In rounding off his first year as the President of the United States, Joe Biden has been sacked with a resounding flurry of defeats in the federal courts. In recent weeks, court-ordered preliminary injunctions have effectively stayed the enforcement of Biden’s three vaccine mandates. But is there really any surprise in all of this? Not really. What is surprising is the hubris, rashness, and lack of sound analytical consideration, by which these ill-conceived, sweeping mandates were pronounced by President Biden in September.
It is unexpected that the corporate media will devote significant coverage to substantive analysis and reporting of the reasoning articulated in the decisions of the federal courts on any of these cases. Instead, the media deflects from the legal bases for the opinions and attempts to convince the American public to view judicial decision-making through a partisan lens. The legacy media repeatedly emphasizes which federal judges were appointed by President Trump or one of his Republican predecessors. There is far less media time devoted to a discussion of the findings contained in the courts’ rulings, which have the following commonality: the legal challenges to the vaccine mandates are likely to succeed on the merits, the President’s arguments that there is legal authority for his mandates are unpersuasive, preliminary relief is necessary to prevent irreparable harm, and such relief is not contrary to the public interest.
While each of the federal court orders on the topic of Biden’s vaccine mandates is worth reading, a noteworthy aspect of one of the opinions that is particularly unlikely to get much press coverage is contained in State of Missouri v. Biden. In preliminarily enjoining the implementation and enforcement of Biden’s mandate in relation to health care providers in the ten states that brought the action, the district court found, in part, that the plaintiffs “are likely to succeed in their argument that CMS [the Centers for Medicare and Medicaid Services] unlawfully bypassed the APA’s [Administrative Procedure Act’s] notice and comments requirements”. Case No. 4:21-cv-01329-MTS, Memorandum & Order (11/29/2021) of Hon. Matthew T. Schelp, U.S. District Judge, U.S. District Court, Eastern District of Missouri, Eastern Division, page 9. In doing so, the court observed that the failure of the administration to follow the procedures in place for taking and responding to comments actually tends to fuel vaccine hesitancy. Order at page 13. In its memorandum, the court states that, “Requiring already hesitant individuals to get the vaccine—without giving them an opportunity to be heard—undermines the democratic process that the APA’s procedural safeguards are intended to protect and exacerbates the underlying hesitancy problem.” Order at page 13.
Thankfully, in a nation that values individual liberty, it is not shocking that the courts would decry unilateral action by the President in sidestepping Congress in order to force Americans to be injected with the Covid-19 vaccine. Biden’s edicts left many unvaccinated, employed Americans with an undesirable dilemma: take the injection of the vaccine or lose your job. But that’s what the President’s directives were all about, right? His choice of words in his address to the American people in September made it clear that he was losing his patience with the unvaccinated and that he believed his actions were necessary to compel compliance among those whom he stigmatized as a “distinct minority”. So, Biden gave unvaccinated Americans a choice: dutifully roll up your sleeve and accept your (one, two…or will it be three?) doses of the mRNA vaccine injection or lose your job!
The Biden-Harris administration’s authoritarian decision-making in regard to the vaccines may be part of the reason why Biden’s and Harris’ approval ratings are so low. While the mainstream media has touted that polling reflects that the majority of Americans favor vaccine mandates, the media tends to either downplay or ignore that the same polling reflects that the American public overwhelmingly rejects the notion that employees should be fired for failing to take the vaccine. [See Axios-Ipsos Coronavirus Index, ipsos.com.] Yet, termination of employment for declining to consent to an injection of the vaccine is precisely the net effect that would result from the Biden-Harris vaccine mandates if they were to be upheld by the courts.
When the President earlier this week warned at a global summit of a “backward slide” in democracy perhaps he was unconsciously referring to his own actions in announcing the vaccine mandates that he set forth in September. But then again, it is possible, if not altogether likely, that President Joe Biden and Vice President Kamala Harris really could care less in the long run if their vaccine mandates withstand constitutional scrutiny. It seems, by the dearth of a legal basis for these extreme and broad-sweeping measures, that the administration’s intent all along was to simply scare employed, unvaccinated, Americans into compliance through fear of losing their livelihoods. So, perhaps when Joe and Kamala sit around at the end of the year and celebrate what a great job they are doing, they’ll chalk this one up as a victory too.