Jonathan Turley notes the year-end decision of Judge James “Jimi” (just kidding) Hendrix — Texas v. Becerra — that has preliminarily enjoined HHS’s vaccine and masking mandates on Head Start programs in Texas.
The Biden administration is in a purple haze. They’re acting funny, and I know why. They aren’t nuts, exactly, but they are crazed. It’s a frustrating mess.
Professor Turley offers a brief and temperate take on the HHS mandate case in “Is the ‘Workaround’ Working? Federal Judge Enjoins Another Biden Mandate in Texas.” In his conclusion Professor Turley anticipates oral argument in the mandate cases to be heard by the Supreme Court on Friday. He notes that the Biden administration’s mandates “have created a target rich environment for justices who want to curtail Chevron, which will make the Jan. 7 arguments particularly interesting.”
Chevron raises a secondary issue of administrative law. With respect to the legality of the enterprise itself, the Supreme Court long ago threw up its hands and let agencies run wild. This is the point made in scholarly fashion by Professor Philip Hamburger in Is Administrative Law Unlawful?
I am reminded of a comment made by University of Texas (Austin) School of Law Professor Emeritus Lino Graglia. Speaking on a Claremont Institute panel more than 30 years ago, Professor Graglia observed that few cases that come before the Court are controlled by the express language of an applicable provision of the Constitution. When the prime example of such a case came before the Court in 1933 — the Minnesota Mortgage Moratorium case — the Court got it wrong.
UPDATE: I wish I had thought to take note of Professor John Yoo’s Dallas Morning News column “Why Biden’s COVID-19 vaccine mandate is unconstitutional.” Subhead: “Even if the president could find some source of authority granted by Congress to regulate all businesses, he could not enforce his orders with federal power alone.” The link is to the accessible AEI version of Professor Yoo’s column.
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