Joe Biden announced his new six-point plan to clear up what he calls a pandemic of the unvaccinated on September 9. He practically dared Republican governors to bring the battle and said if any fought back, he would simply “get them out of the way.” In less than 24 hours, GOP governors across the nation voiced their outrage. Biden’s reply? “Have at it.” Well, all of the Republican governors in the nation – representing a solid 54% of the states – have obliged. By September 14, the governors and attorneys general of 27 states had weighed in on the battle to come. Some have lawsuits ready and others are waiting to see what the Occupational Safety and Health Administration (OSHA) comes up with, but all appear united in the stand against the president who, it seems, would be king. The ball’s back in your court, Mr. President; now what’s the plan?
Legally Dubious, at Best
Biden has a lot of big ideas, and his administration is busy finding workarounds so that the president can actually carry out his largely totalitarian plans. The most outrageous of his ideas lately was to use OSHA to force companies that employ 100 or more workers to require either vaccination or regular COVID testing in order for employees to keep their jobs.
Can he do it? The short answer is “maybe.” Congress passed the Occupational Health and Safety Act of 1970, and Nixon signed it into law, but exactly how far President Biden will be allowed to stretch that remains to be seen. Regardless of legal authority, however, government actors often have the practical power to do as they please until someone else stops them. Biden’s legal authority here, however, is dubious, if not entirely fabricated. It will be up to the courts to decide if the president can, in fact, use OSHA to force companies into compliance lest they be fined out of existence.
To that end, the Republican leadership of 27 states have spoken out against what they call an unconstitutional overreach on Biden’s part. Most are preparing to sue; a handful already have.
“I’m 100% against this vaccine mandate because I believe it should be a personal health care choice,” explained Gov. Pete Ricketts of Nebraska. South Carolina’s Henry McMaster wasn’t as polite, saying he’s prepared to fight the Biden administration “to the gates of hell to protect the liberty and livelihood of every South Carolinian.”
Attorney General Mark Brnovich of Arizona argued that the mandate violates the equal protection clause of the Constitution and has already filed a lawsuit. Texas Gov. Greg Abbott cited a report showing as many as 40% of workers might not show up to the job if they’re required to get vaccinated. If accurate, this would doom many businesses, and the governor says he’s ready for the “constitutional showdown” to come. Florida Gov. Ron DeSantis has had a lot to say about Biden in general – and little if any of it very nice – but right now he wants to know if all the nurses who don’t want the jab after working through the pandemic – and, thanks to previous exposure, likely don’t need it – are really going to lose their jobs now.
A Long List
The list of states bucking Biden on the vaccine mandate is long: Alabama, Alaska, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
That’s all the states that currently have Republican governors – and, in 24 of them, the GOP controls the legislature, as well. It’s also almost 149 million people – or about 45% of the total U.S. population.
What Now, Mr. President?
With challenges from 27 of the 50 states, there’s a good chance that, by the time the courts are done with it, Biden’s mandate will carry about as much weight as his claim of being a truck driver or that story about Corn Pop the bad dude who ran a bunch of bad boys. With Republicans controlling the governorships and legislatures of more than half the states in the country, what can Biden do if the courts rule against his mandate? What happens if – regardless of how the lawsuits pan out – more than half the states simply ignore his order? Will he invoke the Insurrection Act of 1807, which is the only real power he has against state governors? Or will he merely rant and rave and make meaningless threats, as he did after the Supreme Court refused to overturn the Texas abortion ban?
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