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President Joe Biden speaks at the White House in Washington, D.C., November 3, 2021. (Evelyn Hockstein/Reuters)

Friday was a good day for Republicans in courtrooms. The really big news came with the 5th Circuit Court of Appeals denying President Biden’s request to lift its stay on his vaccine mandate on businesses with more than 100 employees.

The Court ordered OSHA to "take no steps to implement or enforce the Mandate until further court order." This is just one step in what’s likely to be a long battle over the mandate - one I suspect will drag on long after the pandemic is completely over, because this isn’t about public health so much as it’s about government control. But judging from the Court’s comments, it sounds as if the mandate has as much chance of staying afloat in the SCOTUS as a cement canoe.

The court noted that in its 50-year history, OSHA has issued only 10 such “emergency, temporary” orders; six were challenged in court, and only one survived. Likewise, they found that the states seeking to block the vaccine mandate were likely to succeed on the merits “for a multitude of reasons.”

You should read the report at the link because it’s fun hearing these wannabe dictators get put in their places, but to cite just a few reasons: the act that created OSHA was never intended to launch a bureaucracy with the power to make sweeping rules that “affect every member of society in the profoundest of ways.” That will come as a shock to leftists, who think all office holders have unlimited power, even school board members.

They also called the mandate “fatally flawed,” being both over-inclusive (hitting all businesses equally, regardless of their level of risk) and under-inclusive (if it’s such a dire emergency, why doesn’t it also apply to businesses with fewer than 100 workers?) I’m not a judge, but I would also ask why, if it’s such a life-and-death emergency, it doesn’t take effect until January? Is it okay to kill voters with COVID, but not to anger them by ruining their holidays?

Oh, and it likely exceeds the federal government’s power under the Commerce Clause by regulating non-economic activity (a person’s choice of whether to be vaccinated) which falls squarely to the states.

And the Court hit Biden for abuse of power, pointing out that such orders are supposed to be “an ‘unusual response’ to ‘exceptional circumstances'” that have Constitutional requirements that he ignored, and that the “Mandate at issue here is anything but a ‘delicate exercise’ of this ‘extraordinary power.’”

As Charles C.W. Cooke at National Review puts it, “Summing up, the court savaged the move in every possible way.”

Still, the question remains: will businesses that are already enforcing it stop and wait for a Supreme Court ruling? Or will they go along with Biden's end-run around the Courts and let him use the power of the Presidency to bully private businesses into doing what he doesn’t have the power to do himself? That’s unconstitutional, by the way. Or as Democrats would call that if Trump had ever tried it, it’s an impeachable offense.

Ironically, in ruling on Biden’s bad motives, the Court relied partly on the Twitter account of Biden’s Chief of Staff Ron Klain, the man sometimes called “Biden’s Brain.”

Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet reading, "OSHA doing this vaxx mandate as an emergency workplace safety rule is an ultimate work-around for the Federal govt to require vaccinations." Klain’s retweet implied that he was agreeing it was an attempt to “work around” the Constitutional limits on Biden's power.

I’m starting to understand what they mean when they say this guy is Biden’s brain.


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