Will Biden’s Vaccine-Mandate “Work-Around” Work with the Supreme Court?

Below is my column in the Hill on the review of the OSHA vaccine mandate imposed by the Biden Administration. Courts like the United States Court of Appeals for the Fifth Circuit are facing a novel use of workplace regulations in an admitted effort to circumvent constitutional limitations. The question is whether it will work.

Here is the column:

The Biden administration was hit by a broadside last week, when the U.S. Court of Appeals enjoined its use of the Occupational Safety and Health Administration (OSHA) to implement a national vaccine mandate as a matter of “workplace safety.” Not to be deterred, the administration reportedly is pushing forward with a possible extension of that rule to small businesses.

White House chief of staff Ron Klain professed “confidence” that they have found what he previously admitted was a “work-around” of the Constitution, which does not give the president such authority. After all, Klain argued this week, this is no different than requiring hard hats in the workplace.

Klain’s confidence may run into serious constitutional doubts in the courts, however. Indeed, he and other White House officials may be making the case for the 24 states challenging the mandate.

Supreme Court Justice Oliver Wendell Holmes once wrote that “hard cases make bad law.” The same thing might be said about hard-hat arguments. Klain has suffered from an abundance of confidence when some prudence may be preferred at the Justice Department. Like President Biden, he has vacillated between claiming the authority to require vaccinations and then backtracking to claim only the authority to “urge” vaccinations.

Biden eventually acknowledged that he does not have the authority to order a national mandate directly. That is when Klain again confidently rushed in where wiser government lawyers fear to tread. He announced that the White House had found a way to evade the constitutional limitations: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”

Many of us often criticized former President Trump for undermining Justice Department lawyers with damaging comments later cited by courts when ruling against his administration. Now Biden and Klain seem to be competing for the greatest admissions-against-interest, including a prior admission from President Biden that they would be pursuing a presumptively unconstitutional measure simply to buy more time to spend more money. Klain is celebrating a way to evade constitutional limitations — but for courts reviewing the OSHA rule, that is akin to a husband telling a spouse that he has found a “work-around” to his vows by redefining extramarital relations.

On Sunday, Klain further explained that the OSHA rule is “common sense . . . if OSHA can tell people to wear a hard hat on the job, to be careful around chemicals, it can put in place these simple measures to keep our workers safe.”

The problem is that OSHA itself failed to see that “common sense” meaning until the White House pushed the work-around. After President Biden announced that OSHA would make the declaration, the agency appears to have reverse-engineered its interpretation to fit the order. For years, OSHA debated whether it can or should issue an “Infectious Diseases Regulatory Framework” covering “airborne infectious diseases.” It has never issued such a framework and, in the past, has done no more than requiring employers to offer workers such things as Hepatitis B vaccination.

Moreover, OSHA is using a work-around of its own to avoid the rule-making process, which can take a great deal of time and require the agency to answer a great many questions. OSHA used an “emergency temporary standard” (ETS), but that applies to a “grave danger” when such action is “necessary to protect employees from such danger.” The ETS, however, is designed to protect employees “from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards.” It can only be used in emergencies when “necessary to protect employees from such danger.” It is not a rule to be used for convenience so a president can impose a mandate indirectly that he cannot impose directly.

OSHA regulations are designed for dangers inherent in a given workplace or industry. In the case of hard hats, things fall, and workers need to protect their heads. Likewise, if workers are being exposed to a toxic chemical in a given industry, that industry can face an ETS. The idea is to stop businesses from creating dangerous conditions once people enter workplaces.

But this national vaccine mandate is different. The administration arguably is using the workplace to make society at large safer. White House deputy press secretary Karine Jean-Pierre seemed to make that point on Monday when she insisted that OSHA clearly has this authority because “more than 750,000 people have died of COVID. You have approximately 1,300 people a day, who continue to die a day, as I said, from COVID. If that’s not a grave danger, I don’t know what else is.”

However, those are people dying in society at large, not in workplaces. While some may have contracted the virus in the workplace, courts may demand a closer nexus to a “grave danger” inherent in the workplace. The White House has expressly admitted that it is seeking to “reduce the number of unvaccinated Americans by using regulatory powers and … these requirements will become dominant in the workplace.”

It is not even clear that the rule is necessary. Courts have uniformly upheld the right of employers to impose mandatory vaccination or testing requirements as a condition for employment; states have enhanced authority over such public health measures, too.

This is, admittedly, a novel issue, and there are good arguments on both sides. But it also is a generally-worded statute that can be interpreted broadly, and I expect a split in court decisions — and that only increases the likelihood of a Supreme Court review. Once there, the Biden administration could be giving some justices an opportunity to review not mandates but OSHA’s discretion over such mandate orders. A majority of the court has shown an interest in rolling back the so-called Chevron Doctrine, which affords agencies great deference in the interpretation and enforcement of federal law.

After long debating whether it even has this authority, OSHA has suddenly found it, and then has issued one of the most comprehensive health-based standards in its history — all without rule-making or debate. Ironically, the Supreme Court warned against such sudden agency “finds” of regulatory authority. In 2014, the court ruled that “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decision of vast ‘economic and political significance.’”

Indeed, the Court recently rejected Biden’s effort to continue the eviction moratorium under the same type of sweeping interpretation by saying “[i]t strains credulity to believe that this statute grants the [agency] the sweeping authority that it asserts.”

In other words, Klain’s confidence may not be shared by some on the court.

The Justice Department will have to find a way around Klain’s “work-around” rationale. It also will need more than a hard-hat rationale in this “hard case,” if it wants to avoid bad law.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

98 thoughts on “Will Biden’s Vaccine-Mandate “Work-Around” Work with the Supreme Court?”

  1. For Biden to display the communist China flag in the White House would be like Roosevelt displaying the swastika flag.
    China is an evil country.

  2. Courts may have, in the past, upheld the right of businesses to require vaccination but the WuFlu shot is, by definition, NOT a “vaccine.” See [https://www.cdc.gov/vaccines/terms/glossary.html#v] “Vaccine: A suspension of live (usually attenuated) or inactivated microorganisms (e.g. bacteria or viruses) or fractions thereof administered to induce immunity and prevent infectious diseases and their sequelae. Some vaccines contain highly defined antigens (e.g., the polysaccharide of Haemophilus influenzae type b or the surface antigen of hepatitis B); others have antigens that are complex or incompletely defined (e.g. Bordetella pertussis antigens or live attenuated viruses).” Weasel lawyers use weasel words, calling it a “vaccine,” to imply that it is but it is not. This shot is only a genetic experiment, an unproven, and ineffective, treatment and, therefore, NOT authorized by the courts.

    1. Governmental mandates regarding lockdowns, masks and vaccinations are unconstitutional while they are constitutional when imposed on private property by its owners. Congress is provided no “emergency powers” by the Constitution. Congress may suspend habeas corpus in a condition of rebellion or invasion. Individuals may only be arrested and their disposition ordered upon the production of probable cause. Contagious respiratory illnesses, such as colds and flu, are not probable cause related to a provable crime. The People are provided maximal rights and freedoms while government and Congress are severely limited and restricted by the Constitution. Powers not provided to the federal government are reserved to the people, or to the States, per the 10th Amendment. Healthcare is a private personal right and freedom of persons and people, and power over healthcare is reserved to the people, not to the States, by the 4th Amendment right of people to be secure in “their persons.” The sole duty of courts is to assure that actions comport with law and courts must declare all acts contrary to the “manifest tenor” of the Constitution void. No court has any power to legislate, modify legislation or legislate by “interpretation.” Precedents as court decisions must be absolutely constitutional, and no court has any power to support unconstitutional laws, including nonexistent unconstitutional powers. Businesses are private property, the owners of which are the sole entities with the power to “claim and exercise” dominion over said private property. No court and no law that denies constitutional rights is licit or legitimate.

      4th Amendment

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      10th Amendment

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, OR TO THE PEOPLE.

      “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “…men…do…what their powers do not authorize, [and] what they forbid.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

    2. The CDC changed the definition of vaccines back on 1 Sep 2021. The courts will have to go by whatever the CDC defines vaccines as unless some lawyer(s) brings in [expensive] expert witnesses to disagree and maybe get it changed.
      CDC Emails: Our Definition of Vaccine is “Problematic”
      CDC: Problematic Vaccine? No, Problematic Definition of Vaccine.
      Nov 2, 2021

      The CDC caused an uproar in early September 2021, after it changed its definitions of “vaccination” and “vaccine.” For years, the CDC had set definitions for vaccination/vaccine that discussed immunity. This all changed on September 1, 2021.

      The prior CDC Definitions of Vaccine and Vaccination (August 26, 2021):

      – Vaccine: A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease. Vaccines are usually administered through needle injections, but can also be administered by mouth or sprayed into the nose.

      – Vaccination: The act of introducing a vaccine into the body to produce immunity to a specific disease.

      The CDC Definitions of Vaccine and Vaccination since September 1, 2021:

      – Vaccine: A preparation that is used to stimulate the body’s immune response against diseases. Vaccines are usually administered through needle injections, but some can be administered by mouth or sprayed into the nose.

      – Vaccination: The act of introducing a vaccine into the body to produce protection from a specific disease.

      People noticed. Representative Thomas Massie was among the first to discuss the change, noting the definition went from “immunity” to “protection”.

      1. The word “vaccine” comes from the Latin vaccinus which means from the cow. If you insist on purity, vaccination started with Dr Edward Jenner, a British physician in the 19th Century. He took tissue scrapings from an infected milkmaid who tended to cows infected with cowpox virus, He applied the tissue scrapings to a young boy to purposely infect him (and test the immune system hypothesis). The boy got sick with cowpox just like the milkmaid. Later Dr Jenner applied a second round of scrapings of infected cowpox tissue to the boy, and he did not get sick. You know where this is going, right?

        So you have 2 choices if you wish to train your immune system to ward off a pathogen. Get a vaccine in whatever formulation is most efficacious (mRNA vaccines have a >80% efficacy rate vs 40-60% efficacy with attenuated) or apply COVID infected throat or phlegm scrapings.

        show of hands of the purists in the audience?

        Edward Jenner and the history of smallpox and vaccination

  3. So when the mandate is struck down, people who were coerced to get vaccinated will be able to get un-vaccinated, right? Or they can sue … somebody?

    Maybe the ones who quit can sue for wrongful termination.

    What a mess.

    1. No, there is no recourse, whatsoever, with the Pharma co. They made sure of this in a air-tight contract. Any suits for injury would be made with the federal or state government.

  4. Off topic. Rittenhouse case. A prosecutor, a judge, cannot add additional charges once the jury comes into the courtroom as a group, before selection.

    1. The concept of “lesser includeds” is that they are not “additional” charges; they are already “included” in the offenses charged.

  5. Ethics of vaccine refusal
    Michael Kowalik


    Proponents of vaccine mandates typically claim that everyone who can be vaccinated has a moral or ethical obligation to do so for the sake of those who cannot be vaccinated, or in the interest of public health. I evaluate several previously undertheorised premises implicit to the ‘obligation to vaccinate’ type of arguments and show that the general conclusion is false: there is neither a moral obligation to vaccinate nor a sound ethical basis to mandate vaccination under any circumstances, even for hypothetical vaccines that are medically risk-free. Agent autonomy with respect to self-constitution has absolute normative priority over reduction or elimination of the associated risks to life. In practical terms, mandatory vaccination amounts to discrimination against healthy, innate biological characteristics, which goes against the established ethical norms and is also defeasible a priori.

  6. RIP Jake Kazmarek, you too chose poorly!

    28-Year-Old Body-Builder Dies 4 Days After Second Moderna COVID Shot
    By Jim Hoft
    Published November 12, 2021 at 9:48am
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    28-year-old bodybuilder Jake Kazmarek recently died 4 days after receiving his second dose of the Moderna COVID-19 vaccine.


    And just as the OD scene from the movie Boogie Nights depicts, just maybe all these *dead & injured people should find another Dope Dealer as this mRNA stuff isn’t working out worth a crap for them.

    I think in 1976 they stopped the failed Swine Flu Vax roolout after only 15 *dead. The body on this current mRNA stuff continues past the moon.

  7. The best result would be that the Supreme Court would rule that the Administrative Agencies Act was illegal when passed, and void all rules created by any administrative agency since 1949 or so.

    But that’s bizarre to thin that the Supreme Court would care about the separation of powers defined in the Constitution.

    1. The Court has rather strongly asserted that it wishes to revisit the matter of Chevron deference and with it the entire administrative state. Stay tuned.

  8. I know many people are repulsed by harsh language, but maybe they’re completely unaware the world is already moving more deeply into the last/latest world war?

    What is your plan for this new type of war, Freeze to De*ath if Biden’s/Bradon’s buddies turn off you heat & food this winter?

    I resisted post this, but I feel I must because one doesn’t have to be a rocket scientist to know what happens next when the mass of people soon figure out the govt/Big Phama/AMA/& over 1/2 of the current Medical Community are Knowingly harming/whacking the hack out of their families/loved ones with these Bio-Weapons/mRNA crap.

    The Cat is out of the Bag anyway.


    Very Harsh Language Warning. Don’t which if that stuff bothers you.


    Alex Jones Declares War On Gene Simmons: Warning Strong Language



    Nov 11, 2021
    The Alex Jones Show
    The Alex Jones Show

    Gene Simmons the fully vaccinated by still caught COVID front man for the aging rock band KISS declared that the un-vaccinated are “evil people” and they should he outed and identified for the benefit of society.


    1. Oky1 informs us:

      “Alex Jones Declares War On Gene Simmons: Warning Strong Language.”

      Does anybody doubt what Turley thinks of Alex Jones? I can prove that Turley believes Jones is a “lunatic”:

      We know that Turley thinks Ted Nugent is a “lunatic”:


      And we know also that Jones will invite a lunatic on his show:


      Ipso facto, Jones must be a lunatic too. And yet there are lying Trumpists like Oky who respect Turley’s opinion yet will champion Jones’ mad ravings?


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