OSHA And The Power to Mandate Vaccines: States Must Resist

Recently the United States Federal Court for the 5^th Circuit held that the federal agency, Occupational Safety and Health Association (OSHA), cannot lawfully mandate vaccines on American businesses while a trial concerning the matter is pending.  The majority opinion establishes that this mandate is “staggeringly overbroad” and the “loss of constitutional freedoms ‘for even minimal periods of time…unquestionably constitutes irreparable injury.’”

What The Court’s Opinion Means for The Rest of America?

During the Trump Administration, the Senate confirmed federal judges for the 5^th Circuit making that circuit one of the most “conservative” courts in the federal court system.  The 5^th Circuit was the perfect court, from a constitutional perspective, to hear this issue.  Other circuits, namely the 9^th Circuit, would likely find, under the same conditions, a completely different result.

The federal court system is divided into twelve circuits that divide the States into twelve legal districts.  Each federal district court holds a binding authority in federal issues over the lower federal courts of that district.  Under normal circumstances, the 5^th Circuit opinion would put a halt to OSHA enforcing the mandate in every district, so as to act in the abundance of caution; but, we are not operating under normal circumstances.  Since this presidential administration is already refusing to comply with court orders it doesn’t agree with, there should be no surprise when they treat this order with the same contempt.  Additionally, the main objective of this administration has not been to uphold the Constitution, but to force this vaccine on as many people as they can convince or bully into taking before the Supreme Court legal hammer falls. Because the 5^th Circuit opinion is only legally binding in the 5^th Circuit courts, OSHA could legally continue to enforce the mandate within the States located in the other districts.

The Supreme Court Will Have to Settle The Issue

Now that the 6^th Circuit Court of Appeals has been assigned the task of resolving the other suits against OSHA, the Supreme Court will ultimately be tasked with settling any disputes or hearing any appeals. The OSHA vaccine mandate question will have to be answered by the Supreme Court to have finality and possibly the respect of this administration.  The question then becomes, “How will this particular Supreme Court decide this case?” 

The issue of an OSHA vaccine mandate will definitely test the so called “conservative” justices; this will likely be a 5-4 split opinion — the only question being, in which direction?  In my opinion we can almost guarantee which way several of the justices will cast their vote.  If past opinions dictate future trends, we can be guaranteed that Sotomayor, Kagan, and Breyer will cast their vote in favor of any government mandate issued by the Biden Administration.  If past opinions dictate future trends, I believe we can be equally guaranteed that Neil Gorsuch will vote against this mandate.  That leaves the justices that many believe to be “conservatives:” Roberts, Kavanaugh, Barrett, Thomas, and Alito.

If I had to make a prediction based upon experience, I would say that Roberts is more likely to side with the liberals than with Gorsuch.  Not necessarily because he is a liberal in disguise (and he is), but because Roberts is a corporate courtier; he almost always sides with the big money.  I also believe, in spite of Thomas’s occasional tendency toward the police powers of government, that Thomas will side with Gorsuch.  I believe that Thomas will feel a greater pull to his Constitutional tendencies than his “security over liberty” leanings.  Justice Alito’s tendency is to follow either Thomas or Gorsuch.  Since I am predicting that Thomas and Gorsuch will be on the same side, I will put Alito in the group that will vote against the mandate.  That leaves just Kavanaugh and Barrett.  What may be unknown to many conservatives in America, unless they were watching my podcast during Kavanaugh’s confirmation hearing, is that Kavanaugh is NOT a consistent constitutionalist.  During the confirmation hearings I warned that Kavanaugh is most aptly described as “Kennedy 2.0” and he has lived up to that title so far.  He is a moderate at best who leans conservative on some issues and liberal on others.  In this case I will, with hesitancy, predict that Kavanaugh will lean conservative.  With these predictions we now have a 4-4 court that leaves only Barrett to break the tie.

Many conservatives would be overjoyed with that conclusion, believing that Barrett is not only a conservative, but someone who would choose the Constitutional and Religious Liberty option to deny the mandate.  Unfortunately, nothing in Barrett’s term of service in the Supreme Court or her previous legal experience supports that conclusion.  During Barrett’s confirmation hearing, the American people were told that Barrett was a constitutional, religious liberty nominee.  Other than being a devout educated Catholic, nothing in Barrett’s history establishes that she is either constitutional or religious liberty minded.  Barrett is a slave to precedent.  She will mindlessly adhere to whatever the court has established in the past, right or wrong.  Since she has become a Supreme Court Justice, Barrett has sided with the liberal justices on some of the most important cases.  I am not comfortable with Barrett being the tie breaker on what could be the most important Supreme Court issue of my lifetime.  Will she side with the errantly portrayed precedent of Jacobsen?  Or will she side with the Constitution and the rights of the people?

What Is the Most Certain Solution To This OSHA Overreach?

The uncertainty and the tendency of the courts to be personally biased in their opinions is the reason why the courts are not the ultimate or final check and balance of federal gourmandizing of power.  Those who ratified our Constitution and designed our Constitutional Republic were repulsed by the notion that the federal government itself would be its only check and balance.  The designed ultimate and final check on the federal government exercise of authority is and always has been the people through their States.  Thomas Jefferson (1812) explained it this way:

…when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another…If the States look with apathy on this silent descent of their government into the gulf which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron…

The design of our Constitutional Republic created a most powerful check on the federal authority through the power of the State to refuse to comply with unlawful federal laws, regulations, and executive orders.  Proponents of the Constitution made multiple arguments regarding the authority of the States to be the ultimate limit upon the federal government when that government steps outside the specifically enumerated and delegated powers of the Constitution.  Hamilton’s explanation may have been one of the most influential since he was the one arguing for federal power, yet explaining that even the power he proposed was limited by the Constitution to be enforced by the States.  Alexander Hamilton expressed the basis for this check by the States in Federalist 78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution, can be valid.

Hamilton’s explanation is a direct reference to Article 6 clause 2 of the Constitution that declares that when the federal government makes laws that are inconsistent with the Constitution, “the judges of the State” are not bound to them.  When the judges of the States are not bound, no one in the State is bound; those laws, regulations, and executive orders are “null and void.”  There is no authority delegated to the federal government to exercise an Occupational Safety and Health Association within the boundaries of the States.  Without a specifically enumerated delegation of power to do so, the federal government’s assertion of power is invalid.

Florida is exercising this State authority to check and balance unconstitutional federal power as it begins to separate the State from federal OSHA authority altogether.  Florida is making moves to refuse OSHA authority and regulations and create their own State agency that will fill that gap.  There are some in the federal government who profess, like political activist lawyer Ron Coleman, that it is outside Florida’s authority to deny OSHA in their State. 

For people like Coleman, that errant understanding of State authority and professed unlimited power of the federal government is the product of one hundred eighty-eight years of bad education sparked by federal supremacists and certain political activist Supreme Court Justices.  People like Coleman have decided to set aside the true design of the Constitution and the facts regarding its proper application as dictated by those who actually wrote the document, in favor of an ideology that the federal government itself is its only limit to power, and the courts can alter and expand federal power through judicial opinions contrary to Article V of the Constitution. 

This progressive ideology flies in the face of every agreement made to ratify the Constitution, every limit to power designed by the Constitution, and the very principles of separation of powers instituted to ensure that the people are the governors over government and not subjects to rogue federal agencies.  Coleman’s assertion, and those who agree with him, that the “commerce clause” is some kind of boilerplate phrase that endows upon the federal government the authority to create for itself unlimited authority over every aspect of life as long as they can somehow bootstrap a “money” argument to it cannot find any justification in the Constitution or the writings of those who created that Compact.  Not to mention Coleman’s argument was brilliantly defeated by James Madison in 1792 (see the Cod Fisher Debate, also see Federalist #45).

The only sure solution to ending federal vaccine mandates will be when the States decide to exercise the powers reserved to them as enshrined in the Tenth Amendment.  That will mean that the people in the States must get educated and demand that our States start behaving more like the “independent sovereign governments” the Supreme Court in NFIB v. Sebelius recognized them to be and less like the subservient colonies that Coleman and his political and educational aristocrats want them to be.

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