You all remember last week when Joe Biden addressed the American people and pretty much threatened 80 million people to get vaccinated, or else?
Yeah, that was a good time.
Of course, right away the left applauded Biden’s efforts for his bravery and “strong leadership” in facing the COVID crisis in our nation.
You all know that the communist dictator of China, Mao would have been so proud of Beijing Biden.
However, the rest of America that is wide awake took to social media right away and began to thrash Biden and ask if his mandate to force the COVID injection was even constitutional.
The answer to that question is a resounding ‘NO,” and people began to prove it.
Substack user Techno Fog did a deep dive into the actual law, and the results are very telling.
So here is how this shakes out.
OSHA failed to argue the necessity of the mandate from the beginning, and Congress also hasn’t even “clearly authorized” OSHA/Labor to issue the mandate.
Techno Fog discovered over at Substack:
As you can imagine, the constitutionality of the vaccine mandate will be litigated as soon as OSHA issues the rules. The media is running interference, telling the public that challenges to the mandate are “unlikely to succeed.”
Do not believe them.
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 clearly authorized the agency action.
As Justice Scalia stated in 2014, “We expect congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
From here we turn to the first question of the major rules doctrine: there is zero doubt that it is a major rule. It would affect the healthcare decisions – and implicate the personal autonomy – of “some 80 million private sector workers.” 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.
In support of my position, we have seen lesser invasive agency rules be determined to be major rules. For example, “rate-regulations” of telephone companies has been held to be a major rule. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994).
From there we get to the second question: whether Congress has clearly authorized the Department of Labor/OSHA to mandate vaccines. The answer is no.
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. Look for yourself – the language isn’t there. Instead, there are general grants of authority to “set mandatory occupational safety and health standards.”
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 the Supreme Court recently looked to agency history to determine the CDC lacked the authority to issue its latest eviction mandate.
For an example of “clear authority” relating to public health, look to the authority Congress gave HHS to take action in case of “significant outbreaks of infectious diseases.” Going further, to allow the mandate would be to allow OSHA to require vaccination as a condition of employment. The OSH Act contains no such language or authority.
So there we have it. This is a “major rule” and Congress has not “clearly authorized” Labor/OSHA to issue a vaccine mandate. It is an unlawful – and unconstitutional – seizure of authority by the Executive. Expect further challenges on whether the ETS itself (and the finding of “grave danger”) is legal.
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.) You may have seen some pundits argue that the 1905 case of Jacobsen v. Massachusetts gives this authority. These arguments are misplaced, as that was the Supreme Court over 100 years ago considering state, and not federal, authority.
Biden’s unconstitutional mandate has already resulted in the first state suing him.
Of course, all the states have a case and they will win if the SCOTUS truly does look at the constitution and does not pull legislation from the bench again.
We all knew this would be a battle and that is why we need to continue pushing on.
This is not about whether you believe in the vaccine or not, but the right to choose what is best for you and your family.
That is what freedom is about, right?
Besides, if you are vaccinated why does it matter if I am or your neighbor is?
The vaccine works according to Biden and friends, right?