Thomas Gallatin / January 10, 2022

SCOTUS Balks at Biden Vax Mandate

The Supreme Court should STOP Biden’s viral executive overreach.

The U.S. Supreme Court took up objections to Joe Biden’s COVID vaccine mandate on Friday and it quickly became apparent that, much like the nation at large, the justices were clearly divided in their assessment of Biden’s authority to enact such sweeping action. For nearly four hours, the justices questioned the state and those objecting to the mandate.

Chief Justice John Roberts noted, “This is something the federal government has never done before.” Justice Neil Gorsuch suggested that government officials appeared to have overstepped their authority. “Congress has had a year to act on the question of vaccine mandates,” Gorsuch said. “It appears that the federal government is going agency by agency as a workaround.” Justice Amy Coney Barrett said that the mandate was too broad in its application. Justice Samuel Alito noted that the rule is “fundamentally different from anything OSHA has done before” because it “affects employees all the time,” not just at work.

Yet it was also clear that the legality and constitutionality of Biden’s mandate was not the primary concern for the left wing of the Court, which preferred to focus on how scary COVID is. Justice Sonia Sotomayor erroneously claimed, “We have hospitals that are almost at full capacity with people severely ill on ventilators.” The reality is that even during this Omicron surge, hospitalizations are 50% below 2021’s peak number. Sotomayor further falsely asserted, “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.” The truth? Since the beginning of the pandemic, there have been a total of 80,200 children 17 and under hospitalized with COVID — the term with being an important modifier, as CDC Director Dr. Rochelle Walensky noted in correcting Sotomayor. The justice’s false claim was so grossly misinformed that even The Washington Post “fact-checker” gave her its worst rating of four Pinocchios.

Sotomayor wasn’t alone in peddling COVID misinformation. Justice Elena Kagan insisted that the mandate is necessary to make sure people are “not transmitting the disease.” Vaccinated people can, in fact, catch and transmit COVID.

But the biggest doozy of wildly inaccurate pandemic hyperbole may have come from Justice Stephen Breyer, who claimed that there were “750 million new COVID cases yesterday or close to that.” Seeing as the entire population of the U.S. is roughly 330 million, America must have just reached herd immunity — twice over.

It is egregious misinformation and downright misstated nonsense like this that underscores why the panic surrounding COVID has allowed even normally sensible people to behave like frightened lemmings.

Worse than this misinformation, though, was the left-wing justices’ disregard for constitutional separation of powers. Sotomayor wondered, “I’m not sure I understand the distinction why the states would have the power” to impose such a mandate “but the federal government wouldn’t.” Perhaps she’s never heard of the 10th Amendment.

The question of the legality of Biden’s vaccine mandate was answered by the president himself and his administration months before they decided to go against their own understanding of the constitutional limits to executive power. As political pundit Liz Wheeler astutely observes: “It doesn’t matter whether the vaxx is a wise choice (or not). Or whether it’s effective (or not). Or how deadly Covid is (or not). The ONLY thing SCOTUS should be answering is whether OSHA has authority to issue an ETS requiring private employers to force employees to get vaxxed.”

The Biden administration has argued that it has the authority to wield the Occupational Health and Safety Administration as a bludgeon for the vaccine mandate, though, as Roberts observed, that’s an unprecedented use of the agency’s emergency standards rule. Only 10 times in 50 years has OSHA engaged such powers and always in accordance with workplace toxins. In other words, the actions were always temporary and narrow in scope, not some rule directly impacting the health and livelihoods of 80 million working Americans. Now, OSHA is treating workers like workplace toxins.

Scientifically, the inconvenient fact for mandate proponents is the reality that the pandemic is no longer an emergency. While the coronavirus vaccines have proven effective at reducing the severity of illness, they do not make individuals immune from catching or spreading the virus. Moreover, a wide range of treatment options have been developed and implemented since the beginning of the pandemic. The notion that the vaccine is the only thing that can tackle the novel virus is demonstrably false. Furthermore, what of the very real and scientific reality of natural immunity? The mandate fails to take into account the science that natural immunity does exist and may, especially regarding the Omicron variant, offer better protection than the novel mRNA vaccines.

Of greatest concern to the Court should be protecting individual Liberty against the instinct of those in power to abuse their authority and to defend that abuse by claiming to be acting to “save lives.” If it really were lives these governmental authorities were interested in saving, they’d think less highly of their own preferences and be encouraging as many medical options to the American public as possible. Diversity of thought, ideas, and opinions is what will guide the country to better dealing with a rare pandemic, not a narrow-minded, top-down, one-size-fits-all “solution” that has already proven wholly inadequate at stopping the virus.

The Court could issue an initial ruling any day now, though a fuller ruling would likely come later.

1/13 Update: NBC News reports: “The Supreme Court on Thursday blocked the Biden administration’s rule requiring larger businesses to ensure that workers are vaccinated against Covid-19 or wear masks and get tested weekly. But the court said a separate mandate requiring vaccinations for an estimated 20 million health care workers can be enforced.”

Tony Perkins notes: “Pointing out that there has ‘never before’ been such a mandate from anyone — Congress included — Justices John Roberts, Brett Kavanaugh, Clarence Thomas, Neil Gorsuch, Samuel Alito, and Amy Coney Barrett tried to explain the limits of the government’s power. While OSHA can set ‘workplace safety standards,’ that’s not the same as ‘broad public health measures,’ they wrote. In our system of government, policies like this one are ‘the responsibility of those chosen by the people through democratic processes.’”

He adds: “As far as Justice Thomas is concerned, if it’s unconstitutional in the private sector, then it’s unconstitutional in the health industry too. In a separate dissent, he argued that the administration doesn’t have the authority ‘to force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.’”

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