Justice Thomas's opinion in Little Sisters of the Poor Provides Another Path To Challenge The OSHA Vaccine Mandate

Plaintiffs should raise a "constitutional challenge to the breadth of the delegation."


In 2020, the Supreme Court decided Little Sisters of the Poor v. United States. This case held that the ACA provided the Trump Administration with the authority to promulgate religious and moral exemptions from the contraception mandate.

The Cato Institute and the Jewish Coalition for Religious Liberty submitted an amicus brief that suggested a different way to resolve this case. We argued that the ACA did not delegate the authority to create the Obama Administration's initial "accommodation." Our brief was premised on the non-delegation doctrine, as well as the major question doctrine. Here is an excerpt from the introduction:

At base, the ACA did not delegate the authority to draw that arbitrary distinction and resolve this "major question." The fact that the rulemaking here was premised not on health, financial, or labor-related criteria, but on subjective determinations of which employees more closely adhere to their employers' religious views, "confirms that the authority claimed by" the agencies "is beyond [their] expertise and incongruous with the statutory purposes and design." Gonzales v. Oregon, 546 U.S. 243, 267 (2006). If "Congress wished to assign that question to an agency, it surely would have done so expressly." Id.

Had Congress intended to give the Departments discretion to decide which religious institutions should be subject to the mandate, it would have legislated to that effect. "It is especially unlikely that Congress would have delegated this decision to" the agencies, "which ha[ve] no expertise in crafting"religious accommodations "of this sort" without clear statutory guidance. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (citing Gonzales, 546 U.S. at 266–67). In the light of the narrow "breadth of the authority" that Congress has given to the executive branch over this controversial issue of religious liberty, the Court is not "obliged to defer . . . to the agency's expansive construction of the statute." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).

Ultimately, the Supreme Court did not reach this issue. Justice Thomas's majority opinion observed that the question was waived:

No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States, 588 U. S. ___ (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions

This issue should be pressed in the upcoming OSHA mandate litigation. The Biden Administration will likely craft some type of religious exemption. Indeed, OSHA may mirror the regime established by the Obama Administration's contraception mandate. For example, the Department of Labor may completely exempt houses of worship with more than 100 employees. But religious orders will not be exempted. Instead, groups like the Little Sisters of the Poor will be accommodated. That is, employees will not be subject to the mandate if they satisfy some criteria established by the Department of Labor. For a preview, federal employees need to answer the following seven questions:

  1. Please describe the nature of your objection to the COVID-19 vaccination requirement.
  2. Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise? If so, please explain how.
  3. How long have you held the religious belief underlying your objection?
  4. Please describe whether, as an adult, you have received any vaccines against any other diseases(such as a flu vaccine or a tetanus vaccine) and, if so, what vaccine you most recently received and when, to the best of your recollection.
  5. If you do not have a religious objection to the use of all vaccines, please explain why your objection is limited to particular vaccines.
  6. If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them.
  7. Please provide any additional information that you think may be helpful in reviewing your request.

After people of faith fill out these forms, OSHA bureaucrats will have to assess whether an accommodation is warranted. And if the bureaucrat determines an accommodation is not warranted, employers will be subject to ruinous fines.

There is a problem with this approach. The Department of Labor has no expertise to decide which types of people of faith are exempted, and which types of people of faith are accommodated. On what basis can OSHA craft such an intricate framework based on difficult questions of faith? And they have no delegated authority to decide whether a person's beliefs warrant an accommodation. OSHA inspectors check workplaces for hazards, not beliefs. The Congress in 1970 that enacted OSHA said nothing at all about this matter. The Biden Administration is completely out of its league.

When the OSHA rule is finally issued, Plaintiffs should raise a "constitutional challenge to the breadth of the delegation."

NEXT: Biden Supreme Court Commission Releases "Discussion Materials" on Court-Packing, Term Limits, and Other Issues

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  1. Josh, it's fair to make an observation about this regulation. But, do you want to also give your opinion as to the alternative? Obviously, you can't just take people at their word...there needs to be some substantiation, right? Do you have any substantive suggestions?

    1. I thought believing someone about their claim, accepting its veracity out of hand was de rigueur, indeed, to even question it was synonymous with deviltry.

      Oh, wait. That was a completely different subject.

      1. This is a complete misunderstanding.

        Before believing, or even entertaining, this sort of claim it is first necessary to ask the threshold questions - eg is the claimant alleging assault by a Dem politician ? Does the claimant's Dad oppose transgender bathrooming ?

      2. Questioning the nature of the claimed belief is not allowed. The government is allowed to attack/question the sincerity with which the belief is held.

      3. The regulation is illegitimate, and has no justification other than the power mad fantasies of totalitarian thugs.

        Vaccines make you immune to a disease. If this shot was a vaccine, then the people who've had it wouldn't be whinging about the people who don't.

        Any justification for avoiding this "mandate" is inherently legitimate, because the mandates are inherently illegitimate.

        Note: the reasons why the government has been required to assume people's stated objections are "sincere" are two:
        1: No one thinks the government is actually qualified to judge religious believes
        2: The Left pushed the "religious exemption" to protect lunatic fringe ideas (like smoking peyote). So requiring people to justify their beliefs would have been the death knell of the whole thing.

        Now that the Left has the power, we are all shocked, shocked to discover the left has no respect for the idea that religious belief should protect people from the Left's demands.

        Because to be on the Left is to be without principle

        1. Virus-flouting, antisocial, contrarian, right-wing hayseeds are among my favorite culture war casualties.

        2. Greg J : "Vaccines make you immune to a disease.... (babbling)"

          There is no stupid like mind-numbing, shit-for-brains. child-level-thinking right-wing STUPID. No vaccine is 100% effective against a disease. For example, the polio vaccine is only 99% effective after full application. With 330 million people in the U.S, that suggests millions of people would develop polio. The reason they don't is because vaccine mandates have eliminated the disease such that the remaining 1% is never exposed to the disease.

          And the reason for that is political demagogues haven't conned fact-challenged dupes like Greg J into seeing the polio vaccine as a culture war play toy. Though I note that the Ohio legislature is considering banning all vaccine mandates - including polio. (When you're competing for the votes of imbeciles, you do stupid things).

          PS : Another gem from Greg's rant : "The Left pushed the “religious exemption” to protect lunatic fringe ideas (like smoking peyote):

          I wonder if Greg counted the number of the people from the "Left" you pushed this position. If he still has all his fingers & toes that might have been adequate for the task.

          1. In actuality the reason the polio, and the smallpox vaccines are so effective is due to the intrinsic difference between those viruses and any Corona class virus. Neither polio nor smallpox have an intermediate animal host, while Corona does. Since it is obviously impossible to inoculate every living thing on the planet COVID will never be truly eliminated or even controlled completely.

            Were this a disease limited to just humans, it might be theoretically possible to contain it. As it is that is never going to happen, and yes while even the best of vaccines can achieve rates approaching 99% in the case of COVID that will never be achieved, considering a: it is animal hosted, and b: it is an extremely rapid mutator. No vaccine, which technically those being offered now are not, they would be more accurately described as a "biologic" with an effectiveness rate of between the low 40% range to the mid to upper 60's, depending on the study, is ever going to be an effective inoculant.

            As the virus continues to rapidly mutate, those numbers will continue to go down. What is really needed is for a large portion of the healthy population to get the sort of broad spectrum immunity that can only come from infection and recovery. Then, and only then can a vaccine be truly useful in this instance.

            1. Some Questions, Currentsitguy:

              (1). Can you produce a single confirmed case in this country of an animal to human transmission?

              (2) I've seen stories of animals sickened by Covid, but they're very few in numbers. How broad a phenomena do you claim this is?

              (3) Given humans seem to be the primary host, wouldn't animals also see plummeting infection rates from a human population vaccinated in plus-90% numbers?

              (4) Vaccines reduce the risk of someone getting Covid and therefore transmitting the disease further. The people in hospitals today are overwhelmingly the unvaccinated. Yet you claim vaccinations only become useful at some unspecified date. Can you reexamine that argument in light of the current medical data now?

              (5) Aren't you just another person making anti-vaxx excuses?

              1. 1: While I am sure the vast majority of animal to human transmission cases are not occuring in a way that could be easily verified, we do have multiple cases that be easily traced because they have occured in handlers and carers in zoos.

                2: Considering the numbers of positive cases in household pets in homes where someone is infected, it's a fair assumption the numbers are rather high.

                3 and 4: You are proceeding on the assumption that the effectiveness rate is far higher than it is. The problem is when you are using a treatment that is not in the high 90% range, particularly to treat a disease that rapidly mutates, all you are really doing is applying selective mutational pressure. In each subsequent generation the current vaccines will become less and less effective.

                When you have a low effective rate treatment, that most prudent move would be to reserve it's usage for the most vulnerable in the population so as to prolong it's usefulness.

                5: I am by no means anti-vax. I have my full Yellow Card for travel. I have some of the more esoteric ones, such as Hepatitis from previous employment in a field where transmission could have been easy. I am an atheist, so I have no moral objections as to how it was derived. What I am is anti this vax being introduced on a large scale without long term testing, and with a low enough effective rate that it seems apparent it is promoting mutation.

                This is the problem when we allow fear and emotion rather than reason and fact to dictate public health policy. Bad snap decisions are made that can have serious long term ramifications.

                1. My 90% number wasn't the effectiveness of the vaccine, but the percent of people vaccinated. Your arguments don't convince me that vaccination rates that high wouldn't starve-off Covid's mass transmission and therefore limit its ability to mutate. In fact, you're completely unpersuasive in claiming there's an advantage to letting the disease linger with overall low-vaccination rates, areas with extremely small vaccination rates, and hospitals choked with the unvaccinated. Withdrawing all vaccinations is less persuasive still - to a perverse degree. What public policy do you propose and what would be its cost?

                  The effectiveness of the current Covid vaccines is a matter of constant debate, but they aren't so low they couldn't choke off the pandemic if enough people got vaccinated. I'm still not sure you aren't simultaneously saying vaccines don't work (because of the rate) at the same time you peddle the "don't get vaccinated" line - like a dog chasing its own tail.

                  There's a regular commentator here who now regular spouts the Right's new anti-vaxx party line. There was one recent thread when he just hit the wall: After a laundry-list of reasons people shouldn't get vaccinated, he was reduced to saying it might prevent a worthier person in Ghana from getting the shot. Now I know with certainty that person never worried about the unequal distribution of resources between the U.S. & Ghanaians before, and will certainty never again. He just needed an excuse against vaccines and that was the best he could do. I think you're doing your best, but to what purpose?

              2. Answer to #1- No. Nor can anyone anywhere who claim the virus didn't come from a Chinese bioweapons laboratory can prove that it came from a bat or any other animal.

                Answer to #2- Animals aren't normally tested for it. But- I do find this interesting: ATLANTA — Several members of a troop of western lowland gorillas at Zoo Atlanta have tested positive for the coronavirus after handlers noticed many of the great apes were showing signs of mild coughing, runny noses and a small loss of appetite, the zoo said Friday. Sep 11, 2021 So- how many of these gorillas were within 6 foot of an infected human for 15 minutes?

                1. 1. There's a difference between a one-time jump from animal to human - something seen before multiple times - and the regular interchange between species, which Currentsitguy suggests is a major problem. I still find that point incoherent. The major host for the virus are humans. It's hard to believe animals would persist as a problem if mass vaccination starved the virus' sustainable growth throughout the human population.

                  The CDC says “based on the limited information available to date, the risk of animals spreading COVID-19 to people is considered to be low. There are no documented cases of dogs or cats spreading the virus to people".

                  Also : Most scientists still believe animal transmission likely for the original breakout, but - hey - if you prefer the scientific judgement of huckster politicians on the make, knock yourself out.

                  2. I've also seen accounts of animals getting Covid. I'm just not sure how broad the phenomena is.

            2. Greg J : “Vaccines make you immune to a disease…. (babbling)”

              There is no stupid like mind-numbing, shit-for-brains. child-level-thinking right-wing STUPID. No vaccine is 100% effective against a disease.

              (I'd provide links, but then the Reason comment system eats the post)
              CDC definition of a "vaccine", pre-2015:
              Immunization: The process by which a person or animal becomes protected against a disease. This term is often used interchangeably with vaccination or inoculation.

              Vaccination: Injection of a killed or weakened infectious organism in order to prevent the disease.

              Vaccine: A product that produces immunity therefore protecting the body from the disease. Vaccines are administered through needle injections, by mouth and by aerosol.

              Definition changed to in 2015:
              Let's start by defining several basic terms:

              Immunity: Protection from an infectious disease. If you are immune to a disease, you can be exposed to it without becoming infected.

              Vaccine: A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease. Vaccines are usually administered through needle injections, but can also be administered by mouth or sprayed into the nose.

              Vaccination: The act of introducing a vaccine into the body to produce immunity to a specific disease.

              Immunization: A process by which a person becomes protected against a disease through vaccination. This term is often used interchangeably with vaccination or inoculation.

              Why don't you go tell those science deniers at the CDC what's what?

              Then you can tell us what level of protection Pfizer etc. provide against infection by Covid. 33%? 99% 90%?

              Do tell us. Then compare it to a real vaccine, like Polio

              1. I'd say that you've created a strawman definition of immunity. There are a variety of immunities a vaccine can create- sterilizing immunity, for example, where you don't become infected at all (the HPV vaccine is basically there in almost all cases), or functional immunity, where you are protected against particularly harmful outcomes but might still get the disease (this usually results in lower transmission rates, as well- the Hepatitis B vaccine is a good example; your body will eventually clear the virus, but you'll likely have a mild infection at first).

                What level does Pfizer tend to produce, without a booster? Good question. One study from Israel suggests that about 6 months out it might be ~40% sterilizing immunity, and upwards of 80% against severe COVID (this from the Delta variant). That's by far the worst study for Pfizer in terms of Pfizer's results; other studies suggest around 60% sterilizing immunity and still over 90% against severe results, and significantly better results with a booster.

                If the only result of giving the Pfizer vaccine is that it keeps people out of the hospital, that's *still* worth mandating. The fact that it definitely reduces transmission through sterilizing immunity in some people, and probably reduces transmission among those who do get the virus due to more and faster antibody production and less severe cases, heightens that argument.

              2. Here is how to get a link into the system. Here is the Wikipedia article on COVID-19. (If this doesn't work, I'll be back.)

            3. Currentsitguy — Not easy to see how your argument against vaccination is not equally forceful as an argument against the efficacy of naturally acquired immunity. Except for one thing. There is apparently a big difference in medical outcomes if you catch you case of Covid post-vaccination—for many millions it will prove the difference between life and death. Advocacy seems morally challenged to insist on foregoing vaccination to speed acquisition of natural immunity.

              1. My argument is is short term benefit vs long term consequences. Applying selective mutational pressure by a "leaky" vaccine will in the long term result in far more deaths than had it been allowed to run its course within the healthy population and to focus our efforts on protecting the most vulnerable. Had we done that, this would be a minor footnote by now.

                Think of it in terms of the problems we have created by the overuse of antibiotics. Countless powerful drugs have been rendered utterly useless due to the selective pressure effects of their prescription in wholly inappropriate circumstances all in the name of calming patients that something, anything is being done.

                No one likes being told when they are sick that there is nothing the best of medical science can do for them other than to get a lot of bed rest, load up on chicken soup, and to pick a series on Netflix they've been meaning to catch up on to binge, but for the vast, vast majority of patients who catch this that is the best course both for themselves and for the population at large.

                1. Except that we've already seen what happens when you let it come into contact with people. 1) Hospital systems get overwhelmed and transmission becomes much more widespread, and 2) the variant that has become dominant in the US and elsewhere- Delta- originated in an area that did not have significant access to vaccines. And the COVID vaccines that are out there are still quite successful at preventing severe cases of Delta, relatively successful at reducing transmission of Delta, and will be even more successful at both with boosters.

          2. PS : Another gem from Greg’s rant : “The Left pushed the “religious exemption” to protect lunatic fringe ideas (like smoking peyote):

            I wonder if Greg counted the number of the people from the “Left” you pushed this position. If he still has all his fingers & toes that might have been adequate for the task.

            You are such a moron. RFRA was passed by the Democrats shortly after Clinton became President. It had near unanimous support from Democrats in both the House and the Senate.

            because they thought it would only be used to protect their freaks and losers from the "normies"

            1. Just stop digging, Greg; this arguing stuff is way beyond your abilities. You said the Covid vaccines aren't vaccines because people might still get the disease after their shots. That's kindergarten-grade duncery (as I noted): No vaccine is absolutely perfect; all vaccines have some degree of failure rate. Would you say the polio vaccine isn't a vaccine because of its 1% failure rate? Do you think that's what your goofy display of definitions proves? Do you even think at all?

              As for your "RFRA was passed by the Democrats" nonsense, that shows your historical ignorance equals your scientific ignorance. RFRA passed by a unanimous vote in the House and 97-3 in the Senate. And guess what: Of the 532 people who voted for the bill, not a single one gave the slightest shit about smoking peyote. Do you honestly think otherwise? Do you even think at all?

          3. "There is no stupid like mind-numbing, shit-for-brains. child-level-thinking right-wing STUPID."

            Sure there is: Democrats insist we pretend that having gotten Covid doesn't give you immunity.

            How is that any less stupid?

    2. Obviously we can't just take you at your word that this is an honest comment, there needs to be some substantiation, right? You could be working for the security state. You could be an employee of the federal government. You could be a paid commenter. You could even be a piece of software.

      There's just no telling in this big, dangerous world. Taking people's word for things?! Where do you think you are? /s

      1. Dave,
        I get the comment, and it's not the silliest thing I've read here. But I don't think anyone here is stupid enough to be saying that we should, in fact, be taking people simply at their word. The reason the IRS does not is that, if no documentation were necessary, very very few people would pay their fair share. (Alas) And, obviously, if there is some requirement that a segment of the population does not want to do, it would be moronic to say, "Well, we'll give an exception to anyone who makes X claim...we'll just take you at your word." Fortunately, God gave me, and you, and everyone else, a brain, and so we're able to look at past behavior and make credible deductions about what will happen in the future.

        If something important were going to happen to you, something that you did not want to happen--based strictly on what **I** wrote here--OF COURSE you would demand substantiation of what I happened to write. Your approach would never be, "Well, we should just take Santamonica's words as gospel and believe them. And act on them." Do you *really* not see the enormous problems with an approach of believing all people who make Claim X? Or are you merely playing devil's advocate?

    3. You don't understand. Josh doesn't want the OSHA vaccine mandate to have a better-crafted religious accommodation framework. He wants to invalidate the vaccine mandate.

      The idea being: the DOL, in fashioning the vaccine mandate, tries to craft a religious accommodation framework that could withstand an RFRA challenge. This accommodation is itself challenged as an unconstitutional delegation of authority under OSHA, since OSHA didn't contemplate a careful religious exemption regime. The accommodation is therefore struck down, and the vaccine mandate is reviewed directly for RFRA purposes. Finding for [reasons easily identified by conservative justices looking to reach a particular result] that the vaccine mandate is not narrowly tailored to serve a compelling government interest, the vaccine mandate is struck down as a violation of the RFRA.

      What's awful about this is that I don't think Josh actually cares that religious plaintiffs might have to get shots that they falsely believe were derived from fetal tissue, represent the "mark of Satan," or violate whatever other religious belief they might happen to cite. I think he just wants to see his name in the lights, so to speak. "Ooooh! They cited my brief!" That's all this is, for him.

      1. Do you have any criticism of Josh that doesn't rely on your being able to read his mind?
        "Josh doesn't want..." "[He] wants to invalidate..." "That's all this is, for him."

        1. The snark has a kind of rich irony, insofar as Josh routinely "reads the minds" of the Supreme Court justices.

          All that I'm engaged in doing is comprehending what I'm reading. I understand the argument Josh is making here and where, strategically, it is headed. I can surmise Josh's motives for the way he promotes himself tirelessly. It's not that hard.

          Now, I recognize that bad-faith trolls like to say things like, "But [I]/[he] didn't say that!" No, it's true, you often equivocate, dissemble, imply. You'll argue endlessly about whether X statement means literally just X even when it's clear to everyone that you mean actually Y as well. I don't feel any particular need to entertain that mode of engagement.

      2. I just don't understand why Josh is ignoring the obvious absurdity of, it is illegal for OSHA to do something they are required to do by law.

        1. Pretzel-logic is in style these days.

          1. It is a great album.

            1. Some people consider it the last of their skunky ones.

        2. So, OSHA has been falling down on the job by not noticing it was required by law to do this sort of thing before now?

          1. Reread the post.

            OSHA knows it is required to issue a religious exemption. But Josh is arguing if it does so, that's somehow a non-delegation problem for reasons that make no sense.

            That is, of course, ridiculous. You inventing a catch 22 that doesn't exist. If RFRA forces OSHA to grant a religious exemption, then Congress HAS granted the authority ... through RFRA

            1. That of course responds to what I wrote to exactly zero extent.

              Now, why don't YOU reread the post? Blackman's objection is not to OSHA somehow applying RFRA, but to its lack of standards for determining who gets exemption and who gets accomodation, etc.

              1. It is impossible to issue a religious exemption without setting standards for who it applies to. Thats obvious. So you arrive at the same issue, OSHA can't issue a religious exemption and simultaneously it must. Josh thinks that means it must fail. Josh is wrong. What that means is that the whole analysis is stupid. What exactly precludes OSHA from setting standards?

                If you have an issue with the standards OSHA set, bring a suit under RFRA or the free exercise clause. That does not mean the mandate fails.

                No I don't understand your point. I do understand what Josh is arguing. I am arguing he is wrong, simply repeating what he said isn't an argument.

  2. Completely hypothetical abuses of government power are among the most tyrannical.

  3. With an OSHA ETS, it will be the employer deciding if a religious exemption is warranted based on some OSHA criteria. The employer may reach a conclusion different from where an OSHA CSHO might arrive. However, the CSHO would have to then prove the employer acted in bad faith (pun intended). If the employer has a rational basis as to why the employee was exempted, then OSHA’s remedy is to ask the employer to vaccinate the employee - but a citation would be unlikely to succeed.

    It might be moot because there is also a testing regime as part of the proposed standard (assuming that holds), I can’t imagine a religious exemption to a nasal swab. There is no religious exemption to a blood-lead draw required on a quarterly basis.

    The biggest issue with the OSHA ETS is that there’s only about 800 Federal OSHA CSHO’s in the country. If you count CSHO’s in states with a state-plan OSHA, it rises to about 1700. There’s also a six month statue of limitation on OSHA violations so there is no way this rule is practically enforceable. Further, this rule will likely not even go into effect in state-plan states. This is because those states have an extra 30 days to implement a new federal standard. Since injunctions will likely be issued by federal judges almost immediately, those states will never get the chance to implement the ETS before the six month timeframe for the ETS elapses.

    Further, employers have the very real issue of test shortages and feasibility is a defense to OSHA citations. If I can’t conduct tests because approved tests are unavailable, I can’t practically enforce the rule in my workplace. So, if I don’t want to really comply but want to also appear I’m trying to comply, I’ll simply put in a purchase order for some tests with a vendor that’s out of stock and await the order. The chances that an OSHA CSHO shows up for an inspection, determines I’m not following the rule, determines that it was feasible to purchase tests and and my purchase order is in bad faith - all before the ETS runs out and before my six month statue of limitations elapses borders on nil. However, now every employer in the US with over 100 employees now finds out how toothless OSHA actually is in terms of enforcing its own standards. So not only will this move by the Biden administration fail to slow the virus, it will also undermine workplace safety and health in regard to other legitimate hazards.

    In reality, the ETS is simply a threat that 99% of employers either ignore or superficially make an attempt at compliance.


  4. This is the rat's next of real-world impossibilities that the Hobby Lobby decision created. There were serious people trying to extend health insurance to those who don't have it.

    1. If they were serious about extending health insurance to those who don't have it, they should have left out the contraceptive mandate.

      1. Contraception is healthcare.

        And not just "I don't want babies"-type healthcare. Women use oral contraceptives to manage painful or heavy menstruation as well as other hormonal issues. Same way abortion saves women's lives.

        Never mind that pregnancy is itself a significant health event in a woman's life that it makes sense to manage in a proactive way. "I don't want babies" is a health decision just like "I don't want HIV/AIDS" (PEP/PrEP) and "I don't want a heart attack/cancer" (various medications for high cholesterol/blood pressure and the HPV vaccine) are health decisions.

        1. 1. They knew or should have known the contraceptive mandate would be controversial and create opposition.
          2. Forcing a Cadillac/Kitchen sink plans that cover everything imaginable is counter productive to the stated goal of "affordable" health insurance.

          1. No, they would not have known. Just like they could not have known that Republicans would oppose a Republican plan.

            Catholic institutions had been providing contraceptive coverage for years.

          2. You seem to be saying that, in order to provide broader access to healthcare, Obama should have declined to broaden access to healthcare needs that are specific to women, which is systematically discounted, disregarded, and even opposed by some. Thereby perpetuating the underlying problem.

            Forcing a Cadillac/Kitchen sink plans that cover everything imaginable...

            Well, certainly, I would prefer that the system through which we accessed normal and routine healthcare wasn't also the system through which we protected ourselves against unforeseen, one-off, and extraordinary medical expenses. But as it stands that's more or less the system we've set up for ourselves. I provide my health insurance information even if I have to cover the entire cost of a visit or drug, just because the very rates I pay are negotiated by the insurance provider.

            A "Cadillac plan" is a somewhat archaic term for a high-premium health insurance plan. It may provide for low deductibles and no coverage caps. But it would not normally be understood to be any plan that covers ordinary everyday health expenses like contraception. I think the distinction you are trying to draw is between so-called "catastrophic health insurance," which only covers the most extraordinary medical expenses (and even then only up to a cap) and so is more affordable, and other forms of health insurance.

        2. Lots of things are healthcare, and insurance companies aren't mandated to provide them at no cost.

      2. " they should have left out the contraceptive mandate "

        Superstitious, antisocial, Bronze Age clingers are among my favorite culture war casualties.

        Open wide enough to handle universal health care, clingers . . . it's inevitable.

        You still get to whine about it all you like.

        1. ^^^^^^^^^^^^^^^^^^^^^^^^
          Waste of brain cells warning
          Kookland is performing his usual weird trick of "footnoting" his posts with a music video. I didn't follow it, but hovering over it shows "youtube". So there's no need to click on it.

          And then there's his tiresome insults of those not as Woke as he is.

          That exhausts his bag of tricks. No use in saying "Roll over, boy!" That's beyond his abilities.


          1. Disingenuous Bigots are not known for originality.

            1. You prefer White, male, stale, right-wing blogs that endlessly recycle roughly a dozen themes (ankle-nipping at strong schools for being insufficiently deferential to right-wing speakers; ankle-nipping at strong schools for not hiring enough clingers; 'owning the libs;' ankle-nipping at mainstream society for being insufficiently deferential to superstitious people; defending bigots; engaging in gymnastics to arrange plausible reasons to publish a vile racial slur; etc.)?

              This blog has beaten a lame handful of cherry-picked, polemical, partisan riffs to death.

              Its incel followers seem to love the repetition for some reason.

              1. Kookland must "prefer" a blog he sees as "White, male, stale, right-wing..." since he spends a remarkable amount of time here spamming us with his brain-dead declarations like this one.

  5. I mean, seriously? I dont know man. To say both that it is unconstitutional (or at least under existing precedent, very, very, hard) to not have a religious exemption, and then when they try to actually gave a religious exemption, say oh wait sorry no you do not have the authority to issue a religious exemption and it is unconstitutional for you to have that authority ... I mean come on man. That is so stupid. That isn't a tenable argument.

    If OSHA must include a religious exemption under RFRA, then it is implied that RFRA gave then the authority to do so. If that grant of authority is unconstitutional, then RFRA is unconstitutional, which is not an outcome you want. If they are required under the free exercise clause, well, then this whole non delegation argument is stupid.

    If the constitution requires you to do a thing, doing that thing cannot be unconstitutional.

    1. Government exempts religion all the time. Though exemption is entangling, not exempting is more entangling.

    2. You have totally failed to understand Blackman's subject. The Constitution doesn't require OSHA to choose for each employer between a religious exemption and a pulled-out-of-its-ass religious accomodation based on how religious OSHA thinks that employer's employees are. Reread his last paragraph, or the linked Little Sisters brief.

      1. The free exercise clause, and RFRA, forces OSHA to issue a religious exemption.

        It does so.

        You challenge the whole mandate in the grounds that OSHA doesn't have the authority to issue the exemption ... despite the fact that the constitution forces it to.

        That is insane and stupid. And that is not what the non delegation doctrine is.

        If you disagree with the scope of the religious exemption, you bring a lawsuit under RFRA. Not a non delegation challenge.

        1. The free exercise clause, and RFRA, forces OSHA to issue a religious exemption.

          No on the free exercise clause. That's Smith. Only RFRA does.

        2. Blackman suggests that you bring a lawsuit against its application of RFRA on the specific grounds that OSHA is creating differential recognition of imagined differences in religious qualifications for exemption in violation of the npn=delegation doctrine.

          Learn to make distinctions.

  6. Isn't the whole matter moot at this point? If, on 14-Feb-2021, there was no crisis which needed to be averted, there is no crisis today; that is, the "emergency" today is only as great as it was back in February and back in February DOL perceived no need for emergency OSHA measures.

    Perhaps Congress cannot delegate soothsaying powers which it never possessed.

    I'm struck that "follow the science" is no longer the mantra. If we "follow the science," we find that mandates -- mask and otherwise -- generally had either no effect or had the effect of raising viral transmission above national average. If we "follow the science," difficult as that may be now the the WHO is shunned on social media, we find that triple-dosing healthy Americans has less effect than single-dosing vulnerable people worldwide. If we "follow the science," we see that coronavirus spread follows its natural pattern -- now declining -- despite the variety of human action and inaction worldwide.

    But, hey, we are contemporaneously arguing about the weather.

    1. We have no need whatsoever to issue the national executive emergency powers like this. Recommend, and let the states deal with it.

      Doing so because of national cheers is just what the dictators in ancient Rome and Greece ordered, and Chancellor Valorum. "So this is how liberty dies, with thundrous applause."

    2. Come on! You're using common sense. Do you want to end up on a Domestic Terrorist watch list?

  7. The conduct of religious Americans indicates they wish to be known -- particularly among younger, educated, modern Americans -- for

    (1) flouting a virus;

    (2) demanding special privilege to defy generally applicable, sensible laws;

    (3) old-timey misogyny;

    (4) demanding special privilege to be bigots;

    (5) plenty of backwardness and stale ignorance (with an emphasis on suppressing and disdaining science);

    (6) aggressive, mean-spirited gay-bashing;

    (7) leeching off taxpayers;

    (8) expecting 'heads we win, tails you lose' treatment for superstition -- 'we can discriminate against everybody else, but no one can discriminate (or even apply standard laws) against us;'

    (9) facilitating and concealing the sexual abuse of children to protect churches' reputation, personnel, and enormous wealth;


    (10) operating hundreds or thousands of censorship-shackled, low-quality, nonsense-teaching schools.

    If you wanted to accelerate the collapse of the role of religion in America -- especially in the successful, educated, modern communities -- it might be difficult to devise a better plan.

    1. Why don't you read the article, Kook, and see if you can find something relevant to it to say, instead of repeating your blovation list and idiotic link to a music video?

      Complaining about "nonsense-teaching schools" (apparently the private ones) is particulary rich in this era of CRT. And then there's the hiding of sex crimes.... by the Loudin County School District (public). I could further fisk your list, but shooting fish in a barrel is tedious.

      1. Complaining? You misunderstand. I applaud and welcome the accelerating diminution of the role of organized religion in modern American.

        Choose reason. Every time. Be an adult. Or, at least, please try.

        1. Obviously you are complaining that religious Americans are not like you. Despite your triumphal pose it's perfectly obvious that that they are an obstacle to the victory of your insane ideas is what motvates the cascade of bile you spend so much time posting here.

          And you of course failed to make any answer to my point about your projection of Team Stupid's sins onto others.

    2. Yup. You summed it up pretty well.

    3. Gosh Arthur, this opinion of yours is unhelpful. We win by bringing people into the tent, not by pushing them out. You are welcome to be as nonreligious as you want, but if someone else comes from a faith tradition, try welcoming them. Among my friends, acquaintances and colleagues are Catholics, Protestants, Orthodox Christians, Muslims, Buddhists, Hindus and Jews who are not misogynists, who are not gay-bashers, who do not demand special privileges (other than stuff like being able to take their holy days off), and who are horrified by sexual of children, whether committed by a member or nonmember of their own faith tradition. These diverse friends, acquaintances and colleagues share my interest in addressing climate change, poverty, racism, homophobia, and, yes, ignorant opposition to vaccination.
      Religion has been at the core of some of America's best social movements. Rev. Martin Luther King and the Southern Christian Leadership Conference played a huge role in advancing civil rights. A significant share of America's feed-the-hungry organizations are religious-based. And there's National Religious Campaign Against Torture.

    4. (1) flouting a virus;

      You mean, not being chickenshit losers afraid of their own shadows?

      (2) demanding special privilege to defy generally applicable, sensible laws;

      But they're stupid laws that only an ignoramus would support

      (3) old-timey misogyny;

      Ah, you mean like deciding that men who claim to be women are more important than women who are actually women? no, that's what your side does

      (4) demanding special privilege to be bigots;

      That's what you do, every day. that's what CRT and identity politics do.

      That's not what we do

      (5) plenty of backwardness and stale ignorance (with an emphasis on suppressing and disdaining science);

      Ah, you mean like rejecting the science of immunology? Which says that the natural immune response is going to be significantly superior to a shot?

      Or the science of biology? And that your sex is determined by DNA, not your feelings?

      (6) aggressive, mean-spirited gay-bashing;
      As opposed to aggressive, mean-spirited Christian-bashing?

      (7) leeching off taxpayers;
      No, that would definitely be the Left. i thought you freaks claimed that was a good thing?

      (8) expecting ‘heads we win, tails you lose’ treatment for superstition — ‘we can discriminate against everybody else, but no one can discriminate (or even apply standard laws) against us;’
      Ah, projection, they name is "Leftie"

      See CRT and identity politics

      (9) facilitating and concealing the sexual abuse of children to protect churches’ reputation, personnel, and enormous wealth;

      Oh, you mean like Loudon Schools hiding the rape, in a girls' bathroom, of a freshman girl by a "trans" boy in a skirt, moving him to another school where he assaulted another girl?


      (10) operating hundreds or thousands of censorship-shackled, low-quality, nonsense-teaching schools.
      Oh, you mean like every single school in America not controlled by conservatives?

      You know, like Yale, to speak of one of those "censorship-shackled, low-quality, nonsense-teaching schools" recently in the news?

      Do you ever stop projecting Artie?

  8. Authoritarian Self Test

    Tomorrow, the CDC says, "you know what? We made a HUGE mistake. We misread a vital study, and actually COVID isn't a threat at all. It was the flu! Can you believe it? We were as shocked as you are, but that's the truth. So, no more masks, no more vaccines, there is no emergency."

    Now the self assessment question: Would you heave a sigh of relief, stop wearing masks, cancel your planned vaccinations and return to work, no questions asked?

    1. I think all those who have up to this point said they are done with this already have. I have little doubt there will be a certain segment of the population still putting those filthy disgusting rags on their faces and lining up for their 37th shot 20 years from now and longer.

      1. Personally, I did choose to get the vax; I just didn't rush it. I saw no reason to wait in line for hours or trust a "drive thru" vax site. (Gotta schedule an office visit for a 10 day supply of muscle relaxers, but can drive up and have some stranger jab an [at that time] experimental substance in my arm). Also had a vacation scheduled that required the shot.

        I'll mask if a business demands it, currently those are few and far between.

        1. Generally I'll refuse to go into a business that demands that I mask.

          I got the shot as soon as I could. Either it works, and we can end all the masking / social distancing bullshit, or it doesn't work, in which case it's time to get on with our lives and stop hiding.

  9. What kind of tone deaf head up a** liberal bureaucrat thought these questions were even OK to ask.

    Could you imagine if someone asked:
    1. Please describe why [your race].....
    2. Why is following the law so hard for [your race]....
    3. Why don't you call the cops when a crime in committed in [your race dominant] neighborhood?

    Yeah you get my drift here....This is only OK because it is targeting what the left thinks are right wing crazies.

    1. Except that religion is about beliefs and race isn't?

      The rule they're trying to enforce is that you receive an exemption if you have a *sincere* religious belief. If you say you need kosher meals as you begin a prison term but there's a video of you eating cheeseburgers and BLTs the day before, the prison might be justified in thinking that you do not have a sincere religious belief in requiring kosher meals. If you object to taking the vaccine based on research done years ago on embryonic stem cells, that's a completely valid objection. If you have taken many vaccines that used embryonic stem cells for their research, and regularly take a variety of medicines tested on them as well, perhaps your religious objections aren't sincere at all.

  10. Non-delegation: the originalist's favorite penumbra.

    1. That the Executive isn't a legislature is a principle, not a penumbra.

  11. What is different about OSHA judging the validity of a religious objection as opposed to the Selective Service Administration judging one? The government, for better or worse, has been doing this for a long time in other contexts. It's just now that it's a larger and more politically influential group of people than Jehovah's Witnesses, Friends, Mennonites, or Brethren.

    1. RFRA says the government doesn't get to judge the validity of a religious objection. It must assume the belief is "sincerely held"

      1. In fact, RFRA does not say that.

        1. https://crsreports.congress.gov/product/pdf/IF/IF11490
          RFRA imposes a heightened standard of review for
          government actions—including rules of general
          applicability—that “substantially burden” a person’s
          religious exercise. The statute does not define the term
          substantial burden, but the phrase appears to have
          originated from free exercise case law, which holds that
          such burdens exist when an individual is required to choose
          between following his or her religious beliefs and receiving
          a governmental benefit or when an individual must act
          contrary to his or her religious beliefs to avoid facing legal
          penalties. Importantly, this case law suggests that when
          evaluating an individual’s free exercise claim, courts should
          defer to parties’ assertions about their sincerely held
          religious beliefs.

          So the case law it was based on, and the enforcement since then, has all been based on that.

          Does that make you feel better?

        2. In fact, David hasn't, and probably can't, provide us with a case where the gov't won with the position "their beliefs are too stupid to be deferred to."

          And I'm quite sure he can't provide us with a single case where teh gov't won by forcing the plaintiff to fill out a "are your beliefs sincere?" checklist, and deciding that this person's beliefs weren't "sincere enough" so he couldn't have a religious exemption.

          Feel free to prove me wrong, David. if you can

    2. The Selective Service Administration is in fact not the final arbiter of granting concientious objector status -- instead it decides whether prosecute a purported conscientious objector for his refusal to serve in an Article III court, and the claim will or will not be vindicated.

      Will OSHA be making a similar judgement in cases of Mandatory Jab, and who will be paying damages?

  12. Let me know when a covid vaccine is actually developed.

    A vaccine that is less than 60% effective after 5-6 months is not a vaccine.

    1. So after 5-6 months you catch Covid, but instead of dying you don't die, and that's ineffective?

      1. I welcome the poor judgment of clingers as a good thing. It has made it easier for better Americans to stomp conservatives into the irrelevance they deserve in the settled-but-not-yet-over American culture war.

        1. ^^^^^^^^^^^^^^^^^^^^^^^^
          Waste of brain cells warning
          Kookland is performing his usual weird trick of "footnoting" his posts with a music video. I didn't follow it, but hovering over it shows "youtube". So there's no need to click on it.

          And then there's his tiresomely triumphal crystal ball.

          That exhausts his bag of tricks. No use in saying "Roll over, boy!" That's beyond his abilities.


        2. The judgment of the clingers is based on real time empirical data.

          the current death rates for the covid infected vaxed vs the covid infected unvaxed is nearly the same. this is based on August/Sept / and two weeks of Oct data.

          The statement by Lnthrop is based on numbers pre mid August, before the effectiveness of the vaccines took the nosedive (after the 5-6 months.

          The CDC is well aware of this drop in effetiveness but continues to cite pre august data in support of vax push.

      2. For the months of august , sept and so far through october, the IFR
        for the breakthrough vaxed cases and the unvaxed cased have narrowed to the point that there is little statistical difference.

        In Minnesota , which has the best published data for the vaxed and unvaxed., approximately 1/3 of the cases are vaxed and approximately 1/3 of the deaths and 1/3 of the hospitalizations are breakthrough cases.

        As the vax's effectiveness wears out, the breakthrough cases and deaths keep rising.

        All that is being accomplished with the vaxes is a temporary partial immunity.

  13. While the court assumed without deciding that the US has a compelling interest in providing subsidized contraceptives, that doesn’t mean it actually does. The two cases are radically different.

  14. I see Arthur Kirkland , that great font of knowledge, has weighed in. And of course seems entirely unaware it is possible to effectively fight the dreaded covid without a vaccine. And that vaccine opposition comes from ignorance- even as other nations are banning various of the dreaded covid vaccines because they kill young people at greater rated then the dreaded covid itself does.

    Wait! There are ways to fight the dreaded covid? Why yes, there are. Let's start with that simple dietary supplement- Vitamin D. We've known since the very beginning of the covidiocy that low Vitamin D levels predicted who was going to end up in the ICU. Now with more than a year's worth of data- Vitamin D all by itse;lf seems to keep people from dying- if they have enough of it when they contract the dreaded covid, not as an after they get it treatment. The study running the numbers:
    http://www.medrxiv dot org/content/10.1101/2021.09.22.21263977v1

    If you're Vitamin D blood level is 50 ng/ml, if you manage to contract the disease, you'll live. And what are public health authorities doing with this knowledge? Along with the known fact that about 43% of the US population is Vitamin D deficient? Easy- they discourage, officially discourage, medical professionals from testing Vitamin D blood levels unless a patient shows clinical indications of being Vitamin D deficient. If you have clinical indications of that- you're really sick. But hey, just because 43% are known to be deficient- why test and treat?

    You know the largest easy to identify sub-group that's deficient? Blacks. So by any definition- that's a racist policy. Also known to be low in Vitamin D blood levels- virtually everyone in the Northern tier of states, the ones that border Canada. IIRC, the probable low Vitamin D level applies to pretty much everyone above the 40th parallel.

    You know who else is deficient? Sailors. (Most military in fact.) Especially submariners. The RDA for Vitamin D- which is likely too low, is 600 IU daily. Sna studies have shown- studies more than decade old- show that that's insufficient for submariners to maintain Vitamin D level at a healthy level. And do you know what the military health system has done to alleviate this? Absolutely not one thing.

    I can look this Vitamin D stuff up easily. It's all out there. And if I can look it up- anyone can look it up. Start looking it up- then ask yourself- "Do they really care about my health?" The answer is obvious- No.

    You know what else helps? Zinc.
    www dot medicalnewstoday.com/articles/can-zinc-levels-predict-covid-19-severity

    You keep your immune system healthy with D and zinc and URIs of all types become less serious. Studies over decades tell us that.

    My level last tested is 60 ng/ml. I've been closely exposed by CDC standards to the dreaded covid multiple times- and haven't contracted it. Keeping a healthy Vitamin D level isn't the only thing I do. But is likely one of the more important ones.

    I haven't received the covid vaccine and have no intention of doing so. The Red Cross likes receiving my vaccine free blood.

    1. The whole mass vaccine campaign jumped the shark when uit turned from telling old people how they can get vaccinated to convincing young people to want to get vaccinated.

    2. I can look this Vitamin D stuff up easily. It’s all out there. And if I can look it up- anyone can look it up. Start looking it up- then ask yourself- “Do they really care about my health?” The answer is obvious- No.

      Isn't the more likely answer that you're a loon? Do you think your googling for non-peer-reviewed studies that support some weird preconception you have is somehow a better approach than actual science?

      1. There's no shortage of actual scientists on many sides of this issue.
        For example, gospace links to "COVID-19 mortality risk correlates inversely with vitamin D3 status..." https://www.medrxiv.org/content/10.1101/2021.09.22.21263977v1 Apparently you think this is not "actual science", but the only conclusion to be drawn from that is that you wouldn't recognize "actual science" if it bit you on the butt.

      2. No, he's not a loon. Or, if he is, this isn't evidence of it. I've been following the research myself, and my family has been taking D and zinc supplements since last year.

        It's cheap, and there's really no downside unless you start taking insane amounts, and, YES, there has been a great deal of evidence the RDA's are set too low for many years.

        The government's track record on nutrition is horrible. Beyond negligent, they've often fought to prevent vitamin supplementation!

      3. So it's obvious from your comment you're doing zero research on your own. Ignorance is not a quality to be admired. I could provide a lot of links- but as I said- it's easy to look up if you care to educate yourself. I will include one:


        It's on of them about submariners and Vitamin D. Having made 5 deterrent patrols and several spec-ops one of the things I recall is nearly everyone on board- including me- getting URIs on return to port. Still to this day- good food on subs, no supplements.

        The only person responsible for your health is you. Not Dr. Fauci, Not the government, nor any of it's alphabet agencies. Not your doctor, hospital or insurance company. You.

      4. David Nieporent
        October.18.2021 at 12:20 am
        Flag Comment Mute User

        " Do you think your googling for non-peer-reviewed studies that support some weird preconception you have is somehow a better approach than actual science?"

        If this was about "actual science", then there would not be the demand to get vaxed after having acquired natural immunity. Natural immunity has been demostrated to be significantly stronger and longer lasting than vaxed immunity. After 6 months, is estimated to be 5x-10x stronger.

  15. Josh Blackman frets about a questionnaire, "After people of faith fill out these forms, OSHA bureaucrats will have to assess whether an accommodation is warranted." What is the problem here? The questionnaire seems to be crafted to discern how genuine is someone's claim of religious objection to vaccination against COVID-19. If Josh thinks the questionnaire can be improved, he should offer a better one. But this seems like the right approach. This questionnaire is kind of like asking someone, "You say you're an Orthodox Jew. Please recite the Shema Yisroel."

  16. vaXXXed raw: grb gets the vaXXXine pounding of his dreams

    "Oh God what is with all these anti-vax loons these days? I've been vaXXXed multiple times and I just keep wanting more and more!" His phone buzzed with a new message - Pfizer and Moderna wanted to hangout again. "Come on over - my antibodies are declining and I need you to inject me!"

    grb begins to literally shake with anticipation as the knock on the door signaled their arrival. "Finally! I thought I was going to die of Covid waiting for you!" he exclaimed with notable frustration. Pfizer wastes no time with games and rolls up his sleeve immediately. Moderna grabs his other arm and rolls it up too.

    The vaXXXine enters him as he sighs with relief.

    Feeling adventurous, Pfizer pulls out the needle only to put it back again with increased vigor. The rest of the solution pumps into his veins as he screams for Moderna to hold him down. One thought keeps floating around in grb's mind: "This is actually happening and it's real! OH MY GOD!" They keep vaXXXing him harder and harder and harder!

    "BOOST ME!!!!" he screams as the syringe is completely emptied into him.

    After the vaXXXine - grb is lying on his bed, rubbing the injection sites that are still red and sore. "Wow, that was the best booster series yet!" As he fades away to sleep as the blood clot enters his brain, his final thought is simply: "Worth it . . ."

    Moral of the story: vaccination is better than sex.


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