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Biden's Vaccine Legislation by Executive Order About to Hit a Supreme Court Brick Wall

The Supreme Court will tackle many huge cases this year. First on the docket is Biden's vaccine by executive order.
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Supreme Court Gears Up

The Supreme Court Heard Arguments today on Biden's vaccine mandate for all private businesses. 

Early in the arguments some members of the court’s conservative majority expressed skepticism for the employer rule. Justice Neil Gorsuch and Chief Justice John Roberts suggested officials had overstepped. Roberts said it’s “hard to argue” that officials had been given the power to act by Congress. Justice Amy Coney Barrett suggested that a problem with the rule was its broad scope.

But the court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will.” And Justice Stephen Breyer said he found it “unbelievable” that it could it be in the “public interest” to put that rule on hold. He said that on Thursday there were some 750,000 new cases in the country and that hospitals are full. 

Legal challenges to the policies from Republican-led states and business groups are in their early stages, but the outcome at the high court probably will determine the fate of vaccine requirements affecting more than 80 million people.

“I think effectively what is at stake is whether these mandates are going to go into effect at all,” said Sean Marotta, a Washington lawyer whose clients include the American Hospital Association. The trade group is not involved in the Supreme Court cases.

 'I've Got a Pen and I've Got a Phone'

There are two major issues in play, but the second, stems from the first. 

To understand, what's happening let's review a clip of president Obama. 

"We are not just going to be waiting for legislation. I've got a pen and I've got a phone. And I can use that pen to sign executive orders."

 Executive Orders

  • Obama averaged 35 executive orders per year.
  • Trump averaged  55 executive order per year.
  • As of January 6, 2022, President Joe Biden (D) had signed 76 executive orders, 46 presidential memoranda, 193 proclamations, and 26 notices.

The above Executive Order Stats from Ballotopedia.

In his 2014 book, By Order of the President: The Use and Abuse of Executive Direct Action, Phillip J. Cooper, a professor of public administration at Portland State University, wrote, "As a practical matter, the memorandum is now being used as the equivalent of an executive order, but without meeting the legal requirements for an executive order."

FDR set the all time record of 307 executive orders per year, at least two of which should have led to his impeachment and removal from office (confiscation of gold and crop burning). 

Obvious Danger

The dander of legislating by executive order should be obvious. But Progressives are demanding still more of it. 

Supreme Stakes on Vaccine Mandates

The WSJ comments on the Supreme Stakes on Vaccine Mandates

The Supreme Court takes up President Biden’s vaccine mandate on Friday, and the stakes are larger than pandemic policy. This is a crucial test of how far the administrative state can go in stretching ambiguous statutes for its own political ends.

President Trump declared an emergency to repurpose funds that Congress appropriated for defense to build his border wall, and Mr. Biden will do the same as he finds his legislative agenda stymied on Capitol Hill. Don’t be surprised if he finds emergencies to declare on climate change and student loans.

Biden's Vaccine Mandates rest on two vastly overreaching arguments.

  • Take the CMS mandate. The Social Security Act authorizes the secretary of Health and Human Services to “make and publish such rules and regulations” that “may be necessary to the efficient administration” of Medicare and Medicaid programs. 
  • Fifty years ago Congress said OSHA can impose emergency standards that are “necessary” to protect workers exposed to “grave danger” at workplaces.

The Journal comments

Both mandates also appear to violate the Court’s major questions doctrine that holds Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” That’s the doctrine six Justices reiterated last summer in blocking the Centers for Disease Control and Prevention’s rental eviction moratorium.

Executive Nonsense

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The Court seriously needs to slap Biden in the face and rein in this kind of nonsense, and I am confident they will. 

Nonetheless, expect still more of it. Trump's executive order repurposing defense funds to build a wall will eventually lead Biden to try the same thing with alleged "climate emergencies". 

Gold Executive Order Flashback 1933

Executive Order 6102  signed on April 5, 1933, by US President Franklin D. Roosevelt "forbidding the hoarding of gold coin, gold bullion, and gold certificates within the continental United States." The executive order was made under the authority of the Trading with the Enemy Act of 1917, as amended by the Emergency Banking Act in March 1933.

The limitation on gold ownership in the United States was repealed after President Gerald Ford signed a bill legalizing private ownership of gold coins, bars, and certificates by an Act of Congress, codified in 93–373, which went into effect December 31, 1974.

Kennedy's Executive Order on Collective Bargaining

Executive Order 10988 is a United States presidential executive order issued by President Kennedy on January 17, 1962 that recognized the right of federal employees to collective bargaining.

Labor historians believe that Executive Order 10988 served as a model for public sector unionism, even for local, municipal and state employees. Membership in AFSCME increased substantially during the 1960s and 1970s, and 22 states legalized collective bargaining for public sector workers. Public sector strikes also increased many times over.

Nixon's Executive Orders 

Nixon expanded collective bargaining with Executive Order 11491.  

Also recall Nixon Shock in which he ending convertibility of gold and his wage and price controls via Executive Order 11615. 

Gosh was this president horrible. 

Bit of Common Sense Returned 

In June 2018, the Supreme Court decision in the case of Janus v. AFSCME found that application of public sector union fees to government employees who are not union members represents compelled speech, and as such is a violation of First Amendment rights. This decision by the Supreme Court potentially reduces funding for Unions that represent Federal Government employees. Some have proposed repeal of Executive Order 10988, which could potentially occur if the President were to issue an executive order vacating Executive Order 10988.

Supreme Court Delivers Huge Blow to Unions!

On June 27, 2018, I commented Supreme Court Delivers Huge Blow to Unions!

In Janus vs. AFSCME, the Supreme Court correctly dealt a huge blow to forced membership in unions.

By a 5-to-4 vote, with the more conservative justices in the majority, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining.

Nonetheless, we are still paying dearly for those executive orders. 

Collective Bargaining of public unions has made many states insolvent, with Illinois at the head of the list.

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