Biden Asks DOJ For Opinion About Federal Vaccine Mandate

"It's still a question whether the federal government can mandate the whole country."

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Today, President Biden slipped some significant news. He asked DOJ (presumably OLC) whether the federal government can impose a federal vaccine mandate.

"I asked the Justice Department to determine whether they're able to do that legally, and they can. Local communities can do that, local businesses can do that," the president said. "It's still a question whether the federal government can mandate the whole country. I don't know that."

I have four immediate reactions.

First, is there sufficient statutory authority to impose such a mandate? Of course Congress could enact a new statute. But Congress doesn't actually legislate anymore. It's more likely that the President relies on some extant authority. To impose the eviction moratorium, the CDC relied on fairly generalized statutes that concern quarantines and the like. And many courts have held this authority was inadequate. I doubt there is any statute that could justify a true, nationwide vaccine mandate. And if OLC tries to repurpose some old authority, DOJ will face a major major question problem. No mouse-hole can fit an elephantine-sized vaccine mandate.

Second, Jacobson v. Massachusetts (whatever it means) does not fully resolve the issue. That case concerned the state's general police power. The federal government lacks a generalized police power. Rather, it has enumerated powers. What enumerated power would give the executive branch the ability to forcibly jab millions of Americans with a needle–perhaps in the absence of clear statutory authority? There is caselaw about a federal draft, though that authority is closely tied to the federal war power. You know, I thought we were done arguing about mandates with California v. Texas. Alas, we are stuck in a loop.

Third, DOJ should be careful how it defines a "mandate." In Jacobson, there was no forcible mandate to be vaccinated. People could instead choose to pay a $5 fine or get jabbed. (Roughly $150 in present-day value). If the Biden OLC tries to depart from this "choice" construction, and impose a straight-up mandate–punishable by criminal sanction–they will have difficulty relying on Jacobson. I hope to say much more about Jacobson soon. My article, The Irrepressible Myth of Jacobson v. Massachusetts should hit law review submission boxes shortly. (I previewed it here).

Fourth, from a policy perspective, this idea strikes me as counter-productive. The worst way to encourage people to get a shot is to mandate it. People will resist and engage in civil disobedience. I think there is a good reason why most nations around the world have not imposed forcible mandates.

Now if OLC never publishes this opinion, we can presume the answer is "No, you cannot impose a nationwide vaccine mandate." I'm grateful Biden slipped here.

NEXT: Biden Administration Will Not Extend Eviction Moratorium Because of Justice Kavanaugh

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  1. Even if they have the power, Democrats will be seen arresting people for not getting a jab, while not arresting people for shoplifting, assault and murder.

    Bring on the mandate.

    1. My body, my choice.

      Or something like that…

      1. You will be SILENT, prole..the Government knows best!

        /s

        1. How do ‘I will do as I wish’ misfits live with stop signs, traffic lights, and center lines?

          1. I realize this goes over your head, but there’s a difference between sensible rules where rules are genuinely necessary, and arbitrary demands of the sort you favor.

            1. … which difference is not actually defined as “The things that conservatives like, versus the things that they don’t.”

          2. driving is a voluntary activity where you have the privilege to perform on state roads where as vaccines as with most medical care merely a personal choice

      2. But my business, my choice. You obey the vaccine “mandate” or get tested weekly, wear a mask at all times and distance in all activities.

    2. It’s not even that as much as the Federal Civilian Workforce is unionized and that this is a change in work rules — which must be agreed upon by the union under Federal Labor Law.

      Yes, the union may agree to this in exchange for something else, but if you’ve ever dealt with a union you will understand that you gotta pay for something like this.

      1. Ed,
        That is a feature not a bug.
        Old White Joe would like nothing better than to pay off the union.

      2. As always, Ed doesn’t know what he’s talking about.

    3. So ridiculous. Do you actually believe that? I’m sorry for the pain you must constantly feel in daily life if you do.

  2. People could instead choose to pay a $5 fine or get jabbed.

    It’s like he slept through NFIB v Sebelius. It’s a TAX. And that makes all constitutional (and filibusteral) problems go away.

    1. Even if they decided to go with time in jail, I wouldn’t put it past Roberts to construe that to be a tax in the form of your time, and constitutional because, after all, the government could have just drafted you, what’s the difference?

      1. I still say that Roberts is being extorted…

        1. If he were, he could always step down

          1. In theory he could be extorted into both doing their bidding AND staying, I suppose. Personally I think he’s just easily intimidated, and once you make one compromise, the next one comes easier.

        2. Based on telepathy?

    2. Or just withhold fed money from the states unless they jab everyone. Isn’t that how it’s done? Or is that too old fashioned?

      1. Fed money can’t be withheld from states to make them do as the fedgov wants, unless:
        1. The condition was imposed by the congress, not the president.
        2. The condition was unambiguous.
        3. The cut is small enough not to be coercive. A small cut, if enacted unambiguously by the congress, is merely persuasive; the state could afford to forgo the money and keep its policy. But a cut so large that the state can’t afford it forces the state to do as the congress wants it to, and that is unconstitutional. See South Dakota v Dole, which said a 5% cut in highway funding was OK, but a larger cut would not be.

  3. It seems there would be many categories of people and places where the Federal Government could mandate vaccination like government workers, contractors, public transportation. There could be a grant to the states who mandate vaccination. A tax credit to people who get vaccinated (or have already been).

    1. A mandate from the government as employer is probably defensible since there is no longer a draft. But it might also run into laws against coercive employment practices so the best I can give that is a maybe.

      A mandate based on public transportation use is no more defensible than a mandate on the general public.

      A grant to states to encourage vaccination – definitely constitutional. Whether the states can require (rather than merely encourage)? No so clear.

      A direct tax credit to encourage vaccination – also definitely constitutional but that’s not a mandate anymore.

      1. How about a steep increase in tax (say 500%) concomitant with a tax credit for those who have provable vaccination. Is that a tax or a mandate?

        1. According to Sibelius, that would be a mandate, and unconstitutional.

    2. At least on the federalism issue, Congress likely could mandate that people who enter private-owned stores and private-sector employees have to be vaccinated because both substantially affect interstate commerce.

      1. More business for Amazon and door dash then. I don’t even have to go to the grocery store any more, or enter stores – I can order on line and they deliver directly to my home, or to my car in the parking lot

      2. That’s probably too coercive. Since the % of the population that enter private-owned stores is ~99%, it would in essence allow the government to mandate anything.

        1. Probably? No probably about it. I notice how easy it is for commenters in this thread to come up with ways for the government to be more authoritarian. As if there’s some kind of contest for who can be the bigger Nazi.

          WTF is wrong with people?

          1. What’s wrong with the anti-vaxers?

            1. Nothing. They’re Americans, and Americans USED to be about individuality and making one’s own choices. It USED to be a free country. That should hold some weight, but too many people are utter cowards.

              1. Ah, and
                being American = being stupid

        2. That’s probably too coercive.

          I’m not familiar with any precedent that supports this conclusion, but who knows if SCOTUS will establish a new doctrine.

  4. Re: Jacobson

    I wager that he will try vaxx or taxx if the vaxx numbers don’t change. It fits with their playbook from the Obamacare “mandate/tax”. If so you’d think they will word it more carefully this time, but perhaps I am giving too much credit.

    Obviously a lot of particulars there. My guess is they will do it though, fully expecting an injunction, then fight it out in court.

  5. Hey, I know a great way to encourage people to get vaccinated: Order that all vaccinated people have to wear masks just like the unvaccinated. That will convince them that vaccination will protect them against a deadly disease! Won’t it?

    1. Attempts to persuade are nearly pointless with some people. How can you reason with superstition, bigotry, or belligerent ignorance?

      That explains much about the current state of political discourse in America. It also predicts much of America’s future, a point I celebrate.

      1. Of course if Artie knew who really didn’t want the vaccine, he’d realize his above comment is the most racist and bigoted of all.

      2. You know Art, the largest single group of unvaccinated are minorities.

        So you’re calling a group of (mostly) black Americans superstitious ignorant bigots. You good with that?

        1. If you look at states with low vaccination rates and high African-American population you will find the rates are similar. The Trumpist narrative breaks down pretty quickly.

          1. The biggest problem in this context is Republicans and conservatives.

            That is nothing new in modern America.

            1. The biggest problem in this context is minorities. The data is out there everywhere.

              The right, particularly the poor right, ain’t great either. But the biggest problem is elsewhere. The reason a lot of people think others is our shitty broken media.

              Poor Art can’t see the actual situation through his own biases.

              1. This is simply untrue.

                Look here.

                Yes,the vaccination rate among Blacks is lower than among whites, but not nearly enough to make them “the largest single group” of unvaccinated people.

                Further, in a few of the Trumpy states with high Black population – AL, MS, LA – the rates are comparable to those of whites. Even where they are not – SC and TN for example – there are many more unvaccinated whites than Blacks.

                The the largest single group of unvaccinated are whites.

                1. Well, duh. We’re still the majority of the population.

                  Doesn’t change Eric’s point, though, which is perfectly valid: Telling people they have to wear masks and all that other nonsense even if they’re vaccinated, isn’t exactly the most brilliant move if you’re trying to encourage people to get vaccinated. Why, it gives the impression that the government doesn’t actually think the vaccine works…

                2. Bernard I’m vaccinated and think people should get it and those that haven’t make me angry. Republican politicians and conservative media are being horribly irresponsible in trying to influence people away from getting vaccinated. They’re gonna get people killed.

                  But making this all a Republican thing in terms of who isn’t vaccinated like the media and Kirkland are doing is wrong. But it fits the narrative they want so they do it.

                  Everything absolute number of anything in America is going to involve more whites than blacks because the white population here is like 5x the black population. But proportionally blacks are the least vaccinated group. And among whites, it’s poor rural whites that make up the bulk of the unvaccinated. As with a lot of things, this is mostly a socioeconomic problem.

                  Kirkland’s political bullshit is just a noisy sideshow.

                3. Yes because that is the largest group period, especially if you count Hispanics (far from all) who consider themselves to be white

      3. Arthur, I explained this to you already. 🙂

        We clingers read documents. Even documents like those that outline the non-peer reviewed stud(ies) wrt delta variant transmission among the vaccinated that the CDC relies upon to enact their latest policy change. We think about those documents, and its implications. That makes Clingers experts.

        I think you would agree that enacting a policy change like mandating vaccination ought to rely on unimpeachable, objective data that can be reproduced. Do we have that? I don’t think so. Maybe the answer here is to get the data, then have the discussion.

    2. Fifty and more years of attempting to convince people to use condoms and other birth control hasn’t worked…

      But a facemask? SURE!!!

    3. The basic science of the masks is this. They prevent transmission. They don’t (really) offer protection. Since the vaccinated can still be infected (and perhaps transmit) the disease, then having them prevent transmission makes sense.

      1. No, the virus is transmitted in vapor. Your breath is a vapor. A cloth mask will certainly not stop the virus, it will pass right through just like your breath does. Viruii are very small. 50 of them would fit side by side across the width of a single droplet of water vapor too small for you to see with the naked eye.

        1. Wearing a mask is like putting up a chain link fence to stop mosquitos.

        2. That’s why masks tend to protect the people around the wearer rather than the wearer themselves.

          Nobody claims(or should be claiming) that masks “stop” transmission. They reduce transmission, in that sone number of virus particles will get caught in the mask of the transmitter. The numbers I’ve seen suggest 70% but whatever. They do reduce it.

          The question that I haven’t seen satisfactorily answered is how much are vaccinated people transmitting.

      2. “They prevent transmission. They don’t (really) offer protection. ”
        That is exactly the point. No credible epidemiologist says anything different

        1. masks dont prevent transmission.

  6. If the Democrats hadn’t politicized the vaccine (for example by Kamala Harris saying she would never trust a vaccine developed under Trump) there wouldn’t be this insane mess.

    1. You underestimate anti-vaxxers, who existed since before Wakefield (may he rot in hell) lied and falsified data.

      1. Where did all the pre-Covid anti-vaxxers disappear to? Hollywood was just full of them.

    2. I’m not following your theory here. Are you suggesting that the people who are declining the vaccine are inclined to listen to Kamala Harris on this sort of issue?

      1. That’s because it’s utter idiocy.

        1. If you want to persuade idiots, is idiocy necessarily a poor choice?

        2. In regards to the vaccine…

          Kamala Harris: “But if Donald Trump tells us that we should take it. I’m not taking it”

          What should people think about that?

          1. That the Democratic primary voters were right to reject her for the nomination, and what the HELL was Biden thinking, picking her for VP? Life insurance?

          2. That you dishonestly quote partial statements? Here’s what she actually said:

            “If the public health professionals, if Dr. Fauci, if the doctors tell us that we should take it, I’ll be the first in line to take it. Absolutely. But if Donald Trump tells us that we should take it, I’m not taking it.”

            And more importantly, that your arguments are fundamentally dishonest? MAGA idiots are not objecting to vaccinations on the grounds that Kamala Harris expressed skepticism about them. Greg Abbott and Ron DeSantis are not deliberately killing people because Harris said that she wouldn’t trust a hypothetical vaccine that Donald Trump rushed through as an October Surprise.

      2. Alternatively, they listen to the President, and infer that it’s another case of the Tuskegee Airmen.

    3. Kamala Harris saying she would never trust a vaccine developed under Trump.

      She didn’t say that. She said she would not take it based solely on Trump’s words.

      1. “I will say that I would not trust Donald Trump,” Harris said, “and it would have to be a credible source of information that talks about the efficacy and the reliability of whatever he’s talking about. I will not take his word for it.”

        Cuomo went further, suggesting he mistrusted not just President Donald Trump, but also the Food and Drug Administration under Trump. Asked about his confidence in the FDA, Cuomo indicated he didn’t have much.
        “I’m not that confident,” Cuomo said, adding: “You’re going to say to the American people now, ‘Here’s a vaccine, it was new, it was done quickly, but trust this federal administration and their health administration that it’s safe? And we’re not 100 percent sure of the consequences.’ I think it’s going to be a very skeptical American public about taking the vaccine, and they should be.”

        1. That quote confirms how I characterized what Harris said.

          Cuomo cast doubt on the credibility of the FDA and CDC under Trump but said he would endorse a vaccine that was backed by independent scientists the state sought advice from.

          1. Here’s the problem Josh.

            Once you convince people to deny the vaccine because of “who is supporting it,” you make it a partisan issue.

            Many people can’t independently verify the medical knowledge about the vaccine efficacy. They need to rely on someone else to do so. And you need to ask who they trust. And who they don’t trust.

            On one side of this is something that is universally supported by everyone. Then everyone trusts it. On the other side is a partisan issue that “one side supports”. And when Kamala Harris says she won’t get the vaccine if it’s a Trump vaccine….then why should Trump supporters get the vaccine on a Harris/Biden say so?

            Harris’s (and Cuomo’s) remarks were some of the dumbest things ever said, from a public health perspective.

            1. Kamala Harris says she won’t get the vaccine if it’s a Trump vaccine.

              Once again, Harris did not say that. She said she would not take Trump’s word about the vaccine presumably because she felt that his words were too likely to be driven by partisan considerations. By relying on the CDC, she is taking partisanship out of the equation. The same applies to not trusting the words of Biden or Harris.

              Cuomo’s remarks were troublesome because he targeted the FDA and CDC.

        2. “I will say that I would not trust Donald Trump,” Harris said, “and it would have to be a credible source of information that talks about the efficacy and the reliability of whatever he’s talking about. I will not take his word for it.”

          IOW, Harris was saying what any sensible person would.

          What’s your opinion of Trump’s medical advice?

          1. So, why should the Trump supporter get the vaccine on the Biden/Harris say so?

            Why should they “Trust” Biden/Harris, or their supporters anymore than the visa versa?

            1. So, why should the Trump supporter get the vaccine on the Biden/Harris say so?

              They shouldn’t. They should get it on the say so of actual medical experts.

    4. C’mon man. The Republicans are politicizing the vaccine every bit as much as the Democrats.

      They’re all a bunch of callous fools who should be shown the door with a boot on their ass, but that can’t happen because of people like you who are too devoted to their own team.

      1. Examples?

        1. Are you fuckin’ serious? Abbott and Desantis acting to not allow cruise ships to keep unvaccinated people off their boats? The legislature of Arkansas making it illegal to require health care workers to be vaccinated? Even my Texas hasn’t gone that far.

          MGT and Carlson spreading made up horse shit about how many thousands of people have died from the vaccine?

          Our political system has embarrassed itself since day one in this virus, and the Republicans have been every bit as spectacularly awful as the Democrats.

      2. Absolutely. In fact one can blame the Orange Clown for politicizing the pandemic in the first place

  7. We are well past the point in history where the Federal government does not have generalized police powers. Most of them (drug, gun) laws have been authorized under some version of the commerce clause. Good luck getting 5 conservatives to suddenly decide drug and gun laws** are invalid because the federal govt does not have police power.

    ** Esp the NFA. The NFA is not even remotely a “tax,” it is an excercise of the Federal govt police power in the guise of a stamp tax. Good luck getting 5 conservatives to invalidate the NFA or GCA.

    1. I have made a few thousand dollars in ‘tax’ payments under provisions of the NFA…

      I’d be happy getting my money back

  8. Nothing in this would “forcibly jab millions of Americans with a needle”. The policy is simply that for all federal workers you either get the vaccine, or you have mask, testing, and distancing requirements. This is a quite reasonable response to the delta variant.

    1. And for the non-federal workers, Biden is asking for a legal opinion.

      1. Molly,
        I see how the gov’t mandates vaccines or reduced job privileges on its employees. I don’t see how the government mandates that employers mandate their employees. I agree that employers can so this of their own volition. There is a difference.
        And I don’t see the rational for ignoring 35,000,000 living American who have had COVID-19 and have substantial immunity. That stance is as anti-science as one can get.

        1. From a federalism perspective, I don’t see a distinction between requiring employers to insure employees wear safety equipment versus requiring them to be vaccinated.

          1. At least in theory, one difference is that employers could pressure employees to skip on safety precautions to save the employer time or other resources. It is easier to document and punish people not using/wearing safety equipment than employers giving that kind of direction.

            There is no similar motivation for employers to tell employees not to get vaccinated — in fact, employers have a motivation to compel vaccination if they can.

            1. I don’t think your distinction affects the constitutional analysis of a federal mandate.

              1. OSHA draws on Commerce Clause authority. Saying that the Commerce Clause allows vaccine meta-mandates because vaccination status affects commerce would prove too much.

                  1. Because everything any employee does could be viewed as similarly having an effect on commerce. There’s no bounding principle; it effectively gives the federal government the general police power.

                    1. Firstly, I don’t think requiring employees to clap their hands three times before entering the workplace is rationally related to a legitimate government interest. So, there are bounds.

                      Secondly, precedent supports a very broad Commerce Clause power (through the Necessary and Proper Clause) when people are engaging in economic activity. Of course you don’t like that, but it would require a new doctrine from SCOTUS to achieve a different result.

          2. My body, my choice?

            1. I don’t think that argument is relevant to federalism (it applies equally to state mandates). On the merits of it, I seriously doubt the courts will find such a right when public health officials state harm is being done to other persons by your choice not to vaccinate.

              1. Especially since Jacobson clearly says otherwise, contrary to Blackman’s disingenuous attempts to distinguish.

        2. The notion that if you already have had covid and thus don’t need the vaccine is a lie that Trump death cultists use as a flimsy excuse not to get vaccinated.

          1. Molly,
            Medically you are just plain wrong. This has nothing to do with politics or with the orange clown.
            Have read of “the Science Immunology paper,
            “Distinct antibody and memory B cell responses in SARS-CoV-2 naïve and recovered individuals following mRNA vaccination”
            R. R. Goel et al., Sci. Immunol.
            10.1126/sciimmunol.abi6950 (2021).
            Figure 5 sums it all up.

          2. Name me another single virus that recovery from does not confer immunity. Extraordinary claims require extraordinary proof.

    2. I think that was a reference to a potential nationwide “vaxx or taxx” rule in the absence of any legislation. $150 isn’t much but it’s still something.

      If that does happen it would be a good opportunity for the courts to examine Jacobson and see how far it can be applied. Certainly there are limits to Jacobson, but I don’t think we know what they are yet.

      1. My body, my choice.

        Or something like that…

        1. It does seem probable that some invoked right of bodily autonomy could factor into this, if it ever gets that far.

          I am watching the public university/college ones closely, curious to see how they develop.

          1. There is no right to bodily autonomy that the courts recognize, unrelated to abortion, so far as I know.

            1. Indeed. I think if it comes to that, it will depend which judges find the common law arguments from Griswold Roe etc persuasive.

        2. I am disinclined to endorse mandatory vaccination.

          I believe the consequences for those who decline vaccination would a damned good (reason-based, documented) reason should include lack of access and opportunity, testing requirements, notice requirements, and other measures designed to avoid unnecessary risk to public health.

          Play stupid games, win stupid prizes.

          1. The racist and fascist Artie continue his bigoted diatribe.

            1. Put Artie on mute and pay no attention to him

              1. I did it a few weeks ago, and I’m better for it.

            2. Your comments are music to his one noted ears. Trolls thrive on attention and comments. Put him on ignore and he will perhaps wither and go away. But if he is on mute and people don’t comment on him, who will notice anyway? On mute he is identical to Behar to me…

          2. When the concept of “mandatory vaccinations” comes up it is always “if you don’t get it then there are consequences”. Never forced vaccinations.
            But the R death cult can not handle any consequence for their insistence that covid spread far and wide.

            1. Escalating consequences ARE force, aren’t they? I suppose they’ll likely stop short of simply having the National Guard hold you down while you’re injected, and settle for ‘merely’ lowering your social credit score to the point where you have to live in the wilderness off roots and berries.

              1. Not at all “Get vaccinated or face mask requirements, frequent testing and possibly inability to go to crowded areas” is not forcing someone to do it.

                1. Really depends on whether they stop there.

                2. Molly,
                  I don’t see the rational for ignoring 35,000,000 living Americans who have had COVID-19, recovered and have substantial immunity of the same order as the vaccinated, maybe a bit less or maybe a bit more. Your stance and that of Mr Biden is as anti-science as one can get.

                  1. Because it has not been shown, and evidence is leading to the contrary, that “natural immunity” is as good as the vaccine. It will also wear off much quicker.

                    1. It’s not so simple.

                      Vaccine-induced immunity does seem to target more parts of the spike protein, giving better immunity to variants. And vaccines seem to produce more antibodies than natural infection.

                      However, natural immunity can target other parts of the virus — parts that are never generated with the mRNA vaccines. (For example, the CDC now looks for nucleocapsid antibodies to estimate infection numbers in the general public. Except for Puerto Rico, where the CDC only looks at spike antibodies.) And natural immunity currently looks to be lasting longer than vaccine-induced immunity, which from the latest Pfizer numbers drops about 6% every two months in terms of effectiveness against any COVID infection.

                    2. Molly,
                      If anything the opposite may be true. I’d also note that EU countries are considered recovery as equivalent to vaccination for the purpose of issuing covid passports

                3. Molly,
                  “and evidence is leading to the contrary”
                  I doubt that although I have not done a deep literature search on that specific. I think that Michael P has explained the reason quite nicely.
                  Also have a look at the Nature paper that Brett cited.

                  1. The claim never made a lot of sense. Sometimes vaccines are a bit superior to natural immunity, sometimes a bit inferior, but they’re generally in the same ballpark, because the vaccine is actually relying on the same immune system.

                    Vaccines are basically just a way of making your body think it’s infected, and have an immune response.

                    Now, I suppose they prefer vaccination to natural immunity for bureaucratic reasons: They vaccination records are nicely organized and centralized, while the test results are all over the place.

                    There’s also an unfortunate component of “Submit, damn you!” involved, though. Their authority is being challenged, and they don’t want to back down.

            2. When the concept of “mandatory vaccinations” comes up it is always “if you don’t get it then there are consequences”. Never forced vaccinations.

              What distinction are you drawing here? You mean that Merrick Garland won’t personally hold you in a headlock while Dr. Fauci injects you? If that’s what you mean by “forced vaccinations,” no, nobody is proposing that.

              But I’d say, “Get vaccinated or go to jail” would be reasonably described as “forced vaccination.”

              1. Reasonably described yes. But strictly it’s “coerced vaccination.” Sometimes “force” means {physical force plus coercion} sometimes it means {physical force} as distinguished from {coercion}.

    3. For it to be reasonable, it would need a credible scientific basis. Right now, infection numbers from delta seem to be running neck at neck in Israel between vaccinated and unvaccinated …

      1. But since there are many more vaccinated Israelis than not, equality of infections between vaccinated and non vaccinated implies a substantial advantage to vaccination.

        1. It’s not equality of infections … it’s proportional to vaccination rate.
          See also https://www.washingtonpost.com/health/2021/07/29/cdc-mask-guidance/

    4. The policy is simply that for all federal workers you either get the vaccine, or you have mask, testing, and distancing requirements.

      Or what ?

      PS I know some people who would love to know how to fire a federal worker, or even to reduce their pay. Inventing mandates that they must follow sounds like a winner, if you can fire the ones who refuse.

      1. “Or what ?”
        Or you are not allowed on site. If you job duties require physical presence then you are fired for insubordination.

        1. Can you really fire a federal worker that easily ? Good to know.

  9. An adult thing to do. What a relief.

    1. In the proggie universe, adult means obeying without question.

      1. Whimper about it all you like, but you —with every other clinger — will continue to comply with the preferences of better Americans.

  10. Come on, is there any doubt the DOJ will soon be known as the Department of Jab?

  11. If the Biden OLC tries to depart from this “choice” construction, and impose a straight-up mandate–punishable by criminal sanction–they will have difficulty relying on Jacobson.

    I thought the (highly dubious) distinction you were trying to draw was between simply punishing the non-compliant (as was the policy at issue in Jacobson) versus trying to actually force them to receive a vaccine. In what conceivable way does Jacobson suggest that criminal sanctions in lieu of a civil fine would be impermissible?

    1. If saying Jacobson doesn’t apply here, wouldn’t that mean no one, not congress or state and local governments, can impose a vaccine requirement?

      I’m somewhat confused by that as well.

      If Biden went on the air one morning and said there is a vaccine mandate now, I would assume the lawsuits would mention the obvious separation of powers argument and I fail to see how Jacobson overcomes those, jot because of the weird argument Blackman is making but because its just not related.

      1. You’d think there would have to be an act of Congress for a nationwide tax/mandate right? I suppose he could try without. But that route seems doomed to fail.

    2. In what conceivable way does Jacobson suggest that criminal sanctions in lieu of a civil fine would be impermissible?

      None whatsoever.

  12. I’m grateful Biden slipped here.

    Ah. Good old objective Josh here. I guess it never occurred to him that Biden actually wants a legal opinion on the matter.

    Here’s another guardrail: Consider that your opponent might be acting in good faith.

    1. Forget it, bernard11. It’s South Texas.

    2. Good faith? Inconceivable!

      1. I don’t believe it of JB whether that stands for Blackman or Old White Joe

  13. As someone who wishes more employers would impose mandates: No, they can’t. Moving on.

    Even if they get past the limits on Aritcle 1, which I can see valid debate for (based on the Obamacare case), what is not debatable is that there no statutory authority to do this other than a single line in the CDC statute which is not nearly specific enough for this to be valid. Also significant non-delegation concerns, APA concerns, etc …

    Even for federal workers, aren’t there a ton of protections on them? Now, Biden could say, screw it, tear up the civil service, and none of those protections apply, unitary executive all the way, but I highly doubt he wants to do that, as his own party has spent the past decade imo compellingly arguing against that theory and why its a really bad idea.

    1. AC,
      Private employer who are not government contractors are allowed to set the conditions of employment UNLESS there employees work under a labor contract. Then negotiation with the union is in order.
      Otherwise employers issue work rules that allow the employee vaccination or restricted action plus testing (probably weekly).
      If the employee does not comply, s/he is issued a warning about insubordination and ordered to make one of the allowed choices.
      Next instance of insubordination may lead to dismissal.

      If the employer is a government contractor under a prime contract, then the government will set the rules.

  14. I do think a national mandate would be constitutional or wise. I suspect that local mandates could be legal based on local ground conditions.

    What I wonder is how the United States look to the rest of the world. We have access to several good vaccines and yet we have people refusing to make use of the only really effective way to address the COVID19 pandemic. Democracy means freedom but if one use of that freedom is stupid are we really advancing our ideas in the world. Wonder why people choose authoritarian and socialist system? Maybe because when people get the freedom to chose they seem to use it so poorly.

    1. No. Because they want to take other people’s stuff and tell them what to do.

    2. ” Wonder why people choose authoritarian and socialist system? ”

      Because you’re promised stuff in return, and once you check in, you can’t check out. The authoritarian systems don’t allow you to change your mind about having an authoritarian system, so by the time you realize it was a mistake, it’s too late.

      And the socialist systems, which are all authoritarian systems anyway, systematically displace and destroy social institutions, because they represent alternate power centers. Once those institutions are destroyed, you’re stuck with the state performing the tasks they used to perform, and soon enough all the idiots are dismissing the idea that those things could be done privately as madness.

      It’s like those parasites that eat a fish’s tongue, and then take its place. Government eats and replaces vital social institutions.

      I think we’re well down the way to finding that out ourselves. We let our government get too powerful, and it is now in the final stages of making that decision irreversible. A decade from now, we’ll look back, and either think, “Whew, we really dodged a bullet back then.”, or “Yeah, that was when we finally lost our liberties.”

  15. Face masks are considered to be medical devices that happen to lower O2 and increase CO2 and bacterial/ viral load for wearers.

    “Covid” detection nasal swabs are invasive tests that often puncture the brain-blood barrier, causing discomfort and sometimes medical problems. They are currently regarded as wildly inaccurate Covid infection indicators, (the CDC is stopping their use end of year bc they can’t distinguish between Covid and flus.) The PCR test inventor, Kary Mullis, emphatically said on record that the method was never intended for, nor capable of. testing for live infection of any sort.

    The experimental shots being given as “vaxxes” are not effective in their stated purposes. They will require multiple boosters, as we are currently being told, and are fraught with health risks, to include life-altering illnesses and death, which most often are either under-reported to outright unreported on the VAERS registry, according to even mainstream sources.

    It used to be inconceivable to many of us, left, right and center, that US/State/ and local government would become so totalitarian as to consider violating and compromising its peaceable citizens’ persons, immune systems, and very DNA via technocratic diktat and legal/ social/ and employment coercion.

    But here we are. seeking DOJ rubberstamps for invasive and unbounded dictatorial powers against our persons. Are we all in the Army now?

    1. Are you equally outraged by longstanding vaccination requirements for children?

      Do you expect the American mainstream to care about your opinion?

      1. Gee, do you care about me caring what you think and how you denigrate those who see things differently than you?
        Let me put it this way: you flatter with such attempts when it’s so unnecessary, but it’s mystifying, really.

        Of course, your disingenuousness knows no bounds when you equate the emergency Covid experimental RNA manipulating shots with “approved” and more conventional vaccines of times past. But, it’s certainly amusing to see you imply you want the approval of the “American mainstream” to make your case and feel good about yourself.

        Perhaps I’m more of an indie than you. Group think, peer pressure, propaganda, faux facts and polls, and coercion don’t work on me, and even you, I suspect, but you sure like manipulating others using these tired, dishonest techniques. You must be an Indie, too, but one who wants to control the pack.

        A leader of lemmings has a certain ring to it.

    2. “Face masks are considered to be medical devices that happen to lower O2 and increase CO2 and bacterial/ viral load for wearers.”

      Shockingly, none of these statements are true. It’s almost as though you have no fucking idea what you’re talking about.

      ““Covid” detection nasal swabs are invasive tests that often puncture the brain-blood barrier, causing discomfort and sometimes medical problems. They are currently regarded as wildly inaccurate Covid infection indicators, (the CDC is stopping their use end of year bc they can’t distinguish between Covid and flus.)”

      More bullshit.

      “The experimental shots being given as “vaxxes” are not effective in their stated purposes.”

      It’s almost as though you’re deliberately attempting to be as completely wrong as possible. Job well-done I’d say!

      Stupid is as stupid does. To mute you go!

      1. It’s a little embarrassing to read your idea of a rebuttal, Jason Cavanaugh.

        Regards.

        1. Miss G.
          Of course Jason’s rebuttals are pathetic. What could you expect from an arrogant twit.
          However, your posts are loaded with gross misinformation.
          Just to quotes some lines
          “experimental RNA manipulating shots ”
          ““Covid” detection nasal swabs are invasive tests that often puncture the brain-blood barrier”
          “experimental shots being given as “vaxxes” are not effective in their stated purposes”
          “are fraught with health risks, to include life-altering illnesses and death”
          Have what ever politics you want, but for goodness sake, start studying bona fide medical papers in the highest quality medical journals. Which are they journals in the Science and Nature family, the New England Journal of Medicine and any others with an impact factor greater than 5.
          Skip what you might see in political publications or in newspapers or social media.

      2. “Face masks are considered to be medical devices that happen to lower O2 and increase CO2 and bacterial/ viral load for wearers.”

        The decrease in O2 and increase in CO2 with masking is simple to test. Put on your mask, and run down the block, and see if you feel more faint than without the mask. The fact that kids are now passing out after running, and maskless, and before they didn’t, is strong indicia that this is accurate. Most of us can tell with our own bodies, that this is true. Maybe not though if wearing a bandana or neck gator, instead of a mask, but the only reason that I can see for them being considered adequate substitutes for masks, is because that is what AntiFA prefer to wear.

        1. People actually wear masks while exercising to simulate doing the exercise at higher altitude, to build extra stamina when competing without the mask. It’s the poor man’s hypobaric chamber.

        2. Or you could scientifically measure the impact of a mask on blood O2 levels by measuring it properly with a pulse-oximeter.

          You might not like the answer though.

          1. Problem is finding that study could be hard. I regularly look up scientific papers in Google Scholar and what I have noticed is that the que is filled with junk papers warning about masks. What I want is a peer reviewed journal article.

            1. Here you go in one of the highest impact factor jornals:
              “Face masks effectively limit the probability of SARS-CoV-2 transmission,” Y. Cheng et al., Science
              10.1126/science.abg6296 (2021).

              1. Thanks for the suggestion. This paper supports the use of mask and there are many other papers of support. The question in the comment was what affect do mask really have on breathing and it is not addressed in the paper your suggested. It seem obvious that they do constitute an obstruction in the air pathway but whether that is significant is unknown to me. I would suspect that they require deeper and more frequent breaths to compensate and could be compared to breathing at a higher elevation than normal. I would love to see a real paper on the subject but the Google Scholar que is so filled with junk papers that it difficult to find good peer reviewed papers.

        3. I am 65 years old, vaccinated and I still wear a face mask to the gym. I wear a M95 comparable mask so it fits tight and has a tight weave. I have never felt faint or anything else when exercising which include time on a tread mill or bike. So the suggestion that it is significantly affecting my oxygenation is simply wrong.

        4. What’s hilarious is that these antiscientific loons argue both that masks are too porous to stop viruses but somehow impermeable enough to prevent air molecules (oxygen, carbon dioxide) from moving through them.

          1. David,
            A good friend used to tell me, “ignorance is always pregnant.”

  16. “People will resist and engage in civil disobedience.”

    Not to mention states resisting.
    Not to mention some uncivil disobedience.
    You know, mostly peaceful protests.

    1. “mostly peaceful protests.”
      what do you mean?
      they will be insurrections by terrorists

  17. The DOJ? Perhaps Joe should consult the Constitution.

  18. I thought the commerce clause holding in Sibelius was ridiculous, but under that decision, no, the federal government cannot constitutionally impose a mandate. And that’s good law.

    State governments, however, can. The dumb conservative attempts to limit Jacobson v. Mass are really tiring. Sorry, if the state decides a pharmaceutical treatment is necessary to protect public health, there is not a word in the Constitution that precludes them from jabbing that needle right into your arm.

    1. Congress cannot mandate where there isn’t already commercial activity. But, that doesn’t strike me as a limitation if the mandate only applies to people who enter places of business or employees of businesses.

    2. In Jacobson V. Mass, you could choose not to get vaccinated. You just had to pay a fine. So no, states can’t impose a mandate.

      1. Again, that’s an artificial limit on the case holding. Jacobson was in no way BASED on that choice. States can absolutely mandate everyone (or maybe, with the current Court, everyone but the very religious) take a vaccine.

  19. Folks, in the end, the vaccine mandate is coming as is another mask mandate.
    Don’t hold your breath waiting for an nationwide injunction to hold it back.
    Old White Joe and the DOJ will find ways to drive it forward at least by requiring it of all gov’t employees and employees of US Gov’t contractors.
    And those like myself who got vaccines early will be lining up for booster shots 3 months from now. That is going to be life for the next year at least.
    If you need to whine, dig a hole in your backyard and scream into it.

    1. But how are they going to impose those mandates on Florida or Texas, whose governors seem to be competing for national attention as standing up to Biden Administration overreach the best? Or here in MT, where a Republican replaced a Democrat as Governor at least partially through the embarrassment of having had more draconian masking requirements than the surrounding states (despite having the third least dense population in the country)?

      My point is that it is highly likely, I think, that better than half the states, this time around, are going to just thumb their noses at the Biden Administration, with any renewed masking mandate or one for mandatory vaccinations, at least absent a significant financial penalty, and a number of these states would ignore federal penalties, at this point.

      I probably don’t need to point out that the half the country that believes that the Democrats actively stole the last election predominate in the Red states most likely to resist these mandates. And know that Biden, himself lacks the cognitive abilities to understand these mandates, but have no idea who, hovering around him, actually is making these decisions. Is this a payoff to the teachers’ unions, who prefer getting paid, without having to deal with unruly students in their classrooms? Since parts of the proposed mandates are scientifically nonsensical, it’s as good a theory as any.

      1. the half the country that believes that the Democrats actively stole the last election predominate in the Red states most likely to resist these mandates.

        So you’re saying that half the country, mostly in the red states, is utterly bonkers?

        1. Bernie,

          It doesn’t matter if you think they’re bonkers. They think you’re a commie. What DOES matter is that there WILL be resistance, and this time it’ll be on a scale that’s much greater than the last time around. Ignore that and be arrogant about it at your own peril.

      2. They will impose mandates on federal workers and on employees of federal contractors. The governors of TX and FL have no say in the matter.
        Other large employers will follow suit.
        The governors will sue. They will be declare NOT to have standing. Case dismissed

      3. “the half the country that believes ”
        more horse hockey. what you mean is that 30% of the country is suffering from a form of mental illness

      4. But even in the red states there will be rebellion. You will likely see local leaders consider mast mandates even if the governors won’t. Businesses realize that vaccination are best chance to avoid closures and will be mandating employee vaccinations. Already local businesses in my city are asking people to return to masking.

        It is far less than half the country. Over 50% are vaccinated and many of the unvaccinated are children. When vaccination are approve for under 12 a lot more people will be getting vaccinated.

    2. It’s bad policy…

      “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

      1. Bad, schmad.
        It will the the mandate to all Federal agencies.
        And when any law suit is dismissed. It will get trotted out as an overall mandate.
        Live with it.

  20. This is the OLC opinion he is talking about. It was released on Monday.

    https://www.justice.gov/olc/file/1415446/download

    1. Extraordinarily weak. They spend 18 pages talking around why the three EUAs require informed voluntary consent, but that doesn’t really mean that the government can’t force you to accept being vaccinated. My personal view is that that opinion by White House lawyers was some of the worst lawyerly gobbly gook I have seen in over 30 years of lawyering.

      In the end, I suspect that relying on the last hat provides for EUAs for experimental therapies, to support mandatory faxing, is fraught with danger for the Biden Administration. Beyond their word games trying to show how informed voluntary consent doesn’t really require personal consent, they are likely to open up review of how the use of EUAs may have been abused. The facilities for reporting side effects seems to have become a black hole over the last several months, as the percentage of the population vaccinated has increased so greatly. That goes to the informed aspect of the required consent. Can they show that their reporting of side effects is accurate? Then there is the problem that lower and lower ages are being pushed into the EUAs, without, of course, necessary testing of those age groups (along with some evidence that age may be inversely correlated to side effects), along with overwhelming evidence that COVID-19 offers negligible risk for those under 10. EUAs require stratification of risk, and that appears missing.

      I should note that I was vaccinated the first days (2/15 and 3/15) that it was available to me in AZ. I did it voluntarily, and would make the same choice if I had to do it all over again. But that is because of my age and comorbidities, and people I hoped to protect (including a friend who turns 100 in a couple months). The people I worry about are my kids and grandkids, at the opposite end of the risk/reward spectrum.

      1. Bruce,
        It does not matter how weak you or others may find it, it will happen. and suits will get thrown out for lack of standing.

        1. A law or regulation requiring me to be vaccinated absolutely confers standing on me to challenge it.

          1. David,
            I that really true if you employer gives you an option not to get vaccinated?
            Also.
            If you are an at will employee, your vaccination status is not a protected characteristic if you are fired for insubordination.

            1. That speaks to the merits of my claim, but not to whether I have standing. I have standing; I just lose.

              1. Makes sense. Of course. Then the result will depend on employers being very vigilant to treat all cases the same and keeping excellent records (which they should do any way). My guess is that with good documentation dismissal for insubordination will be tough to beat.

                Moreover, the warning letter is important. It specifies what the employee must do to avoid further consequences and gives the timeline for reassessment. The letter needs to specify that failure to correct the behavioral deficiency will result in further penalties that could include dismissal.

  21. If it is unconstitutional to forcibly medicate or treat (think mental health or substance abuse) an inmate or prisoner, then how is it constitutional to force medication or treatment on a “free” person. Shouldn’t the rights of a free citizen be just as great as a prisoner’s rights?

    1. Also, what about chemical castration of sex offenders? Would that suddenly become constitutional?

      1. No cases on the docket, so you’ll never know.

    2. Workers will always have the right of refusal and choose to be subject to weekly testing, masking, extreme limitations on their job activities. As they say “Your body, your choice.”

  22. Given the vaccine hesitancy among minorities(one of the most hesitant groups when you factor in population percentages are African Americans) it will be interesting to see how minority federal workers will react.

    I suspect any minority federal worker that gets angry over this will not be shamed by the media the same way they would if they were a white conservative. And if they get invited onto CNN or MSNBC to discuss it they will be treated with respect instead of with disdain. They definitely won’t be called stupid.

    1. ” interesting to see how minority federal workers will react.”
      They will fall into line just like everyone else

      1. One day The Regime decided that a virus is more important than the bill of rights. And everyone just acquiesced.

        1. No one is taking any rights away.
          You can get tested every week, wear a mask every minute at work or get fired and get sick with a serious case of COVID-19.
          Your rights, your choice

  23. “ You know, I thought we were done arguing about ________ with ________ v. ________. Alas, we are stuck in a loop.”

    BWAHAHAHA! It’s like you forgot you’re a lawyer.

  24. Would it be constitutional to force HIV positive individuals to undergo forced treatment? Forced isolation? Denial of services if that person refuses treatment?

  25. No cases on the docket, so you’ll never know.

  26. No it isn’t a question you senile old fool.

    1. Speak for and to yourself.

  27. Setting the bad lawyering above aside, this is particularly wrong:

    Fourth, from a policy perspective, this idea strikes me as counter-productive. The worst way to encourage people to get a shot is to mandate it.

    No, the worst way is to say, “Do it if you feel like it.” We’ve tried that, and half the country has decided they don’t feel like it. (Well, 1/3, I guess; the younger ones aren’t eligible.) Mandate it, and those people will comply because it will no longer be a choice for them of whether to listen to some dumbass on YouTube or scientists.

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