CLAY: We’ve been talking about vaccine mandates. Probably not a surprise to you that Jen Psaki aka Little Red Lying Hood would be asked a question about the constitutionality of vaccine mandates and try to say that this is not in any way a difficult question to answer. I’ll unpack exactly why this is so stupid. But let’s go ahead. This is yesterday in her White House press briefing. Let’s go to ahead and play cut 24.
PSAKI: Well, we know that federal law overrides state law. I would note that earlier when we put out our guidance on the president’s announcement about mandates several weeks ago it made clear that, again, as I said earlier requirements are “promulgated pursuant to federal law and supersede any contrary state or local law or ordinance. Additionally, nothing in this guidance excuses noncompliance with any applicable state law or municipal ordinance. ” We put out guidance several weeks ago conveying that clearly. But fundamentally, beyond the legal aspect which is unquestionable in our view, the question for any business leader is, what do you want to do to save more lives in your companies?
BUCK: Yeah, Clay, “It’s like the Constitution is all constitutiony with like the federal things that are, like, way more legal than the things that the states with their little laws and stuff.” There you go. We get our constitutional analysis from Jen Psaki these days.
CLAY: Yeah, look. In general federal law does supersede state law when there is a conflict. Here is what is not true. Unconstitutional federal law does not supersede state law. Anyone telling you that they know 100 percent what the results are going to be here of what the courts are gonna say which, by the way, is going to take a long time and there’s going to be multiple conflicting opinions here — is selling you a bill of goods.
So we know already that the Biden administration because of the eviction moratorium has lied about the constitutionality of their actions and has been struck down. The idea that the federal covid vaccine mandate is constitutional and the state oppositions to mandates is unconstitutional because the federal government supersedes state is just not true. She may well be lying to you again. We don’t know for certain until maybe all the way up to the Supreme Court issues a ruling on this which, unfortunately, Buck, would probably happen long after we really have the debate about covid vaccine mandates still going on.
BUCK: Right. If you want to take the Democrat Party point of view here to its ultimate conclusion, it would mean that the federal government could use OSHA to tell people that they have to exercise for an hour a day, which, by the way, that actually would probably be a good thing.
CLAY: Way more healthy, way more helpful.
BUCK: But that the federal government could say everybody has to do, you know, a hundred jumping jacks first time as soon as when they go in the office, that everybody could only eat 1500 calories a day, Why not? Under Psaki, the federal government has supremacy; so what’s the problem?
The point is, the federal government is supposed to do the things that the federal government is set up to do within the Constitution. The rest of the stuff that you can legislate goes to plenary powers, goes to the states. The states actually have much more leeway under our Federalist system than the federal government does to get creative and intrusive with legislation. But that’s not how the Democrats see things, obviously. They want to do everything federally.
CLAY: And they’re furious at the states for not requiring something. This is a big difference a lot of people miss. There’s a difference between mandating something and saying, “Hey, you can have a choice.” That’s what we’re dealing with right here.