Is The “Workaround” Working? Fourth Court Enjoins Biden Vaccine Mandate

A U.S. district court in Georgia became the fourth court to enjoin a Biden Administration vaccine mandate this week.  As with the other trial and appellate courts, District Judge R. Stan Baker found that President Biden has exceeded his authority in mandating the vaccine for all federal contractors. In the meantime, outgoing New York Mayor Bill DeBlasio has ordered all private workers to be vaccinated. All of these mandates are on course for a showdown in the Supreme Court where three justices have already expressed skepticism over the mandates. 

Biden issued an executive order on Sept. 9 that required contractors to ensure that their workers are vaccinated against Covid and enforcing mask and social distancing policies. Contractors were given until Dec. 8 to comply but that was later extended to Jan. 4.

The U.S. District Court for the Southern District of Georgia granted a preliminary injunction in favor of the Associated Builders and Contractors, a national trade group that represents the construction industry. To do so, the court had to find that the challengers were likely to prevail on the merits in arguing that President Biden does not have this authority under the Procurement Act.

Judge Baker wrote “In its practical application, it operates as a regulation of public health. It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts. Accordingly, it appears to have vast economic and political significance.” 

White House press secretary Jen Psaki insisted that the Biden Administration is “confident in our ability legally to make these happen across the country.” While the Administration could certainly prevail on appeal, the confidence remains an exercise of hope over experience in such litigation.

Other courts have enjoined mandates under OSHA and Medicare. In the OSHA case, the United States Court of Appeals for the Fifth Circuit ruled based on its own “serious constitutional concerns.”  

In the prior column, I noted Chief of Staff Ron 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 quoted Klain in a footnote in granting its injunction.

Biden and Klain often 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 on the now defunct eviction moratorium. Klain was 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 federal litigation raises separate issues from those likely to be raised against de Blasio’s mandate. New York will rely entirely on Jacobson v. Massachusetts (1905), where the Supreme Court upheld a state smallpox vaccination mandate. The case has already been used successfully in other courts like the Seventh Circuit, including decisions from conservative jurists. See Klaassen v. Trustees of Indiana Univ., No. 21-2326, 2021 WL 3281209 (7th Cir. Aug. 2, 2021) (“Given Jacobson v. Massachusetts…there can’t be a constitutional problem with vaccination against SARS-CoV-2 [aka COVID-19]”). They have applied the low “rational basis” standard to uphold such mandates in light of Jacobson. 

Jacobson is not a lead pipe cinch of precedent. It involved smallpox, a disease with a much higher lethality of up to 30% of those infected. The disease also hit children to a far greater extent than Covid. It also involved a vaccine that was used for years and was universally accepted as safe. The case also involved only a $5 fine as opposed to being barred from employment, dining, travel and other basic functions in life.

On October 29, 2021, three Supreme Court justices dissented in a case where they felt review should have been granted. Justices Gorsuch, Thomas, and Alito raised questions over whether past deference on the pandemic is warranted and warned that the “compelling interest” recognized in such past cases “cannot qualify as such forever.”

Many of us support vaccinations. The question is the legal authority to require others to be vaccinated. Jacobson is likely to carry considerable weight in the review of state and city mandates.

However, the question is whether courts will demand more from the government in addressing issues of religious exemptions and natural antibodies. Studies indicate that such natural antibodies confer greater protection than vaccines though most doctors still encourage vaccinations. Over the last year, courts have remained highly deferential. However, the three justices previously noted that “if human nature and history teach us anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”


261 thoughts on “Is The “Workaround” Working? Fourth Court Enjoins Biden Vaccine Mandate”

  1. I got the first dose of Pfizer in April 2021. For various reasons I never got the second, but got a mild case of covid in July. Since then, my concerns about potential side effects of the vaccine have risen steadily. I no longer intend to get vaccinated again if I can possibly help it. But if it becomes a condition to fly on an airplane, or some other thing that I need badly, I’ll likely knuckle under. (I’m retired, so no job worries.)

    But given the moving target of “fully vaccinated,” I do fear that some day someone is going to insist that I get 2 or 3 jabs at once. This seems highly dangerous. Has any even considered that there have to be a fair number of folks like myself? And the longer we go on, the more of us there will be. I have friends who are “fully vaccinated” who after getting covid anyway, have decided not to get any more vaccines either.

    And then there are folks who got the first dose, had severe reactions, and were advised by their doctors to not get the rest. What of them?

    This situation is more nuanced than the debate would allow, and frankly a giant federal club beating folks into submission is not the way to handle it.

    Kim G
    Roma Sur, Mexico City

  2. When I worked at a bank, I was given training on how to spot elderly abuse, such as when an elderly person is coerced to sign documents.There is probably elderly abuse
    in the White House, and it would be easy to spot and identify, but everyone turns a blind eye to it. To speak up about it would imply that there are abusers to be held responsible, and that could get ugly.

  3. “The question is the legal authority to require others to be vaccinated”. Well, not actually. The question is whether the state can compel the injection of genetic therapies which do not prevent transmission or infection (and so are not vaccinations), which have no long term studies of the effects of the technology, which have VAERS reports of thousands
    of deaths and hundreds of thousands of injuries, which are proven to lose their limited effectiveness in a matter of months, which have no acceptable animal studies ( and thus
    violate Nuremberg 3).They are being distributed under Emergency Use Authorization (EUA), as a federal court in Florida just confirmed. Under the EUA, compliance cannot be compelled. So the question is whether politically driven state agents can compel the injection of experimental agents which have demonstrated substantial risk and have proven substantially ineffective.

  4. By living in a free country that still exists as a free country, the pacifists in this country are benefiting from all of the wars since 1776 that were waged to keep it a free country.

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