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Government uses COVID-19 and executive orders to assert more control over Americans NEWS-PRESS FILE PHOTOColumnist and attorney Brent E. Zepke questions the goal behind the Biden vaccine mandates, including the one for federal contractors.
On Sept. 9, 2021, the International Buy a Priest a Beer Day, President Joe Biden took actions that were subsequently blocked by federal district courts’ injunctions. Why?
On that 36th Thursday of 2021, President Biden asked the Occupational Safety and Health Administration to issue a vaccine mandate that the U.S. Supreme Court ruled it was not authorized to issue. (See my Jan. 23 News-Press article “OSHA: Law or Politics?”)
Also, on that fateful Thursday, President Biden signed Executive Order 14042. Executive Orders are “a rule or order issued to the executive branch of government.” Notice their applicability is defined as being limited to “the executive branch of government,” which is how they bypass congressional review or actions.
KENNETH SONG/NEWS-PRESS FILE PHOTOExecutive Order 14042 became an example of the Golden Rule of “he who has the gold makes the rules” by mandating vaccinations for millions of people who are not employees of the Executive Branch. This order was applicable to employees in any “workplace location … in which an individual is working on or in connection with a Federal Government Contract.” Apparently, the White House was planning this for months since on July 22, the Department of Labor proposed a rule to define a contract as “an agreement between two or more parties creating obligations that are enforceable or … recognized at law.” Really? Recognized instead of enforceable?
For “proposed” rules to become “final” rules, they must undergo public comment. In a multimillion-dollar case, my client was charged with violating multiple “proposed” rules.
These regulations being “proposed” for years indicated a clear intent to “end run” the requirement of public input. Notice the pattern of avoiding public input that was used by OSHA and CMS towards vaccine mandate.
In our case when OSHA overreached by demanding a million dollars for me to talk to OSHA national, we surprised them by refusing their ransom and demand for settlement and spent the money on reducing their fine to zero during a trial that lasted longer than the one for O.J. Simpson.
On Sept. 30, the Federal Acquisition Regulatory Council issued a memo providing guidance to agencies requiring the contract clause, again avoiding the required public input.
It is difficult to measure the exact extent of the coverage of Executive Order 14042 since it requires federal contractors to also require the clause in their subcontracts. The latest data available is that in 2015 Federal agencies spent over $430 billion on contracts for goods and services, which was almost 40% of all discretionary spending.In November, federal Judge David Noce prevented the application of Executive Order 14042 in Missouri, and nine other states, by issuing an injunction. On Dec. 7, Pearl Harbor Day, Federal Judge R. Stan Baker in Biden v. Georgia issued a nationwide injunction against the enforcement of EO 14042 against federal contractors by holding that the defendants, the Biden team, “have acted to impose a broad-sweeping, unlawful and unconstitutional COVID-19 vaccine mandate, and such COVID-19 vaccine-mandate is unlawful and unenforceable.”
This holding is noteworthy as a plaintiff, such as Georgia, must prove each of the four elements for an injunction, which are (1) likely to succeed on the merits, (2) irreparable injury absent a stay, (3) not substantially injure the other party, (4) in public interest. Notice the court held Georgia is likely to succeed.Understanding that proving all elements is required was the reason this young attorney denied a senior client’s threats to file for an injunction during a labor strike in Pittsburgh, or he “would have my job.” I refused to falsely represent to the court that we would suffer an “irreparable injury.” Fortunately, my general counsel supported my denial.
On Dec. 17, the 11th Circuit Court of Appeals denied the Biden team’s motion to stay the injunction. The court held that the administration failed to show it would be irreparably injured by an injunction. Hopefully, the White House counsel will convince her client to save what’s left of its credibility by canceling the April 4 oral argument.
The Biden White House counsel is Dana Remus, who brought her extensive experience as counsel for Joe Biden’s campaign, the Obama Foundation and Michelle Obama (2017-2019) after serving as deputy assistant to President Barack Obama and deputy counsel for ethics. This was ethics back when Vice President Joe Biden was ushering around his son Hunter on Air Force Two while he negotiated deals in the Ukraine, China and Russia, while Secretary of State Hillary Clinton had Huma Abedin as her personal assistant after the Senate refused to ratify her due to her being a security threat, download classified documents to the computer she shared with her convicted pedophile husband Weiner.
Ms. Remus is maybe the appropriate ethics counsel for this diverse White House, but she appears to lack experience with injunctions.
On the other hand, President Trump’s White House Counsel Pasquele Anthony “Pat” Cipollone’s litigation experience in Kirkland and Ellis included injunctions. Hopefully on the next Sept. 9, the Biden team can avoid actions that lead to injuring their credibility while wasting taxpayers’ money, by having the president spend his day buying a priest a beer.
What is the goal of these vaccine mandates? The administration’s continued failure to stop the flow of 7,000 unvaccinated border crossers a day proves that the goal is not to control COVID -19. However, the pattern of continually end-running the elected representatives in Congress and the regulations requiring the publics’ input indicates a goal of trying to use COVID to control the people through extending their control through the Golden Rule.
Consistent with fear of losing that control is the administration’s just canceling any investigations into the origin of COVID and continuing to use Fauci to scare the public. Under the theory of “Fool me once, shame on you; fool me twice, shame on me,” we must vote to deprive them of the gold that the Build Back Better bill will arm them with as they seek to extend control over voting, child care and education.
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. Formerly he taught at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer,” and “Law for Non-Lawyers.”
Brent E. Zepke
The author lives in Santa Barbara.
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