In the law, it is called an admission against interest or an out-of-court statement by a party that, when uttered, is against the party’s pecuniary, proprietary, or penal interests. In politics, it is called just dumb. White House chief of staff Ronald Klain offered a doozy this week when he admitted that the announced use of the authority of the Occupational Safety and Health Administration (OSHA) for a vaccine mandate was a mere “work around” of the constitutional limit imposed on the federal government. The problem is that the thing being “worked around” is the Constitution. Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional protections.
Notably, before inauguration, Klain publicly assured the public that Biden would that, on “his first day in office, I will issue a nationwide masking mandate, requiring that people wear masks where the federal authority extends and then urging governors and other local officials to impose mask mandates in their states.” That statement was then walked back due to the lack of legal authority to issue such a mandate.
Klain retweeted MSNBC’s Stephanie Ruhle, who posted, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”
The “work around” was needed because, as some of us have previously during both the Trump and Biden Administration, the federal government does not have clear authority to impose public health mandates. Authority for such mandates has traditionally been recognized within state authority.
Make no mistake about it. This is a clever move to use the OSHA as the vehicle for the mandate to avoid the federalism issues of a direct mandate. President Joe Biden has been ping ponging on the issue for over a year in first suggesting that he could impose a national mandate and then admitting that he probably could not. Ironically, this move comes on the same day that Attorney General Merrick Garland denounced the “clever” use of the Texas abortion law to make it more difficult to challenge. Judging from the praise for Garland, it appears that such work arounds are noble when done for the right cause.
The question is whether this clever work around will in fact work. It might, but there are ample grounds from challenge. Under this interpretation OSHA could impose a federal mandate for any measure that impacts workers, including public health measures not directly linked to a given workplace or job. That may be more of a sticker shock for some on the federal bench, including some justices.
The move is unnecessary and therefore reckless. There are already challenges to the law which the Justice Department could join as amicus. It would then not have to risk the creation of additional losses in court after the impressive litany of losses of the Biden Administration. This was another filing that followed a public call from the President. It is again politics driving litigation by the Justice Department. The media covered such pressure extensively during the Trump Administration and legal experts objected that the Trump White House was attacking the independence of the Justice Department and other agencies. There is little attention to his pattern that extends from immigration to debt relief to the eviction moratorium.
The retweet by Klain will not be determinative in this case but it will be heavily referenced by challengers. He was saying the quiet part out loud. However, the real question is why the Administration would bring a case that is unnecessary to litigate a theory that is at best novel and untested. For a department known for its reluctance to bring such test cases to avoid negative precedent, the declaratory judgment says more about the political than legal priorities of the Administration.