I wrote earlier about White House Chief of Staff Ron Klain stepping in it big time when he retweeted a post from MSNBC’s Stephanie Ruhle that called the Biden administration trying to use OSHA to impose a vaccine mandate as an “emergency rule” on some 80 million Americans the “ultimate workaround.” The rule would apply to all private businesses with over 100 employees.
Foolish RT from WH chief of staff. He said the quiet part out loud.
Biden admin knows it’s likely illegal (like the eviction moratorium) but they don’t care. https://t.co/AlfmYtuvhp
— Ted Cruz (@tedcruz) September 10, 2021
Sen. Ted Cruz (R-TX) called that a “foolish” move on the part of Klain because in so doing, he revealed the intent of the policy was to work around the law to get what Joe Biden wanted and that the courts may consider the effort to go around the law.
Now, George Washington University law professor Jonathan Turley has weighed in on Klain’s actions with two simple words: “breathtakingly daft.”
“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. [….]
“Ironically, Democratic groups long argued that such public comments from Trump or his staff should be treated as official statements. Courts regularly used Trump tweets in reviewing challenges in fields like immigration.”
He added that Klain’s retweet “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.”
It would be appropriate if they got hung by the same argument that they’ve made in the past about President Donald Trump’s comments.
Turley also noted that while the attempted use of OSHA is “clever,” were you to allow it, it would mean that OSHA could mandate anything even if it had nothing to do specifically with the workplace or the job per se and that might just be a little too far for the federal courts to go. Turley said that by this move, Biden is exposing himself to yet another loss, to add to the impressive list of losses that he’s already been handed in such a short time by the federal courts.