Horowitz: How GOP governors must stop the OSHA clot-shot mandate in its tracks



It's not shocking that many blue-state voters swept Democrats out of power in favor of Republicans in parts of the country previously untouchable by the GOP. Nor is it shocking that Biden responded to the election drubbing by doubling down on his tyrannical policies. What is shocking, however, is the lack of GOP resolve to completely neutralize the needle rape mandate even in red states, other than crying to the courts for help.

It was for this very moment that our founders created a layered federalist system. If one entity seized the federal power, the states would remain a check and balance on unconstitutional behavior. Governors would be wise to meet at a conference and declare that any mandate on the people or businesses of their states is null and void. That is exactly what our founders would have done.

Too many people erroneously interpret Article VI's Supremacy Clause as a green light for any action taken by the federal government to supersede state law. However, they are forgetting one phrase of that clause. Article VI, Clause 2 states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land." In other words, something that is clearly out of the bounds of federal powers enumerated in Art. I Sec. 8, even if passed by Congress, much less a rogue federal agency like OSHA, is not supreme over state law.

It's not that our founders never envisioned that a president might want to act like a tyrant; it's that they never saw states and the people rolling over and being obsequious to every tyrannical executive edict. Even Alexander Hamilton, the greatest proponent of a robust federal government, made it very clear that unconstitutional edicts would be ignored by the states without having to cry to the federal courts, which the founders feared might also be in cahoots with the federal executive. "It will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land," wrote Hamilton in Federalist #33. "These will be merely acts of usurpation, and will deserve to be treated as such."

Hamilton reiterated this point in Federalist #78: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid." Again, he said this about a legislative act – imagine what he would think of a bureaucratic act affecting bodily integrity.

Madison even went so far as to suggest that people would take up arms. In Federalist #46, he stated that in the event of the federal government clamping down on individual rights even with a military (much less career OSHA bureaucrats), "the State governments with the people on their side would be able to repel the danger" via the power of "citizens with arms in their hands"who would be fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence."

During the North Carolina ratification convention, many delegates were particularly skeptical of ceding power to the federal government and were concerned about the creation of a dictatorship that would crush the state. James Iredell, the lead federalist in the state, who eventually became an original member of the Supreme Court, laughed off the notion that the federal government could succeed when the state and the majority of the people unify behind opposing it. In a speech before the convention on July 29, 1788, he conceded that with the creation of any new government you run the risk of abuse, but that should not cause concern because "the only resource against usurpation is the inherent right of the people to prevent its exercise. This is the case in all free governments in the world." He predicted, "The people will resist if the government usurp powers not delegated to it."

Commenting on the Guarantee Clause of Art. IV, Section 4, whereby the federal government must guarantee the states "a republican form of government," Tench Coxe made it clear that any usurpation of republicanism would be treated as treason by those who perpetrate it. "From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason," declared the Pennsylvania delegate to the Constitutional Convention.

Well, here we are today, with an unelected federal agency proclaiming a mandate on the businesses and bodies of citizens in all 50 states with power that clearly could never have been vested in any government, much less the national government. The Biden administration is mandating that we place something into our bodies that has already proven unsafe and 100% ineffective for its stated purpose of stopping transmission of COVID-19. If our founders' vision of states serving as a check on federal tyranny is not actualized here, especially in light of 19 months of executive edicts without a legislative process, then we should cease calling ourselves a free society.

How is it that governors in states with supermajorities in the legislature and where Biden has a dismally low approval rating are scared to simply say NO? Merely filing a lawsuit and exempting just state government employees from the mandate is not good enough. They need to counterbalance the federal mandate on business with an even stronger mandate to overrule it.

Here is a way they can effectively push back against the feds with a united front, beginning with the convening of special sessions of their respective state legislatures:

  • Not only ban business mandates in state law, but offer employees a cause of action in state court to sue for damages (with no caps) for vaccine injury or injury from mask-wearing. That will outweigh the magnitude of federal fines on the other side.
  • Force businesses, with the threat of fines, that decide to listen to the feds to at least apply federal workplace injury law that OSHA is blatantly ignoring. Pursuant to 29 CFR 1904, employers are required to record side effects of workers who are vaccinated by mandate. OSHA publicly admitted that in order to "encourage COVID-19 vaccinations" and because the agency does not "wish to have any appearance of discouraging workers from receiving COVID-19 vaccination," it is suspending this requirement through May 2022. States must promise to enforce this law.
  • While threatening companies with the stick of lawsuits, states should offer the carrot of paying for any potential federal fines levied against the businesses by OSHA.
  • Make it a felony for anyone to share information about vaccination status with the federal government. This is similar to what New York did with its "Green Light" law, making it a felony to share information with ICE. If blue states could do this for illegal alien sex offenders, in violation of legitimate federal immigration powers, then most certainly states can do this to protect American rights in the face of immoral and illegal human rights violations. Page 135 of the OSHA edict "requires that employers provide employees and their designated representatives access to relevant exposure and medical records" of other employees. Such an act needs to be punishable with 10 years in prison.

Martin Luther King Jr. famously wrote in his letter from the Birmingham jail, "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." It's that simple. We are sick of these Republican governors stating that something is immoral and unlawful but then countenancing even the most immoral and unconstitutional executive edicts as if they are constitutional statutes. It's to match their rhetoric with deeds.

Horowitz: Leftist judge attacks US Marshals for not disclosing vaccination status, holds them in contempt



Are the U.S. Marshals nothing but slaves to the federal judges they guard? Are there no limits to the power of a judge in a courtroom? These are the questions from a most bizarre blowup in a South Dakota federal court.

The Washington Post reports that on May 10, U.S. District Judge Charles Kornmann of South Dakota, a Clinton appointee, randomly asked a deputy marshal who was guarding his court if she was vaccinated. Aside from this being an extremely inappropriate question, every marshal has been wearing a mask in court, and we are told that masks are effective. The female officer refused to answer the question, and the ungrateful judge summarily ordered her to leave the court. Then, the marshals present in the court allegedly took the three defendants who were scheduled for hearings that day and removed them from the courtroom.

Fast-forward to Monday, and Kornmann unilaterally charged three marshals with conspiracy to obstruct justice and contempt of court. He went on an hour-long rant accusing the marshals of "kidnapping" the defendants. He further asked the U.S. attorney from South Dakota to prosecute the case against them and set a trial date for Sept. 13.

In a May 19 order, this pompous judge charged that the marshals "could well be the most dangerous people in the courtroom in a given case."

"I do not know the answer to that as I have no information since deputies, with the encouragement and full support of their supervisors, are refusing to tell me whether they have been vaccinated or not," wrote Kornmann following the incident in May.

The three accused of contempt are John Kilgallon, chief of staff for the U.S. Marshals Service in Washington, D.C., Daniel Mosteller, the marshal for the District of South Dakota, and Stephen Houghtaling, the chief deputy for that district. Last month, Mosteller wrote in a letter to Kornmann, "Compelling individuals to be vaccinated or delving into their rationale/reasoning for not being vaccinated is very problematic."

But who judges the judge? How can a judge act so inappropriately to those protecting him and then seek to prosecute them without a prosecutor when he doesn't like their response? Can others in the courtroom ask whether the judge has engaged in unprotected sex before or whether he has syphilis, AIDS, or herpes? Maybe he is a threat to others in the courtroom. The point is he has no right to insult members of a separate branch of government and then complain about reprisal.

People often forget that federal judges have no police force. Both the prosecutor and the U.S. Marshals (who are the police force, in part, for the judiciary) are members of the federal executive branch, not the judiciary. The same Judiciary Act of 1789 that created the federal judiciary also created the U.S. Marshals within the executive branch. Thus, the Marshals are as old as they are independent from control of the judiciary. They work for the president at the behest of congressional statutes, not for the federal judges. Rule 4.1 of the Federal Rules of Civil Procedure specifically designates the U.S. Marshals as responsible for processing an order committing a person for civil contempt. Consequently, if the president or his designated officers disagree with such an order, he can direct the Marshals to stand down.

This is exactly what Alexander Hamilton meant when he stated in Federalist #78 that judges have "neither force nor will" and that the court must "ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." This is a feature, not a bug, of the system.

Our founders understood the power of a judicial order and wanted to ensure that the force behind its implementation was left in the hands of a separate branch of government. A president is elected by the people through the states, and Congress is governed by 535 individuals in a bicameral arrangement. They all stand for election. Federal judges are life-tenured and do not stand for re-election. The founders didn't want a single unelected federal judge to simply rule by fiat, which is why the U.S. Marshals, a part of the executive branch, ultimately serve as the police force for the judiciary. When a judge is out of line, it's up to the attorney general, and ultimately the president, to decide whether to give effect to a judicial order.

Our founders designed the system that way on purpose. Because judges are unelected and life-tenured, to provide them with any enforcement power would have been antithetical to the principles of republicanism. The founders gave the power of enforcement to the executive branch and the power of the purse to the legislative branch to check the judicial power, the same way the power to decide individual cases under the law was given to the judicial branch to check the other branches.

In this case, we have a judge who violates privacy rights, as well as the plain meaning of the Emergency Use Authorization statute, which ensures that experimental medical devices or drugs must remain optional. Last month, the judge ordered that all unvaccinated marshals must wear N-95s in his courthouse all day. But this is not his courthouse, and the marshals don't technically work for him. Out of courtesy, over the years, they have deferred to the local judge for guidance on logistical matters, but ultimately they answer to the president and Congress. A federal judge does not have the power to dehumanize those who protect him and make them work under inhumane conditions.

Somehow, these pompous judges think they can wield political power as unelected officials that no single elected official holds. Kornmann has already publicly criticized Governor Kristi Noem for doing "little, if anything, to curtail the spread of the virus." But the twisted irony of his vaccine obsession is that a vaccine doesn't hinge upon public orders to be effective. If his vaccine is so efficacious that it's worth humiliating those who protect him in order to mandate it, then that means it truly is very effective and will protect him or anyone else vaccinated, regardless of the vaccination status of others.

If Kornmann wants to get involved in the politics of COVID, then why not run for office in South Dakota? Challenge the governor or one of the senators if you wish to mandate vaccines. But he knows that he could never get elected as a leftist Democrat in South Dakota, so he seeks to circumvent the democratic process.

The question now is whether President Biden will stand up for a respected branch of his own administration and actually show this rogue judge who is boss. It would be a terrific bipartisan opportunity for Congress to get together and impeach this judge and take a stand for our marshals who risk their lives every day for these judges. It's amazing how the same people who are so truculent in wielding their stick of power over helpless citizens suddenly become impotent to check the power of unelected judges who lack any stick whatsoever.