by Bob Barr
Last week was especially bad for President Joe Biden’s plan to force all Americans to be vaccinated against the COVID-19 virus. How the administration responds to the setbacks will reveal whether we have a president who actually believes in and will abide by the rule of law, or one who considers himself above such a bothersome technicality.
On September 9, Biden angrily lectured the American people about the COVID-19 pandemic, laying out plans for vaccination mandates to include all civilian and military federal employees and contractors, and for anyone working for a private company with 100 or more employees.
Biden’s plan was indeed bold. As it turns out, it was too bold. On Friday, a federal appeals court in New Orleans, answering one of some two dozen pending federal court challenges to Biden’s COVID mandates, told him to go back to the drawing board.
Biden’s plan hit another snag last week. The Army general in charge of Oklahoma’s National Guard issued an order declaring that no troops under his command will be required to be COVID vaccinated; this in direct defiance of a mandate issued in August by Defense Secretary Lloyd Austin.
The November 12 opinion by the United States Court of Appeals for the Fifth Circuit dealt with the November 5 “Emergency Temporary Standard” issued by the Occupational Safety and Health Administration (OSHA) purporting to implement the 100 employee mandate portion of Biden’s September edict. (The court had issued a preliminary stay of the mandate on November 6.)
Despite Biden’s declaring that this mandate was among those he deemed essential to save the country from the continued ravages of COVID-19, the appeals court disagreed with him in every respect. It determined that OSHA had failed to meet a single requirement needed to be able to enforce the regulatory mandate, even had the agency possessed the legal power to do so, which the court said it did not.
The appeals court could not have been more clear in dousing Biden’s far-reaching plan with cold water; at one point deriding the OSHA plan as an unlawful “sledgehammer.”
When that court issued its November 6 temporary order staying the OSHA regulations, the administration puffed up its chest and publicly urged American citizens and businesses to ignore the court and carry out the administration’s wishes regardless. It remains to be seen whether the administration will be as brash in urging citizens and businesses to violate last Friday’s far more detailed, crystal-clear order.
While the Fifth Circuit’s November 12 opinion did contain a lifeline for the administration, in that its stay of the OSHA mandate holds only until the court considers the underlying relief for a permanent injunction sought against the government, it likely will be extremely difficult for the administration to find a way around this opinion.
Not only did the three-judge Fifth Circuit panel provide legal and factual grounds defeating every argument on which OSHA based its “emergency” regulations, the judges explicitly told the agency it was to “take no steps to implement or enforce the Mandate.” This directive appears to be a warning to the administration not to make further public statements urging that the court’s orders be ignored.
The November 11 order by the commander of the Oklahoma National Guard rejecting the Defense Secretary’s COVID mandate for all troops presents the administration with a completely different predicament than that faced now by OSHA, and sets up what may prove to be a serious challenge to the power Uncle Sam legally can exercise over the National Guard units of an individual state. Regardless of how this particular problem is resolved, for now it further undercuts the mandate-heavy approach preferred by this president
As things stand now, the Biden administration lacks even a rubber mallet with which to enforce many of its beloved COVID-19 mandates. It will be interesting to see what legal rabbits it pulls out of its hat in the coming days.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.