For this president, his Sworn Duty to Execute the Laws faithfully is beside the point.
By Andrew C. McCarthy
Clearly, President Joe Biden is not chastened by the Supreme Court smackdown he got just a couple of weeks ago, when the justices invalidated the eviction moratorium that even administration officials acknowledge was patently lawless right before Biden reissued it.
Quite the opposite.
The administration is similarly well aware that the national vaccine mandate the president is issuing is unlawful. White House Chief of Staff Ron Klain made the obvious explicit by retweeting a progressive commentator’s observation that the ploy of imposing the vaccine requirement as a workplace-safety rule under OSHA (the Occupational Safety & Health Administration) is the “ultimate work-around.”
Translation: The president knows that an executive order mandating COVID vaccination would be shot down instantly, so he’s trying to camouflage it in a maze of Labor Department regulation.Even on that score, the gambit cannot be justified. OSHA is trying to evade the Administrative Procedure Act’s requirement of a regulatory commentary period by slamming the vaccine dictate through as an “Emergency Testing Standard.”
It has been nearly 40 years since OSHA tried that trick... mainly because the courts struck it down, on an asbestos regulation, in 1983.
In a sensible world, where the originalist interpretation of the Constitution governed, Biden’s move would be patently unconstitutional. Congress has no overarching public-health authority.
OSHA relies for its regulations on Congress’ power under the commerce clause. But a vaccine isn’t even commerce, let alone interstate commerce.
It has been nearly 40 years since OSHA tried that trick... mainly because the courts struck it down, on an asbestos regulation, in 1983.
In a sensible world, where the originalist interpretation of the Constitution governed, Biden’s move would be patently unconstitutional. Congress has no overarching public-health authority.
OSHA relies for its regulations on Congress’ power under the commerce clause. But a vaccine isn’t even commerce, let alone interstate commerce.
In our federalist system as originally designed, the states were to be sovereign in governing their internal affairs. In that tradition, it is the states, not the federal government, that have imposed vaccination requirements, particularly in schools.
Unfortunately, the Supreme Court has made a hash of commerce clause jurisprudence. Particularly during and after the New Deal, it permitted federal regulation of intrastate matters on extremely dubious rationales.
As a result, federal mandate cases tend to come down to two related questions: Is the federal government trying to exercise power in a traditional state-law domain; and, if so, has Congress given the federal agency precise, unambiguous authority to take the action in question?
That is why the Biden Administration went down in flames on the eviction moratorium. The Supreme Court reasoned that landlord-tenant relations were intrastate in nature and had always been subject to state-law regulation.
The court did not grapple with the underlying commerce clause question of whether any component of the federal government, including Congress, had the power to order a delay of rental payments. But it explained that even if we assume Congress has such power, it must make its directives clear.Congress had not done that. Instead, the Biden Administration (through the Centers for Disease Control & Prevention) attempted to mine its authority out of an extravagant and distorted construction of the applicable federal statutes.
The same situation will be obtained with the vaccine mandate. Indeed, if Congress had authorized OSHA to issue such a regulation, OSHA would not be scheming to dodge administrative-procedure requirements.
The president and his administration know they are in the wrong – but sadly, we are sure to see more instances of overreach.
At this point, Biden is not so much trying to impose his will as to use — or better, abuse — the levers of executive power in a way that assures progressives he is on their side.
For this president, his sworn duty to execute the laws faithfully is beside the point.Andrew C. McCarthy is a former federal prosecutor and contributing editor at National Review.
