Biden’s Unconstitutional Vaccine Mandate

10 Sep 2021

CLAY: We have got an unbelievable show headed for you guys on this Friday as we are dealing with one of the largest overreaches of government power probably in the history of this country and certainly in the history of most of our lives as Joe Biden is doing whatever he can to mandate vaccines.

Also, it is the eve of the 20th anniversary of 9/11. We’re gonna be joined in the second hour of the program by Rudy Giuliani to talk about his reflections and experiences as we approach the 20th anniversary of 9/11, a day forever etched in infamy across this landscape.

But the breaking news story that happened yesterday evening, Joe Biden went back on his word and said, “I am basically going to do everything in my power to mandate that all of you get the vaccine.” We’re gonna open up the phones. Obviously, it’s Friday. Open Line Friday is a longtime tradition.


You guys can load up those lines and be prepared to react as you see it. But I want to start here… As we get ready for Buck and I to spend a lot of time reacting to this monstrously important story, I want to start by setting the context upon which Joe Biden has lied to the American public yet again. He said back in December of 2020 that he did not believe that any mandates on vaccination were ever going to be necessary. This is Joe Biden then.

BIDEN: No! I don’t think it should be mandatory. I wouldn’t demand it to be mandatory. But I would do everything in my power, just like I don’t think masks have to be made mandatory nationwide. I’ll do everything in my power as president of the United States to encourage people to do the right thing — and, when they do it, demonstrate that it matters.

CLAY: All right. That was Joe Biden in December of 2020. Nancy Pelosi also said, “Hey, the federal government can’t mandate vaccines.” Here’s what she said.

PELOSI: So, here’s the thing: We cannot require someone to be vaccinated. That’s just not what we can do. It is a matter of privacy to know who is or who isn’t.

CLAY: That is Nancy Pelosi. Well, evidently the federal government’s powers have changed since she said that — and already, thankfully, we have Republican governors who are willing to stand up for their citizens. But Joe Biden’s telling them basically, “Bring it on.” Here’s Biden said this morning.

BIDEN: Have at it. (dramatic pause)

(One person claps)

BIDEN: (haltingly) Look. I am so, um… disappointed, uh, that particularly some Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communities. This is — this is… (sputtering) We’re playing for real here. This isn’t a game. And I don’t know of any scientist out there in this field that doesn’t think it makes considerable sense to do the six things I’ve suggested.

BUCK: There are a lot of scientists, actually, who disagree with him on masking in schools, Clay, who disagree — whole countries, actually — on masking in schools. I guess the same way that those Republican governors are reckless with the lives of their children or of the children in their states…

I suppose the U.K. and other major European countries that have said no masking in schools is necessary, they must not care about dead kids either. Is that what we’re supposed to believe? Here’s what I wanted to say to of everybody as soon as this came — first of all, we’ve been saying this was gonna happen.

CLAY: Yes.

BUCK: We have audio. I said they’re gonna use federal mandates, and this is one of the reasons why I have had some disagreements with some fellow conservatives about sitting around and waiting and talking about, “Oh, my Constitution.” I am like, “They’re coming for you. I’ve been saying this. They’re gonna do this. The federal government under this Biden administration will overreach,” and it has.

But beyond that, this isn’t even the full nuclear option, folks., what they’ve done. I know that that’s hard to hear, but it’s true. This is a big leap in the incrementalist plan, right? This feels like they’ve been taking step, step, step, and now this is a bit of a jump. But they still have a few other steps. First of all, they’re hiding behind, Clay, as you know, “It’s not really a mandate for the businesses because you can get tested once a week.”

CLAY: That’s right.

BUCK: A company with 15,000 or 30,000 employees is gonna be overseeing weekly testig? That’s absurd — and think of the expense.
But beyond that, the big one — and you and I have talked about it — I still think we head into the winter, they move the football down the totalitarian field this way. They’re gonna go for you cannot get on a plane or a train that crosses state lines without a vaccine passport, full stop. That’s where this is headed.

CLAY: Yeah, and look, what we need… So there’s a lot of you out there that are asking the question — okay, let’s start here — Is this constitutional? I believe the answer is no. Okay? Let’s start that. I’ll put my lawyer hat on. To my knowledge, the government has never mandated a treatment of a medical nature on the basically vast majority of the United States population that I can ever remember historically, right?

So this mandate, I believe, is unconstitutional. The question, Buck, is how many people will actually stand up to the mandate? And how many companies and also governors and states are just going to meekly comply with this regulation? In other words, a lot of you out there listening, most of you work at places that employ over a hundred people.

And a lot of you, I bet, have already been asking questions. You may have gotten the emails. Buck, we got an email. A lot of these companies are going to send out a statement, and I think — I’m curious what you think, Buck but I think — most companies are not gonna want to fight this. They’re not gonna expend the legal resources to fight it on behalf of their employees, and they’re going to meekly comply.

And I think a lot of governors will meekly comply as well. And the question is going to be, “Will the Supreme Court get involved in this and make it clear that the federal government doesn’t have the ability to issue this mandate — or will they try and dodge in issue because they don’t want to get involved in the politics of covid vaccination?” I don’t know the answer. I can tell you I think John Roberts wants to dodge it.

BUCK: Of course.

CLAY: The way he wants to dodge every conflict.

BUCK: The same way I knew, everyone saying, “Oh, but the courts will decide on the election issues.”

CLAY: Yes.

BUCK: During that whole thing I was on the radio saying, “No, they’re not going to decide because of cowardice, because they don’t want mobs showing up outside of their home, because that’s how the left plays the game when it comes to judges’ decisions they don’t like. They’re just gonna judge, ‘Not our problem. This was a political question decided by the election,'” which, by the way, is what they did resoundingly in court after court.

CLAY: Yes. I said same thing. You’re right. That’s why I’m nervous here about whether the courts are actually gonna stand up for our rights.

BUCK: So now we’re at a place, though, where we’re hoping that, what, the Supreme Court will step in at some point and tell us that…? Are they gonna put a stay on this order? I think that’s unlikely, but we’ll see. In the meantime, you ask about companies, corporations. First of all, the federal government is definitely gonna implement this for all their employees, their 2.1 million. We knew that was gonna happen. There have been some interesting questions about the United States Postal Service.

CLAY: It is, right?

BUCK: I’ve seen back and forth over that whether they are covered, or they’re covered under different laws. Anyway, the point is the federal government is gonna make all their employees get this. Another part of it that we’ve been saying is coming and it’s here now — and we can go back and we actually have transcripts. (chuckles)

At, you go in the archives. We’ve been saying this for a while, that they’re gonna mandate this in schools. L.A. County just did it. I can assure you that New York is gonna follow L.A. County with everyone 12 and up having to get the vaccine. And what we’re just seeing here is what I’ve been worried about all along, which is the piecemeal, 100% vaccination approach, which doesn’t…

There are so many things that we could say, “This is problematic,” so many reasons why this is problematic. Clay, not a single mention in the 27 minutes. I watched it back a couple times, Biden. I watched it and then read the transcript. In the Biden speech, not a single mention of natural immunity —

CLAY: Of course.

BUCK: — the hundred million people that have gotten infected already. So they’re treating you like an enemy of the state, like a threat to public health if you’re not vaccinated. And put aside how I think that’s completely unfair as well. But even if you’ve had the virus — and therefore, medically speaking, are as less risk to people walking around even someone who has just gotten the vaccine — they still treat you like an enemy in the state because the narrative and the control is what matters. The power is what matters here.

CLAY: I think this is massively, massively important on two levels, to kind of synthesize this. One, I think it’s an unconstitutional overreach. The federal government, in my opinion, does not have the power to do what Joe Biden did. And, Buck, we know that Biden himself has basically said, “I don’t care,” ’cause he did it with the eviction moratorium when he actually said, “I know this is unconstitutional but I’m doing it anyway.”

I think that’s what’s going on here. But will our courts have the testicular fortitude to stand up to the president “in the midst of a pandemic” (in quotation marks, too, Buck), and I think this is massively significant, too, and I think we need to continue to talk about this. Even if 100% of people are vaccinated, it doesn’t solve covid.

Because the vaccines are working in a limited efficacy for a relatively short period of time. So both Biden does not have the constitutional authority, I don’t believe, to do what he did, and it doesn’t even solve the underlying issue. The only way we solve it is with herd immunity. That’s it. That’s the answer.

BUCK: This is the problem as well, though, going back to some of the discussions that have been had among Republicans and fellow conservatives. Waiting for the court to save us on this is going to mean that in the next 90 days, the hundred million people that are covered under this mandate — a huge percentage of them — are gonna end up getting the shot or losing their jobs.

CLAY: Yes.

BUCK: It’s not going to happen fast enough, and I don’t think you can even count in the long run on the court stepping in here and doing what you and I believe is the right thing, because the interstate Commerce Clause is used in a whole lot of ways. Remember, we talked about Wickard v. Filburn about a month ago.

I said, “They’re gonna find some agency, whether it’s Department of Labor, Department of HHS, whatever it will be,” and that’s where we are now. I’m so curious to see what people are now gonna do, because I know there are a lot of folks listening to this. Was it an ESPN reporter who says she’s stepping aside?

CLAY: Yes.

BUCK: She’s saying, “I’m not gonna do this for the season.”

CLAY: Yeah, sort of a public figure that had to step out. There’s a sideline reporter, Allison Williams for ESPN, and she posted a statement yesterday before Biden even did this. ESPN has required, mandated that everyone get the vaccine who is working for them. And she said (summarized): “Hey, on the advice of my doctor we’re trying right now, my husband and I are, to have our second child, and I don’t want to get the vaccine right now; so I’m sitting out the season.”

And I think there are a lot of people out there… Again, Buck, to me, the biggest fallacy of all of this is the lack of discussion about natural immunity. It’s as if it doesn’t exist. And it’s maybe the most important single issue to get through this.

BUCK: There are a lot of coinciding issues and we’ll come back to that in a second but just the fact that they won’t talk about natural immunity —

CLAY: At all.

BUCK: — is proof that this isn’t just about the science.

CLAY: That’s right.

BUCK: You can’t tell me it’s just about the science when you are mandating, by the way, some workers… If it’s about the science, Clay, what about companies with less than a hundred employees? They’re allowed to be superspreaders?

CLAY: What about the postal service? These are people that are actually out and about every day.


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