‘Biden’s Federal Vaccine Mandate Wipeout’: WSJ

The Administration ignored the law. It is getting crushed in court.

What legal sage advised President Biden to impose vaccine mandates? The adviser needs to have his law licence pulled because the courts are repudiating the Administration’s mandates at an astonishing pace. A federal judge in Georgia was the latest on Tuesday when he blocked its vaccine requirement for employees of federal contractors—the fifth judicial rebuke in less than a month.

Judge R. Stan Baker ruled in a challenge brought by seven states that the Administration had exceeded its authority under the Federal Property and Administrative Services Act. The President claimed his executive order would “promote economy and efficiency in procurement” by contracting with sources “that provide adequate Covid-19 safeguards for their workforce.”

But the law does not give the President “the right to impose virtually any kind of requirement on businesses that wish to contract with the Government (and, thereby, on those businesses’ employees) so long as he determines it could lead to a healthier and thus more efficient workforce or it could reduce absenteeism,” Judge Baker wrote.

Last week federal Judge Gregory Van Tatenhove enjoined the Administration from enforcing the contractor mandate in Kentucky, Ohio and Tennessee. While conceding that Congress delegated broad power to the President, the judge noted that his “authority is not absolute” and the President’s overreach raises “several concerning statutory and constitutional implications.” The mandate “intrudes on an area that is traditionally reserved to the States,” Judge Tatenhove wrote, noting the Constitution grants the states general police powers to regulate public health and welfare.

Two judges recently scored the Centers for Medicare and Medicaid Services (CMS) for exceeding its authority by mandating vaccines for employees of healthcare providers that receive government funds. The Social Security Act authorizes CMS to prescribe rules and regulations that may be necessary to carry out the Medicaid and Medicare programs.

But as both judges noted, the Supreme Court has said that Congress must “speak clearly if it wishes to assign to an agency, decisions of vast economic and political significance.” “If CMS has the authority by a general authorization statute to mandate vaccines, they have authority to do almost anything they believe necessary, holding the hammer of termination of the Medicare/Medicaid Provider Agreement,” Louisiana Judge Terry Doughty noted.

Judge Doughty also blasted CMS for skipping notice-and-comment, and failing to consider surgical alternatives to its sweeping mandate and the reliance interest of states and providers on federal funds. “The Plaintiff States make a strong case that the CMS Mandate violates the States’ police power,” he wrote.

These smackdowns come on the heels of the Fifth Circuit Court of Appeals’ ruling early last month that stayed the Occupational Safety and Health Administration’s vaccinate-or-test mandate for workers of employers with 100 or more employees. The Fifth Circuit ruled against the Administration on procedural, statutory and constitutional grounds.

Mr. Biden’s vaccine mandate for federal employees is still standing, but the Administration has said that those who didn’t comply by the Nov. 22 deadline won’t be punished. “The goal of the federal employee vaccination requirement is to protect federal workers, not to punish them,” Office of Personnel Management and Office of Management and Budget leaders wrote to executive agencies.

They added: “We encourage your agencies to continue with robust education and counseling efforts through this holiday season as the first step in an enforcement process, with no subsequent enforcement actions.” Why not do the same for private employers and workers? The White House is punishing private workers while inoculating government servants from its overreach.

Perhaps White House chief of staff Ron Klain thought mandates would be popular, but public opinion is turning negative as the costs become plain. Democrats Jon Tester and Joe Manchin joined all Senate Republicans in voting Wednesday to block the President’s mandate on private employers. Speaker Nancy Pelosi won’t allow a vote in the House, but the bipartisan Senate repudiation, like the judicial rulings, shows what a blunder the coercive mandates are.