I recently wrote a column on the legal challenges to President Joe Biden’s vaccine mandate issued through OSHA. Not only is the use of OSHA regulations unprecedented for imposing a national vaccine mandate, I noted that Chief of Staff Ron Klain went to Twitter to herald the use of OSHA as a “work around” the constitutional limitations placed on President Biden. I asked how a court would respond to such an admission. We have to wonder no more. Late Friday, the United States Court of Appeals for the Fifth Circuit cited Klain’s comment in its decision enjoining the mandate.
In the prior column, I noted Klain acknowledged that the use of OSHA was a “work around” in light of the constitutional barriers preventing President Biden from ordering a national mandate directly. The Fifth Circuit also picked up on that glaring admission in footnote 13:
On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”
I previously wrote:
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.
The media covered Trump’s ill-advised tweets with great detail and indignation, particularly when those tweets were cited by lower courts. He was mocked for undermining his own case in court. To its credit, the Fifth Circuit did not give the Klain tweet the weight that the Ninth Circuit gave Trump’s tweets in its rulings against his immigration orders. I was critical of how those tweets were used by the Ninth Circuit and those decisions, as predicted, were ultimately reversed.
Yet, the media is virtually silent on this and other cases where Biden and his staff have directly contradicted or undermined the position of the Administration.
That was the case when Biden called for the Centers for Disease Control and Prevention (CDC) to impose a nationwide moratorium on the eviction of renters. Biden admitted that his White House counsel and their preferred legal experts told him that the move was likely unconstitutional. Despite that overwhelming opinion, he listened to Professor Laurence Tribe at the urging of Pelosi. Despite the pledge to return to a respect for the “rule of law,” Biden openly suggested that they could use the litigation to get as much money out the door as possible before being barred by the courts. Nothing could be more damaging to the litigation and the federal courts quickly rejected the CDC and Tribe arguments.
Additionally, Biden has shown a reckless disregard for the legal process in publicly proclaiming the guilt of defendants before charges or trials. In the case of Kyle Rittenhouse, Biden came out within days to paint him as a “white supremacist.” On the controversy over the mounted border agents shown stopping migrants in Texas, Biden declared them guilty before any investigation and called for their punishment.
The Fifth Circuit decision could now lead to a showdown in the Supreme Court where Klain’s tweet could be again highlighted. This is a challenge that alleges that the OSHA rule was a thinly disguised attempt to circumvent the Constitution. Klain then rushed to remove even that thin veneer by heralding the “work around” of the constitutional limitations. It is an “admission against interest” that is likely to be repeated in litigation in a variety of cases.
Here is the opinion: BST Holdings v. OSHA