The ruling against Biden's private-sector vax mandate shows it's indefensible

[BBB Biden]

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 officials.”


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.


Betsy McCaughey is a former lieutenant governor of New York.


https://nypost.com/2021/11/15/the-ruling-against-bidens-private-
sector-vax-mandate-shows-its-indefensible/