Zombie Vaccine Mandates: They aren’t going away that easily
The Biden Administration is redoubling its efforts for mass vaccination mandates
“We are contemplating how to get done — and that is: How do we move in a direction where the world itself is vaccinated?
It’s not enough just to vaccinate 340 million — fully vaccinate 340 million people in the United States. That’s not enough. It’s not enough to do it here. We have to do it, and we have to do a lot more than we’re doing now.”
— Joe Biden, January 19, 2022
Originally posted on my Power and Markets Substack, please feel free to share and subscribe to my newsletter to get these articles in your inbox!
Remember I said when Biden loses in the courts, it won’t matter? I wrote that on November 11, 2021. I pointed out they’d just ignore the judiciary and press forward. Despite a number of court losses, they are doing just that.
Ebullient observers were elated following the Supreme Court’s stay of the OSHA vaccine mandate. The High Court ruled the OSHA ETS likely exceeded its authority granted by Congress to enact a blanket vaccine mandate with regard to workplace safety. Punitive fines would have been certain job termination for holdouts. For tens of millions, the Court’s ruling meant they no longer needed to fear the dreaded ultimatum: vaxx-or-axe. Or so they thought…
In response to a multi-state Attorneys General effort, the US Labor Department withdrew the 80+ million employee OSHA mandate on Tuesday, January 25, 2022. 2 This ended all legal proceedings regarding the matter. All is well, right? Not so fast.
The Supreme Court’s conservative wing made some shocking remarks during oral argument. Several justices suggested Congress had not granted OSHA such authority. While this is true, I’m certain such authority does not rest with the Congress. The federal legislature is not going to make such concessions to begin with. A recent Senate resolution passed in a 52–48 vote to repeal the vaccine mandate on December 8, 2021. 3 Not enough to overcome a veto (it’s a Senate resolution anyway), but clearly the support isn’t in Congress to grant OSHA authority-authority beyond Congress’ constitutional powers.
In a concurrent case, the justices upheld 5–4 Biden’s CMS health care worker vaccine mandate. Any health care facility taking a dime in federal Medicare/Medicaid funds must comply. In other words, virtually every health care employee in the country working at a hospital and most clinics.
The sympathy Justices Roberts and Kavanaugh showed for federal vaccination power is alarming. The President can unilaterally force the hand of millions’ individual medical decisions through de facto job loss? At worst I thought such a thing would be a 6–3 split, not 5–4 the other direction. Given the Court decided to hear the CMS and OSHA mandates consecutively, in hindsight it appeared obvious they would split the baby.
Through digesting the media rhetoric one would have thought the Biden Administration faced a devastating defeat. That wasn’t my take at all. If anything, this encouraged them to seek alternative routes.
In obvious backroom coordination, Canada and the US issued reciprocal vaccine mandates for cross-border truckers. As of January 15, 2022, unvaccinated or partially vaccinated foreign national truck drivers, coming to Canada from the US by land, will be directed back to the United States. A similar requirement was implemented on January 22, 2022 for Canadian drivers entering the U.S. 4
Canada cannot prohibit Canadian nationals or citizens from re-entering Canada. The same for the United States. However, when both countries embargo each other’s citizens/residents, it effectively is a backdoor blockade of US truck drivers from being able to re-enter the US by not allowing them to leave in the first place.
This impacts tens of thousands of truck drivers in both countries. Convoys of truckers protesting in Canada are making the news in recent days. This will further aggravate supply chain bottlenecks as 70% of US-Canada cross border trade is via truck. 5
You look over to Europe and it’s a mixed bag. Several countries are lifting COVID restrictions, rescinding vaccine passports and mask requirements. In my eyes this is the temporary ebb and flow. Other European countries like Austria are continuing with their prohibitive fines for the unvaccinated.
At home, the vaccine requirement for federal workers and contractors are both halted, but still moving through the courts. Given Justices Kavanaugh and Roberts’ opinions, if you get a dollar from the federal government, that means you give up all autonomy. It’s crazy. As I wrote before, this is a perfect example of why we should never allow socialized medicine.
And now we’re back to OSHA. In pulling their ETS following the Supreme Court stay, the Department of Labor indicated they are still pursuing, “ a permanent standard to that effect.” 6 An ETS is only viable for 6 months from date of issuance (November 5, 2021) placing the proposed permanent rule to be re-issued by the May 5, 2022 deadline.
So, on again-off again seems to be the way of things. What route will they choose? More than likely a targeted approach. Apparently two justices are willing to cross over had the OSHA mandate not been overly broad. Paradoxically, those two in the same majority agreed with the opinion the OSHA mandate went beyond Congressional authorization under the OSH Act. Make it up as you go, I suppose.
Time will tell what happens. That’s an obvious statement. But you can see the lengths the Biden Administration is going to stretch, twist, contort, and deform the rule of law. When struck down, they try again or completely ignore the judiciary as happened regarding the mortgage moratorium. Where will this go? Who knows. But it’s not going away. These mandates are walking zombies. Until a major scandal breaks or the virus fizzles out, you can count on these mandates reanimating over and over again.
Originally published at https://powerandmarkets.substack.com on January 28, 2022.
