Last year, as the nation panicked about the pandemic and the lockdowns ramped up, I published a piece delving into what it means to obey the law in an era when the government was acting lawlessly, exceeding the limits of its legal authority and agents of the State were (and many still are) imposing their power on the masses through brute force and abject terror. In it I pointed out that executive orders and regulatory directives – whether governors or the President himself – are not laws and should not be treated as such.
There I talked about how unreasonable lockdowns were as they violated the inalienable natural rights of individuals and how executive orders were not laws because they did not originate in the legislative branch of government and did not follow the course of approval necessary for a proposed bill to become a law. Therefore, the people subject to such executive orders are not bound to obey them by any concept of justice, legality, government, or morality and certainly not by the commandments of God.
At the time I was derided by many well-meaning but wholly ignorant people who had long been indoctrinated into believing that unthinking submission to those in power was a requirement that all people have to obey. But time has only borne out my arguments.
Take, for example, the way that the courts have repeatedly struck down American President Joe Biden’s vaccine mandates.
The OSHA Vaccine Mandate
The Occupational Safety and Health Administration (OSHA) is a federal agency whose job is to establishes on-the-job safety regulations for workers. According to a White House announcement issued Nov. 4, 2021, the President was going to use OSHA as a means to enforce regulations on businesses by making vaccination a mandatory requirement to work:
First, the Department of Labor’s Occupational Safety and Health Administration (OSHA) is announcing the details of a requirement for employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule will also require that these employers provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace. OSHA has a strong 50-year record of requiring employers to take common sense actions to prevent workers from getting sick or injured on the job. This rule will cover 84 million employees.
Enforcement of the mandate was halted after the federal level Fifth Circuit Court of Appeals ordered that OSHA stop all enforcement of the order. While Dr. Thomas Woods’s explanation of the ruling is the best explanation of it that I have heard, there are a few reasons given that I wish to take particular note of here.
First, the court questioned the constitutional justification to use OSHA to force people to get medical treatment they may not want:
We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.
Court ruling, Pg. 6
In other words, the judges argue here that the Commerce Clause of the US Constitution, the section used to justify the existence and work of OSHA, does not justify forcing any medical treatment upon the masses. Congress, the only branch of the government which might hold such authority, did not and could not delegate such authority to OSHA because that would violate the Constitution’s separation of powers. After addressing how the OSHA mandate itself is illogical and nonsensical in how it functions the ruling picks back on the issues of constitutionality:
First, the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power. …Indeed, the courts “always have rejected readings of the Commerce Clause … that would permit Congress to exercise a police power.” In sum, the Mandate would far exceed current constitutional authority.
Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation. As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA’s statutory authority. Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” The Mandate derives its authority from an old statute employed in a novel manner,20 imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues. There is no clear expression of congressional intent in § 655(c) to convey OSHA such broad authority, and this court will not infer one. Nor can the Article II executive breathe new power into OSHA’s authority—no matter how thin patience wears.
…Here, it is simply unlikely that Congress assigned authority over such a monumental policy decision to OSHA – hard hats and safety goggles, this is not.
Court ruling, Pgs. 17-18
No matter how imperiously the President declares that his patience is wearing thin with those who disobey him, he simply has no constitutional authority to use OSHA as a vehicle for forcing vaccination upon the public. No democracy or republic, no society of free peoples, would ever stand for such action anyway as such totalitarian thinking and authoritarian action is the very opposite of the principles that democracies, republics, and free societies are founded upon. Therefore, the orders of the President are neither legal nor constitutional. Not only are these orders not laws, they are actual violations of the law and enforcing them would be to enforce immoral and illegal actions while disobeying them would be to actually follow the law. Executive dictates are not laws and should not be treated as such.
The CMS Vaccine Mandate
The Fifth Circuit Court’s ruling on the OSHA vaccine mandate was a landmark case as we see in the response to Biden’s CMS (Centers for Medicare & Medicaid Services) vaccine mandate. To start with, the CMS vaccine mandate ordered that:
the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services is announcing the details of its requirement that health care workers at facilities participating in Medicare and Medicaid are fully vaccinated. The rule applies to more than 17 million workers at approximately 76,000 health care facilities, including hospitals and long-term care facilities.
Soon after this was issued fourteen states came together to request a preliminary injunction that would immediately prevent the executive order from going into force. In agreeing to grant that injunction the court heavily cited the previous ruling against the OSHA mandate, essentially saying that all the problems that are present in that mandate are also present in this one. The way the CMS vaccine mandate works is functionally illegal and does not meet the operational requirements laid on CMS by law. (See pgs. 14-19) After explaining all this, the ruling gets into how even if it were functional the mandate itself is unconstitutional:
Plaintiff States maintain that the CMS Mandate must also be enjoined because it exceeds the Government Defendants’ authority. The U.S. DHH and the CMS are a part of the Executive Branch of the government.
Only Congress, as the Legislative branch, has the authority to make laws. The Executive branch must take care that the laws be faithfully executed. Because the Executive branch cannot make laws, it is given its powers through Acts of Congress.
The CMS claims authority to issue the CMS Mandate through Sections 1102 and 1871 of the Social Security Act. [Lists all federal regulations the President claims authorizes the CMS vaccine mandate.]
… None of these statutes give the Government Defendants the “superpowers” they claim. Not only do the statutes not specify such superpowers, but principles of separation of powers weigh heavily against such powerful authority being transferred to a government agency by general authority.
… There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency. It is not clear that even an Act of Congress mandating a vaccine would be constitutional. Certainly, CMS does not have this authority by a general authorization statue.
Court Decision pgs. 19-20,21
This ruling lays out the actual definition of what a law is – laws, legal orders of what can and cannot be done, come from the legislature. The most the executive branch (the President and state governors) can do is enforce the law. They cannot create new ones. Therefore, any order issued by a state governor or the President is fundamentally illegal if it is not expressly authorized by a law issued by either the state’s legislature or the Congress of the United States. If it is not a law, then we do not have to obey it and if the government tries to force us to obey it then it is engaged in an act of tyranny and tyranny should always be absolutely resisted.
The ruling cites the Tenth Amendment to the US Constitution, which limits the powers of the national government to those powers specifically given to it in the Constitution and reserves all other powers to the states. The ruling uses the Tenth Amendment as the basis to argue that the CMS vaccine mandate violates the Constitution by allowing the national government to expand its power at will into areas that only state governments have authority to regulate by law. (pgs. 28-29)
The Federal Contractor Vaccine Mandate
Ordered earlier than the previous two, this vaccine mandate was stopped in Kentucky, Ohio, Tennessee on the same day the CMS vaccine mandate was ordered to be stayed nationwide. In this mandate it was ordered that:
Pursuant to the guidance issued today, and in addition to any requirements or workplace safety protocols that are applicable because a contractor or subcontractor employee is present at a Federal workplace, Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:
1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation
In his ruling on this mandate, U.S. District Judge Gregory Van Tatenhove, a judge in the U.S. District Court for the Eastern District of Kentucky, explained that this was not a question of whether vaccines work or not. They do. The question is:
Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.
Court decision, pg. 1
The judge then goes on to highlight many of the same concerns already expressed in the CMS ruling about how completely nonsensical, contradictory, and unworkable the mandate is to enact and how the mandate violates the constitutional separation of powers. This ruling also touches upon the Tenth Amendment, saying:
The Court is also concerned that the vaccine mandate intrudes on an area that is traditionally reserved to the States. This principle, which is enshrined in the Tenth Amendment of the Constitution, states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Plaintiffs argue that the federal government “has no general police power, and nothing in the Constitution gives the federal government the power it seeks here.” …On the record currently before the Court, there is a serious concern that Defendants [President Joe Biden] have stepped into an area traditionally reserved to the States, and this provides an additional reason to temporarily enjoin the vaccine mandate.
Court decision, pgs. 19-20
Executive Orders Are Not Laws. Dictatorship Is Not Democracy.
Again and again these court cases make the salient point that executive orders are not laws. The President does not have the authority to create new laws, only to enforce those which already exist, and when he issues orders which have not been authorized by specific legislation from Congress then his orders are not legally binding. Such orders are illegal acts of executive power not authorized by Congress. That makes them, by the very rules upon which the state is founded, an act of tyranny which the individuals should refuse to obey. After all, by disobeying they are not breaking the law. In this case disobedience actually preserves the law by preserving the authorized legal structure and preventing the President to simply issue orders at will and command obedience to said orders or face violence. That isn’t democracy, it is dictatorship.
Which makes it really odd is that political Leftists, who widely support the vaccine mandates and see any questioning of them as part of some great conspiracy, also promote themselves as the defenders of democracy. How can you defend democracy while defending dictatorship? Democracy is supposedly all about the right of the individual to be protected from the government being able to force the individual into doing something which he or she opposes. Supporting a dictatorial president who embraces the continual expansion of government power and who issues orders at will unconstrained by the legal limits of his power and who destroys the lives of those who disobey through the use of his overwhelming access to force and supporting illegal orders that violate the basic bodily autonomy of the individual by compelling them to accept medical treatments they do not want or suffer violence and punishment from the State – these things are the very opposite of democracy. No one who supports them can claim to be anything other than the enemy of democracy. They may be a Democrat, but they will never be a democrat.
Disobeying these mandates is defying dictatorship and “obeying and honoring the law” against the efforts of those who would destroy it.
Of course the higher courts, especially the Supreme Court, could overturn all these stays and injunctions. The courts have ever been fickle about actually preserving individual liberty and reliable in their willingness to expand State power. As a general rule, the courts are just another branch of the same statist (“state-ist”) tree and will always ultimately side with the power of the state. Expecting the government to truly regulate and limit itself is preposterous in the grand scheme. But every now and then, in the moment, one of these judges actually gets it. Just such official is Judge Terry A. Doughty, who issued the injunction against the CMS vaccine mandate, understand what is really at issue with these, and any, vaccine mandates:
If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.
During a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties. Because the Plaintiff States have satisfied all four elements required for a preliminary injunction to issue, this Court has determined that a preliminary injunction should issue against the Government Defendants.
This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.”
Court Decision pg. 33
In a world where other nations are literally imprisoning people in concentration camps over their vaccination status, Judge Doughty is absolutely right.
The liberty of the unvaccinated requires nothing less.
Them and everyone else.