{"id":85610,"date":"2021-09-23T07:02:21","date_gmt":"2021-09-23T11:02:21","guid":{"rendered":"http:\/\/stateofthenation.co\/?p=85610"},"modified":"2021-09-23T07:02:21","modified_gmt":"2021-09-23T11:02:21","slug":"bidens-covid-19-vaccine-mandate-is-patently-unconstitutional-unlawful-on-multiple-counts","status":"publish","type":"post","link":"https:\/\/stateofthenation.co\/?p=85610","title":{"rendered":"Biden&#8217;s COVID-19 Vaccine Mandate Is Patently Unconstitutional &#038; Unlawful on Multiple Counts"},"content":{"rendered":"<h1><b>Why The Biden COVID-19 Vaccine Mandate Is Unconstitutional<\/b><\/h1>\n<p><!--more-->By Techno Fog<br \/>\nThe Reactionary<\/p>\n<p>On September 9, President Biden announced he would circumvent the democratic process, ordering the Secretary of the Department of Labor to require employers with over 100 workers to \u201censure their workforces are fully vaccinated or show a negative test at least once a week.\u201d<\/p>\n<p><strong>This was essential, as Biden said, \u201cto protect vaccinated workers from unvaccinated workers.\u201d<\/strong><\/p>\n<div class=\"Advert_desktop__1J5vD Advert_tablet__3QEBr Advert_mobile__1rlLc Advert_placement__1I4yb Advert_align__N0_fw\">\n<aside id=\"in-content-video\" class=\"Advert_verticallySpaced__wnPy3\">\n<div id=\"google_ads_iframe_\/21841313772,21778456762\/zerohedge\/in_content_video_0__container__\"><\/div>\n<\/aside>\n<\/div>\n<p><em><a href=\"https:\/\/www.zerohedge.com\/s3\/files\/inline-images\/https%20_bucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com_public_images_14cb2fbe-52d4-4f40-ab24-b2db28a6bae8_624x356.png?itok=Dlvu7CVR\" data-image-external-href=\"\" data-image-href=\"\/s3\/files\/inline-images\/https%20_bucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com_public_images_14cb2fbe-52d4-4f40-ab24-b2db28a6bae8_624x356.png?itok=Dlvu7CVR\" data-link-option=\"0\"><picture><img loading=\"lazy\" decoding=\"async\" class=\"inline-images image-style-inline-images\" src=\"https:\/\/assets.zerohedge.com\/s3fs-public\/styles\/inline_image_mobile\/public\/inline-images\/https%20_bucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com_public_images_14cb2fbe-52d4-4f40-ab24-b2db28a6bae8_624x356.png?itok=Dlvu7CVR\" alt=\"\" width=\"500\" height=\"285\" data-entity-type=\"file\" data-entity-uuid=\"c1b9e1c4-eb19-4039-8052-b2704f8c4a9d\" data-responsive-image-style=\"inline_images\" \/><\/picture><\/a><\/em><\/p>\n<p><a href=\"https:\/\/technofog.substack.com\/p\/the-unvaccinated-will-be-punished\" rel=\"\">As we have explained<\/a>, the Secretary of Labor will issue these regulations through OSHA by way of an Emergency Temporary Standard (ETS). The ETS would allow the Secretary of Labor to issue the vaccine mandate without the normal administrative rulemaking requirements (like notice and public comment periods).<\/p>\n<p><a href=\"https:\/\/www.zerohedge.com\/s3\/files\/inline-images\/https%20_bucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com_public_images_6d4c7e32-e6f2-4066-9042-f2141a526d94_624x120.png?itok=Kha4vwns\" data-image-external-href=\"\" data-image-href=\"\/s3\/files\/inline-images\/https%20_bucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com_public_images_6d4c7e32-e6f2-4066-9042-f2141a526d94_624x120.png?itok=Kha4vwns\" data-link-option=\"0\"><picture><img loading=\"lazy\" decoding=\"async\" class=\"inline-images image-style-inline-images\" src=\"https:\/\/assets.zerohedge.com\/s3fs-public\/styles\/inline_image_mobile\/public\/inline-images\/https%20_bucketeer-e05bbc84-baa3-437e-9518-adb32be77984.s3.amazonaws.com_public_images_6d4c7e32-e6f2-4066-9042-f2141a526d94_624x120.png?itok=Kha4vwns\" alt=\"\" width=\"500\" height=\"96\" data-entity-type=\"file\" data-entity-uuid=\"6dc291ee-3552-4686-9fc1-bf232a457296\" data-responsive-image-style=\"inline_images\" \/><\/picture><\/a><\/p>\n<p>While the Biden Administration tells the public that there\u2019s no time to waste in issuing the mandate, the truth is that OSHA\/Labor failed to argue the necessity of a vaccine mandate since the vaccines have been available \u2013 a time period approaching one year. Moreover, the Biden Department of Labor is secretly meeting with the US Chamber of Commerce and business lobbyists to gather support for the mandate. As\u00a0<a href=\"https:\/\/news.bloomberglaw.com\/daily-labor-report\/top-dol-lawyer-courts-business-support-for-bidens-vaccine-order\" rel=\"\">Bloomberg Law reports:<\/a><\/p>\n<blockquote><p><em>Solicitor of Labor Seema Nanda held a virtual meeting with Neil Bradley, the Chamber\u2019s chief policy officer, and other business lobbyists. The Chamber, the largest business lobbying group in the U.S., has yet to publicly declare a position on the coming Occupational Safety and Health Administration emergency rulemaking.<\/em><\/p>\n<p><em>It was one of at least three briefings the department held Friday for labor union leaders and employer associations\u2014constituencies the White House hopes to forge partnerships with to lift the vaccination rate nationwide. Information from the calls was disclosed to Bloomberg Law by eight sources who took part, all of whom requested anonymity because they didn\u2019t have approval to speak publicly.<\/em><\/p><\/blockquote>\n<h3><u><strong>Why the Vaccine Mandate is Unconstitutional<\/strong><\/u><\/h3>\n<p>As you can imagine, the constitutionality of the vaccine mandate will be a litigated as soon as OSHA issues the rules. The media is running interference,\u00a0<a href=\"https:\/\/www.nbcnews.com\/politics\/politics-news\/republicans-threats-biden-s-vaccine-mandates-unlikely-succeed-experts-say-n1278936\" rel=\"\">telling the public<\/a>\u00a0that challenges to the mandate are \u201cunlikely to succeed.\u201d<\/p>\n<p><strong>Do not believe them.<\/strong><\/p>\n<p>The legality of the vaccine mandate will be assessed under what is called the major rules doctrine (also known as the major questions doctrine). Under this doctrine, the courts look to (1) whether the agency action is a major rule; and (2) whether Congress has\u00a0<em>clearly authorized<\/em>\u00a0the agency action.<\/p>\n<p>As Justice Scalia stated in 2014, \u201cWe expect congress to speak clearly if it wishes to assign to an agency decisions of vast \u2018economic and political significance.\u2019\u201d<\/p>\n<p>From here we turn to the first question of the major rules doctrine:\u00a0<strong>there is zero doubt that it is a major rule<\/strong>. It would\u00a0<a href=\"https:\/\/www.reuters.com\/legal\/government\/how-will-bidens-vaccine-mandate-impact-workers-companies-2021-09-13\/\" rel=\"\">affect<\/a>\u00a0the healthcare decision \u2013 and implicate the personal autonomy \u2013 of \u201csome 80 million private sector workers.\u201d It is an action never before taken by OSHA, the Department of Labor, and any other federal agency. It would affect the entire US economy.<\/p>\n<p>In support of my position, we have seen lesser invasive agency rules be determined to be major rules. For example, \u201crate-regulations\u201d of telephone companies has been held to be a major rule.\u00a0<em>MCI Telecommunications Corp. v. American Telephone &amp; Telegraph Co.<\/em>, 512 U.S. 218 (1994).<\/p>\n<p>From there we get to the second question: whether Congress has\u00a0<em>clearly authorized<\/em>\u00a0the Department of Labor\/OSHA to mandate vaccines.\u00a0<strong>The answer is no.<\/strong><\/p>\n<p>If Congress clearly authorized (not just authorized, but clearly authorized) Labor\/OSHA to mandate vaccines, then we would have seen such authority in the OSH Act of 1970.\u00a0<a href=\"https:\/\/www.osha.gov\/laws-regs\/oshact\/completeoshact\" rel=\"\">Look for yourself<\/a>\u00a0\u2013 the language isn\u2019t there. Instead, there are general grants of authority to \u201cset mandatory occupational safety and health standards.\u201d<\/p>\n<p>Looking to the history of OSHA, this authority has been understood to regulate employer actions to provide a safe workplace (Benzene limits) or employee actions at work (operation of heavy equipment). The OSH Act has never been understood historically to include mandatory vaccinations. This is significant because\u00a0<a href=\"https:\/\/www.supremecourt.gov\/opinions\/20pdf\/21a23_ap6c.pdf\" rel=\"\">the Supreme Court recently looked to agency history<\/a>\u00a0to determine the CDC lacked the authority to issue its latest eviction mandate.<\/p>\n<p>For an example of \u201cclear authority\u201d relating to public health, look to the authority\u00a0<a href=\"https:\/\/www.law.cornell.edu\/uscode\/text\/42\/247d\" rel=\"\">Congress gave HHS the authority<\/a>\u00a0to take action in case of \u201csignificant outbreaks of infectious diseases.\u201d Going further, to allow the mandate would be to allow OSHA to require vaccination as a\u00a0<em>condition<\/em>\u00a0of employment. The OSH Act contains no such language or authority.<\/p>\n<p>So there we have it. This is a \u201cmajor rule\u201d and Congress has not \u201cclearly authorized\u201d Labor\/OSHA to issue a vaccine mandate. Expect further challenges on whether the ETS itself (and the finding of \u201cgrave danger\u201d) is legal.<\/p>\n<p>We also observe that we by no means concede Congressional authority to mandate vaccines. (In other words, Congress could not give OSHA\/Labor this authority because Congress has no such authority to give.) Reliance on the 1905 case\u00a0<em>Jacobsen v. Massachusetts\u00a0<\/em>is misplaced, as that was another court in another time considering state, not federal authority.<\/p>\n<h3><u><strong>One Final Point \u2013 Why Justice Kavanaugh Matters<\/strong><\/u><\/h3>\n<p>In 2017, when Justice Kavanaugh was sitting on the DC Circuit, he\u00a0<a href=\"https:\/\/scholar.google.com\/scholar_case?case=608357842885836722&amp;q=US+Telecom+Association+v.+FCC,+855+F.3d+381&amp;hl=en&amp;as_sdt=3,44\" rel=\"\">wrote a dissent<\/a>\u00a0from a denial of rehearing en banc, in which he thoroughly summarized the major rules doctrine. He argued that the FCC\u2019s net neutrality rule was unlawful, in that it was a \u201cmajor rule\u201d that was not clearly authorized by Congress.<\/p>\n<p>Kavanaugh\u2019s 2017 dissent was one of the most (or perhaps the most) comprehensive discussions of the major rules doctrine ever written in the DC Circuit. Kavanaugh went through a number of Supreme Court cases in support of his position and argued the doctrine essential to uphold the separation of powers. To this author, it reveals Kavanaugh values this doctrine and believes it should be applied with vigor. We see an example of this in Justice Kavanaugh\u2019s concurring opinion in the original application to vacate the stay of the CDC eviction moratorium (June 29, 2021), where Kavanaugh\u00a0<a href=\"https:\/\/www.supremecourt.gov\/opinions\/20pdf\/20a169_4f15.pdf\" rel=\"\">wrote<\/a>\u00a0\u201cclear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium.\u201d<\/p>\n<p>Whether Kavanaugh has the courage to apply his convictions is another matter.<\/p>\n<p>___<br \/>\n<a href=\"https:\/\/technofog.substack.com\/p\/why-the-biden-covid-19-vaccine-mandate\">https:\/\/technofog.substack.com\/p\/why-the-biden-covid-19-vaccine-mandate<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Why The Biden COVID-19 Vaccine Mandate Is Unconstitutional<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-85610","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/posts\/85610","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=85610"}],"version-history":[{"count":0,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/posts\/85610\/revisions"}],"wp:attachment":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=85610"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=85610"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=85610"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}