Mandate Shmandate

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by William Bernard Butler via

Well, in a 22-page decision, the Fifth Circuit Court of Appeals on Friday, November 12, 2021 stopped the Biden Administration’s Experimental Drug Therapy (“EDT”) shot mandated via presidential Executive Order (the “Biden Mandate”) and implemented via an OSHA “emergency temporary standard” (“OSHA ETS”).  

There was never any law, no duly-enacted rule, no deliberation, no due process.  President Biden scribbled the Biden Mandate on a piece of paper and the Administrative State, through OSHA, dutifully complied by unilaterally promulgating the labyrinthine OSHA ETS, threating the life, safety, and health of 2/3rds of America’s private workers–over 80 million people–without seeking anyone’s input or consent.  Thankfully, the Fifth Circuit panel has rejected the Biden Mandate and also stated that a future permanent injunction is likely.   As we observed earlier, the EO was and is DOA.  The Fifth Circuit has stated the obvious:  OSHA does not have jurisdiction over the seasonal flu.  

There is also good reason to believe that this decision will be affirmed by the SCOTUS.   The Fifth Circuit’s Order appears to signal that a very influential part of the Team Red Establishment–Team Federalist Society–is now anti-Mandate.  The evidence?  First, three Federalist Society judges, two Trump appointees and one Reagan appointee, unanimously issued the decision.  Second, selection of Court of Appeals panels is not a random process.  The Chief Judge of the Fifth Circuit, who likely had some say in the constitution of this panel, is a Federalist Society member, and also, interestingly, is a Bush appointee.  It thus appears that Team Federalist Society, a friend first and foremost to political power and a friend to liberty when it is politically useful, may have put its political finger to the wind and determined that attempting to coerce over 80 million unwilling victims into serving as lab rats in a global medical experiment is not something that would be politically prudent.  Team Federalist Society has decided not to die on the Experimental Drug Therapy shot hill.  

Smart move.  

Third and finally, the predictive “tell” is that the Fifth Circuit’s decision uses fairly strong and persuasive populist rhetoric and stakes out a States’ rights position.  There is of course no mention of the 9th or 10th Amendments, as these are anathema to Team Federalist Society.  The States’ rights part of the Order is instead framed as State “police powers,” a very Team Federalist Society term.  Nevertheless, any deference to States’ rights is unusual for Team Federalist Society and it feels very intentional.  If it is correct that Team Federalist Society is now anti-Mandate, whether for political reasons or not, this is good news for Team Liberty.   If Team Federalist Society has pivoted, it seems likely that Supreme Court Justices Kavanaugh and Barrett, Federalist Society darlings, have also received the Team Federalist Society memo from HQ in Wichita, Kansas.   Kavanaugh and Barrett are the iffiest judges from a liberty perspective, but if this is a deliberate (and smart) political play called by Team Federalist Society headquarters, it seems likely that a SCOTUS review of the Fifth Circuit decsion would be 5-4 in affirming the Fifth Circuit, with Kavanaugh and Barrett providing the swing votes.  Hurrah!! Mitch McConnell and Team Federalist Society have saved the day!  The system is stable!  Everyone please go back to the Team Red v. Team Blue narrative because this shows that Team Red really cares about you.   You get the idea.  

Although the Fifth Circuit decision is good news for Team Liberty, nothing is certain.  Team Liberty and smart employers should delight in this victory and at the same time proceed with requisite caution.  Because it seems that everyone is Washington D.C. is compromised in some way, it is certainly plausible that a Justice Kavanaugh could flip and issue a ridiculously contorted decision just like Justice Roberts did in the Obamacare health care “mandate” decision.  

Hope for the best, plan for the worst.  

The decision itself is worth reading because it very conciously taps into the populist political zeitgeist and what trial lawyers call The Reptile Mind.  It seems that its author, Judge Englehardt (Angel-heart), may be reading our mail.  

Fair use excerpt. Read the whole article here.