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Horowitz: How GOP governors must stop the OSHA clot-shot mandate in its tracks

Op-ed
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It's not shocking that many blue-state voters swept Democrats out of power in favor of Republicans in parts of the country previously untouchable by the GOP. Nor is it shocking that Biden responded to the election drubbing by doubling down on his tyrannical policies. What is shocking, however, is the lack of GOP resolve to completely neutralize the needle rape mandate even in red states, other than crying to the courts for help.

It was for this very moment that our founders created a layered federalist system. If one entity seized the federal power, the states would remain a check and balance on unconstitutional behavior. Governors would be wise to meet at a conference and declare that any mandate on the people or businesses of their states is null and void. That is exactly what our founders would have done.

Too many people erroneously interpret Article VI's Supremacy Clause as a green light for any action taken by the federal government to supersede state law. However, they are forgetting one phrase of that clause. Article VI, Clause 2 states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land." In other words, something that is clearly out of the bounds of federal powers enumerated in Art. I Sec. 8, even if passed by Congress, much less a rogue federal agency like OSHA, is not supreme over state law.

It's not that our founders never envisioned that a president might want to act like a tyrant; it's that they never saw states and the people rolling over and being obsequious to every tyrannical executive edict. Even Alexander Hamilton, the greatest proponent of a robust federal government, made it very clear that unconstitutional edicts would be ignored by the states without having to cry to the federal courts, which the founders feared might also be in cahoots with the federal executive. "It will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land," wrote Hamilton in Federalist #33. "These will be merely acts of usurpation, and will deserve to be treated as such."

Hamilton reiterated this point in Federalist #78: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid." Again, he said this about a legislative act – imagine what he would think of a bureaucratic act affecting bodily integrity.

Madison even went so far as to suggest that people would take up arms. In Federalist #46, he stated that in the event of the federal government clamping down on individual rights even with a military (much less career OSHA bureaucrats), "the State governments with the people on their side would be able to repel the danger" via the power of "citizens with arms in their hands" who would be fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence."

During the North Carolina ratification convention, many delegates were particularly skeptical of ceding power to the federal government and were concerned about the creation of a dictatorship that would crush the state. James Iredell, the lead federalist in the state, who eventually became an original member of the Supreme Court, laughed off the notion that the federal government could succeed when the state and the majority of the people unify behind opposing it. In a speech before the convention on July 29, 1788, he conceded that with the creation of any new government you run the risk of abuse, but that should not cause concern because "the only resource against usurpation is the inherent right of the people to prevent its exercise. This is the case in all free governments in the world." He predicted, "The people will resist if the government usurp powers not delegated to it."

Commenting on the Guarantee Clause of Art. IV, Section 4, whereby the federal government must guarantee the states "a republican form of government," Tench Coxe made it clear that any usurpation of republicanism would be treated as treason by those who perpetrate it. "From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason," declared the Pennsylvania delegate to the Constitutional Convention.

Well, here we are today, with an unelected federal agency proclaiming a mandate on the businesses and bodies of citizens in all 50 states with power that clearly could never have been vested in any government, much less the national government. The Biden administration is mandating that we place something into our bodies that has already proven unsafe and 100% ineffective for its stated purpose of stopping transmission of COVID-19. If our founders' vision of states serving as a check on federal tyranny is not actualized here, especially in light of 19 months of executive edicts without a legislative process, then we should cease calling ourselves a free society.

How is it that governors in states with supermajorities in the legislature and where Biden has a dismally low approval rating are scared to simply say NO? Merely filing a lawsuit and exempting just state government employees from the mandate is not good enough. They need to counterbalance the federal mandate on business with an even stronger mandate to overrule it.

Here is a way they can effectively push back against the feds with a united front, beginning with the convening of special sessions of their respective state legislatures:

  • Not only ban business mandates in state law, but offer employees a cause of action in state court to sue for damages (with no caps) for vaccine injury or injury from mask-wearing. That will outweigh the magnitude of federal fines on the other side.
  • Force businesses, with the threat of fines, that decide to listen to the feds to at least apply federal workplace injury law that OSHA is blatantly ignoring. Pursuant to 29 CFR 1904, employers are required to record side effects of workers who are vaccinated by mandate. OSHA publicly admitted that in order to "encourage COVID-19 vaccinations" and because the agency does not "wish to have any appearance of discouraging workers from receiving COVID-19 vaccination," it is suspending this requirement through May 2022. States must promise to enforce this law.
  • While threatening companies with the stick of lawsuits, states should offer the carrot of paying for any potential federal fines levied against the businesses by OSHA.
  • Make it a felony for anyone to share information about vaccination status with the federal government. This is similar to what New York did with its "Green Light" law, making it a felony to share information with ICE. If blue states could do this for illegal alien sex offenders, in violation of legitimate federal immigration powers, then most certainly states can do this to protect American rights in the face of immoral and illegal human rights violations. Page 135 of the OSHA edict "requires that employers provide employees and their designated representatives access to relevant exposure and medical records" of other employees. Such an act needs to be punishable with 10 years in prison.

Martin Luther King Jr. famously wrote in his letter from the Birmingham jail, "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." It's that simple. We are sick of these Republican governors stating that something is immoral and unlawful but then countenancing even the most immoral and unconstitutional executive edicts as if they are constitutional statutes. It's to match their rhetoric with deeds.

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