White House Chief of Staff Ron Klain is prolific with his retweets. Any tweet at all that is favorable to the White House makes it to Klain’s Twitter feed. One retweet came back to bite him after the Fifth Circuit Court of Appeals ruled against Biden’s vaccine mandate for companies with more than one hundred employees. It made an appearance in the ruling.
The Fifth Circuit Court of Appeals ruled on Friday evening to reaffirm its stay of Biden’s COVID vaccine mandate. The court reasoned that the petitioners’ challenges to the mandate will succeed for “a multitude of reasons.” The court not only wrote that there are plenty of reasons for the mandate to fail to hold up to legal challenges, but that the rules go “staggeringly overboard”. ‘The mandate is a one-size-fits-all sledgehammer.’ Interestingly enough, Mr. Klain did not retweet the Fifth Circuit Court’s stay on Biden’s mandate.
A funny thing did happen, though, Friday night when social media reacted to the ruling. One of Klain’s old tweets surfaced in which he retweeted MSNBC host Stephanie Ruhle on September 9, 2021. The retweet found its way into the court’s ruling. Ruhle’s tweet calls the mandate to be enforced by OSHA “the ultimate workaround for the federal govt to require vaccinations.”
A Ron Klain retweet makes an appearance in the 5th Circuit ruling on the OSHA rule. pic.twitter.com/4zvJCRrYK1
— John Fritze (@jfritze) November 13, 2021
Oops. She said the quiet part out loud and Klain amplified it. Biden wants to govern by executive order and whether or not a mandate is constitutional doesn’t matter in the decision-making. It’s a “workaround” of the Constitution. Jonathan Turley called Klain’s retweet “breathtakingly daft” earlier this week, before the court reaffirmed the stay of Biden’s mandate.
The retweet was breathtakingly daft on the eve of litigation over the order. It is reminiscent of President Biden admitting that his own White House counsel and their preferred legal experts all said that the eviction moratorium extension was likely unconstitutional,” Turley told Fox News on Friday.
“Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional limits,” Turley added. The “problem is that the thing being ‘worked around’ is the Constitution.”
“Klain effectively became a witness for the challengers in labeling the order an evasion or subterfuge designed for the courts. Klain leaves the courts in the unenviable position of ratifying an order that the Administration admits is a mere work around to evade constitutional limits. It is akin to claiming self-defense in an assault case while saying that it was the best way to shoot the guy,” Turley said.
At the time, Turley warned that Klain’s retweet could be used against the administration, as it “can be referenced by the courts as illustrative of the motive behind this obviously awkward avenue for a mandate. It is not determinative. However, it is relevant.” That is exactly what happened.
The mandate doesn’t go into effect until January 4 but legal challenges are already in the works. Legal battles will likely drag out the process longer. The rules affect about two-thirds of all private-sector workers. So far, 26 states have filed or joined lawsuits opposing the mandate. Most of the states are led by Republican governors but three states have Democrat governors.
The court spanked Biden over the mandate that would affect over 84 million workers. The Fifth Circuit first issued an emergency stay on enforcement on November 6. Circuit Judge Kurt Engelhardt wrote the opinion for the three-judge panel.
“The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials,” Engelhardt wrote in the decision.
Engelhardt wrote that the stay is in the public interest. The Biden administration argued earlier that a stay “would likely cost dozens or even hundreds of lives per day,” so the rule is within OSHA’s authority.
“A stay is firmly in the public interest,” wrote Judge Kurt Engelhardt, an appointee of former President Donald Trump. “From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.” He said the rule, from the Labor Department’s Occupational Safety and Health Administration (OSHA), “grossly exceeds OSHA’s statutory authority,” imposes an undue financial burden on companies, and may violate the Commerce Clause. His opinion was joined by Judges Stuart Kyle Duncan, also a Trump appointee, and Edith Jones, put on the court by former President Ronald Reagan.
The next step is likely to be a request for a hearing by the full 5th Circuit appellate court by the Biden administration. It may go to a different court, though, as a lottery is scheduled for next week. It will determine which appeals court will hear the many legal challenges to the mandate. The Fifth Circuit is conservative-leaning so no doubt the administration is counting on a more favorable appeals court to the case. In the meantime, perhaps Ron Klain will hold off a bit on hitting that retweet button.