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Lawyer in historic vaccine mandate challenge warns larger constitutional issues remain unresolved

Ruling "kind of misses the forest from the trees because it leaves these broader questions of federal power unresolved," Robert Henneke says.

Published: January 14, 2022 5:17pm

Updated: January 14, 2022 11:40pm

One of the lawyers in the historic U.S. Supreme Court case that blocked the Biden administration’s vaccine mandate on private business is warning it is only a preliminary victory and the larger constitutional issues about government-compelled inoculations must still be litigated.

"In some ways, yesterday was a win of a major battle, but still leaves the war to be fought," said Robert Henneke, executive director and general counsel at the Texas Public Policy Foundation, which filed one of the original challenges in Texas against the vaccine mandate that was eventually consolidated before the Supreme Court.

"While it got to the right outcome for declaring the private employer vax mandate unlawful, it kind of misses the forest for the trees because it leaves these broader questions of federal power unresolved," he told the John Solomon Reports podcast.

The nation's nine justices ruled Thursday that the Biden administration could not use the law that created the Occupational Safety and Health Agency to impose a mandate on private businesses with 100 or more employees requiring them to compel employees to get vaccinated or tested — or face termination.

"The court," said Henneke, "looked at that statute and said, 'No, that statute deals with occupational workplace safety issues. COVID-19 does not fall within that. So the statute that you're pointing to is your authority does not give you that authority. And so therefore, this mandate is illegal.'

"It's great. But it doesn't resolve the broader constitutional questions about whether the executive branch or the federal government at all has the lawful power under the Constitution to compel individuals to take on a medical treatment, have to receive a vaccine that they do not want to take. And those were the constitutional questions that we initially litigated in our lawsuits,” he added.

Henneke said the justices and lower federal courts have sent mixed messages, ruling OSHA can’t mandate vaccines in private businesses while allowing other mandates at federal, state and local levels to stand for municipal and health care workers.

“Personally and as a constitutional litigator and scholar, I believe that the very concept is unconstitutional, and it doesn't matter what branch of government or what level of government — state, local or federal — you cannot compel people to do to perform medical things on themselves without their acceptance,” he said.

“You've seen the Supreme Court not necessarily agree with that. And there's been several instances where you've had a state-level vaccine mandate, such as in Maine, New York, Indiana, and they let it stand,” he added. “So that tells me that a majority of the court is okay with a government vaccine mandate at some level. … That's concerning to me and certainly leaves these bigger issues unresolved and left for us to continue to fight.”

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