“This administration needs to stop with these mandates, stop being involved, and let Florida be Florida. Let New York be New York.”
With the Supreme Court blocking the Biden administration’s mandates for private businesses, we sat down with Robert Henneke, executive director and general counsel at the Texas Public Policy Foundation. He’s the lead counsel on one of the key lawsuits filed challenging the constitutionality of the mandates for private businesses.
In this interview, filmed before the Supreme Court made its decision, Henneke accurately predicts the outcome and offers insight into the thinking of the Supreme Court.
Jan Jekielek: Robert Henneke, such a pleasure to have you on American Thought Leaders.
Robert Henneke: Jan, my pleasure. Thank you for having me.
Mr. Jekielek: Well, I’m going to start with, I guess the top headline on our website on the Epoch Times right now. I’m just going to read it to you. “Biden’s Vaccine Mandate for Large Private Employers Takes Effect Amid Ongoing Supreme Court Battle”. And you’re of course, and I’m going to tell you how, but you’re of course, deeply involved in said Supreme Court battle. So why don’t you tell me how you came to be involved, where this whole thing stands, and how we got here?
Mr. Henneke: Well, thank you. So, at the Texas Public Policy Foundation, I lead our public interest litigation center, where for over six years, we have brought lawsuits challenging unconstitutional action by the federal government. We represent businesses and industries in fighting back where they may not have the resources themselves to challenge unlawful practices, and we can help them in cases that fight overreach and limit the administrative state.
And in this case, we represent a coalition of temporary Texas staffing companies who asked us to represent them to challenge the unconstitutional private employer vaccine mandate by the Biden administration. So, we brought suit immediately when the vaccine mandate became official. In fact, it was our case that won the initial stay of the vaccine mandate by the Fifth Circuit. They granted our motion stopping the mandate initially, and we continued to represent our clients all the way up to the Supreme Court in seeking to have this policy by the Biden administration struck down and recognized as unlawful.
Mr. Jekielek: Well, okay. And so, I think it was something like December 17th, that the stay was lifted now by the Sixth Circuit. And for a lot of us, this is all very, very complex. Like how did we go from the fifth to the sixth? And now we know, here we are at the Supreme Court, and we might hear something about it in the next few days, even before we actually publish this interview. So, can you give us a picture of how this whole process works?
Mr. Henneke: Well, absolutely. And it has been confusing because in many ways it’s been the wild, wild west of policy making. Typically in the administrative process, you’ll have months of notice where you’ll have opportunities for stakeholders to comment, and then the federal agency will review those comments and publish a proposed rule that then takes more time before it goes into effect.
Here, this administration used a very obscure provision called an emergency temporary standard found within the Occupational Health [and] Safety Act, the federal agency that regulates workplace safety. On an emergency basis, they implemented this private employer vaccine mandate requiring that all employers of 100 or more employees had to require that their employees be vaccinated or be tested on a regular basis or be threatened with termination. But rather than months, if not, sometimes years of this process playing out, the administration issued the rule and then was going to have it go into effect a couple of months later.
And so all of the litigation that’s happened since the first week of November, which normally would be stretched out over periods of months and years while it went through the process has been rushed up to the Supreme Court on as fast a track a process you can find yet still, even though recently the Supreme Court held arguments on the case, it has not yet issued its opinion. Maybe it will today, but the rule continues to start with the deadlines and enforcement requirements that is really causing uncertainty among business and industry.
Mr. Jekielek: Well, yes. And so this is actually kind of a question. How many cases are there, first of all?
Mr. Henneke: Well, so initially, and this was fascinating to be part of, but we filed our case in the Fifth Circuit, which is in Texas, where our clients are, but there were 34 different lawsuits that were filed challenging the Biden administration.
And under this obscure provision that the administrative use, this emergency temporary standard process, the rules say that all of the cases that challenge a particular standard get consolidated into one circuit.
So, we won our stay at the Fifth Circuit because we immediately asked for emergency relief. And in fact, the Fifth Circuit on a Saturday stepped in and granted our initial stay motion. But then the following week, all 34 cases were consolidated into the Sixth Circuit, which is based in Cincinnati, Ohio. And it was a different set of judges there that disagreed with the Fifth Circuit and decided to lift the stay.
And so, it was on again, off again, but then when the stay was lifted, the only recourse that we had, now that we had all been consolidated into one case, was to seek emergency relief from the U.S. Supreme Court to stop this from being enforced against businesses before the important legal questions can be fully adjudicated.
Mr. Jekielek: So, at the moment there could be this sort of relief the Supreme Court could grant it, at the same time it could make some specific decisions about the case because there’s already been arguments. Are you making arguments, and in your case, how does that work? Who decides which of these cases get heard, or is it just one big case all of a sudden?
Mr. Henneke: Well, again, the law that the Biden administration is claiming that gives it the authority to do this was never intended to have a nationwide healthcare requirement. They’ve square peg into round hole with this vaccine mandate.
And so the 34 cases were all consolidated. Each of the 34 cases were appealed to the Supreme Court on an emergency basis. And then the Supreme court just picked two of the cases to have an argument on, representing the entire coalition.
So that argument was led by the attorney general of Ohio, and an attorney that represented the National Federation of Independent Business, another kind of national trade association. But my case is still out there. And presumably, when the Supreme Court agrees that this vaccine mandate is at least questionable enough in law to reimplement the stay, and the case goes back down to the Sixth Circuit, then I hope to have a chance to argue and litigate the constitutional challenges that we brought to what the Biden administration did.
Mr. Jekielek: So is there anything specific that you can glean as to why these two cases were chosen, for example, and not yours or any of the other, I guess 31 others, that would be candidates.
Mr. Henneke: I think a common characteristic, and as a Supreme Court litigator and also a follower of the court, you really can see today’s Supreme Court as a 3-3-3 court with the changes the appointments that President Trump made that now you have, I think commonly agreed, a three liberal justices Breyer, Kagan, Sotomayor. Certainly you have three conservative justices, with justices Thomas, Gorsuch and Alito. But you have three justices in the middle led by Chief Justice, John Roberts, and now justices Barrett and Kavanaugh, that are the swing votes, either way.
And part of the characteristic of the court that on paper looks like a 6-3 Republican court, but it’s really a 3-3-3, is that some of the cases presented to the court have been decided on more narrow grounds, where you’ve had the conservative three having to negotiate an outcome with the middle three.
And so, I think the two cases that were chosen were chosen because they challenged the vaccine mandate on textual statutory grounds, arguing that the statute that the Biden administration claimed gave it the authority to do that. If you read that text, it didn’t allow for vaccine requirements for employees.
And so in some ways, and based on the questioning of the justices, I think it’s likely that the outcome of this case could be to find that the statute that the Biden administration claims does not give it the authority to do this, but declined to reach some of the bigger and broader constitutional questions that this court has been reluctant to take on. So, it could very well be a win, so to speak, in striking down the vaccine mandates, but leave unresolved the bigger broader questions about whether the federal government has the authority to do this in the first place.
Mr. Jekielek: Okay. Well, that’s interesting, because it’s not necessarily obvious that this distinction exists to the layperson. And so, these are the kinds of things that keep you up at night. Well, so what is the bigger and broader question, and is this a separation of powers question? Is that what you’re talking about? Can you dig into this for me?
Mr. Henneke: It’s both. We brought two different constitutional challenges to the private employer vaccine mandate. We learned from Civics 101 that this country was established to have purposefully a federal government of limited powers.
Our founding fathers who had just fought and won independence from the British crown, did not want to create another all-powerful national government. They saw that the proper foundation for policy making should be in the states.
And so, they intentionally in the Constitution wrote the federal government to only have specific limited enumerated powers that are found in Article one, Section eight. If the Constitution doesn’t say the federal government can do it, the federal government cannot do it.
And so, two different challenges that we brought. Number one, it’s very important in the separation of powers that each of the branches of government serve their distinct roles and have limited powers. It’s always been the Congress of the United States under Article one that has the power under the Constitution to pass laws and create policy for the federal government. It’s the executive branch that’s tasked with carrying out those laws and policy.
So, one of the constitutional claims that we brought was through the non-delegation doctrine, where we were arguing that this vaccine mandate that the Biden administration had done through the executive branch was unconstitutional, because Congress never passed a law, giving the executive branch the power to take this kind of step. And so, it violates the Constitution for the Executive branch to claim powers that it hasn’t been given by the legislative branch.
But the bigger question from that is that, whether the federal government at all, Congress, executive branch, any part of the federal government could do this. The federal government claims that this is part of their power to regulate interstate commerce. The commerce amongst the states, which is one of the powers that’s found in the constitution.
We have challenged that saying that requiring an individual in a single state to take a medical procedure that they would not choose to do or face risk of termination from their job does not trigger interstate commerce. It’s not an interstate commercial activity. It’s not part of the role of the federal government to regulate. So, this very concept of a private citizen vaccine mandate is unconstitutional because the federal government does not have the power to do it.
Mr. Jekielek: And I guess another thing that has been on my mind, and you mentioned, is this 3-3-3 court. Something that has been in the news a bit has been how Justice Sotomayor was very off in one of her statements in terms of the realities of the threat to children of. Now of course, hopefully she’s eviscerating whoever did the prep work for her.
I would hope that’s the case, but that’s a scary proposition that somehow information could get to that level. And there’s many people that really look to the Supreme Court as this place where bastion of true knowledge, or at least dealing with true knowledge and dealing with law and so forth. But what happens when errors of this magnitude are introduced somehow into the decision-making process?
Mr. Henneke: I think it runs a risk of corrupting the outcome. That’s where she claimed these extraordinarily exaggerated numbers in terms of hospitalizations of children. That just factually is not even close to being true.
Typically, in a legal proceeding that makes its way up to the Supreme Court, you’ve had two separate proceedings below. You’ve had the trial at the district court, where witness testimony, evidence is collected, all of that is compiled in front of a jury that’s able to listen to all of the evidence, weigh all of the facts and then make a decision.
Then you’ve had an appellate court that has reviewed the entire record, heard arguments of counsel, taken brief and then issued an opinion that takes all of that into account. Only at that point do cases then go up to the Supreme Court, where of course we know that few are granted. Here, we’ve circumvented all of that.
The Supreme Court has correctly acted on an emergency basis to address the implementation of this vaccine mandate, but only because the Biden administration has insisted on doing so on such an expedited basis where several justices have pointed out that even though of course the health pandemic concerns continue we’re two years into this.
So, the claim of any kind of current emergency basis seems to ring hollow, especially given the lack of haste that this administration has had in moving forward with this. And then when they put it into effect, it has to be immediately.
So, I think that that was reflected somewhat in the off-base questions by Justice Sotomayor, that maybe she’s looking at Huffington Post or online websites for her source of information, rather than having a real developed record to be able to base her questions on.
Mr. Jekielek: So, as we speak right now, where are we at? The Supreme Court could be making some decisions literally as we speak, or in the next few days, even before we premier this interview. So where are we at?
Mr. Henneke: So, there’s three possible outcomes, when the Sixth Circuit decided to lift the stay to allow the vaccine mandate to go into effect. All of us, all the various cases appealed seeking emergency relief from the Supreme Court to put the stay back into effect to stop this from being enforced against American citizens and businesses across the country.
So, option one is the Supreme Court could say, we’re not deciding the ultimate question, but there’s enough here for us to give pause and let the legal proceedings play out. And so, we are to put back into effect the stay that was ordered by the Fifth Circuit to allow at least full litigation on the important questions presented. So, it would be a timeout, but it wouldn’t be the end of the game.
The second option is the Supreme Court could decide the merits. They could say, we’ve heard enough. We understand this well enough that we are just going to decide whether the Biden administration has the legal power, the constitutional power to do this. And so, we’re just going to decide once and for all the questions about the legality over these vaccine mandates. That would resolve everything. The final word would be spoken by the Supreme Court.
The third option, which I think is less likely, but is certainly on the table, and really gives me concern for the future of this country as a tipping point moment in the history of the COVID pandemic is what happens if our side loses and the Supreme Court declines to act, declines to reimplement the stay or upholds the Biden administration power to do this. Especially with the haste and the short timeframe that the Biden administration has put forcing employers to comply with this or face stiff fines and penalties. I think you could see incredible damage done to our economy overnight.
And specifically, even if you look at the statistics that say that 10 percent, maybe 15 percent of Americans, for reasons that we shouldn’t have to have them justify but are personal reasons for themselves as to why they’ve not received any of the COVID vaccines. If it’s just that smaller percentage that are now eliminated from the workforce, that will be incredibly destructive, when you look at the trucking industry, when you look at the transportation industry, when you look at our ports of entry, when you look at our healthcare industry.
Eliminating 10 percent to 15 percent of those workforces in any single one of those industries will be very damaging and very disruptive, especially during this time of winter, the time of extreme cold here in the north part of the United States, where it’s essential that goods and services are able to be delivered in a timely manner for people to be able to survive and exist during the harshest months of the year.
Mr. Jekielek: You mentioned a little earlier that having incorrect information could somehow corrupt the process. I just want to talk a little bit about the implications of that, because for example, there’s been multiple studies now done that show that the perception of risk from the virus of certain portions of the population is dramatically out of touch with the actual risk, for example. And these sorts of things could color even reading of scientific papers, reading of scientific literature. Of course, there’s all sorts of people in the process right of this.
And this is something that I’ve been struggling with, this reality, that there’s some portion of the population that doesn’t understand the reality, or sees the reality as quite different than what, let’s say, the scientific literature says today. So, what are the implications of mistaken information driving this decision making?
Mr. Henneke: Well, that’s a great question. And you saw the other part of the seriousness about some of the factual misstatements made by Justice Breyer and Justice Sotomayor, is making you wonder if they are basing their decision based on inaccurate information that’s going to influence how they vote on the outcome of the case.
And it also makes you wonder if their views, their personal views about the vaccine issue are driving their feelings, as opposed to what the law says, what the text of the law commands the courts to follow. It’s obviously a very emotional issue. But we are seemingly far detached from reality in some ways where the present day of 2022, and what it looks like today is a far cry from what the status quo was back in early September when President Biden first announced that he was going to implement this vaccine mandate.
And so it shouldn’t be the desire of the court to have an outcome based on their personal feelings. But you certainly wonder if that’s what’s motivating some of the justices when they’re making these emotionally charged statements from the bench that are immediately proven to be untrue.
Mr. Jekielek: Is there some point in this process where good, accurate information could be presented to the justices given the reality that we understand right now, or that there’s certainly quite a bit of misinformation out there.
Mr. Henneke: And I think some of the misinformation was actually demonstrated in the way that the arguments played out. To me, it was very fascinating to see in the context of the Supreme Court argument over the vaccine mandate. We know that every member of the Supreme Court has been fully vaccinated and has received the booster shot.
And yet, for example, Justice Sotomayor refused to participate in the argument in person. Rather, she did it via phone from her chambers. And you had all of the attorneys who were going to argue before the court had been vaccinated, but two of the attorneys tested positive for COVID prior to the argument so that they had to argue remote.
So, in this context of the federal government wanting to mandate vaccines on 80 million American citizens, it kind of, to your point about questioning the reality and the status quo seemed in sharp contrast to how the actual argument played out, where one of the justices, obviously is not comfortable enough with her vaccination status to participate in person. And several of the council who had undertaken this, which the federal government wants to command everyone to have to do, still got sick.
So it begs the question. I wish you could have a real solid discussion with the policy makers and the administration at this point in time to say, what are you trying to accomplish? And how do you think that this does it, because certainly to your point, the current data, the current facts, the current realities of the Omicron variant and what people are experiencing now is in sharp contrast to the policy making choices and data that existed even three, four months ago. And so it’s not catching up. And potentially, the Supreme Court could be resolving this case in total without even having the opportunity to consider current information.
Mr. Jekielek: Well, and that’s exactly it because things are changing quickly. As you mentioned, this has been fast tracked based on the fact that it’s an apparent emergency and things do change. And so, one would hope that the newest information is available.
Mr. Henneke: But I think to the point, part of that as well, Jan, is that this is going back to the Constitution. But this kind of shows why the founding fathers did not give this sort of power to the federal government. It shows how well it doesn’t work, how cumbersome the federal government is when they try to implement this type of national policy, especially one that requires individuals to have invasive medical procedures done to themselves against their will.
And really why in our system of government, it’s supposed to be the states that are the ones that are really making healthcare policy and implementing regulations and laws for the health, safety and welfare of their citizens.
I think as broken and as backwards as this federal process has been, that we see playing out in front of our own eyes, really kind of makes the case for federalism and shows us why this is not a proper role for the Biden administration, but really why the federal government should get out of the way and let states be specifically responsive to the needs of their citizens in their area on how best to address the COVID pandemic.
Mr. Jekielek: Yes. So, you can compare for example, Florida versus California, versus New York, versus Texas, for example, and some others, and you can get some ideas about what policies are effective and what aren’t, which things aren’t.
Mr. Henneke: Related to this was the recent statement by President Biden about COVID overall, where he said, this is not going to be fixed by the federal government. It’s going to have to be addressed by the states.
He was on a call with governors from across the nation, which is ironic because you almost want to introduce President Biden of 2022 to President Biden of 2020 when he was running for office on the promise that if he was elected president, he would fix COVID and would do a better job, and now seemingly he wants to abandon that correctly to the states. But maybe from his perspective, just trying to pass the buck.
But that is the right direction that that should be. And if President Biden has come now to the realization that the states are the laboratories of democracy and the best sources of policy making, then this administration needs to stop with these mandates, stop being involved and let Florida be Florida, let New York be New York. And let the state governors of each of these states work with their state legislatures and adopt healthcare policies that are going to work best for the people from Denver to Indianapolis and every place in between.
Mr. Jekielek: So, one of the things that came to my attention recently is that aside from this federal private employer mandate, New York City has a citywide employer mandate that’s been instituted. I thought that was interesting. So, what happens in a situation where this federal mandate, for example, gets, let’s say it gets struck down. For a whole speed of reasons. But now New York city has a mandate itself that it’s instituting. Does that decision making at the Supreme Court on those cases impact that?
Mr. Henneke: Not necessarily. And again, it depends on how limited the Supreme Court ruling is. And this goes back to why I believe that on the federal vaccine mandates, the Supreme Court’s going to land on a very limited position that just looks at the text of the federal statute to say, this statute does not give the Biden administration the authority to do this.
I do think that there’s a majority of the Supreme Court that is comfortable at some level with vaccine mandates. I disagree with that, but separately, you’ve seen efforts by private parties to seek emergency relief to challenge the state vaccine mandates in Indiana, in New York, in Maine. And in each of those cases, the Supreme Court has declined to accept the emergency appeal and has let those state-based vaccine mandates remain in place.
So, as I look at the court, as I look at where five justices may be, they accepted this case, challenging the Biden vaccine mandates, but they rejected other cases that had come from state vaccine mandates. And what that tells me is that the court may be thinking, this is not proper for the federal government, but we’re not going to disturb the states in their power to regulate and adopt laws for public health and safety.
So it could leave a situation where it’ll be a state by state decision. I think that would go too far. I still think that intrudes upon the personal autonomy and liberty of the individual. But it does also restore the states as the policy makers of the nation. And at least allows citizens to live and work in a state that may have policies and laws that best reflect their views.
So if the federal mandate is struck down, but the Supreme Court allows state mandates to remain, you may see some kind of migration of people moving away from or towards states that have the healthcare policies that they think are the best for themselves and their family.
Mr. Jekielek: To your point, I know that Florida’s seen quite an influx of population in the last year, at least, and probably longer. One would guess that this has something to do with it.
Mr. Henneke: It is. It’s the growing, you’ve seen the trend for a little while, states’ high tax, high regulatory, big government states like New York, Illinois, California have lost population over the last 10 years. The census has shown that. And at the same time, those individuals are flowing towards states that have had quite the opposite. States like Texas that have a low tax, low regulatory pro-business policy making, has the proofs been in the pudding, as you’ve had the increase of population as businesses have moved there.
And I think this could be another example of where, for individuals that don’t want to have government into their personal business in terms of healthcare choices will move to those states where those policies best reflect their personal beliefs.
And if you want to live in a state that has vaccine passports and vaccine mandates and heavy healthcare regulatory requirements, good for you. Choose one of those states to live in. And we’ll kind of see how the American population sorts itself out.
Mr. Jekielek: One thing that’s actually been on my mind is, there are vaccines that are required for certain kinds of work, for example. There are workplaces that do this. How is this vaccine mandate different than past vaccine mandates for specific types of work?
Mr. Henneke: I think a couple of things. And my understanding of other vaccine mandates that have been, is that they’ve allowed for exceptions. They’ve allowed for individuals to opt out that have sincere and deeply held religious beliefs that prohibit them because of their faith from obtaining a particular type of vaccine. You also have generally a recognition of natural immunity where someone who has contracted a virus is immune from that because they have the antibodies built up. And so for them, a vaccine serves no purpose.
Those kinds of common recognitions that have existed in other types of mandatory vaccine situations have been completely set aside here by this administration where they have insisted on one way and only one way of acquiescence and have done so in an unprecedented way, that really intrudes upon individual liberties.
Mr. Jekielek: Right. And that’s fascinating because there’s so many countries that have something like a mandate where they accept natural immunity for, well, obvious reasons that you’ve already mentioned. It’s just a bizarre thing that that is very difficult for a lot of people to understand.
Okay. So, as we’re finishing up here, let’s say that the Supreme Court decides that these mandates are legitimate, that it’s okay to do this kind of thing in the context that you described, that sets a precedent of some sort, and above and beyond the economic harms that you were describing and so forth. What does that mean for law in America?
Mr. Henneke: I think it would be a pivot point in our jurisprudence. So far when we’ve gotten to important questions about federal power under the commerce clause, the Supreme Court has largely, during my lifetime, made the decisions that have limited federal power.
Even though for example, over 10 years ago, the Supreme Court upheld the constitutionality of the affordable care act as a tax. It did in the same opinion correctly hold that it was unconstitutional for the government to command you to purchase health insurance that you did not want under the commerce clause.
And it’s interesting how in that argument, part of what the justices decided then was whether the government could command a vaccine. And it was agreed during that argument that, of course, that would go way too far. Well, a lot changes in 10 years. But if this case goes the wrong way, and the Supreme Court allows this to stand, it really eliminates the limits that we have in our government.
One of the things that has been pointed out that this administration has been doing, and they did it with the vaccine mandate, they did it with the prohibition on residential evictions that was struck down by the Supreme Court last summer, has been in going and almost Google searching the federal register to find an obscure statute that’s vague enough to do what the administration wants to do.
And given how expansive the federal laws are, and the federal regulations are, that if the Supreme Court will not hold the Biden administration accountable and at the very least strike down unlawful executive mandates based on antiquated statutes that were never intended to implement the type of policies being proposed today, then we are all just at the mercy of the ruling class bureaucrats in Washington, D.C. and their creativity in terms of finding some ambiguous statute that they can argue gives them the power to do anything that they want.
And if we’ve done that, then we’ve lost our system of government. We’ve lost our checks and balances. We’ve lost our concept of federalism, and have largely, at that point, will be just in a posture where you now have an all-powerful federal national government that was rejected at the very foundation of the creation of our country.
Mr. Jekielek: Well, and I think you’ve already spoken to this a little bit, but I guess the final question, your expectation on the decision.
Mr. Henneke: My expectation is that the majority of the Supreme Court will find that the text of the statutes relied upon by the Biden administration do not give it authority to implement this private employer vaccine mandate.
And so in that way, it will be a win for our side, but only a partial win. It’ll be missing the forest for the trees, because my concern is that as long as the Supreme Court decides these type of cases on very limited textual statutory basses, and does not address the overall constitutional issues and dimensions that are in play, we’re just going to continue to play whack-a-mole, where the next type of COVID mandate from a different statute or a different agency will be fought over without really resolving the core powers that are at issue.
So my prediction is a win, but a win that’s going to require this battle to be fought another day until we get this court to really look at the limits on this federal government and a willingness to address those key questions.
Mr. Jekielek: Well, Mr. Henneke, it’s such a pleasure to have you on.
Mr. Henneke: It’s been a great discussion. Thank you for having me.
This interview has been edited for clarity and brevity.
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