OPINION: This article contains commentary which reflects the author's opinion
One of the main reasons why President Joe Biden’s vaccine mandate is running into so much trouble in federal courts is because his predecessor, Donald Trump, managed to pack the federal bench with constitutionalists.
“Biden’s vaccine rules for private business, health care workers and federal contractors have all been tied up in court challenges from Republican officials, with some GOP-appointed judges blocking them,” The Hill reported on Sunday.
“Even if the administration ultimately wins the fights, the implementation of the rules could be delayed, potentially significantly,” The Hill added.
You may recall that Biden’s mandate affects businesses with 100 or more employees. Not only is the mandate facing pushback in federal courts, but there is a distinct possibility that, thanks to an assist from moderate Democratic Sen. Joe Manchin of West Virginia, the Senate may vote to defund it completely, thereby neutering the Occupational Safety and Health Administration, the agency responsible for enforcing the mandate.
The Hill adds:
The developments underscore the impact of the conservative-tilted federal bench, which was drastically molded by former President Trump in his tenure. Biden has hit the ground running trying to put his own mark on the bench, but legal experts say it will take years for the breadth of Biden’s own progress to be seen and his success in transforming the court depends on Democrats holding the Senate in 2022.
“It’s the bitter fruit of Trump,” Carl Tobias, a University of Richmond law professor with expertise in federal courts, told the outlet. “This is where you are when Trump appointed almost a third of the federal appellate bench. This is what you’re going to see for some time.”
Meanwhile, health advocates have angrily denounced the rulings, claiming that they are delaying the implementation of a policy that will cause a regression in defeating the virus (even as cases are rapidly falling and a fraction of what they were at the height of the pandemic).
“I think the health impact is disastrous, and I have no doubt that the judges who have blocked these rules will have caused many deaths,” Lawrence Gostin, a public health law professor at Georgetown University, told The Hill.
Gostin claimed that Biden’s mandates have “strong legal backing” and attributed the rulings to “the political divisiveness of COVID-19 that has spilled over into the courts.”
There is no evidence of that, of course; the rulings thus far are predicated on what the federal judges have decided are unconstitutional overreaches by the Executive Branch.
Still, that said, a number of the judges involved in the mandate cases thus far were appointed by Trump:
The most recent activity came in the past week, when Trump-appointed judges in Missouri and Louisiana issued separate rulings blocking the Biden administration’s mandate for certain healthcare staff to be vaccinated against COVID-19 while court cases play out. …
And in Kentucky, a George W. Bush appointed judge blocked Biden’s vaccine mandate for federal contractors in three states: Kentucky, Ohio and Tennessee.
Nevertheless, the Biden administration believes that eventually, it will be victorious in the courts.
“We are confident in the government’s authority to promote economy and efficiency in federal contracting through its vaccine requirement and the Department of Justice will vigorously defend it in court,” said an Office of Management and Budget spokesperson.
However, if one ruling by a Trump-appointed judge last week is any indication, the Biden administration faces an uphill battle.
“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,” Judge Terry Doughty wrote last week in the U.S. District Court for the Western District of Louisiana in striking down the mandate for health care providers.
“It is not clear that even an Act of Congress mandating a vaccine would be constitutional,” Doughty added.