Supreme Court hears Texas case on Biden mandate

 Power Line:

Jonathan Turley notes the year-end decision of Judge James “Jimi” (just kidding) Hendrix — Texas v. Becerra — that has preliminarily enjoined HHS’s vaccine and masking mandates on Head Start programs in Texas.

The Biden administration is in a purple haze. They’re acting funny, and I know why. They aren’t nuts, exactly, but they are crazed. It’s a frustrating mess.

Professor Turley offers a brief and temperate take on the HHS mandate case in “Is the ‘Workaround’ Working? Federal Judge Enjoins Another Biden Mandate in Texas.” In his conclusion Professor Turley anticipates oral argument in the mandate cases to be heard by the Supreme Court on Friday. He notes that the Biden administration’s mandates “have created a target rich environment for justices who want to curtail Chevron, which will make the Jan. 7 arguments particularly interesting.”

Chevron raises a secondary issue of administrative law. With respect to the legality of the enterprise itself, the Supreme Court long ago threw up its hands and let agencies run wild. This is the point made in scholarly fashion by Professor Philip Hamburger in Is Administrative Law Unlawful?

I am reminded of a comment made by University of Texas (Austin) School of Law Professor Emeritus Lino Graglia. Speaking on a Claremont Institute panel more than 30 years ago, Professor Graglia observed that few cases that come before the Court are controlled by the express language of an applicable provision of the Constitution. When the prime example of such a case came before the Court in 1933 — the Minnesota Mortgage Moratorium case — the Court got it wrong.

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I have never thought that Biden had the authority to issue mandates in the manner in which he has done so.  The administration has struggled to get the approval in most of the lower courts too.

BTW, Lino Graglia was one of my favorite professors in law school at UT.  He was a New Yorker with an intimidating presence.  I remember one day he called on a woman law student to discuss a case in the lesson of the day and she refused saying she was not prepared which was a big no-no. A few minutes later she raised her hand to make a point and Graglia in typical fashion responded what do you want to say if you are not prepared.  She then said, "I was prepared, I just did not want to talk with you."

Graglia, who was married to a lawyer said he had asked his wife why some of his students were so intimidated.  She responded, "Lino, your normal tone of voice is considered a verbal assault in Texas."

After the class, my best friend in law school who was also a former Marine officer joked with me that going through Marine Corps training we had been intimidated by experts and Graglia wasn't that bad.