By: Scott D. Cosenza, Esq.
October 13, 2021

Snip

The Delaware Don?

President Joe Biden has said he will order all large businesses to mandate vaccinations or weekly testing for employees. Per the Associated Press: “His will is to be enacted through a forthcoming rule from the Occupational Safety and Health Administration that carries penalties of $14,000 per violation, an administration official said.” Biden just acted, not like a man constrained by limiting principles but like a modern-day mob Don, who implemented a rule based on his whim. He and Abbott are birds of a feather in that regard. The Texas Tribune reported:

Abbott joins Biden in issuing edicts to private businesses without authorizing legislation or grant of power from the people. No federal legislation gives the president the power to do anything like this, and no Texas law gives Abbott authority for his order. So imagine the predicament of the Texas large business owner. The state fine is only $1,000, but there is a jail sentence of six months, too! Walter Olson of the Cato Institute’s Constitutional Studies section said of Abbott’s order: “This is just as much a slap in the face to business freedom as Biden’s intended OSHA mandate.”
Texas Two-Step for Businesses

Since Biden’s regulations haven’t been released, there is nothing to enjoin. However, those fights will come soon, and the federal courts will decide if his order is legal. Abbott’s administration will no doubt have to win twice — in state and federal court. The Constitution’s Supremacy Clause provides that federal law wins in any conflict between it and a state law:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.”