A Victory Against Tyranny

November 23, 2021 Updated: November 25, 2021


On Nov. 17, the federal Occupational Safety and Health Administration (OSHA), complying with a federal court order, suspended enforcement of its COVID-19 mandate that would have forced about 31 million unvaccinated Americans working for private businesses essentially to choose between getting themselves vaccinated against the virus or jeopardizing their jobs.

The order, issued by the 5th U.S. Circuit Court of Appeals decision on Nov. 12, was a constitutional victory against using the power of the federal government to dictate people’s individual health decisions. But it also was something more: a moral victory against the Biden administration’s unrelenting campaign, fully supported by the mainstream media, to punish people for dissenting from the administration’s particular medical stance on COVID.

It was, in short, a victory against tyranny. I write this is as someone who promptly got vaccinated as soon as the vaccines became widely available and would urge others to do so as well. But there are people who object, whether for religious reasons (there’s no specific religious exemption in the OSHA mandate), or because they have already had COVID-19 and are naturally immune, or because they don’t want to be experimented on with vaccines hastily rushed to approval. The last category may account for the outsize proportion of blacks resisting vaccination; they have long memories of the Tuskegee syphilis experiments. Many of these people are health workers and first responders who put their lives on the line during the first, highly ravaging months of COVID-19 in early 2020. They deserve respect for their personal decisions.

But the Biden administration’s response has been “Let’s show ’em who’s boss.” The text of Biden’s Sept. 9 speech announcing his intention to crack down on vax-refusers reads like a despot’s edict: “We’ve been patient, but our patience is wearing thin.”

He sounded like the King in “The Wizard of Id” comic strip. Since there’s no constitutional or statutory cover for the federal government to order individuals directly to get the shots, he ordered OSHA, whose domain is workplace safety, essentially to manufacture one. On Nov. 4, OSHA duly issued an “emergency” mandate (pdf) telling all private businesses with more than 100 employees to require their workers either to be vaccinated or to undergo weekly COVID-19 tests, often at their own expense, and to wear masks throughout the workday—or get fired. The masking requirement alone would stigmatize vax-noncompliers as pariahs to be shunned.

Fines for noncompliance could total nearly $14,000 per incident, including failure to keep vaccination records, with up to 10 times the penalty for “willful” flouting of the mandate. Employers would have two months, until Jan. 4, 2022, to set up vax-or-test protocols.

Two days later, on Nov. 6, the 5th Circuit, in a lawsuit filed by five states along with companies, individuals, and religious groups, issued a temporary stay on enforcing the mandate. The White House breezily announced that it had no intention of complying with the order.

“If OSHA can tell people to wear a hard hat on the job, to be careful around chemicals, it can put in place these simple measures to keep our workers safe,” Biden’s chief of staff, Ron Klain, declared.

White House deputy press secretary Karine Jean-Pierre advised employers to go ahead with requiring their employers to get vaccinated or tested regardless of what the court said.

The mainstream media reveled in the administration’s defiance. Vox dubbed the three 5th Circuit judges “right-wing” and said the stay was “premature, improper, and appears to be motivated by partisanship.” “How about saving lives?” asked Washington Post columnist Ruth Marcus.

Some commentators, such as The Atlantic’s David Frum, urged the federal government to get even more punitive in its stance against the unvaccinated: Why not bar them from flying or taking trains and buses? (In fact, Sen. Dianne Feinstein (D-Calif.) has introduced just such a bill.) Why not deny them student loans? “Will blue America ever decide it’s had enough of being put medically at risk?” Frum said.

The 5th’s Circuit’s Nov. 12 decision, extending the stay until after a full trial on the merits, threw a bucket of cold water on this idea that the federal government can do whatever it wants to force its citizens to comply with its favored medical strategies—and punish them for not doing so.

The lead opinion (pdf), by U.S. Circuit Judge Kurt D. Engelhardt, pointed out that the OSHA mandate obviously had little to do with workplace safety, nor was it a genuine “emergency” measure. It excluded businesses with 99 employees—aren’t they as much at risk of contracting COVID-19 from the unvaccinated as their friends who work for businesses with 100 employees? The Biden administration had simply “pored over the U.S. Code” looking for some statute that might enable it to bypass the Constitution and impose a national vaccine mandate directly, Engelhardt wrote.

It came up with the Occupational Safety and Health Act, enacted in 1970 to deal with slippery factory floors and exposure to toxic chemicals. The OSHA mandate “grossly exceeds OSHA’s statutory authority,” Engelhardt said.

The Constitution makes it clear that the federal government is a government of limited powers, and it’s especially limited in its ability to impose direct obligations upon its citizens. The 5th Circuit’s ruling made it clear that these limits are real. And fortunately, as the 5th Circuit also made clear, the federal government is limited in its ability to issue decrees that would destroy the livelihoods of, or make social outcasts of, dissenters from prevailing ideologies, medical or otherwise.

Of course, as might be expected, the Biden White House is still pretending that court rulings don’t mean anything, and that businesses should pretend likewise and forge ahead to meet the Jan. 4 vaccination deadline.

“That was our message after the first stay issued by the 5th Circuit,” White House press secretary Jen Psaki told reporters on Nov. 18, the day after the deadline was suspended. “That remains our message, and nothing has changed.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Charlotte Allen is the executive editor of Catholic Arts Today and a frequent contributor to Quillette. She has a doctorate in medieval studies from the Catholic University of America.