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'Fascist' COVID vaccine mandates will boost GOP in midterms, House Freedom Caucus chair says

President Biden's mandate for 80 million private workers undermines Justice Department arguments, CDC findings.

Updated: September 10, 2021 - 10:58pm

President Biden's sweeping new COVID-19 vaccine mandates on 100 million American workers don't just violate his post-election promise not to impose such mandates or recent assurances from White House press secretary Jen Psaki and CDC director Rochelle Walensky.

They contradict the recent legal reasoning of his Justice Department and review of research by his CDC.

Coming so soon after the Supreme Court struck down the CDC's COVID-based eviction moratorium on the ground that Congress didn't authorize it, the new orders seem likely to head into a legal buzzsaw before the new year.

They are already energizing congressional Republicans. Rep. Andy Biggs of Arizona, chair of the House Freedom Caucus, said the "fascist mandates" were one of many issues that would tip the scales toward the GOP in midterm elections.

It would take an "intervening catastrophic event," in which President Biden "rises to the occasion" and unifies the country, to overcome the anchor around his neck from the mandates, a weak economy, "soaring" inflation, the botched Afghanistan withdrawal and outrage over critical race theory, Biggs told the John Solomon Reports podcast. 

While Democrats in swing districts may feel the heat from constituents and join Republicans to block Biden's mandates, Biggs doubts they can provide much help advancing a bill because Democratic leadership has intentionally excluded them.

'Ultimate work-around'

The mandates come as the feds acknowledge they are behind on studying basic COVID vaccine questions, such as their effect on menstrual cycles. The FDA says it has no data on their safety for pregnant women, who were left out of clinical trials.

The first executive order flatly requires federal workers to get vaccinated, "with exceptions only as required by law." They were already subject to termination, loss of security clearance and even imprisonment for making "a false statement" about their vaccination status under guidance released last month by the interagency Safer Federal Workforce Task Force created by Biden.

Federal workers unions were split on the mandate. The American Federation of Government Employees said it expects to "bargain over this change prior to implementation," and the Federal Law Enforcement Officers Association said it opposed "threatening people's livelihood and penalizing employees for making independent medical decisions" and would "continue to review the legal landscape" for members.

The second order requires federal contractors to follow "all guidance" from the interagency task force — the same vaccine mandate applied to federal workers. 

The president's six-point plan directs the Department of Labor's Occupational Safety and Health Administration to develop a rule requiring all employers with 100 or more employees — covering 80 million workers — to get vaccinated or "produce a negative test result on at least a weekly basis before coming to work." Employers would be fined up to $14,000 for each violation.

Employees of the U.S. Postal Service will be subject to the employer mandate rather than the federal worker mandate due to its "separate statutory scheme," an administration official told the New York Post.

Deputizing OSHA to enforce the employer mandate could prove legally problematic for the same reason the CDC's eviction moratorium was belatedly struck down by the Supreme Court.

Using his official account, White House chief of staff Ronald Klain twice retweeted an MSNBC personality who dubbed the private employer mandate "the ultimate work-around" by using emergency workplace safety rules.

According to George Washington University law professor Jonathan Turley, this is an "admission against interest" that could come back to bite the administration in court.

"The problem is that the thing being 'worked around' is the Constitution," which generally reserves public health powers for the states, he wrote. "Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional protections."

The president's chief of staff has publicly argued "OSHA could impose a federal mandate for any measure that impacts workers," Turley wrote, which "may be more of a sticker shock for some on the federal bench, including some [Supreme Court] justices."

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'Path of tyrants'

The Biden administration has also failed to maintain keep a consistent legal position on bodily autonomy.

Biden's Justice Department is emphasizing the concept of bodily autonomy in its lawsuit against the Texas fetal heartbeat law, which bans abortions after roughly six weeks of pregnancy.

Democrats are on "the path of tyrants" in their see-sawing between justifications to reach the results they want on different issues," said Biggs. "The nub of it is a woman gets to make all healthcare choices herself, but not over here" on vaccination decisions.

And Democrats' justification for vaccine mandates — to prevent transmission of the novel coronavirus — doesn't line up with the vaccines' observed effects in the real world, the Republican said.

The CDC's Walensky justified its July pivot back to indoor masking recommendations by citing "recent studies" that showed vaccinated people with breakthrough infections "have just as much viral load as the unvaccinated," NBC News reported. (One of those had failed peer review when the CDC cited it, but another that passed peer review had similar results.)

One of the most highly vaccinated countries in the world, Israel, is also experiencing another spike in infections, showing the cognitive dissonance in mandating vaccines to halt transmission. More than half of Israeli cases, and nearly 60% who are "gravely ill," involve fully vaccinated people, according to Science.

The DOJ lawsuit also challenges a purported workaround in the Texas law that Biden is using to impose his employer mandate, according to Turley, the law professor.

The department denounces Texas for incentivizing "bounty hunters" to rat out pre-viability abortion enablers with $10,000 damages awards per incident, rather than enforce the law through state actors. This is a "scheme" for Texas to "evade its obligations under the Constitution" as well as "traditional mechanisms of federal judicial review."

Attorney General Merrick Garland used the "bounty hunters" language again in a press conference calling the law's private enforcement mechanism illegitimate.

"Judging from the praise for Garland, it appears that such work arounds are noble when done for the right cause," Turley deadpanned.