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judiciary national politics & policies too much government

Emergency Effrontery

The ruling was hardly shocking. Most constitutional scholars expected it, I think. That being said, the whole business is … shocking.

I refer to the 5th Circuit Court of Appeals coming down hard against the Biden Administration’s vaccine mandate.

Say those words, “vaccine mandate,” reflecting on how it was “enacted” — not by act of Congress — and the Occupational Safety and Health Administration’s tortured justification for forcing private companies seems doomed.

At least if the Constitution retains any of its meaning.

“The stay,” explains Reason editor Jacob Sullum, “which the court issued on Friday evening, says OSHA shall ‘take no steps to implement or enforce the Mandate until further court order.’ It is officially a preliminary pause ‘pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.’ But the court left little doubt that it would grant those motions, saying ‘petitioners’ challenges to the Mandate show a great likelihood of success on the merits.’”

The administration’s desperate shoehorning of OSHA’s statutory ability to concoct an “emergency temporary standard” (ETS) is an act of effrontery. 

Sullum, in his detailed coverage, shows just how extraordinary and inapt the reliance upon the ETS is. The COVID-​19 crisis cannot justify the mandate through the legal mechanism chosen. It is fairly obvious that, as the court put it, Biden’s decree “grossly exceeds OSHA’s statutory authority.”

Sullum quotes another judge’s concurring opinion to the effect that even a congressionally legislated mandate would be controversial, constitutionally.

But breathe easy: Nancy Pelosi’s and Chuck Schumer’s Congress has no interest in creating a rational and constitutional response to the crisis.

And our Congress? Well, it doesn’t exist.

This is Common Sense. I’m Paul Jacob.


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national politics & policies too much government

One Against the Mandate?

“President Biden, the federal government, social media, and the establishment media have conspired to rob Americans of their freedoms in the name of public health,” declares Jeremy Boreing, co-​CEO of The Daily Wire. “They have broken faith with the American people through conflicting messaging, false information, and by suppressing data and perspectives with which they disagree.”

Quoted by Alex Swoyer in The Washington Examiner, Boreing is explaining why his company — best known for its platforming (as we say these days) of commentators Ben Shapiro, Andrew Klavan, Michael Knowles and Matt Walsh, but also for its burgeoning news service and mini-​entertainment empire — will not comply with “the Biden administration’s COVID-​19 vaccine mandate for private employers.”

It is “suing in the U.S. Circuit Court of Appeals for the 6th Circuit, the company announced Thursday,” Swoyer reports.

Though we’ve been hearing about these “requirements” for over a month, they were published by the Occupational Safety and Health Administration (OSHA) just yesterday. Folks at The Daily Wire had been talking up their challenge ever since Biden first dropped his bomb, and had their legal response ready.

OSHA’s mandate, Swoyer explains, “directs large companies to require employees to get vaccinated by Jan. 4, or else pay for them to get tested weekly,” and also requires those tested-​but-​unvaccinated employees “to wear a face mask.”

Note that the tests for the coronavirus are not reliable, tests for antibodies are not even mentioned (and also not reliable), and face mask utility has not been demonstrated to anything approaching certainty, as I’ve discussed.

Grounds for challenge are legion.

Other affected companies should join The Daily Wire with parallel lawsuits, or at least amicus briefs.

The president’s mandate must not stand. 

This is Common Sense. I’m Paul Jacob.


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First Amendment rights ideological culture national politics & policies

Contra Mandated Contraception Coverage

Regulators spawned by “Obamacare” have mandated that employer-​provided medical insurance plans provide contraception as a benefit. 

The problem, as currently reported and debated, is that only churches are exempted — church-​run or ‑affiliated hospitals, for example, are not. And so Catholic hospitals, along with other religious-​based charitable endeavors, must conform, despite their commitment to age-​old ideas about the sanctity of life, which they say contraception and abortifacients, especially (some contraceptive methods are de facto abortion-​inducing), abridge.

Many conservatives argue that the mandate thus runs afoul of the First Amendment. But it turns out that many Republican politicians have supported similar mandates in several states.

Mike Huckabee signed one such mandate into law in Arkansas.

No big news that GOP politicians are often just as bad as Democrats, of course. But forget, if you can, the First Amendment angle. The mandate runs afoul of something even more fundamental: common sense.

Adding an umpteenth mandate to the list of regulations government places on contracts amongst employers, employees, and insurance companies hardly passes the smell test. The more benefits that government insists you contract for, the higher your insurance rates. The higher the rates, fewer are those who would willingly buy, thus scuttling the whole point of “health care reform.”

We ostensibly want more people to purchase major medical insurance. Not fewer.

It’s possible that some reformers seek precisely that, to put insurance companies out of business, leaving only government to take up the slack, as a “single payer.”

In the case of Republican reformers, however, is there a hidden agenda or just mere foolishness?

This is Common Sense. I’m Paul Jacob.