Last week, I had the honor of attending a Heritage Foundation event honoring Justice Clarence Thomas on his 30th anniversary of joining the United States Supreme Court. For those who don't know, Justice Thomas is universally considered the Court's most conservative justice, unwaveringly standing for the Constitution's original intent. The late Justice Antonin Scalia, who admitted that sometimes he might be found a "fainthearted originalist, "described Justice Thomas as a "bloodthirsty originalist." That's exactly why conservatives love him.
Although he often stood alone for 30 years (except when joined by Justice Scalia), Justice Thomas' persistence over the years paved the way for the conservative judiciary that Donald Trump helped create. Now, instead of having a federal judiciary that disregards the Constitution and rules by how it feels, we have a strong conservative judiciary that aspires to live up to Justice Thomas' example.
This is good news for conservatives who are concerned about federal overreach, especially regarding vaccine mandates. Late last week, the University of Alabama and Auburn University announced that all their employees must be vaccinated because of President Biden's executive order, which says that federal contractors must be vaccinated. President Biden also announced in September that OSHA will require all businesses with 100 employees or more to get their employees vaccinated. Conservative Alabamians are wondering whether anything can be done to fight off this unprecedented assault on federalism, separation of powers, and individual freedom.
Here's the good news: our judicial branch is stacked with judges who hold conservatives like Justice Thomas in high regard. That means when forced to choose between the executive orders and the Constitution, when the two conflict, it's an easy choice: the Constitution wins, hands down.
The legal challenges to Biden's overreach will be launched soon. The word around Washington is that OSHA is in the final stages of preparing its emergency rule (technically called an emergency temporary standard), and the Alabama Center for Law and Liberty is prepared to challenge it immediately when it comes out. In its entire existence, OSHA has issued only nine emergency temporary standards. Six of them have been challenged in court, and five have been struck down. Given how unprecedented and sweeping this rule will be, we expect that this rule will be struck down. The Supreme Court swiftly struck down Biden's eviction moratorium a few months ago on similar grounds, and I predict that it will do the same here.
Furthermore, the Alabama Attorney General's Office is preparing to challenge Biden's vaccine mandate for federal contractors. If the State wins, then that will probably mean that Auburn, the University of Alabama, and the like, won't have to follow through with vaccinating employees. The federal law that lets President Biden issue procurement rules (such as requiring federal contractors to get vaccinated) states that he may issue such rules to promote economic and efficient federal procurement. His vaccine mandate has nothing to do with the economy or efficiency; if anything, the mass layoffs of employees will slow down the economy and raise costs as companies lay off their employees. Thus, a conservative judiciary that wants to follow the law should have a pretty good chance of striking down Biden's contractor mandate.
Finally, if those lawsuits won't solve the problem by themselves, then Title VII suits may do the trick for those with religious objections to the vaccine mandate. For those unfamiliar with that term, Title VII of the Civil Rights Act of 1964 requires most employers to accommodate employees with religious issues unless doing so would incur a "substantial hardship" on the employer. From the 1970s until now, the courts have let employers off the hook too easily, but multiple conservative justices on the Supreme Court are calling for the chance to revisit that approach. Thus, if employers are foolish enough to fire their employees for their religious views (which ACLL is actively urging employers not to do), then they could be giving the conservative judiciary what it wants: the chance to strengthen protections for religious liberty in the workplace.
There's a long line of "bloodthirsty originalist” lawyers and judges who are waiting to slay Biden's mandates.
Don't lose hope.
Help is on the way.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com
