Dershowitz: SCOTUS likely to rule against Biden vaccine mandate

Attorney Alan Dershowitz outside of the U.S. Capitol in Washington, DC. (Photo by Sarah Silbiger/Getty Images)

Attorney Alan Dershowitz outside of the U.S. Capitol in Washington, DC. (Photo by Sarah Silbiger/Getty Images)

OAN Newsroom
UPDATED 5:01 PM PT – Monday, September 13, 2021

State lawmakers and corporate attorneys have been chomping at the bit to take the Biden administration to court after the new vaccine mandates. Biden announced executive changes last week, which would reportedly affect 100 million Americans.

In particular, the new rules were set to require all federal and federally contracted employees to be vaccinated as well as business with over 100 employees. The pushback was immediate.

The Republican National Committee said they planned to sue the Biden Administration as soon as the new rule became official. In addition, Oklahoma Attorney General John O’Connor said his office was already preparing litigation to defend the rule of law against the overreach of federal government.

The governors and attorney generals for numerous states across the country have followed suit, such as Kansas Sen. Roger Marshall (R) who argued the mandate violated the Constitution and should be left up to individual states to decide.

He went on to explain, “this should be a 10th Amendment issue where the state’s power supersedes the government.”

However, constitutional lawyer Alan Dershowitz said in a recent interview he believed the courts could say the federal government had jurisdiction in this case because COVID-19 was contagious, therefore making it a national issue that crossed state lines.

The problem would be enforcing the penalties because unlike states, the federal government did not have police power. Rather, its power came from the Constitution alone.

The Harvard Law School professor emeritus said a person’s right to punch ends at the tip of another person’s nose. One person’s freedoms cannot infringe on another’s rights.

For Dershowitz, the key question for the new mandates’ constitutionality was if a U.S. president had the authority alone, by declaring an emergency, to make law and impose punishments.

“Already we’ve had companies and states indicate they are going to file suit. This is going to be a big payday for lawyers unfortunately, but it will get the case to court right away,” he stated. “I suspect that within a month, the Supreme Court will issue a preliminary decision on whether or not a president, as distinguished in Congress, can impose a near universal mandate.”

Since creating laws was a duty of the legislative arm of government, he believed the courts would say the president did not have the authority to mandate vaccines without the approval of Congress. Simply put, in exercising executive power to enact a universal mandate, Biden has clearly violated the Constitution.

“Carefully done, constitutionally done,” Dershowitz stated. “I care deeply about the Constitution and the end should not justify the means.”

The mandate relies on a rarely used workplace rule that reportedly has a history of being blocked in court. The Occupational Safety and Health Administration could implement an emergency standard when workers were exposed to a “grave danger,” which would allow the agency to sidestep the usual process for developing a standard.

However, opponents could argue a grave danger, which was not defined in the law and didn’t exist on a national level as the current spike in COVID-19 cases was regional. In his legal analysis, Dershowitz stated for Biden to impose the mandate as a case of an emergency was problematic because COVID-19 existed before Biden’s term and would likely continue to exist seasonally in different variations for years like the flu.

For Dershowitz, the mandate should be not be “done under the rubric of emergency, but rather under the rubric of or ordinary congressional power.”

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Carley Joanou
Author: Carley Joanou

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