Sep 10, 2021Liked by Steve Berman, Chris J. Karr, David Thornton
When it comes to that Supreme Court decision that many pro-mandatory vaxxers often point to, it ascertained whether states had the plenary authority to mandate its residents get the vaccine. And as we know(I personally have my disagreements with the ruling on several grounds, but that discussion is for another day), the court ruled in Jacobson v. Massachusetts that states can mandate vaccinations on the public. It is important for people to make the distinction that this ruling applied to states, and not the federal government.
As for Biden's mandates, I don't have a problem with mandating the federal workforce be vaccinated or those who contract with the Feds(with vaccine mandates as a condition for contracts). It also makes sense that the Feds have the authority to mandate that health care entities receiving Medicare/Medicaid funds require vaccination among health care workers. Where I do have a major problem is the mandates on the private sector employers >100 employees, and the requirement that these employers provide paid time off for employees getting vaccinated. That would require an inordinately elastic and overly generous reading of the OSHA statute(sadly, Presidential administrations often have their legal advisors parse over every word, as to see whether they can get away imposing their policy proposals in absentia of Congress. It was all too common especially in the Obama and Trump presidencies, and seems to be the case with the Bidenites). Oftentimes, ambiguity in wording often results in the Feds interpreting on the side of power(not surprisingly), as a means to concoct and defend new regulations that springs up from that ambiguity. As a limited government conservative myself who is a strong proponent of Federalism, I find the idea of the President can have that much power to force the hand of the private sector in such an intrusive way very troubling and Constitutionally dubious. Add to the fact that Congress is not involved in legislating private sector mandates. That aside, I find that to be unnecessary since many businesses are already making the decision to require their employees and customers be vaccinated. Most of the public want a safe working environment, and companies are responding to that demand accordingly. If there should be any private sector mandate requiring businesses of a certain size to require their employees be vaccinated/tested or provide paid leave, it ought to be done by states and local governments, not the Feds. I'm of the view that it is unconstitutional if the Feds impose, but not if states do such. With that said, I'm firmly on the side of businesses having the freedom to make that decision, as I trust that most of them will do the prudent thing and require employees to get vaxxed/tested minus government coercion.
My money is on SCOTUS partially siding with the Biden administration on mandating those receiving federal dollars and federal workers getting vaccinated. That is a no-brainer. However, I'm going to bet around 75-25 percent odds of SCOTUS striking down the mandates on the private sector as far as forcing larger employers to mandate vaccination or testing, and give paid time off(Then again, I'm going to wait and see what the actual private sector mandate from OSHA is). In many court cases involving laws that amount to extraconstitutional overreach, the court will often agree that that the law goes too far, but sometimes leaves it up to Congress to rectify the overreach as opposed to striking down the offending parts of the law. This could very well happen with Biden's coercive private sector mandates.
If in the event though, SCOTUS upholds the mandates on the private sector, then that would be a sad example of Congress having delegated too much power to the Executive Branch, resulting in a very powerful administrative state that can concoct far reaching regulations without legislative involvement from Congress. If anything, I've long considered OSHA to be an example of federal overreach and (passed by a Democratic controlled Congress on a bipartisan basis, and signed by President Richard Nixon into law in 1970) that was all too common during the 1960s and 1970s. It really should be states that craft laws regarding workplace safety for workers not in the federal workforce or contracting with the Feds. This should also be a clarion call for Congress to claw back a lot of the powers it unwisely delegated to the executive branch over the past many decades, leading to unintended consequences that are constitutionally dubious. It's too bad that we live in a hyper-partisan era, where those on the left love executive power if the ends justify the means, and those on the right love executive power in a similar manner if one of their own is in the White House. In any case, I'm opposed to runaway executive power, no matter which party controls the presidency.
So my answer to the question "can he do that?", would be yes and no.
Good post David, as it was certainly thought provoking, and I did agree with a solid majority of your points.
The mandatory paid time off may run afoul of the Constitution's Takings Clause if employers are for ed to bear the cost themselves.
David did a great job covering this issue, but neglected to cover the angle of how this action may be used as precedent for future abuses, such as President Trump using OSHA to mandate employer-provided HCQ and Ivermectin treatments to score points with his base after defeating Kamala Harris in 2024. I'm looking forward to diving into that over at my Substack when I get some time this weekend.
Sep 10, 2021Liked by Chris J. Karr, David Thornton
While I'm definitely NOT a fan of Kamala Harris in any way, the thought of Trump running again in 2024 and pulling off a Grover Cleveland......all I can do is quote National Review's Ed Whelan in concurrence...."Please....God.....NO!!"
You are spot on though. I would hate to see any precedents created from this action be used by a potential future right-populist President issuing insanely nutty mandates like what you mentioned. Hypothetically speaking, if Trump ran again and managed to pull off a win in 2024, he would then be bound by the 22nd amendment's 2 term limit. That would remove any incentive for Trump to restrain himself, and I could see him governing in a far more more unhinged manner than before. His first term would end up seeming very placid and normal by comparison to what he would potentially do in a hypothetical 2nd term.
Sep 10, 2021Liked by Chris J. Karr, David Thornton
I wasn't aware of until now that you had your own Substack account. I enjoy hearing your insightful and thoughtful commentary and perspective here at the Racket. I just subscribed to it, and am looking forward to reading more of what you have to say over there!
I see it the same way. The OSHA mandate is the shakiest part of the plan, but even that seems legal. It isn't so much an unconstitutional overreach as a case of Congress delegating too much authority. The court rulings will be interesting.
Sep 10, 2021Liked by Chris J. Karr, David Thornton
And just so its clear, I'm very pro-vaccination. I hope what I said above doesn't suggest to others that I'm somehow an anti-vaxxer/vaccine skeptic. I strongly urge everyone to get vaccinated. I just have concerns about some aspects of President Biden's federal actions, namely his mandates on the private sector. Given that the few years have seen an unfortunate trend of Presidents(Obama, Trump, Biden, etc) of both parties trying to impose/change policies via executive fiat(aka pen and phone), I feel that it is appropriate to be skeptical and concerned.
Sep 10, 2021Liked by Chris J. Karr, David Thornton
Since you David mentioned the California gubernatorial recall election, I agree with your conclusion that Gavin Newsom will likely survive. I think that some on the right are too optimistic because another Democratic governor was recalled in 2003. I think what many people forget is that when former Governor Gray Davis was recalled in 2003 and replaced by Arnold Schwarzenegger, California was a blue state, but much less blue than it is now. George W. Bush lost to John Kerry by just 9.95 percent in 2004, which was the last time a GOP candidate kept the state within single digits. Since then, the Golden State kept trending further left. Even Mitt Romney lost California by 23.1 percent in 2012. Trump of course beat Romney's margins, by losing the state by 30.1 percent and 29.2 percent in 2016, and 2020, respectively. His two losses are the worst drubbing a GOP candidate in California since 1936, when FDR destroyed Republican Alf Landon by a 35.25 percent margin.
I believe if Newsom was facing the same political environment as 2003 in Cali, then he probably would be recalled and a GOPer would have a chance. But in California of 2021, Newsom has to be grateful that the state he governs is much bluer than the one Gray Davis governed. It will be the reason why in all likelihood he will survive recall.
Also, here is a really good article from the Dispatch, which I found to be informative and insightful.
Excellent take as usual David and even better deeper dive by HCI and Chris. Last night my wife came in and said, "did you watch Biden's remarks?" When i told her no and that i have grown weary of all of it and asked what he said i was stunned to hear, "he said all private employers with more than 100 employees would have to get the shot or be tested weekly. " My response was short, "he can't do that?" The OSHA angle is interesting but i agree with HCI, probably will be overturned.
What makes all of this so pathetic is that every battle these days is waged in a courtroom. The DOJ's attempt to thwart the Texas ban on abortion is yet another reduced to legal challenges. Minds far smarter than mine will hash it out so why bother wasting time, sleep or what little brain cells i have left over Perry Mason like fights. Just well beyond my pay grade.
I am curious though about this: How many of those who haven't gotten vaccinated are simply part of the trump cabal of followers who bought the big lie? And to show how much they hate Biden and his phony election win, they just won't take the shot? My guess would be too many.
All of which brings me to a Vanity fair article i read last week. Here's a part of the first paragraph: "Conservative radio hosts all across America are losing their lives for the cause. In the past month alone, five talk radio personalities who were vocal COVID-19-deniers, anti-vaxxers, or anti-maskers have all died after contracting the virus."
Fascinating read and the article never really answers the question...did they die for trump? Several of them as they were going out called for people to get vaccinated. Nothing new there as it has been almost boiler plate for people on their death bed that believed it was a hoax. That was until they caught it and were heading off to the deep sleep. Wouldn't it be a hoot if they had to get vaccinated to get into heaven (sorry, just how my twisted mind works these days).
It is tragic and it was so preventable. Biden's legal manuvering should never have to been the case. Common sense should never be overridden by the legal system but that too is part of the new normal.
When it comes to that Supreme Court decision that many pro-mandatory vaxxers often point to, it ascertained whether states had the plenary authority to mandate its residents get the vaccine. And as we know(I personally have my disagreements with the ruling on several grounds, but that discussion is for another day), the court ruled in Jacobson v. Massachusetts that states can mandate vaccinations on the public. It is important for people to make the distinction that this ruling applied to states, and not the federal government.
As for Biden's mandates, I don't have a problem with mandating the federal workforce be vaccinated or those who contract with the Feds(with vaccine mandates as a condition for contracts). It also makes sense that the Feds have the authority to mandate that health care entities receiving Medicare/Medicaid funds require vaccination among health care workers. Where I do have a major problem is the mandates on the private sector employers >100 employees, and the requirement that these employers provide paid time off for employees getting vaccinated. That would require an inordinately elastic and overly generous reading of the OSHA statute(sadly, Presidential administrations often have their legal advisors parse over every word, as to see whether they can get away imposing their policy proposals in absentia of Congress. It was all too common especially in the Obama and Trump presidencies, and seems to be the case with the Bidenites). Oftentimes, ambiguity in wording often results in the Feds interpreting on the side of power(not surprisingly), as a means to concoct and defend new regulations that springs up from that ambiguity. As a limited government conservative myself who is a strong proponent of Federalism, I find the idea of the President can have that much power to force the hand of the private sector in such an intrusive way very troubling and Constitutionally dubious. Add to the fact that Congress is not involved in legislating private sector mandates. That aside, I find that to be unnecessary since many businesses are already making the decision to require their employees and customers be vaccinated. Most of the public want a safe working environment, and companies are responding to that demand accordingly. If there should be any private sector mandate requiring businesses of a certain size to require their employees be vaccinated/tested or provide paid leave, it ought to be done by states and local governments, not the Feds. I'm of the view that it is unconstitutional if the Feds impose, but not if states do such. With that said, I'm firmly on the side of businesses having the freedom to make that decision, as I trust that most of them will do the prudent thing and require employees to get vaxxed/tested minus government coercion.
My money is on SCOTUS partially siding with the Biden administration on mandating those receiving federal dollars and federal workers getting vaccinated. That is a no-brainer. However, I'm going to bet around 75-25 percent odds of SCOTUS striking down the mandates on the private sector as far as forcing larger employers to mandate vaccination or testing, and give paid time off(Then again, I'm going to wait and see what the actual private sector mandate from OSHA is). In many court cases involving laws that amount to extraconstitutional overreach, the court will often agree that that the law goes too far, but sometimes leaves it up to Congress to rectify the overreach as opposed to striking down the offending parts of the law. This could very well happen with Biden's coercive private sector mandates.
If in the event though, SCOTUS upholds the mandates on the private sector, then that would be a sad example of Congress having delegated too much power to the Executive Branch, resulting in a very powerful administrative state that can concoct far reaching regulations without legislative involvement from Congress. If anything, I've long considered OSHA to be an example of federal overreach and (passed by a Democratic controlled Congress on a bipartisan basis, and signed by President Richard Nixon into law in 1970) that was all too common during the 1960s and 1970s. It really should be states that craft laws regarding workplace safety for workers not in the federal workforce or contracting with the Feds. This should also be a clarion call for Congress to claw back a lot of the powers it unwisely delegated to the executive branch over the past many decades, leading to unintended consequences that are constitutionally dubious. It's too bad that we live in a hyper-partisan era, where those on the left love executive power if the ends justify the means, and those on the right love executive power in a similar manner if one of their own is in the White House. In any case, I'm opposed to runaway executive power, no matter which party controls the presidency.
So my answer to the question "can he do that?", would be yes and no.
Good post David, as it was certainly thought provoking, and I did agree with a solid majority of your points.
The mandatory paid time off may run afoul of the Constitution's Takings Clause if employers are for ed to bear the cost themselves.
David did a great job covering this issue, but neglected to cover the angle of how this action may be used as precedent for future abuses, such as President Trump using OSHA to mandate employer-provided HCQ and Ivermectin treatments to score points with his base after defeating Kamala Harris in 2024. I'm looking forward to diving into that over at my Substack when I get some time this weekend.
While I'm definitely NOT a fan of Kamala Harris in any way, the thought of Trump running again in 2024 and pulling off a Grover Cleveland......all I can do is quote National Review's Ed Whelan in concurrence...."Please....God.....NO!!"
You are spot on though. I would hate to see any precedents created from this action be used by a potential future right-populist President issuing insanely nutty mandates like what you mentioned. Hypothetically speaking, if Trump ran again and managed to pull off a win in 2024, he would then be bound by the 22nd amendment's 2 term limit. That would remove any incentive for Trump to restrain himself, and I could see him governing in a far more more unhinged manner than before. His first term would end up seeming very placid and normal by comparison to what he would potentially do in a hypothetical 2nd term.
I wasn't aware of until now that you had your own Substack account. I enjoy hearing your insightful and thoughtful commentary and perspective here at the Racket. I just subscribed to it, and am looking forward to reading more of what you have to say over there!
Welcome to the following!
I see it the same way. The OSHA mandate is the shakiest part of the plan, but even that seems legal. It isn't so much an unconstitutional overreach as a case of Congress delegating too much authority. The court rulings will be interesting.
And just so its clear, I'm very pro-vaccination. I hope what I said above doesn't suggest to others that I'm somehow an anti-vaxxer/vaccine skeptic. I strongly urge everyone to get vaccinated. I just have concerns about some aspects of President Biden's federal actions, namely his mandates on the private sector. Given that the few years have seen an unfortunate trend of Presidents(Obama, Trump, Biden, etc) of both parties trying to impose/change policies via executive fiat(aka pen and phone), I feel that it is appropriate to be skeptical and concerned.
Since you David mentioned the California gubernatorial recall election, I agree with your conclusion that Gavin Newsom will likely survive. I think that some on the right are too optimistic because another Democratic governor was recalled in 2003. I think what many people forget is that when former Governor Gray Davis was recalled in 2003 and replaced by Arnold Schwarzenegger, California was a blue state, but much less blue than it is now. George W. Bush lost to John Kerry by just 9.95 percent in 2004, which was the last time a GOP candidate kept the state within single digits. Since then, the Golden State kept trending further left. Even Mitt Romney lost California by 23.1 percent in 2012. Trump of course beat Romney's margins, by losing the state by 30.1 percent and 29.2 percent in 2016, and 2020, respectively. His two losses are the worst drubbing a GOP candidate in California since 1936, when FDR destroyed Republican Alf Landon by a 35.25 percent margin.
I believe if Newsom was facing the same political environment as 2003 in Cali, then he probably would be recalled and a GOPer would have a chance. But in California of 2021, Newsom has to be grateful that the state he governs is much bluer than the one Gray Davis governed. It will be the reason why in all likelihood he will survive recall.
Also, here is a really good article from the Dispatch, which I found to be informative and insightful.
https://morning.thedispatch.com/p/the-morning-dispatch-bidens-kind
We really need to reform our recall laws here in CA...
Excellent take as usual David and even better deeper dive by HCI and Chris. Last night my wife came in and said, "did you watch Biden's remarks?" When i told her no and that i have grown weary of all of it and asked what he said i was stunned to hear, "he said all private employers with more than 100 employees would have to get the shot or be tested weekly. " My response was short, "he can't do that?" The OSHA angle is interesting but i agree with HCI, probably will be overturned.
What makes all of this so pathetic is that every battle these days is waged in a courtroom. The DOJ's attempt to thwart the Texas ban on abortion is yet another reduced to legal challenges. Minds far smarter than mine will hash it out so why bother wasting time, sleep or what little brain cells i have left over Perry Mason like fights. Just well beyond my pay grade.
I am curious though about this: How many of those who haven't gotten vaccinated are simply part of the trump cabal of followers who bought the big lie? And to show how much they hate Biden and his phony election win, they just won't take the shot? My guess would be too many.
All of which brings me to a Vanity fair article i read last week. Here's a part of the first paragraph: "Conservative radio hosts all across America are losing their lives for the cause. In the past month alone, five talk radio personalities who were vocal COVID-19-deniers, anti-vaxxers, or anti-maskers have all died after contracting the virus."
Fascinating read and the article never really answers the question...did they die for trump? Several of them as they were going out called for people to get vaccinated. Nothing new there as it has been almost boiler plate for people on their death bed that believed it was a hoax. That was until they caught it and were heading off to the deep sleep. Wouldn't it be a hoot if they had to get vaccinated to get into heaven (sorry, just how my twisted mind works these days).
It is tragic and it was so preventable. Biden's legal manuvering should never have to been the case. Common sense should never be overridden by the legal system but that too is part of the new normal.