In a wannabe authoritarian state the populace is constantly whipped up into a state of frenzy over this or that. We had global warming. Didn’t work out. We have racism. But that is merely a code word for Democrat race hustling. Now we have the never-ending crisis of Covid. But, the courts are beginning to smell a rat on that one as well.
— Congressman Byron Donalds (@RepDonaldsPress) December 8, 2021
Turley: A U.S. district court in Georgia became the fourth court to enjoin a Biden administration vaccine mandate this week.
As with the other trial and appellate courts, District Judge R. Stan Baker found that President Joe Biden had exceeded his authority in mandating the vaccine for all federal contractors. In the meantime, outgoing New York Mayor Bill de Blasio has ordered all private workers to be vaccinated.
All of these mandates are on course for a showdown in the Supreme Court, where three justices have already expressed skepticism over the mandates. Biden issued an executive order on Sept. 9 that required contractors to ensure that their workers are vaccinated against COVID and enforcing mask and social distancing policies. Contractors were given until Dec. 8 to comply, but that was later extended to Jan. 4.
The U.S. District Court for the Southern District of Georgia granted a preliminary injunction in favor of the Associated Builders and Contractors, a national trade group that represents the construction industry. To do so, the court had to find that the challengers were likely to prevail on the merits in arguing that President Biden does not have this authority under the Procurement Act.
Judge Baker wrote, “In its practical application, it operates as a regulation of public health. It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts. Accordingly, it appears to have vast economic and political significance.”
White House press secretary Jen Psaki insisted that the Biden administration is “confident in our ability legally to make these happen across the country.” While the administration could certainly prevail on appeal, the confidence remains an exercise of hope over experience in such litigation.
Other courts have enjoined mandates under OSHA and Medicare. In the OSHA case, the U.S. Court of Appeals for the Fifth Circuit ruled based on its own “serious constitutional concerns.” In the prior column, I noted that chief of staff Ron Klain acknowledged that the use of OSHA was a “work around” in light of the constitutional barriers preventing President Biden from ordering a national mandate directly. The Fifth Circuit quoted Klain in a footnote in granting its injunction.
Biden and Klain often seem to be competing for the greatest admissions-against-interest, including a prior admission from President Biden that they would be pursuing a presumptively unconstitutional measure simply to buy more time to spend more money on the now defunct eviction moratorium…
Over the last year, courts have remained highly deferential. However, the three justices previously noted that “if human nature and history teach us anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”