In a 2-1 ruling, a panel of the U.S. Appeals Court for the Sixth Circuit ruled that the Biden administration could enforce the policy using the Labor Department’s Occupational Safety and Health Administration (OSHA).
"Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there," wrote Judge Jane Branstetter Stranch, a Barack Obama appointee, for the majority. "In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration."
The rule establishing the mandate had prompted a slate of legal challenges from at least 27 states as well as business and religious groups that argued the mandate is unconstitutional.
The Fifth Circuit Court of Appeals November 12 ordered OSHA to "take no steps to implement or enforce the Mandate until further court order," reaffirming an earlier decision it had made. The court said the mandate exposes the petitioners "to severe financial risk" and "threatens to decimate their workforces (and business prospects)."
The Biden administration was forced to halt the mandate following the ruling. But Friday, December 17, the Sixth Circuit court ruled that the mandate was needed to limit transmission of the virus.
In November, the Mississippi Justice Institute (MJI), on behalf of Gulf Coast Restaurant Group (GCRG), filed suit, challenging the mandate. GCRG is the corporate family that owns several Mississippi restaurants, including Half Shell Oyster House and the Rack House. GCRG, which is already struggling with staffing shortages in its restaurants, challenged the mandate in court because it will encourage even more of its employees to quit their jobs and could even make it difficult to keep many of its restaurants open.
"Gulf Coast Restaurant Group is disappointed with the decision but always expected this case would eventually be heard by the United States Supreme Court," said MJI Director Aaron Rice. "Employers all over America are already struggling to keep their businesses open. Now they are faced with losing more of their employees and complying with onerous federal regulations. We are going to continue fighting on their behalf and we believe the Supreme Court will recognize the litany of constitutional and other legal problems with this mandate."
Like never before, the compilation of information has increased exponentially with every passing year. In recent years, more personal information has been cataloged than perhaps all of the prior centuries combined. Despite the privacy importance of this data, many policymakers have done very little to protect this data from the eye of Big Brother.
Fundamentally, most consumer electronic data reside under the electronic access of companies (such as in a cloud). While some of the data is under the sole control of individuals, most of the data is stored by companies that utilize the data in various ways. In cases of government surveillance, these companies may be all but forced to turn over their user data, without a warrant in some cases.
This brings up the fundamental question of data innovations and protection from the eye of big government. It is important to consider why data privacy is important for consumers. Rather than just simply being “users” within a broad tech ecosystem, these are individuals with their own personal lives. In light of this increased use of consumer data, there is a need for protection from government itself. There are several reasons for this.
Fundamentally, it is important to note that without the proper safeguards, every technological advancement in data collection and usage is a potential tool in the hands of government. We see this in the surveillance state of communist China. As innovation increases, the different levels of available information increase as well. While technological data collection was more limited in former days, even fingerprints and retinal scan data have become commonly harvested in the wake of new biometric technologies.
In order to grasp how new technology can be improperly used by government without proper safeguards, an example from history demonstrates how the government can “innovate” to get electronic data about citizens. Rather than it being a trend that has started in the last generation or so, using private sector technology holdings as a doorway to surveillance goes back to prior centuries. In the 1800s, government agents developed the ability to tap into privately owned telegraph wires and listen in on conversations. By the Civil War, telegraph tapping was being used for military intelligence.
Such “new” technology for government surveillance that enabled listening in on real-time communication across long distances was a massive breakthrough. The difference is especially demonstrated when compared with the “surveillance” of the Founders’ day that involved British agents manually sifting through the mail bags attached to a saddle.
Despite the massive growth in government surveillance capabilities with the advent of the telegraph, it is important to note that Samuel Morse, the inventor of the telegraph, was not a government agent. Government surveillance innovators simply harnessed his technology. In fact, the vast majority of telegraph companies were owned and operated by private companies. While the technologies being used are different, this concept of using technology and data housed within the private sector as a means of government surveillance has not gone away.
Fast forward to the 21st century, and the telegraph has long fallen out of use. We live in a day when the free market has developed smartphones, facial recognition, fingerprint scanners, drones, location tracking, doorbell cameras, artificial intelligence, and a host of other technologies. Yet, the danger of the government indiscriminately using these new technologies to expand surveillance on its citizens has only increased.
Despite the danger of government being too indiscriminate, many companies that harvest or store user data have a history of providing government with user data, sometimes without even having a search warrant. One report that reviewed the number of law enforcement requests for data from several large technology companies found that 85 percent of the requests were granted.
In order to remedy this, some states are looking to implement proactive safeguards. Utah has passed legislation prohibiting the government from accessing data stored by a technology company unless a search warrant is issued. This provides a key balance, ensuring that new technology provides a platform for technological advancement, not an entry point for government intrusion.
Personal information might be kept on parchment paper written on with quill and ink, or it could be stored in complex data silos hosted in a digital cloud. Regardless of the technology being used, public policy should protect the freedom of Americans by protecting their data. The protection of personal information from undue government intrusion is a timeless part of the American ideal. In order to ensure that no technology becomes a “Trojan horse” to threaten this ideal, policies should be instituted that pro-actively ensure that the government cannot strong-arm technology companies into turning over user data without accountability.
In 2020, the Mississippi legislature passed a bill that included a provision to implement a digital driver’s license program that allows citizens to keep a copy of their license on their smartphones. The program is expected to roll out soon. However, there are still some unanswered questions that could pose a threat to individual liberty if not addressed.
In the first place, there must be an understanding of how most digital license programs work. The text of the bill, HB1371, specifies that the Department of Public Safety “shall develop and implement a driver's license or driving permit in electronic format as an additional option for license or permit holders. Acceptable electronic formats include display of electronic images on a cellular phone or any other type of electronic device.”
For most of the states that have implemented a digital license, the license is stored via encryption on a government-sanctioned smartphone app. Mississippi’s program development has followed this model. When the digital license is requested by law enforcement, store clerks, or others, they can scan the smartphone to verify the license's authenticity. After authenticity has been verified via cryptography, the driver’s license information is shared with the individual requesting it.
At first glance, this concept of a digital driver’s license might seem to be a fairly straightforward advancement for the digital age. To a certain degree, this is true. There is nothing inherently wrong with implementing a digital license option in addition to the traditional plastic driver’s license. However, digital licenses bring a level of complexity that is not quite there for physical licenses, and this complexity must be properly addressed.
In the first place, it is important to consider the potential threats to individual liberty that can occur if a digital license program is poorly designed and does not have the proper protections in place for citizens. There are several essential issues to consider.
For instance, consider the circumstances where a driver’s license might be requested. Such examples might include traffic stops, certain purchases, and entrance into restricted buildings. Under traditional circumstances, the physical card would be presented, and there is no centralized reporting structure that logs when and where the license is used. However, in the context of a digital license, this could change.
If the digital license app was programmed to report to the DMV as it was used, such data could be compiled to track citizens' actions. Depending on how the app is designed, this data could include the date, time, location, and the circumstances of the digital license being presented.
Instead of having such a system, any digital license should have authentication protocols that can operate offline without reporting the license usage details to the DMV. This is essential to prevent a digital license from being a tool of systematic state government surveillance.
In addition, there have been plans made in Mississippi to eventually expand the proposed digital driver’s license app by allowing citizens to also include additional state-issued documents such as hunting licenses, real estate licenses, and concealed carry permits. This brings in the question of how much data centralization could eventually be placed into the digital license app.
While the concept of a voluntary centralized digital wallet for government-issued licenses is one thing, there is a potential slippery slope. Already, some in the state have proposed including non-licensing information, such as Covid vaccination cards. At this time, officials have insisted that the option to include other documents in the digital wallet in addition to a standard driver’s license would be strictly voluntary. However, it is important to maintain in the future that the digital ease of adding additional information to a digital wallet should never lead to even more data being requested or digital wallets becoming mandatory.
These are complicated matters that require careful thought and analysis. Yet, despite all of these complexities, the state has had a relatively low amount of public communications on the eventual parameters for the digital license program. For something as fundamental as license identification protocols, and something as complex as mobile app technology, the state should be entirely transparent on the final procedures for development and implementation.
It is essential so that the personal liberty of Mississippians is never compromised for the sake of digital technology. The concept of license digitization comes as no surprise in an increasingly digital world. But the proper guardrails must be in place to ensure that such digitalization is never a precursor for the erosion of individual liberties.
We did it! The Mississippi Justice Institute (MJI) just stopped the Biden Administration’s private employer vaccine mandate in its tracks. The Fifth Circuit Court of Appeals temporarily halted the mandate, finding that there is "cause to believe there are grave statutory and constitutional issues with the Mandate."
MJI represents Gulf Coast Restaurant Group (GCRG) in the lawsuit challenging the mandate. GCRG is the corporate family that owns several Mississippi restaurants, including Half Shell Oyster House and the Rack House. GCRG, which is already struggling with staffing shortages in its restaurants, challenged the mandate in court because it will encourage even more of its employees to quit their jobs and could even make it difficult to keep many of its restaurants open.
Private employers in Louisiana and Texas have also joined the suit, as well as the Attorneys General of those states. The State of Mississippi is represented by Attorney General Lynn Fitch.
The federal vaccine mandate for private employers requires companies with over 100 employees to force their employees to be vaccinated, or be subject to weekly testing (at the employee’s expense) and constant mask wearing – on pain of losing their job.
While this halt to the federal vaccine mandate is only a temporary measure, it is a crucial first round victory. It signals that the courts understand the serious and myriad legal problems with this mandate, and are willing to hold the federal government to its constitutionally limited role.
If you don’t own a business that is subject to the federal vaccine mandate, or work for one that is, should you care about the legal fight to put a stop to it? Absolutely, for several reasons.
It’s never a good idea to let the federal government infringe on people’s personal liberties to force them to do what the government thinks is best for them. Not only does that make us less free, it often backfires. Encouraging voluntary vaccination is the best approach to foster greater participation and trust.
Additionally, if we stay quiet when the federal government exceed its constitutionally authorized power just because it doesn’t personally affect us, we have no way stop the federal government from overreaching when what it’s doing does personally affect us.
And finally, the federal vaccine mandate will affect all of us, whether or not it applies to our businesses or employers. The labor market is as tight as most businesses have ever seen it. The supply chain is riddled with delays. The last thing the economy needs is any more major disruptions, like thousands more employees quitting their jobs over incredibly intrusive medical mandates.
Gulf Coast Restaurant Group encourages its employees to get vaccinated. It even offers a $100 reward to every employee who does. While GCRG is proud of its efforts to encourage employee vaccination, it is equally proud to stand up for the rights of Mississippi businesses to operate without burdensome and unconstitutional federal regulations that prevent them from retaining their employees and adequately serving their customers. And MJI is proud to represent them in that fight.
With your continued support, we hope to keep fighting for Mississippians’ constitutional rights for many more years to come.
In Liberty,
Aaron Rice
Director, Mississippi Justice Institute
FOR IMMEDIATE RELEASE
(Jackson, MS): The Mississippi Justice Institute and its client, Gulf Coast Restaurant Group, have halted the Biden administration's unconstitutional vaccine mandate for private employers.
The U.S. Fifth Circuit Court of Appeals, on Saturday, temporarily blocked enforcement of the Occupational Safety and Health Administration’s (OSHA) mandate pending further review by the court, finding that there is "cause to believe that there are grave statutory and constitutional issues with the Mandate."
The Mississippi Justice Institute (MJI) represents Gulf Coast Restaurant Group – the corporate family of restaurants such as Half Shell Oyster House and the Rackhouse – in the litigation challenging the vaccine mandate for private employers. Gulf Coast Restaurant Group, like many other businesses, is already struggling with labor shortages and believes that the vaccine mandate will lead to further staffing reductions and harm to its business and customers.
"We are grateful that the court recognized the serious constitutional concerns raised by this mandate and has stayed its enforcement pending further review,” said MJI Director, Aaron Rice. “We will continue fighting to put a permanent stop to this unprecedented federal overreach."
"We are delighted to hear this news from the court,” said Kevin Fish, Vice President of Gulf Coast Restaurant Group. “We know that hard-working Mississippians who were worried about potentially losing their jobs can take a huge sigh of relief."
Attorney General Lynn Fitch represents the State of Mississippi in the lawsuit. "I encourage everyone to consider vaccination, but the decision is yours and the President should not force anyone to vaccinate for fear of losing their jobs, especially not on the cusp of the holidays," said Fitch. "I appreciate Gulf Coast Restaurant Group and the Mississippi Justice Institute standing with me on behalf of the 84 million American workers who will be impacted by this mandate."
This temporary stay represents a major initial victory in the challenge to the Biden administration’s vaccine mandate for private employers. MJI and Gulf Coast Restaurant Group look forward to continuing the fight in court.
Please direct all media inquiries to Stone Clanton, [email protected].
FOR IMMEDIATE RELEASE
(Jackson, MS): The Mississippi Justice Institute – a non-profit Constitutional litigation center and the legal arm of the Mississippi Center for Public Policy – filed suit today to challenge the Biden administration’s COVID-19 vaccine mandate for private employers.
The mandate, issued by the Occupational Safety and Health Administration (OSHA), requires private companies with more than 100 employees to ensure that all of their workers are either fully vaccinated by January 4th, 2022, or subject to weekly testing and mask-wearing. OSHA says "fully vaccinated" means that the employee has received two doses of Moderna or Pfizer's vaccine, or one dose of the Johnson & Johnson's vaccine. The companies are subject to fines well over $13,000 per day for each employee that does not comply.
The Mississippi Justice Institute (MJI) represents Gulf Coast Restaurant Group, a corporate family of restaurants including Half Shell Oyster House and the Rackhouse. Attorney General Lynn Fitch represents the State of Mississippi in the suit. The lawsuit was filed by a coalition of states, including Mississippi, Texas, Louisiana, South Carolina, and Utah, as well as private employers in several of those states.
“The Mississippi Justice Institute is proud to represent Gulf Coast Restaurant Group, and to partner with Attorney General Lynn Fitch to challenge this extraordinary federal overreach,” said MJI Director, Aaron Rice. “While we and our client are grateful for the development of the COVID vaccines, we cannot stand by while the federal government brazenly exceeds its constitutional authority and infringes on the individual liberties of Mississippi businesses and workers.”
"While I am personally pro-vaccination, I completely disagree with this policy,” said Kevin Fish, Vice President of Gulf Coast Restaurant Group. “It is completely arbitrary. This policy will place an unfair and unreasonable burden upon my staff simply because of the number of employees I have."
In addition to turning employers into federal vaccine enforcers, the regulation will also result in many leaving the workforce entirely. This would accelerate a trend that has devastated the nation’s economic growth in the wake of pandemic.
"The federal government has no business forcing Mississippi workers to get vaccinated or forcing Mississippi businesses to fire their employees,” said Rice. “This is still a free country. In America, we have presidents, not kings."
The lawsuit was filed in the United States Court of Appeals for the Fifth Circuit.
Please direct all media inquiries to to Stone Clanton, [email protected]
This year marks the 5th anniversary of the Mississippi Justice Institute, a state-based constitutional litigation center and the legal arm of the Mississippi Center for Public Policy. When we started MJI, we wanted to make Mississippi a better place and to defend the ideals that make our country, and our state, so unique.
MCPP had already been engaged in that effort for decades; advocating in the legislature, the executive branch, and the public square. But in order to truly defend the constitutional ideals of liberty and justice for all, we knew we also had to take our fight to the courts.
The Mississippi Justice Institute helps foster freedom and prosperity in Mississippi by standing up for ordinary Mississippians whose rights have been violated by the government. We defend the personal, economic, and religious liberty of Mississippians in court and ensure that all forms of government are limited to their essential responsibilities as provided by the Constitution.
The fight for liberty never ends, and no organization can see it fully achieved. But we have made important progress. So, in honor of MJI’s 5th anniversary, here are five reasons to celebrate!
1. MJI has stood up for the right of regular Mississippians to earn an honest living in occupations as varied as eyebrow threaders, eyelash artists, weight-loss coaches, food truck operators, taxicab drivers, home health agencies, and telemedicine providers.
2. MJI has defended the right to free speech, whether for pro-life counselors to have compassionate conversations with women seeking abortions or for companies to be able to truthfully label their products.
3. MJI has won cases protecting Mississippians’ personal rights to worship and to bear arms. A Mississippi city tried to stop churches from having drive-in church services during the pandemic. After we filed suit, the city officials decided to allow the services after all. Another city banned the open carry of firearms. We filed suit, the city dropped the ban, and a federal court issued an order preventing the city from ever restricting the right to openly carry firearms again.
4. MJI has defended Mississippians’ ability to choose to send their children to charter schools. When the Southern Poverty Law Center challenged Mississippi’s charter school funding law, MJI intervened to represent parents of charter school students, and the courts upheld the funding for charter schools.
5. MJI has protected Mississippians’ property rights by leading the charge to eliminate administrative forfeiture, which allowed the government to take and keep private property without requiring involvement by the judiciary, and we forced the government to return over $100,000 worth of improperly forfeited property.
It’s no easy task to take on the government in court and win. But despite those challenges, MJI has been successful in winning over 90 percent of its cases either in court or through legislative reforms adopted in response to its lawsuits. And that’s what makes it all worthwhile – knowing that our clients can safely exercise their rights because we stood up for them when there was nowhere else to turn.
In its first five years, MJI has gained statewide and even national recognition for its work. In 2019, we received a national award for above-and-beyond service to the American conservative movement, and in 2020 we received an award for having one of the top 50 most influential leaders in the state.
We believe that Mississippians have never felt more confident that their constitutional rights will be protected and, if needed, zealously defended. With your help and support, we plan to continue fighting to make that true for many more years to come.
What should free market conservatives think about immigration?
A very recent arrival in America, I believe that immigration can be a tremendous force for good. Ever since Scottish immigrant, Alexander Graham Bell, founded AT&T in the late nineteenth century, recent arrivals to the United States have been innovative and entrepreneurial.
But is the system of immigration we have today working?
Along the southern US border, immigration seems to have become a free-for-all. If news reports are to be believed, anyone arriving seems to be allowed to remain.
Yet at the same time, people with perfectly valid visas from Europe and Asia are prevented from coming to America because of tough Covid restrictions.
It makes a mockery of the immigration system to bar entry to those that play by the rules but allow in those who don’t even pretend to play by them.
It is often said that many of America’s Fortune 500 firms were founded by immigrants – or the children of immigrants. I wonder how many of them would have been allowed in under the current chaotic system.
Ronald Reagan, one of America’s greatest ever presidents, talked of how immigrants ‘continuously renew and enrich our nation’. Today’s immigrants, he recognized, were tomorrow’s Americans.
Immigration has been a source of strength to America because recent arrivals have bought into a common narrative about what it means to be an American. Important though fixing the southern border is, we need to ensure that everyone growing up in the United States today is taught what makes America so exceptional; the Constitution, the Founding Ideals and a shared sense of the Republic’s past.
The genius of our country’s founding document, the Constitution, is that it limited the power of government and empowered individuals to lead their lives as they saw fit, which in turn allowed America to become the freest and most prosperous country in the world.
The framers carefully constructed a government that had just enough power to impose civil order, protect citizens from foreign invaders and secure individual rights to life, liberty, and the pursuit of happiness, but not enough power to violate those rights itself. To achieve this, they confined the powers of the federal government to those specifically listed in the Constitution and divided that power among three branches of government.
But this system only works if we have an independent judiciary. The framers envisioned the judiciary as the guardians of individual rights, willing and able to strike down laws passed by the political branches of government if they violated the Constitution. That role is inherently anti-majoritarian.
Any law that is passed by a majority of our elected representatives, and signed into law by a popularly elected president, is presumably popular among some broad swath of Americans. But being popular does not make a proposed government action just, or constitutional. Our rights are too important to be infringed simply because a majority is willing or even eager to do so.
It is simply unrealistic to expect judges to strike down popular but unconstitutional laws if they expect political retribution for doing so. That is why the Constitution invested the federal judiciary with lifetime tenure, to insulate it from political pressure and allow it to act as a guardian of our freedoms and a constraint on government excesses.
But political pressure can be brought to bear to undermine our independent judiciary in other ways. If judges fear that unpopular but constitutionally correct rulings will lead to court-packing, they will be just as unwilling to act as a bulwark against government overreach. Why would they? Pushing too far today could erode their ability to do so tomorrow.
Even worse, court-packing would turn our independent judiciary into just another political branch of government. If one party packs the court, the other party will do the same as soon as it regains power. The cycle would continue indefinitely, and lead to judges being put on the court for their loyalty to a party and supposed willingness to “balance the court” rather than their loyalty to the Constitution and the Rule of Law. Once we lose our independent judiciary, the rest of our Republic will follow with it.
Some fear that the courts have already become partisan tools for the political branches. We all disagree with some court decisions. But overall, the courts have protected our Constitution and the individual rights it protects. This has been a precious gift to our young nation that we must preserve for future generations. To throw it away for short term political gain would be madness.