Biden Vaccine Mandate Is A Proxy War About The Administrative State

This is a big question: are we a Nation of Law or a Nation of Men? Meaning, is it about laws based on the Constitution, or, are they all fungible, and can be changed on a whim, changed by feelings? Can the Executive Office simply find some little rational in a previously passed law where they can force The People to do what the Government wants? We know where Democrats are on this, as shown in this Time piece

The Danger of the Supreme Court Undercutting Biden’s Vaccination Rules


The major questions doctrine may sound like a dry crumb next to Justice Breyer’s admonitions, but how the Court applies the doctrine in this case could have even broader implications for our lives than the OSHA’s vaccination rule itself. At its heart, this is an argument over how much leeway federal agencies have to act or, as the Justices repeatedly put it in the argument, “Who Decides?” Justice Elena Kagan’s questions showed why federal agencies, which have significant expertise and can be held publicly accountable through presidential elections, should be given the leeway to take leadership positions on emerging issues such as vaccines to counter an unprecedented pandemic. Justice Neil Gorsuch’s questions, by contrast, suggested that Congress and State Governments should be the leader on major public health policies, noting that Congress has had a year to act on the question of vaccine mandates and chose not to. One answer to that challenge is that Congress has not acted because it gave that power to OSHA. A more realpolitik answer, though, is because there is no way the Democrats have the votes for such a law.

There’s a lot to unpack in just that one paragraph. First off, yes, at the heart is how much leeway the agencies should have to act, and the answer should be “none that isn’t Constitutional first and specific per a duly passed Legislative Branch law.” Second, if Democrats do not have the votes, well, that’s the way the Republic is supposed to work. If they cannot convince enough people to vote for it, well, then it should not be passed. Third, if that power is not specifically delegated to the Federal government, then it is reserved for the States and The People.

Fourth, if the feds can simply do what they want, then freedom is gone, liberty is gone, choices are gone, a government by the people for the people is gone. We’re simply an authoritarian nation ruled by elites, by people, some of who are elected, many who aren’t, with no accountability.

On its surface this is a case about vaccine mandates, but it is also a proxy war over the heart of the administrative state. If the Court applies the major questions doctrine in this case, that precedent will be used to constrain other agencies from acting in new, unprecedented dramatic situations, forcing them to wait for explicit authorization from Congress to act; authorization that may never come. Depending on what you think of the balance of power between Congress and the Executive that could be good or bad. But, if as it appears likely, the conservative Justices will block the ETS on this or an adjacent theory, the immediate casualty of this proxy war is the public’s health. The rule is estimated to save over 6,500 lives and prevent 250,00 hospitalizations over six months, although these estimates were pre-Omicron.

And what will they apply it to next? What might they decide next is For Your Own Good?

While reading tea leaves from oral arguments is always perilous, these arguments suggest that the Supreme Court is willing to upend the public health consensus that these federal initiatives are vital in favor of limiting the power of federal agencies. Some more narrow vaccine regulations will, like the one issued by CMS, likely survive because they are more closely tied to health care. But it is very likely that the Court may remove the most effective tool we have in combating COVID-19, comprehensive vaccine mandates that reach as many Americans as possible. That is a very high cost to pay in terms of sickness, hospitalizations, and deaths to change the balance of power between Congress and the Executive branch.

Just because you have consensus, and let’s not forget how many times they have been wrong during the Wuhan flu pandemic, doesn’t mean you get to just do what you want, not in our system. That may work in China, Russia, or Venezuela, among others, but, that’s not our system. I think everyone should get a vaccine. I won’t force them to do so.

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4 Responses to “Biden Vaccine Mandate Is A Proxy War About The Administrative State”

  1. Est1950 says:

    Still, Schumer needs to break the filibuster to potentially pass Democrats’ election laws before the midterms, a tradeoff he seems willing to make.

    Just a decade ago Schumer was wailing on the senate floor about how disastrous it would be for the GOP to eliminate the filibuster.

    The problem for the Democrats is that there are even more State Election laws facing passage in the coming 2022 election season that can further put a damper on the Democratic-led effort of having unelected bureaucrats running our elections with their own agenda in mind.

    The left is desperate to pass HR 4 and soon in order to guarantee what exactly? They pretend it is to prevent states from denying anyone the right to vote. Some of you might not know this but a bill passed in the house that would allow Felons in Prison to vote. This was passed on a voice vote but Majorie Taylor Greene forced a roll call vote on the bill and it was then subsequently defeated 318-130.

    As we all know the left in NYC just allowed non-American Citizens to vote in their elections. The slippery slope of allowing someone in Washington DC to determine how people in Arizona, Nevada, Alaska, or Georgia vote is incredibly dangerous.

    Just as the Biden Vax Mandates are indeed a proxy war fought to enslave Americans with fear, so too is the democrats Green New deal and supposed voting rights legislation that puts even more power into the hands of the Federal government. And Yes I have read some of the bill, enough to know it is mindlessly powerful enough to crush red states by fiat and turn America into a one-party nation.

    Even worse I believe it could ultimately end up in the civil war many are hoping for. Including, China, Russia, Iran, Cuba, Venezuela, N. Korea, Mexico, and most of the middle east and central America.

    • Zachriel says:

      William Teach: Can the Executive Office simply find some little rational in a previously passed law where they can force The People to do what the Government wants?

      Congress granted the government the power to regulate the workplace for health and safety. COVID is clearly a health issue. Therefore, it’s reasonable that OSHA can impose a vaccine mandate. However, they are doing so under emergency authorization, so the question is procedural. The Supreme Court will probably make a limited ruling to restrain OSHA.

      Est1950: Some of you might not know this but a bill passed in the house that would allow Felons in Prison to vote.

      What bill was that? There was a bill which allowed felons to vote after they leave prison, which is already the law in many states, and most states allow felons to vote once completing probation.

  2. The article said, truthfully:

    A more realpolitik answer, though, is because there is no way the Democrats have the votes for such a law.

    Which means that the author is very, very concerned that the left do not have authoritarian power.

    In a representative republic, the notion that the executive should just be able to impose such dictates, dictates opposed by a large segment of the country, dictates which state that the government can require you to accept the injection of a foreign substance into your body, when there aren’t enough votes in the legislature to pass such, ought to be anathema, but it isn’t to the left, it seems.

    Really, we need to increase the birthrate. Why shouldn’t the government have the authority to compel women to accept the injection of semen into their vaginas, to create more babies? If the left believe that the government ought to have the ability to require people to accept the vaccines, for the good of society, then they ought to accept what I wrote as well.

    • CarolAnn says:

      Dana, please don’t give these tyrants any more ideas on how to torment those of us they already hate.

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