Constitutional scholar Jonathan Turley thinks that will ultimately doom the mandate. “Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional limits,” Turley told Fox News in September. 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 added.
So, why fight hard for a mandate that is doomed? Sure, it’s always possible that, should the Supreme Court ultimately take up the issue, it could rule in favor of the blatantly unconstitutional mandate. Still, I think the Biden administration thinks it’s found a topic to distract the public from its many failings.
Constitutional or not, a recent Gallup poll suggests that a majority of the public supports Biden’s mandate. A stunning 58 percent favor requiring private businesses with 100 or more employees to have their employees vaccinated or be tested weekly. Biden may lose in the courts, but a long fight over the mandate could serve as an issue to restore his public approval ratings. His Build Back Better agenda isn’t even popular with the public, so the Biden administration may see the vaccine mandate as their ticket to restoring Biden’s image. Whether it will work remains to be seen. Still, given Biden’s gross incompetence as president, his administration likely sees majority support as something they have to fight for, even if it’s doomed.