By Charles C. W. Cooke
Tuesday, November 09, 2021
Asked Monday afternoon what the federal government
intends to do while the president’s long-delayed vaccine mandate is being
litigated in the courts, White House deputy press secretary Karine Jean-Pierre
explained that the administration intended to carry on as if nothing had happened.
“People should not wait,” Jean-Pierre told reporters. “They should continue to
move forward and make sure they’re getting their workplace vaccinated.”
So much for a return to those much-vaunted “norms.”
Apologists for Biden’s approach will choose to parse
Jean-Pierre’s statement literally. “There’s nothing illegal here,” they will
say. “The order has been stayed, and the administration is simply issuing an
encouragement in the meantime.” And this is true, insofar as it goes. But there
is a clear tactic on display here nevertheless — and its
deployment has become something of a habit of this president’s. First, the
White House announces that it either cannot, or will not, take a
particular action: federal vaccine mandates, Jen Psaki said back in July, are
“not the role of the federal government,” but “the role that institutions,
private-sector entities, and others may take.” Next, someone close to the
president suggests that, actually, there might be a loophole
somewhere to exploit, and contends that, irrespective of the legal merits, a
mere announcement might move the needle in the administration’s favor. And,
finally, the president comes out blazing, in the clear hope that by the time
his edicts are struck down they will have changed the facts on the ground. In a
formal sense, what Karine Jean-Pierre said Monday is legally acceptable. But it
is not normal, and it is not admirable, either. If they are to mean anything,
“norms” must preclude the executive branch from using tenuous regulations as a
cudgel with which to intimidate the American citizenry.
When it blocked the order, the Fifth Circuit Court of
Appeals recorded that “the petitions give cause to believe there are grave
statutory and constitutional issues with the Mandate.” As, of course, there
must be. The Biden administration issued the mandate via the Occupational
Safety and Health Administration (OSHA), a federal agency whose sole power
under the law is to protect employees from workplace hazards. There is nothing
in the Constitution’s Commerce Clause that justifies OSHA’s adoption of
generalized police powers, and nothing in its charter that permits it to move
from regulating toxic substances at employees’ places of work to regulating any
hazard that employees might plausibly encounter during the course of their
everyday lives. In a brazen attempt to circumvent the statutorily mandatory
feedback period, Biden utilized an “emergency temporary standard” (ETS) as his
vehicle. But this, too, seems inappropriate. No ETS in American history has
ever been this broad, and the last one that was issued — a 1983 attempt to speed
up OSHA’s regulation of asbestos — was struck down by the courts.
While running for president last year, Joe Biden was keen
to cast himself as the savior of the American order. “I am not running for
office to be King of America,” Biden promised. “I respect the Constitution.
I’ve read the Constitution. I’ve sworn an oath to it many times.” These are
nice words, but the proof is in the pudding, and thus far at least, Biden has
bent the rules whenever he possibly could. Back in August, the president
conceded that it would be flatly illegal for him to reissue a national
moratorium on evictions, and then did it anyway, in the hope that the
inevitably lengthy litigation process would buy the policy some “additional
time.” Biden admitted that “the bulk of the constitutional
scholarship says it’s not likely to pass constitutional muster,” and his staff
confirmed that he’d looked into the question in detail. The president had “not
only kicked the tires,” aide Gene Sperling said, he had “double, triple,
quadruple checked” with the CDC, and found that he could neither renew the
existing order nor narrow it to a more “targeted eviction moratorium that just
went to the counties that have higher rates.”
Why, having discovered that he was on the wrong side of
the law, did Biden reissue the moratorium anyway? Because while he may not want
to sound like a king, he is perfectly comfortable acting like one, and, as
Barack Obama and Donald Trump did before him, he knows that it is easier to ask forgiveness
than to ask permission. DACA might be struck down? Okay, but by the time it is
nixed, its beneficiaries will be harder to deport. The funds used to pay for
the border wall were illegally sourced? Tell that to the contractors once the
construction work has been done. OSHA has no authority to issue COVID-19
regulations to private businesses, let alone on an expedited basis? Fine, but,
with any luck, the businesses in question will have already done what it wishes
them to do by the time a judge says as much.
Typically, Americans who have been aggrieved by their
government are instructed “to take them to court.” And, indeed, they should.
But there is a more effective, and more honorable, way for the people to retain
the system of government they’ve inherited, and that is to demand leaders who
won’t break the rules in the first instance. If push comes to shove, I daresay
that President Biden will abide by the judicial branch’s decisions. But, by
taking action he knows full well is illegal, and forcing others to strike it
down in turn, he is violating his oath to “faithfully execute” the law. “I
respect the Constitution,” insists Biden when asked. As ever, though, actions
are worth more than mere words.
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