Supreme Court Will Hear Arguments on Biden Vaccine Mandate

[CaptUSA]

Potentially good news here...

https://news.bloomberglaw.com/health...-vaccine-rules

The U.S. Supreme Court said it would hear arguments on an expedited basis on President Joe Biden’s Covid-19 shot-or-test rule for large employers and his separate vaccine mandate for health-care workers.

The justices will hear both cases at a special Jan. 7 session, weighing whether to let the rules take effect in the face of a barrage of legal challenges. The cases will test the power of the federal government to tackle a pandemic that has killed more than 800,000 Americans.

The more sweeping clash involves an Occupational Safety and Health Administration rule that requires employers with 100 or more workers to make them get vaccinated or be tested regularly.

The justices will hear arguments from business groups and Republican-led states. They argue that OSHA exceeded the powers Congress gave the agency and that the federal government lacks constitutional authority to issue such a sweeping mandate.

The OSHA rule had been set to take effect Jan. 4, though the agency had said it wouldn’t start issuing citations before Jan. 10. A federal appeals court backed the administration.

The other rule, issued by the Centers for Medicare & Medicaid Services, requires vaccinations for employees at facilities that participate in the Medicare and Medicaid health-care programs. The rule requires facilities to provide medical and religious exemptions.

Lower courts are divided on the CMS mandate and the Biden administration is currently barred from enforcing the rule in about half the country.



Any chance the Court gets this right??

[CaptUSA]

My take here is that if the arguments get into whether a mandate could potentially ever be justified, we're screwed.

But if the arguments focus on what constitutes a government "emergency", we may win. Because if a virus with a 99.9% survival rate, that can be spread with or without a vaccine, and has available treatment options constitutes an emergency, then there is simply no limit to Executive power.

[cjm]

Any chance the Court gets this right??

Hope for the best, prepare for the worst. I'm not holding my breath.

[CaptUSA]

Does anyone else realize how big this date is?? I mean, this is probably it for the country.

If the Court gives the Executive branch this kind of power, the rule of law is gone. Any emergency they choose can and will be used against you.
If the Court upholds reason and ends the mandates, the left loses their $#@!. They will see it as the Right wing legally allowing the killing of people.

Either way this goes, the turning point here couldn't be more stark.


You know, come to think of it, the only way out is for a unanimous decision in favor of freedom. I'm not sure they could pull that off, though.

[Brian4Liberty]

My take here is that if the arguments get into whether a mandate could potentially ever be justified, we're screwed.

But if the arguments focus on what constitutes a government "emergency", we may win. Because if a virus with a 99.9% survival rate, that can be spread with or without a vaccine, and has available treatment options constitutes an emergency, then there is simply no limit to Executive power.

Yep. Kind of a sticky situation. Do the executive branches of government (local, state , Federal) have emergency powers? No doubt the court will say that they do. But what is the check and balance on that power, and petty abuse of that power? Obviously the legislative branches of government do not function as a check. They are impotent, especially when they agree with the executive overreach.

The courts, notably the Roberts type judges, avoid responsibility at every turn. Yet this is the key situation where the power of the courts must act as a check and balance, otherwise there is no check at all, other than the natural right of revolution.

[CaptUSA]

Yep. Kind of a sticky situation. Do the executive branches of government (local, state , Federal) have emergency powers? No doubt the court will say that they do. But what is the check and balance on that power, and petty abuse of that power? Obviously the legislative branches of government do not function as a check. They are impotent, especially when they agree with the executive overreach.

The courts, notably the Roberts type judges, avoid responsibility at every turn. Yet this is the key situation where the power of the courts must act as a check and balance, otherwise there is no check at all, other than the natural right of revolution.

Right. I mean, this is the end of the Constitutional Republic if they hand over that power. Revolution is guaranteed. But if they don't, there is going to be a large segment of the population that is going to be angry. If it's only the right-leaning judges, and the left will go berserk and since they still have the legislative trifecta, we may lose the country anyway.


Forgot to mention... 99% survival rate, spread regardless of the vaccine, availability of treatments, AND... it's a year after we have the vaccines, AND... the vaccination rates for at-risk ages is already over 90%!! If they can deem this an emergency now, ANYTHING can be an emergency giving ANY bureaucracy control of ANYTHING. Wait until the next bank emergency.

Will this all ride on what we learn about omicron over the next two weeks??

[Swordsmyth]

Pray.

[cjm]

Does anyone else realize how big this date is?? I mean, this is probably it for the country.

They will probably back the mandates. Using their logic, if the state has an interest in a thing, then the state can exert its will there. And if there is a "remedy" of some kind for the individual, then it's all good. That remedy could be the exemption process, getting another job, who knows what.

The country, as we knew it, is already toast. People used to be able to disagree but get along. Joey Needles could declare all of this over tomorrow and the divisions between masked/unmasked or jabbed/unjabbed will remain. They did a great job with the big boogity. I really underestimated them.

[CaptUSA]

Friggin' CNN...

https://www.cnn.com/2021/12/29/polit...den/index.html

(CNN)A Supreme Court that has declined to block several types of vaccine mandates is now considering whether to allow the Biden administration to require millions of Americans to get Covid-19 vaccines.

While the court has been tolerant so far of vaccine mandates that have come before it -- refusing to halt requirements imposed by local and state entities -- those implemented by the federal government pose new legal questions that could draw hostility from the conservative majority.

How the 6-3 Supreme Court resolves those cases could have implications for the executive branch's power to act unilaterally not just on Covid-19. Depending on how the court rules, agencies could be hamstring in any situation where they're implementing regulations that address changing circumstances without waiting for the slow-moving process of congressional lawmaking. <Besides the spelling mistake, the idea that regulations shouldn't go through the Congressional process is just stupid. But this author wants to tell readers that there should just be an assumption that the Executive can do that.>

"This isn't really a case about emergency public health powers or even vaccination law, so much as it's a case about how much flexibility do administrative agencies have to respond to a problem or a threat without waiting for specific authorization from Congress," said Lindsay Wiley, a health law professor at American University's Washington School of Law.

So far, the Biden administration has run into major headwinds in its effort to defend the federal vaccine rules that have been challenged in court. Three of President Joe Biden's major mandates -- the health care worker vaccine requirement for more than 10 million people, the rules for companies with more than 100 employees and the mandate on some federal contractors -- have attracted court rulings against them.

Many of the court decisions blocking the mandates have backed claims of executive branch overreach while playing down the scientific rationale for requiring vaccines.

On January 7, the Supreme Court will hear oral arguments on the federal mandate for health care workers and the testing-or-vaccine rules for large employers. The justices scheduled expedited hearings in the cases, even though the lawsuits are still in a preliminary stage where courts aren't making final rulings on the merits but deciding whether mandates should be frozen while the litigation plays out.

"There are different issues raised when the entity that is doing the mandating is federal, and not a state actor," said Zack Buck, a University of Tennessee College of Law professor who specializes in health law. "That goes all the way back to the founding of the country -- the police power that's retained by the states. What kind of authority does the federal government have? What kind of authority do federal agencies have? And does that matter to the Supreme Court? I think the answer is, it might."

Less leeway to require vaccines than state or private entities

Lower courts have been mostly permissive of vaccine mandates imposed by private companies. State governments, too, have been mostly seen by judges as having broad authority to require vaccines, as established by a 1905 Supreme Court decision that upheld Massachusetts' smallpox inoculation requirement.

In this current pandemic, the high court's right wing has expressed concerns about vaccine rules that don't adequately accommodate religious objections, yet the mandates have stood.

But Biden's vaccine rules -- which do include religious exemptions -- have run into claims that the federal mandates encroach on the sovereignty of the states. The 5th US Circuit Court of Appeals, in one of the most aggressive opinions against a Biden mandate, said the vaccine rule for large employers likely exceeded "federal government's authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States' police power."

Not every lower court considering federal vaccine requirements has taken such sweeping views on the limits of federal authority in this area, and some courts have backed the legality of Biden's vaccine moves. The employer mandate -- which is being implemented by the Occupational Safety and Health Administration -- was given the green light by a separate appeals court that wiped away the 5th Circuit's decision. Other courts have concluded that the federal mandates run afoul of the law because the executive branch is implementing them unilaterally, without express sanction from Congress.

The idea that agencies must have explicit instructions from Congress when regulating matters of significant political and economic weight has been called the "major question" doctrine. The Supreme Court has only loosely sketched out when such limits come into play, but several lower courts have cited the doctrine as reason the federal vaccine mandates should not be allowed to go into effect.

"It's not itself a very clear doctrine," said Philip Wallach, a senior fellow at the conservative think tank the American Enterprise Institute. "There's not a great sense of just how badly [agencies] have to be stretching the statute to run afoul of this doctrine."

It will be up to the justices to decide whether they want to use the mandate cases before them to better define when agency actions are reaching beyond Congress' directives.

"For all the sort of ways that [Chief Justice John Roberts] has alienated some of the conservative movement legal folks through some of his rulings, he has seemed interested in disciplining bureaucratic agencies in a number of ways," Wallach said. "And he's very interested in the separation of powers." <Let's hope he stays true to separation of powers here... I'm not so sure he will. But his excuse for his dumb Obamacare ruling was that it was within Congressional authority, so there's some hope>

In addition to the disagreement between the 5th and 6th circuits over the Biden administration's unilateral action on the large employer rules, judges have come to different conclusions about the executive branch's ability to impose vaccine requirements on providers who participate in Medicare and Medicaid.

Judges in Missouri and Louisiana, in decisions left undisturbed by appeals courts, said the Department of Health and Human Services mandate ran afoul of the major question doctrine because Congress hadn't been clear in its instructions to the agency that it could impose vaccine requirements.
The 11th Circuit pushed back on that logic, however, in an opinion that said Congress did not need to be so specific when it tasked HHS with regulating for the "health and safety" of Medicare and Medicaid recipients.

"To suggest otherwise would mean that Congress had to have anticipated both the unprecedented COVID-19 pandemic and the unprecedented politicization of the disease to regulate vaccination against," the 11th Circuit said.

Mandates that are on different legal footing

Even though they raise similar questions about executive branch authority, there are also distinctions in the legal footing upon which the health care worker mandate and the OSHA mandate rest.

The agencies are relying on different statutes to implement the rules. They also used different procedural mechanisms to put the policies in place.
In the health care worker mandate cases, the administration has emphasized the power it says the federal government has under the Constitution's Spending Clause to implement the vaccine requirements. The requirements apply to health care workers -- an estimated 10.3 million -- at certain providers that participate in Medicare and Medicaid.

The states that have sued the Biden administration over the rules have argued that the regulations infringe upon state sovereignty, with Florida in its legal challenge pointing to a law passed by the state's legislature barring employer vaccine mandates.

"If somehow the states can get a foothold in regulating a federal program under the federal spending power, it would be profoundly dangerous not only to the Medicare Medicaid programs, but to our system in general," John Cogan, a health law professor at University of Connecticut School of Law, told CNN. <Yeah, $#@! you, John Cogan! It's the federal system that's dangerous!>

Still, the Supreme Court has already put some limits on what the government can do with its federal health funding programs. In the Supreme Court's first Affordable Care Act case, a 7-2 court struck down in 2012 the Obamacare provision forcing states to expand Medicaid in order to continue to participate in the program. Opponents of the new vaccine mandate -- which is being implemented by HHS' Centers for Medicaid and Medicare Services -- have pointed to that decision as why the requirement should be shut down.

"The difference here is in [the Obamacare case], the question was it was all or nothing for the states," Cogan said, whereas in the mandate case, "such a small percentage ... of the people in the hospitals were getting booted because they wouldn't get the vaccine."

OSHA, meanwhile, is relying on statutory language that says the agency can take steps to protect employees who are "exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful." <But we all know that the jab does nothing to prevent the exposure to the virus. The vaccinated can carry it into a workplace just as easily as the unvaccinated. And there is no exception for naturally-acquired immunity which does a better job of preventing exposure than this leaky vaccine>

"CMS has used its authority to influence things like flu vaccination rates among health workers," Wiley said. "This isn't identical to what it's done in the past, but it's not as much of a step. Whereas with OSHA, you can point to instances where they've addressed infectious disease risk, but ... there are more steps between how the agency has used this authority in the past and how it's trying to use it now."

[CaptUSA]

Here's my take:

Thomas - Safe bet on both issues
Breyer - Probably a lost cause on both
Roberts - question mark... he might try to split the decisions just to look "non-political" (Which, of course, is the most political thing you could do.)
Alito - Safe bet on both
Sotomayor - Probably goes against the health care workers, but there may be a chance on the OSHA mandate
Kagan - Lost cause on both
Gorsuch - Safe bet on both
Kavanaugh - I think he leans our way on both, but it's hard to gauge
Barrett - Fairly safe on both

So, health care worker mandate: Maybe a 5-4 decision in freedom's favor?
OSHA employer mandate: 7-2 in freedom's favor?

Waddya think? Any predictions??

[sparebulb]

6-3 in favor of every kind of mandate.

Thomas and Alito are hard "no's".

Kavanaugh and Gorsuch will flip a coin to see who's turn it is to play the "conservative".

Barrett will be a firm "yes" "for the children" and Hilleryesqe "it takes a village bs".

[CaptUSA]

6-3 in favor of every kind of mandate.

Thomas and Alito are hard "no's".

Kavanaugh and Gorsuch will flip a coin to see who's turn it is to play the "conservative".

Barrett will be a firm "yes" "for the children" and Hilleryesqe "it takes a village bs".

Yikes, I hope it doesn't go that way. Pretty sure that Barrett will take issue with the lack of a religious exemption for health care workers.

[TheTexan]

9-0 in favor of mandates.

Because $#@! you

[Matt4Liberty]

6-3 in favor of every kind of mandate.

Thomas and Alito are hard "no's".

Kavanaugh and Gorsuch will flip a coin to see who's turn it is to play the "conservative".

Barrett will be a firm "yes" "for the children" and Hilleryesqe "it takes a village bs".

This sounds pretty likely.

[cjm]

I'm going to go with 5-4 in favor of mandates. Keeping it close keeps the mundanes engaged.

[CaptUSA]

I'm going to go with 5-4 in favor of mandates. Keeping it close keeps the mundanes engaged.

It'll be interesting to listen to the oral arguments... (link here for Jan 7th)

I'm not sure how the mandate can stand when there is no "emergency" and the "vaccines" provide almost no protection against the spread of the virus in the workplace. It was always a VERY long stretch to begin with, but any supporting justification is fading quickly. This should be a 9-0 decision against the mandates, but who knows?? This world is nutso these days.

[GlennwaldSnowdenAssanged]

I thought these justices were afraid to take on cases for fear of retaliation.

[GlennwaldSnowdenAssanged]

is ANTIFA or BLM or any group planning on doing what they do best in the wake of an improper decision?

[CaptUSA]

Bump for tomorrow.

Listen here.

9 robed geniuses to decide if I get to keep my job.

My company has made it pretty clear that they will comply with whatever the Federal government tells them to do.

[GlennwaldSnowdenAssanged]

Bump for tomorrow.

Listen here.

9 robed geniuses to decide if I get to keep my job.

My company has made it pretty clear that they will comply with whatever the Federal government tells them to do.

That sure sounds reassuring.

[CaptUSA]

Oral arguments begin at 10:00 Eastern. There's a +rep in it for anyone who can figure out how to embed.

https://www.supremecourt.gov/oral_arguments/live.aspx

[CaptUSA]

Starting off talking about the mandates being burdensome... Thomas goes straight to talk about the "emergency" designation!

[CaptUSA]

Ugh... They are conceding the point that "covid is a grave danger"

[CaptUSA]

Not going well....

[cjm]

Not going well....

Kagan is an idiot.

[CaptUSA]

Roberts seems to support the mandates. This is going VERY poorly!

[CaptUSA]

Kagan is an idiot.

She even said, "WE know the best way to prevent the spread is to vaccinate and the next best way is to wear masks..."

Uh - no, we DON'T know that!

NOTHING stops the spread - how about increasing immune systems!

[TheTexan]

Roberts seems to support the mandates. This is going VERY poorly!

You mean, extremely well?

I wanna see a 9-0 in favor!

Bring on the trains!!

[devil21]

SCOTUS has to apply the law, not make opinions based on their personal judgements of what's "grave" or whatever other characterization is used. Does the Constitution permit a federal agency in the sovereign territory of DC to require private, non-federal connected businesses and individuals in the separate 50 states to do anything? That's the question. Feds don't have authority to dictate such measures to private corporations without voluntary consent. States and locals generally can under the 10th, though. Even with Obamacare they had to claim it was a federal tax, which is voluntarily consented to via registration of an federal EIN/SSN, to justify that mandate (though it wasn't really a mandate because the required loophole was built in to avoid the tax). A stretch but that had some legal grounding, at least. I don't have high hopes that SCOTUS rules properly but I'm thinking that Biden's statement about "no federal solution to covid" was front-running a very limited ruling. If SCOTUS ignores the 10th and affirms the Executive can contrive any old emergency, call it "grave danger" then order any old $#@! they want in response, then they've officially pitched out the rule of law and we're flying by the seat of our pants.

[TheTexan]

If anyone were being honest about this being such a grave and serious issue, they'd be taking proactive steps to make sure that every GoF lab is permanently shut down.