Remember all of the CNN and MSNBC talking heads coming up with unique and funny ways to take away former President Donald Trump’s phone when he would tweet something problematic?
The good news is that they can reprise all of those jokes again. The bad news, for them, is that they’ll have to use them against an administration they generally support — and in a high-stakes matter where that tweet could end with one of the new administration’s most divisive policies getting nixed.
In a Friday ruling from the 5th Circuit Court of Appeals in New Orleans that stayed President Joe Biden’s vaccine mandate, Biden chief of staff Ron Klain’s retweet of an MSNBC host was used as evidence that the administration used a rule from the Occupational Safety and Health Administration as a “work around.”
The three-judge panel found “the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary,” as per the ruling penned by Circuit Judge Kurt Engelhardt.
The ruling declared the mandate was “the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat.
“The Mandate’s stated impetus — a purported ’emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to — is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority,” the court concluded.
Part of the court’s reasoning had to do with one of Klain’s retweets, this one from MSNBC host Stephanie Ruhle.
“OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations,” she tweeted Sept. 9. Klain retweeted it later that day, according to the Fifth Circuit’s ruling.
OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.
— Stephanie Ruhle (@SRuhle) September 9, 2021
This, the court said, was some proof the Biden administration knew they lacked the authority for a vaccine mandate.
“After the President voiced his displeasure with the country’s vaccination rate in September, the Administration pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccine mandate,” the court stated.
“The vehicle it landed on was an OSHA [emergency temporary standard]. The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing ‘for an emergency temporary standard to take immediate effect upon publication in the Federal Register’ if it ‘determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.’”
The citation for the “work around,” of course, was Klain’s retweet.
It isn’t the only reason the 5th Circuit issued a thoroughgoing destruction of the ruling, as an editorial from the board of The Wall Street Journal noted.
“The court’s opinion takes apart the OSHA mandate every which way — on constitutional, statutory and procedural grounds,” the editorial, published Sunday, stated.
“The Constitution gives states, not the federal government, the police powers to regulate individual behavior to protect public health and safety. The Administration tried to circumvent this limitation on federal power by conscripting private employers via an OSHA ’emergency temporary standard.’”
However, Klain’s retweet provides an important glimpse into what the White House was thinking when it implemented the widely hated mandate — and it could end up helping destroy it as the case continues in the courts.
As GOP Texas Sen. Ted Cruz noted at the time, the retweet was “Foolish” and said it meant the “Biden admin knows it’s likely illegal (like the eviction moratorium) but they don’t care.”
Foolish RT from WH chief of staff. He said the quiet part out loud.
Biden admin knows it’s likely illegal (like the eviction moratorium) but they don’t care. https://t.co/AlfmYtuvhp
— Ted Cruz (@tedcruz) September 10, 2021
But like the eviction moratorium that was struck down by the Supreme Court in August, the administration hoped it would stand up for long enough that it would scare people into getting the vaccine. The problem is that if you say that part out loud, it can induce a court to notice just how flawed the mandate is.
This isn’t the only time Klain has had Twitter issues, either. Last month, the chief of staff retweeted a Harvard economist who called inflation and supply-chain issues “high class problems,” adding a millennial-ish “This,” along with two fingers pointing down, to the tweet:
This 👇👇 https://t.co/ymh53nEHAg
— Ronald Klain (@WHCOS) October 14, 2021
Mind you, he’s far from the only problematic member of the Biden administration. Vice President Kamala Harris has been handed several major issues as tests of her seaworthiness, and on all of them she’s ended up sinking. Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin oversaw the disastrous withdrawal from Afghanistan. Department of Homeland Security Alejandro Mayorkas has made a bungle of the border crisis.
All of these things loom much bigger than a retweet by the chief of staff, but it speaks to a culture of general incompetence in the administration. Funny how, during the last administration, CNN and MSNBC would have seized upon this — just like they would joke about how the president’s phone should be taken away. They seem strangely silent on it this time.
You can trot out the Klain jokes all you want, media. After all, this is twice now he’s said the silent part out loud on social media — and one of those times, it may have affected a court ruling. Strange how the Don Lemons and Joe Scarboroughs of the world don’t want to recycle their own material.
Truth and Accuracy
We are committed to truth and accuracy in all of our journalism. Read our editorial standards.