People are grumbling about this tweet on social media, accusing Team Joe of the same lawlessness for which the Biden campaign so often criticized Trump. And that suspicion is understandable. It’s not like the White House hasn’t ignored court rulings before.

White House tells businesses to proceed with vaccine mandate despite court-ordered pause https://t.co/3pXnAS6LYV

— CNBC (@CNBC) November 8, 2021

Having watched the clip of what Karine Jean-Pierre said at today’s briefing, though, I think Gabe Malor has it right:

WH: “People should not wait."

You, being stupid on the internet: "OMG, they're disobeying a court! LAWLESSNESS!! TO THE WALLS!!!"

— Gabriel Malor (@gabrielmalor) November 8, 2021

The Fifth Circuit stayed Biden’s vaccine mandate on Friday but the mandate wasn’t due to take effect for another two months anyway. No company is at risk of being fined for failure to implement a vax-or-test rule until January 4. So any business that wants to wait awhile longer was already entitled to do so, with or without the court’s order.

Beyond that, while Biden’s federal mandate is dubious legally (and politically, increasingly), it’s far less controversial for business owners to order their staffs to get vaccinated on their own initiative. The federal mandate could disappear tomorrow and every company that currently has a mandate in place would be free to continue with it. I’ve suspected from the start, in fact, that Biden’s mandate was more of a hortatory gesture to get businesses moving than a firm rule which the administration expects will withstand court scrutiny. Biden wanted to give companies political cover to implement their own mandates, which some execs may have been holding off on for fear that they’d prove unpopular. He also wanted to ease the collective action problem involved when an individual company tells its workers to get vaxxed or get lost. If unvaxxed workers believe they can quit and get hired on by a firm without a mandate, they’ll be more likely to quit. If, however, they have reason to believe that a federal rule will force all large companies to follow the same vax-or-test policy, they’re more likely to stay put grudgingly get their shots.

The mandate had value to the White House in squeezing those holdouts even if it never ends up taking effect.

So when Jean-Pierre tells companies here not to wait to see how the litigation plays out, I take her to mean that businesses are fully empowered to issue their own mandates in the name of keeping their workplaces safe from COVID. She begins by insisting that she’s confident the administration will win the ensuing litigation — which she shouldn’t be, although that’s what the White House always says — but it’s true that the fate of the federal mandate and the Fifth Circuit’s order blocking it are no bar to private employers setting their own rules. All she’s saying, I think, is that getting workers vaccinated is good for everyone and businesses should move ahead with it as a moral matter even if they’re under no legal compulsion to do so. (And, again, won’t be until January 4 at the earliest per Biden’s own rule.) And if I’m wrong and the administration ends up winning on the merits in court, a business that opts to wait will be left scrambling to implement the policy to avoid being penalized, which could be messy administratively.

Look at it this way: Ultimately, the Fifth Circuit’s stay isn’t a stay aimed at businesses but one aimed at *the administration.* It prevents OSHA from collecting fines for noncompliance with the new mandate. It doesn’t block businesses from doing anything, as far as I’m aware, in which there’s no way for the White House to encourage companies to “defy” the stay. Companies aren’t the ones being stayed, the White House is.

Principal deputy press sec. Karine Jean-Pierre says White House is “very confident” that OSHA rule on private businesses to mandate a COVID-19 vaccine will survive legal challenges. https://t.co/wgkqDKrkXM pic.twitter.com/MAw32hNe2S

— ABC News Politics (@ABCPolitics) November 8, 2021