it wishes to assign to an agency, decisions of vast economic and political significance.”
Louisiana Judge Terry Doughty said, “If CMS has the authority by a general authorization statute to mandate vaccines, they have authority to do almost anything they believe necessary, holding the hammer of termination of the Medicare/Medicaid Provider Agreement.” This same judge blasted CMS for skipping notice-and-comment, and failing to consider surgical alternatives to its sweeping mandate and the reliance interest of states and providers on federal funds.
These recent judicial smackdowns come on the heels of the Fifth Circuit Court of Appeals’ ruling early last month that stayed the Occupational Safety and Health Administration’s vaccinate-or-test mandate for workers of employers with 100 or more employees. The Fifth Circuit ruled against the Biden Administration on procedural, statutory, and constitutional grounds.
The Biden Administration is still trying to convince federal employees these mandates are in their best interests. “The goal of the federal employee vaccination requirement is to protect federal workers, not to punish them,” wrote the Office of Personnel Management and Office of Management and Budget leaders to executive agencies. They added, “We encourage your agencies to continue with robust education and counseling efforts through this holiday season as the first step in an enforcement process, with no subsequent enforcement actions.”
WSJ editors ask, “Why not do the same for private employers and workers? The White House is punishing private workers while inoculating government servants from its overreach.”
It’s time to stop the mandates. We’re nearly two years into this Covid-19 pandemic and every adult by now must know the risks of Covid-19 and the ways to mitigate that risk through vaccines, wearing masks, hand-sanitizing, and social distancing. Adults can make their own decisions about vaccines and those who choose to avoid vaccination have accepted the risks. If you’re worried about the virus, get vaccinated. If you’re more worried about the vaccines, then voluntarily take the necessary precautions. Let’s stop trying to control people. Vaccine mandates only disrupt our economy, impair the provision of necessary services, increase unemployment, and violate the civil liberties of all Americans.
The judicial branch consistently says they are illegal. Time to find better legal advisors, Mr. President.