While the 5th Circuit Court of Appeals quickly issued a stay on the OSHA vaccine Emergency Temporary Standard (ETS), the Biden administration insisted that companies ignore the stay and proceed with the mandate. No matter what the courts or the Biden administration do, we the people of NC must prevent the implementation of this mandate at all costs.
Seeds of tyranny
In 1970, Congress enacted the Occupational Safety and Health Act, which authorized the Secretary of Labor to issue workplace health and safety standards. However, looking at the list of legislative powers in Article I, Section 8 of the U.S. Constitution, Congress had no power to do so. Supposedly, the Act falls under the “Commerce Clause,” which states Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.” Yet, Georgetown Law professor Randy E. Barnett wrote in the University of Chicago Law Review, “I have found not a single example from the reports of these proceedings (Constitutional Conventions) that unambiguously used the broad meaning of ‘commerce’ (e.g., any gainful activity) and many instances where the context makes clear that the speaker intended a narrow meaning (e.g., trade or exchange of goods).” In other words, the Founders never intended the Commerce Clause to be a catch-all that allows the federal government to govern any activity that crosses state lines. It was simply to ensure fair and open trade among the states.
Second, even if you believe OSHA was a legal act of Congress, the lack of specificity in the act violates the “non-delegation doctrine” inferred by the U.S. Supreme Court. Under the Act, OSHA is authorized to create standards that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” But due to the distinct separation of powers outlined in the Constitution, one branch cannot delegate their powers to another branch. Therefore, as Damien Schiff of the Pacific Legal Foundation writes, Congress must “include in its legislation an ‘intelligible principle’ to guide the law’s execution. A law that lacks such an intelligible principle is an impermissible delegation of legislative power and therefore void.”
Finally, the Tenth Amendment makes it clear that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since Congress was not granted the authority to regulate workplace safety, this power falls under the sole discretion of each state.
While these seeds of tyranny were planted long ago, we now see the rotten fruit they are capable of bearing. If we allow this mandate to stand, we are saying the president can order an executive branch agency, at his or her discretion, to violate our bodily autonomy under threat of banishment from gainful employment. And if the president is free to violate our person with such a dire consequence for non-compliance, how many more lines are there left to cross?
Who will stand for NC?
Though the stay by the 5th Circuit currently puts the mandate on hold, we must ask who among our state and local officials will take a stand should the courts ultimately rule in OSHA’s favor?
Since our governor and attorney general are puppets of the Biden regime, all eyes are on Department of Labor Commissioner Josh Dobson. As one of 26 states with a state OSHA program, Commissioner Dobson will have to decide whether to accept, reject, or modify the ETS. If rejected, the federal government will likely take action to pull our state plan and takeover all OSHA enforcement. However if he modifies the ETS as discussed in this Bloomberg Law article, he could play a game of red-tape that would delay implementation long enough for pandemic lunacy to pass. While opposed to the mandate, Dobson will only say he is “considering all possible avenues and will pursue the option that best serves the collective interests of North Carolina employers and workers.”
In the state legislature, House Speaker Tim Moore also expressed his opposition to the mandate saying, “The Biden vaccine mandate is a shocking invasion of medical privacy and individual liberty, and we will not stand for it.” He continued, “I am exploring every legal option to defend the rights of North Carolinians against this unconstitutional mandate.” One option the General Assembly could take is to pass a series of local bills similar to House Bill 572, “No Vaccine Mandate by EO, Rule, or Agency.” Since local bills do not require the governor’s signature to become law, there is no concern of a veto.
Then there are county boards and sheriffs. If state officials acquiesce, local officials should partner together to pass ordinances that ban anything from OSHA vaccination inspections to vaccine mandates as described above. Unlike other law enforcement leaders, sheriffs are elected and therefore answer only to the people. In fact, the Constitutional Sheriffs and Peace Officers Association claims, “The law enforcement powers held by the sheriff supersede those of any agent, officer, elected official or employee from any level of government when in the jurisdiction of the county.”
Before you dismiss these suggestions as beyond the scope of delegated authority or even radical, keep in mind all officials in our state take an oath to uphold both the federal and state constitutions. And by taking an oath to do something, it is implied the one taking it has the authority to uphold it. Therefore, we must hold our state and local officials accountable. And if they refuse, we must be prepared to stand in the gap.
We the people are the last line of defense. For it is only by our consent this government exists. And the most powerful response we can make to any tyrannical edict is “no.” Through non-compliance, like the civil disobedience of the American Civil Rights movement, we must do everything possible to render this threat to our liberty unenforceable.
As delegates left Independence Hall and the Constitutional Convention in September of 1787, someone asked Benjamin Franklin what kind of government do we have? To which he replied, “A republic, if you can keep it.” To have any hope of keeping what is left of this republic, we must hold the line right here, right now, at all costs.
Jason Phibbs is analytics professional for an investment firm and actively working to protect freedom in N.C.
This article first appeared in the December / January print edition of Carolina Journal.