Vaccine mandates

Federal Court Temporarily Stays OSHA Employer Vaccination Mandate

The stay may only last a very short time. But it does suggest the judges think the plaintiffs have a serious case to make against the mandate.


Today, the US Court of Appeals for the Fifth Circuit issued a stay of the the Occupational Health and Safety Administration's (OSHA) newly announced Emergency Temporary Standard (ETS) mandate COVID-19 vaccination or testing combined with masking in private workplaces controlled by employers with 100 or more employees. Here is the short ruling in its entirety:

Before the court is the petitioners' emergency motion to stay enforcement of the Occupational Safety and Health Administration's  November 5, 2021 Emergency Temporary Standard(the "Mandate") pending expedited judicial review.

Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.

The Government shall respond to the petitioners' motion for a permanent injunction by 5:00 PM on Monday, November 8. The petitioners shall file any reply by 5:00 PM on Tuesday, November 9.

So ordered.

The order was issued per curiam, on behalf of all three judges on the panel (all of whom are conservative Republican nominees, for those keeping track). The stay of the mandate is only temporary. And - as the court suggests - may be lifted after "expedited judicial review," which could happen very soon, given the accelerated briefing schedule laid out in order.

This case was filed by a group of employers and several GOP-controlled state governments. They likely chose the Fifth Circuit because they hoped its relatively conservative orientation would give them a greater chance of winning. An unusual statutory provision allows this case to be filed directly in a federal appellate court, as opposed to first having to be heard by a trial court (like nearly all other federal civil suits).

I said previously that, while I think the vaccination mandate has significant legal vulnerabilities and might set a dangerous precedent if upheld, I also don't really know how courts will react to the legal arguments against it. We still don't know the answer to that question with anything like certainty. But the Fifth Circuit's statement that "the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate" is at least a sign that the judges think there is a serious case to be made against the mandate. They clear do not believe the case is a slam dunk for the federal government.

Even if the Fifth Circuit panel ultimately rules against the Biden administration, that won't necessarily be the end of the legal battle over this issue. Much depends on how broad the ruling is, and on what grounds. It's possible OSHA could respond to a narrow ruling against it by limiting the scope of the mandate or adjusting it in some other way. It's also possible that a lower-court ruling against OSHA might be reversed or limited by the Supreme Court.

This is just the beginning of the legal battle over the OSHA ETS vaccination mandate. The agency might yet overcome this initial setback. Still, if I were an administration lawyer, I wouldn't be very happy right now. If a panel of federal circuit court judges says the policy you are defending may have "grave statutory and constitutional issues," that's rarely a good sign for your case.

In previous posts on the administration's vaccination mandate policy, I have noted that some of their other vaccine mandates (e.g. - those covering federal employees) are on relatively firm legal ground, and that I am sympathetic to the moral and policy case for vaccine mandates in some situations (see here and here). But I also believe the OSHA employer mandate is a case of executive overreach, and might set a dangerous precedent, if upheld. We may soon learn whether and to what extent the Fifth Circuit agrees with that assessment.

NEXT: "May Courts Order Public Records Requesters to Return Mistakenly Released Documents?"

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  1. "This case was filed by a group of employers and several GOP-controlled state governments. They likely chose the Fifth Circuit because they hoped its relatively conservative orientation would give them a greater chance of winning. n unusual statutory provision allows this case to be filed directly in a federal appellate court, as opposed to first having to be heard by a trial court (like nearly all other federal civil suits)."

    Much more rational than having states take their cases *directly* to the U. S. Supreme Court as envisioned by the Constitution's text. No, that would be too simplistic.

    1. Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening…FA And i get surly a check of $12600 what’s awesome is I m working from home so I get more time with my kids.

      Try it, you won’t regret it!…………… Click & Chang your LifeSITE._________foxlineblog.Com

    2. Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening…HBt And i get surly a check of $12600 what's awesome is I m working from home so I get more time with my kids.

      Try it, you won't regret it! ……...........VISIT HERE

  2. Sigh. If only there were some simple principle with which to decide these things.

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    But of course, it fell prey to the dreaded Commerce, Necessary and Proper, and FYTW clauses, in supporting roles for The General Welfare.

  3. The mandate does not take affect until December 5. A temporary stay taking affect today, combined with a briefing schedule that will be completed three calendar days from now, means that this stay is far less dramatic than one might think. The real question is whether a preliminary or permanent injunction gets issued

    1. I think Biden anticipated all of this and just wants to get as many people vaxxed before the holiday season. By January 5 we will know if NYC and Boston are having a Delta surge and if they aren’t then that means this is over because the vaxxes and boosters have prevented a Delta surge.

      So in the right wing echo chamber people are hoping NYC has a Delta surge and many die because that will mean DeathSantis didn’t kill people by attacking public health officials…so right now right wingers believe the vaxxes suck and masks don’t work and Covid is seasonal and nothing can be done about it. But one can look at the data and see Democratic led counties in red states doing better than the statewide average which means public health mitigation measures work and Covid isn’t seasonal. So Orange County is where Orlando is and Demmings is that mayor and has mask mandates and it is majority minority and the Florida death rate in 281 while the county death rate is 157.

      1. It’s great that you can read the minds of the right wing echo chamber!! You can warn us if they ever plan anything nefarious!!!! We’re saved!!

        1. I just listen to them and read what they write…but keep working on that mind reading! 😉

          1. You sorta have to be in an echo chamber to hear what is going on inside it.

            1. I listened to Limbaugh’s successors on Friday and they are clearly praying NYC has a Delta death surge in order to prove the vaxxes are crappy and masking doesn’t work and Covid is seasonal and nobody can do anything about it.

              1. I listened also and you are full of shit. They wished for no such thing.

                1. They keep insisting Covid is seasonal and there is nothing anyone can do about it—why does NC have the by far the lowest death rate in the SE when it just happens to have a Democrat governor that allowed mask mandates??

                  1. Because they already killed off their elders last year, by deliberately ordering nursing homes to take in carriers?

                    1. The death rate per state is cumulative…so that would show up in the death rate.

                    2. SC,
                      The death rate (deaths per unit time) is not cumulative. The death count is cumulative. The words actually matter

      2. How does attacking public health officials kill people?

        1. The principle is straightforward. You creep up behind them with a shovel, and swing hard. They topple over and are heard from no more. But you still have to count 'em, otherwise you're cheating.

          1. Right, DeathSantis did nothing which is why right wingers now celebrate him…because he did nothing. Only executive orders by Democratic governors have negative consequences like Cuomo and his nursing home order. 😉

            1. "Right, DeathSantis"

              Only took two words to make everything you write about this pointless. Quite efficient use of my time.

        2. DeathSantis spent months trying to take away the power of local officials to order mask mandates!! Have you not been following the news?? And DeathSantis is encouraging unvaxxed to come to Florida—that encourages people to not get vaxxed. So the Florida Delta surge saw a DECLINE in median age of death because younger people didn’t get the vax. DeathSantis’ Covid “leadership” led to 15,000 excess deaths.

          1. I would vote for Death Santa if someone with that name got on the ballot.

          2. "And DeathSantis is encouraging unvaxxed to come to Florida—that encourages people to not get vaxxed."

            By making his state more appealing than the nightmarish nanny states they are escaping from? This must be a parody.

            1. So North Carolina is a “nightmarish nanny state” right now?? The reality is masks are fairly innocuous while significantly mitigating spread as NC and liberal counties in the SE show.

      3. ....right wing echo chamber people are hoping NYC has a Delta surge and many die because that will mean DeathSantis didn’t kill people by attacking public health officials....

        Florida has a lower Covid death rate per million than New York.
        It also has about 21% of its population over 65, as against New York's 17%.

        Florida is by no means a star Covid performer - it has a Covid death rate per million about 20% higher than the US average. And a population over 65 about 30% higher than the US average (21.9% v 16.5%)

        So Florida looks pretty unremarkable.

        1. But…but…if you convince him of that he’ll have to stop using DeathSantis and the entirety of his wittiness will be gone.

          Note that Ilya is worried about the overreach of this. Never figured him for a member of the death cult.

          1. Lol, prove me wrong! But why would anyone want to err on the side of being wrong about something as innocuous as wearing masks when every month of mitigated spread means better therapeutics and better best practices are developed?? So every month someone doesn’t get Covid means they will have a higher survival rate when receiving medical treatment if they do get Covid.

          2. Clear sign one is dealing with a Low IQ / Low EQ troll when they start using phrases like "DeathSantis".


            1. Everyone here knows I am a pea bwained 125 IQ commenter.

              1. if you had an iq if 125, you would not be making junior high math errors

        2. Maine is the oldest state and its death rate is 90 compared to 281 for Florida—age adjusted death rate is just a dumb statistic. Furthermore, Florida’s median death rate actually declined during the Delta surge which means elderly were vaxxed and younger unvaxxed were getting sick and dying. Finally NY was in the initial wave which was insane—so that means in May of 2020 NY had the highest death rate and since that time all of these other red states have somehow surpassed NY’s death rate when NY had no vaxxes, no best practices, no therapeutics, and no public health mitigation measures. DeathSantis’ Covid “leadership” cost 15,000 excess lives and that is a conservative estimate. So you understand why the right wing echo chamber is praying to Jesus that NYC has a Delta surge along with many deaths to vindicate DeathSantis’ behavior the last few months. So if NYC has a Delta surge then that would mean vaxxes are crappy and masking doesn’t work and Covid is seasonal and nothing can be done about…they are wrong but they are still holding out hope for a lot of deaths.

          1. My dear friend's mother passed away last month (in Florida). She was 99 and was in hospice and the estimate was that she would live no more than a few days. They tested her for covid and go figure, it came back positive. The death certificate listed covid as a secondary cause of death. She is now a statistic for your cause.

            1. Once again—the median age of death actually declined in Florida’s Delta surge!!! The elderly mostly got vaxxed plus they can continue to social distance. We know from liberal counties with high % of African Americans in the SE that mask mandates work! You can also check out the Trump counties and if they are Trump’s favorite low information voters then those white counties have high death rate. So in NC Mecklenberg has a 113 death rate while Rowan county has a 324 death rate while NC statewide is 174.

              1. How do you test for mask effectiveness?
                Are these masks sealed such that aerosols cannot penetrate?
                What is the diameter of a covid aerosol?
                Why do people that work in toxic environments carry shaving kits as part of their PPE?

                1. Do you not believe In statistics?? Why does Orange County have a relatively low death rate in Florida?? Why does North Carolina which allowed mask mandates have a significantly lower death rate than other SE states?? Who do liberal counties in NC with high minority populations have lower death rates than counties that went heavily for Trump??

                  1. It's a very smart virus.

                    1. Republicans are all about FREEDUMB!!!

                    2. Not a Republican. Feel free to reload.
                      Answer the question about the effectiveness of masks.
                      Can covid enter the body through eye ducts?
                      Why aren't we wearing goggles?

                    3. #data. We have it.

                    4. Sleep tight with your data.
                      I sincerely wish you a long and healthy life.

                    5. Keep asking questions instead of just looking at the data. Maybe one day you will find the answers you are looking for. 😉

                    6. "Keep asking questions instead of just looking at the data."
                      You see the problem with your statement, right?

                      Let's agree to keep asking questions and look at the data.

                    7. You always have to get in the last word!

                2. Mask mandates were ever only about macroscopic fomites from coughing and sneezing, and stopping you from touching same and then your mouth or nose.

                  IIRC they reduced spread 40%, far from great, but the goal was flattening the curve so intensive care units were not overwhelmed.

                  So they play their role, but are not an iron curtain on anything.

                  1. 100% agree—they are suboptimal especially when one has to take off a mask to eat and drink. And that’s also why Republicans don’t believe they work at all because NYC still had a winter surge in 2020/21 even with a strong mask mandate. And Republicans also obfuscate the data by pointing to the NEC high death rates that masks don’t work when nobody was masking in February and March 2020 when the initial spread happened that led to NY having over 900 deaths a day in March and April!!

                    So all that said, we now have very good data from states that masked and even counties that masked inside anti-mask governor states and the overwhelming evidence is that masks mitigate spread. So they aren’t a “silver bullet”…but we are talking masks saving tens of thousands of lives over several months which is a lot of lives to save!

              2. Florida total covid cases are approx 17,500 per 100k
                Mecklenberg county total covid cases are approx 17550 per 100k

                Does not look like masking reduced the spread one iota!

                Florida covid deaths are approx 280 per 100k with 21% of population over age 65
                Mecklenberg covid deaths are approx 114 per 100k with 8 .6% over the age of 65

                Data shows the death rate by age - to be almost the same ( 8.6/21 * 280 = 114

                1. NC has an older population that GA and yet GA has a significantly higher death rate!! You have to look at a graph per day over the course of the pandemic when looking at the numbers because Mecklenberg county has a significantly smaller Delta surge because they had a mask mandate. In 2020 most states implemented public health mitigation measures and it only became politicized in 2021…and then Delta hit. The divergence is with Delta and not the earlier waves.

                  1. meckelberg has virtually the same case rate - which means masks did little or nothing

                    meckelberg has virtually the same death rate by age - which means that mitigation policies of the democrat or of the republic had near benefit or detriment.

                  2. "NC has an older population that GA"

                    ...then why did you spend so much time obsessing over FL?

          2. "age adjusted death rate is just a dumb statistic."

            And here I thought you were just an ordinary moron. Instead, you're an exceptional one!

            1. So why does Maine have a death rate of 90 when it has the oldest population?

        3. Florida got hit hard by the delta variant while New York did not, all after the vaccine was available.

          1. And the Delta surge in Florida was largely avoidable. So Orange County in Florida and North Carolina show how much lower the death rate could have been with a few public health mitigation measures like masking…so nothing draconian was necessary.

            1. Not quite right. Delta pushed out the other variants across the country in July, going from 20% to 80% of the US population in that one month. It is now about 99%. COVID-19 is a seasonal respiratory virus striking primarily when we are indoors a lot. (Almost no spread outdoors). That means summer in Florida, and across the south. And winter throughout most of the rest of the country. We are now entering indoor season for the northern part of the country, and the rates of COVID-19 are rising, while they are crashing in the parts of the country, where people are just now starting to spend a lot of time outdoors. Maine may be older than Florida, but they are just now entering the half a year when respiratory viruses thrive, while the Florida is starting into the part of the year when they don’t. This is to point out that year to year comparisons may be legitimate, but comparing, mont to month, states with almost opposite respiratory virus profiles (e.g. FL v ME) are not.

              1. All wrong. Why do liberal counties in the SE have relatively low death rates?? And with respect to the north you have to go county by county too…because some counties are pro-Trump and anti-vax and anti-mask. So it’s very simple—if NYC and Boston and Philly don’t have a Delta spike then the vaxxes are working and public health mitigation measures are working. And we already know they will work based on the data from NC and liberal SE counties. The counties that are doing the worst in Delta are low information white voters.

                1. Sebastian

                  You have cited Orange county Fl, Meckelberg Cty NC and travis county texas as three counties controlled by liberals

                  As I have pointed out . the total covid case rates are remarkably similar across the board

                  While the overall covid deaths per 100k are significantly different, the The covid death rate by age is also very close.

                  The covid death rate by age is the important criteria,

                  In sum, Mother nature doesnt care who is in charge

                  1. The 3 big factors in death rate are 1–was a population in the initial wave?
                    2-could travel be restricted?
                    3-and then Republican or Democrat governor.

                    So Monroe county (Florida Keys) has the lowest death rate even with an old population because they could restrict travel. Escambia and Bay counties (Panhandle) have a young population and like the rest of Florida did a good job in 2020 and then the Delta surge killed a lot of residents because they are Republicans and rejected masking and have a low vax rate.

      4. "we will know if NYC and Boston are having a Delta surge and if they aren’t then that means this is over because the vaxxes and boosters have prevented a Delta surge. "

        You really ought to make accurate statements absent political bias. NY and Boston both had Delta surges months ago. To be charitable I assume that you meant a delta breakthrough spike.

        For for you, the pandemic is not about medicine, it is only about your narrow political agenda

        1. In the last several months the high death day was 40 per day in NY…in Florida with a similar population the high was over 300 per day!!! Do you not know how to read a graph??

          1. Florida has 2 million (about 10%) now people than New York state, and you totally ignore New York burning through its "dry tinder" at 1000+ deaths per day. Are you ever right about anything?

          2. Again, more blah blah. I have done far more statistics in my career than you and read many more graphs than you.
            As I told you before, I don't give a shit about your political cherry picking from state to state.
            You seem not to have a clue of what or when the delta surge was or how many waves it came in.
            Look at the data from the US, the UK, Germany, Italy, etc. And you'll see who does not know how to read a graph.

          3. Unfortunately there are no publicly available tabulations of viral reproduction rates. The present second wave of COVID cases arises fron from the overall Ro in the US rising above 1.0 when 50% of the population was fully vaccinated.
            From the experience of the UK, we know that the mere fact that a large fraction of the population is vaccinated does not prevent Ro from rising above 1.0 due to poor public health hygiene.
            Doubtless those practices were wore in FL than in NY, but that is easily attributed to the "beach culture along the Florida coast.

            However, if you have references to detail statewide tabulations of reproduction rates as well as detailed vaccination data for one and two doses, I'd love to see those.

            1. Florida has the best weather to mitigate spread and Florida actually did a good job through 2020. The divergence happens when mask mandates started to expire in early 2021 and then vaccination rate plateaued and then Delta hit. So we can compare Escambia and Bay counties (Republican Panhandle) with Orange County (Democratic Orlando) and we see masking and vaccines worked to mitigate spread. Obviously masking isn’t a silver bullet because spread still happens but combined with vaccines and delaying infection it makes sense. If vaccines didn’t work and new therapeutics weren’t being developed…then the case for masking isn’t as great because eventually everyone will get infected and masking delays the inevitable.

              Republicans truly believe the vaxxes are crappy and masks don’t work and Covid is seasonal so just let it happen.

              1. "The divergence happens when mask mandates started to expire in early 2021 and then vaccination rate plateaued and then Delta hit"
                That is actually consistent with what happened in the UK. Despite a hgh rate of vaccination the reproduction rate jumped and consequently the number of cases roses considerably. However there has been little appreciable effect on the case fatality rate, except for spike in covid0naive, unvaccinated populations.

      5. covid deaths per 100k for the age 65 + in the following states (approximate)

        Florida 1010
        Michigan 940
        Minnesota 1250
        Massachucetts 950
        colorado 1150

        Note - the death rates by age for the over 65 cohort is remarkable similar - irrespective of whether it is a red/blue or purple state (the michigan appears to be bad data)

        Sebastian continues to pretend otherwise.

  4. So we're not even going to bother with the irreparable harm part of the test?

    1. Who could object to your brain being touched on a weekly basis?

    2. I think that was implied. The irreparable harm alleged was a foreign substance injected into the body of the workers. If the preliminary injunction (or TRO) wasn’t issued, and they were injected, and the federal government lost in the long run, how do you remove this foreign substance? You obviously cannot.

      In reality these novel gene therapy vaccines are using brand new technology and so far have not really been shown to really reduce the spread of the virus. They are still only available under Emergency Use Authorizations, since their safety and efficacy have not been tested at the level required by the FDA (absent an EUA). They are leaky, non-sterilizing vaccines, that do not apparently appreciably slow the spread of the virus, so don’t really help obtaining herd immunity. At best, they reduce the severity of the disease. Besides, most of the workers covered by the OSHA order are not in ugh danger fro te virus, give their age.

      1. So the harm is that some people might end up being vaccinated against a potentially deadly disease? Wow...

        1. He explained the irreparable harm quite clearly.

          You’re ignoring the (however slight) possibility that there is a long term harm from the vax. That possibility is why some don’t want to be vaxxed. Once people are vaccinated they are exposed to that harm with no recourse to reverse the exposure.

          1. That possibility is why some don’t want to be vaxxed.

            I like your optimism, but that's not a very realistic description of why people don't want to get vaccinated.

            1. The risk to benefit ratio for the naturally immune or young and healthy is extremely low.

              1. Only if you don't care about the people around you dying.

                1. ...except if the others are vaccinated, your status is immaterial.

            2. Some people are afraid of potential harms - in fact, that's the #1 reason given, regardless of any other factor.
              Others have religious objections, or don't like being told what to do, don't trust the government, or think the vaccines have microchips in them, while some even say they don't want to be given non-vegan vaccines.

              These are all thing people have professed as their reasons for opposing getting vaccinated - and you are in no position to claim they are not telling the truth.

      2. Bruce,
        You are truly dense and worse
        You have been told numerous times that these COVID vaccines are NOT gene therapy in any way shape or form. Your claim is so blatantly false that you can only be a grossly, malicious liar to repeat it

        1. People believe lots of things just because they've "been told". Doesn't mean it's right.

  5. The order says, "The Government shall respond to the petitioners' motion for a permanent injunction by 5:00 PM on Monday, November 8."

    Can this possibly mean what it appears to say, which is that the issue the Fifth Circuit will be deciding will be whether to issue a PERMANENT injunction" -- meaning that if it does this, the case is over, and the OSHA regulations are enjoined, nationwide, permanently?

    Not to be paranoid or anything.

  6. Ah, the Fifth Circuit, which has become the mirror image of the 9th Circuit on the conservative side.

    This sentence in the post from the ruling,

    "Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate,"

    denotes about as much judicial prejudice as one can imagine. Let's see, the court reviewed the plaintiff's argument and then de facto decided it was pretty good, good enough to issue an unecessary injunction (the mandate gives employers until January to comply, so plenty of time for a real legal proceeding) without hearing from the other side. And the other side was given the two days over the weekend to respond. It's no wonder the kangaroo is the official mascot of the Fifth Circuit.

    It is not coincidental that this same court, facing a clearly and unambiguously unconstitutional (as long as Roe and Casey are the law of the land) Texas abortion law could not find a way to enjoin that law. Why, because this court has become a political tribunal and not a court of law. While we are not familiar with the statutory issues with the mandate, the Constitutional issue of government mandating vaccines was settled over a century ago. (in favor of the government, common sense, protection of the health of the nation in case anyone was wondering)

    We appreciate Prof. Somin for putting this in his post

    "three judges on the panel (all of whom are conservative Republican nominees, for those keeping track)"

    even though that is the least surprising fact of the day, week, month or even the year.

    1. There is no precedent for a vaccine mandate by OSHA.

      1. For the obvious reason that the US has never needed one until now. I used to joke that you couldn't get 100 senators to vote in favour of Santa Clause, and this is basically that: One of the great innovations of recent (ish) times somehow becoming a wedge issue.

        1. So you say. The classic "something must be done" argument.

        2. There was a pandemic twelve yeats ago!

          And fifty-three years ago!

        3. Swine flu was barely a decade ago.
          There was plenty of fear of zika, ebola, MERS, and SARS-1, too, yet there was no effort to to prevent those diseases from spreading. In fact, when people tried, the courts prevented them!
          And of course, that ignores AIDS, the Spanish flu, the Russian flu, or a dozen other major disease outbreaks the US has had during the centuries.

          Really, don't be silly.

          1. Do we really need to go over the measures taken during the Spanish flu again?

            1. You mean the ineffective mask mandates?
              The failed quarantines?
              The deadly exposure of patients?
              The useless forced gargling of seawater?

              You claimed the US had never needed vaccine mandates before, and I pointed out several cases where they could have been useful before. You were, quite simply, wrong.

    2. "(as long as Roe and Casey are the law of the land)"

      How many legs does a dog have if you call a tail a leg?

      1. A three legged dog was sitting outside a saloon and giving everyone who entered an intense visual inspection. Saloon keeper finally comes out and says “what are you doing? You’re scaring my customers”. The dog growls “I’m just lookin’ for the one that shot my pa”.

        So I’ll say 4.

    3. I'd like to offer a clarification for your post:

      It wasn't jus the 'same court' that heard and rejected any kind of stay/injunction against SB 8 - it was literally the same 3 "Judges."

      The fact that they couldn't bother to follow proper procedure in this case, combined with their ruling on SB 8, quite clearly demonstrates that this has nothing to do with the law or jurisprudence, and everything to do with "I'm a Conservative so I rule for Conservatives."

      1. Not really conservatives, Jason. More like, "I'm a movement conservative, so I rule to own the libs."

    4. A worker must have the first dose fairly soon in order to be considered vaccinated by early December, which was the deadline until last week.

    5. This is my take, as well. I am less credulous than Ilya, when he describes the Fifth Circuit's action as indicating any kind of good faith legal conclusion about the statutory or constitutional support for the rule. The Fifth Circuit's order was all but foreordained here, predictable just by looking at where the conservative winds are blowing.

      I think the Fifth Circuit is worse than the Ninth, insofar as the Ninth at least seemed to understand that its left-leaning rulings were unlikely to survive. In contrast, the Fifth Circuit seems to view itself as an extension of the Supreme Court.

      1. The Supreme Court overrules the Ninth circuit much more often than the Fifth.

        1. That's because it anticipates that the political positions it stakes out are much less likely to draw the ire of the Supreme Court. There are no longer even enough liberals on the Court to grant cert on issues where it goes too far to the right.

          1. As opposed to all the conservatives on the Supreme court who keep voting to not give him rights cases a shot?

        2. Not per ruling, Brophy, and not anymore. 9th is very big, remember.

  7. There is no evidence spread of covid is greater in the work place.
    Today I've had the rare situation of being able to watch college football since the first kick off at 11:00. It is now week nine of the season. No one has tied covid spread to a couple of dozen stadiums with 70k to 100k fans in stands, Hundreds of more smaller stadiums. just as many showing up to party and tailgate. No blips in those cities. I don't see the national emergency
    Also, citing the total number of deaths after 18 months is and emotional appeal. And we could follow Italy's lead, and accurately count those dying of covid, and not with covid. Italy got a 97% decrease in deaths.

    1. No, Italy did not reduce it's COVID death count to 4k, you fucking imbecile.

      Check your "facts" before running your mouth.

      1. Do you always have to be such an asshole?

        1. Towards people who think a 97% reduction in official COVID deaths doesn't merit a brief fact-check before running their mouths and spouting disinformation?

          Yeah, I do. Lies don't merit kindness in their response.

          1. Isn’t USA Today fact checking a oxymoron?

            1. Maybe you should read the article and check the sources they used.

              I'd say Italy's official Ministry of Health COVID portal is a reasonable source, but hey - maybe you think a random Instragram photo is more reliable.

            2. Trying to ad hominem in defense of a very hugely wrong number is not a good look, if you want to be seen as someone who cares at all about the truth.

    2. " I don't see the national emergency"
      You have to open your eyes first.

  8. Fifth Circuit re the Mandate: "Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court."
    Supreme Court re S.B. 8: "The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue."

    This is only the first quarter.

  9. Why is there a need for a national-level, versus state-level, mandate of any sort? And what army will OSHA deploy to enforce such a mandate?

    Leaving any legal questions aside, a majority of states oppose the newest Mandate and have sent up yet another hearty "Let's Go Brandon!" The emperor has no clothes... and he needs to begin to realize this fact and act accordingly.

    1. mydisplayname, because the contagion is national, and because some state governments are in the grip of insane pro-Covid politics.

      1. pro-liberty. FTFY.

        1. No, against liberty. Getting everybody vaccinated is how we get rid of all the other constraints on liberty we've had to impose over the last year and a half.

          1. Or we could just, you know, decline to impose them any more.

            1. If you're dead you're also not very free.

              Also, for the umpteenth time:

              Article 4
              La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui : ainsi, l'exercice des droits naturels de chaque homme n'a de bornes que celles qui assurent aux autres membres de la société la jouissance de ces mêmes droits.

              1. I keep asking you pro-mandate folks and nobody answers.

                I'm vaccinated. You're vaccinated. If you believe the vaccines work we're protected. Why do we care what choices other people make?

                I'd prefer that everyone get it. But I'm not willing to force unemployment on people who don't.

                1. Viruses are one of the most clear collective action problems out there.

                2. Because I, being vaccinated, am still more likely to be infected if I am in contact with lots of unvaccinated people.

                  1. Martinned
                    November.8.2021 at 7:28 am
                    Flag Comment Mute User
                    Because I, being vaccinated, am still more likely to be infected if I am in contact with lots of unvaccinated people."

                    In other words - you are admtting that the vaccines are not very effective, at least not nearly as effective as something that merits the term vaccine.

                    1. What he said is true of *all* vaccines. None of them are 100%.

                    2. Sarcastr0
                      November.8.2021 at 10:57 am
                      Flag Comment Mute User
                      What he said is true of *all* vaccines. None of them are 100%.

                      True - but the effectiveness of the covid vaccines are approaching 50% after 6 months. Puts the covid vaccines into a category similar to flu shots instead of a category that can legitimately be called a true vaccine

                      From Healthy skeptic nov 6th posting
                      This study from the VA continues to indicate that vaccine effectiveness against infection does indeed lessen significantly after a few months, as does protection in those over age 65 against death, although that remains stronger than does protection against infection. From February to October 2021, effectiveness against infection dropped to 58% for Moderna, 43% for Pfizer and a whopping 13% for J & J. Effectiveness against death in those over 65 had dropped to 75.5% for Moderna, 70% for Pfizer and 52% for J & J. For some bizarre reason, death here is all cause death, not CV-19 caused death, which introduces more opportunities for confounders. And note that protection against death steadily dropped over time, so likely continues to fall. All analyses were adjusted for age and other important factors. (Science Paper)

                    3. All the more reason to get everyone vaccinated. If vaccines are extremely effective, you can achieve herd immunity even if a large (but randomly distributed) block is not vaccinated. The weaker the vaccine, the higher the vaccination rate you need to achieve herd immunity.

                    4. Martinned
                      November.8.2021 at 11:45 am
                      Flag Comment Mute User
                      All the more reason to get everyone vaccinated. If vaccines are extremely effective, you can achieve herd immunity even if a large (but randomly distributed) block is not vaccinated. The weaker the vaccine, the higher the vaccination rate you need to achieve herd immunity."

                      yea right - booster shots 3-4 times a year - that is a viable and effective plan - Not!

                      especially when natural immunity confers much stronger and longer lasting immunity.

                    5. Joe,
                      Maybe, you would need a booster twice a year for a while. Why is that so bad?
                      However, one might ask whether masks and social distancing can ever be done away with, especially if "herd immunity is not consistent with the continuing evolution of this virus

                    6. Joe,
                      He is not admitting that. Almost no vaccines prevent transmission, especially if a person is assaulted with a very large viral load from a superspreader.

                    7. " instead of a category that can legitimately be called a true vaccine"
                      What is this BS concept of a "true vaccine" that the anti-vax crowd has latched onto?
                      Perhaps stupidity is contagious and needs its own vaccine.

                    8. Nico - at this point , I am dumbfounded as to why anyone would argue that vaccines are more effective than natural immunity. Covid cases of the vaxed are currently running at 25-30% (since August - 5-6 months after the second dose) while reinfections are running less than 1% or 2% of current cases.

                      See also healthy skeptic.
                      "We will call this horror movie for the Minnesota DOH and the IB, The Night of Vaxed Dead. Dave Dixon’s superb chart will be available shortly, but in the meantime just a quick flash on today’s breakthrough event reporting by DOH. Here is the headline: 111 out of 140 reported deaths in the last week were in the vaxed. That is right, you are reading correctly. And over 7000 new breakthrough cases were reported today since last week’s report."

            2. This isn't even remotely true, why do you continue to believe it? The rate of infection between vax and unvax is practically identical according to the latest studies. They're not going to free you from restrictions. There will never be 100% compliance. You are living in a fantasy world.

          2. Explain how vaccinations would do that.

      2. "because the contagion is national"
        Start with faulty science and you're led to questionable policies.
        In fact, contagion is local and mostly within 3 meters. Therefore control must be first and foremost local. Unfortunately, some state governments have little idea how to contain contagion, and therefore national mandates look too attractive. Still vaccination alone will not contain the pandemic, large breakthrough events in the UK, Germany, Israel and other countries, strongly suggest that absent strong public hygiene measures the virus will breakthrough

  10. Professor Somin, assuming other cases where contagion in the workplace was killing thousands, and where a safe, effective and readily available vaccination was available, what would be dangerous about a precedent to leave the mandate in place?

    1. Let's just shut them down. Nothing is essential anymore.
      Zero workplace cases, problem solved.

    2. Because future applications of the precedent will in no way be contingent on a "contagion killing thousands" nor a "safe, effective vaccine." The precedent will be interpreted an applied as "we can make you take this medical treatment, so you have to take this medical treatment"

      1. Kevin Smith, is that the way typical precedents work?

        1. That’s the way this one would work. Do you have an argument otherwise?

        2. Consider the two major precedents being cited to support the current mandate: Jacobson, and that public schools have long required vaccination

          In both cases the vaccines in question have a much longer history of being safe than the current Covid vaccines, and for most vaccines are more effective. So we already see a great reduction in the threshold for "safe and effective"

          Jacobson of course dealt with smallpox, which was far deadlier than Covid (20 to 60% mortality rate in adults and up to 80% in children) so we see a reduction from a contagion that killed millions to one that kills thousands. Next time it will be hundreds or even just dozens to justify a mandate.

          Also in Jacobson the alternative to vaccination was to pay a $5 fine (equal to about $150 today) but the alternative now is testing that can cost $150 per week, so we see alternatives being removed from the precedent.

          And of course with public schools, they are exactly that: Public. So we see the precedent being broadened from public institutions to private.

          There is no reason to believe the next time this precedent is invoked it won't be similarly broadened to catch more people, while also seeing opt-out options because narrowed or even eliminated entirely, because yes that absolutely is typical of how precedents are used

        3. That is exactly how mandate fascists treat Jacobson as precedent.

        4. There is no precedent for requiring a vaccine to work. I’m mid 60s and retired several years, but I never once had to provide proof of my vax status to an employer.

          1. Bevis, are you old enough to have got a smallpox vaccination? I got mine at my public school, along with almost everyone else. No one even asked permission. You showed up one fine autumn day, they announced it was vaccination day. You went outside to the tables, and got vaccinated. After the right interval had passed, you repeated the process, to get your vaccination site inspected.

            Had there been a smallpox outbreak, I doubt you would have got through the door at work without being vaccinated.

            1. Yes, of course. Also old enough to remember when polio vaccines were brand new and the ugly scab you got on your arm.

              You can doubt or not doubt, it doesn't matter. It's a fact that there is no precedent in the United States for requiring people to be vaccinated in order to work. Taking away people's ability to feed themselves and their families is pretty serious shit.

              And fwiw, I'm vaccinated up to and including a recent booster.

              1. I don't understand why you think this "work"/"school" distinction works. You say that people shouldn't be threatened with the loss of a job. But you're fine saying that student can be threatened with the loss of an education?

                The only difference between COVID and smallpox/polio and other diseases we vaccinate for, in terms of rolling out vaccinations, is that the development of the vaccines for those other diseases happened so long ago that we can ensure that most of the population is vaccinated against them by making it a school requirement. COVID, being new, does not have that advantage. (At the same time, it would seem that school COVID vaccine mandates should be perfectly acceptable to you.)

                1. "But you're fine saying that student can be threatened with the loss of an education?"

                  Private schools exist. Feel free to present alternative to not being employed due to a mandate based on a laughable interpretation of precedent.

    3. One can make a reasonable argument that the logic used to support such a mandate could also be used to support forced sterilization.

      If you go by some of the arguments that human overpopulation is a major crisis, either on its own, or due to its effects on climate change, which kills thousands, then the only safe measure is a policy of reducing childbirths. A "Mandate" for forced sterilization for employers, via OSHA.

      Of course, some employees have an alternative. Instead of the recommended forced sterilization, they can have the optional testing put into place. They would need to pay for that testing out of pocket, the employer wouldn't cover it. The cost would be $5,000 a year.

      1. Nope. This stupid argument breaks down immediately, because working while fertile doesn't pose any workplace risks, which is the hook that gets OSHA involved.

        1. "because working while fertile doesn't pose any workplace risks,"

          If you actually think this, you're sorely mistaken.

          1. Feel free to name one.

      2. One can make a reasonable argument that the logic used to support such a mandate could also be used to support forced sterilization.

        That. That is the cognitive pathology—blindness to limits which social norms impose on run-wild logic—which makes so many would-be libertarians easy dupes for Trumpist-style political operatives. That is why you can use Covid case rates to sort states into red and blue, with essentially all the red states grouped together at the high end of the case incidence scale, and all the blue states at the lower end. That thinking does the sorting. It's why Covid has against all reason become a partisan issue.

        1. The United States has a long history with forced sterilization.

          For example

          This is simply another hook to accomplish those goals.

        2. I am impressed how COVID deaths stopped being the President's "fault" around 1/21/21. I mean, more people have died under Biden than under Trump. But nobody blames Biden while plenty blamed Trump.


    4. Covid briefly made it to the top cause of death in the US in January.

      In April 2020 and October of this year it was, briefly, the number two cause of death.

      On average, it was number three, but not a close number three. Because during the lulls, it's more like number seven.

      And, keep in mind, Covid mortality is VERY heavily weighted towards the elderly; 75% of Covid deaths are 65 and above.

      Retirees are, by definition, not workplace deaths...

      So, given that there are worse causes of death, heart disease, cancer, and given that Covid isn't actually caused by the workplace...

      Why couldn't OSHA mandate diets and exercise to bring down heart disease deaths?

      Before accepting the reasoning leading to OSHA being entitled to issue this mandate, don't we need to ask what else they could do under that reasoning?

      1. God, you idiots don't understand the law at all.

        The reason why OSHA wouldn't be able to mandate diets and exercise is that heart disease isn't contagious in the workplace. There's no justification for that kind of regulatory intervention because there's no workplace safety issue to address with it.

        Let's flip this asinine line of reasoning. You object to an OSHA-mandated vaccine/testing requirement. So, what about helmet mandates on construction sites or other workplace environments where there's a risk of falling objects? Shouldn't it be an individual's decision whether they want to wear a helmet while at work (just like it should be their choice whether to wear a mask)? Where does OSHA get the right to mandate to employers that they adopt a helmet-wearing requirement?

        1. At the end of the day you can take a helmet off. Can't filter the vaccine back out of your blood. So your analogy is every bit the same level of idiocy as Brett's, if you choose to look at bad analogies as idiotic.

          I'm vaccinated. I assume you are too. We're protected. Why do we give a shit what anybody else does?

          1. This is called a "distinction without a difference."

            Brett and others here are trying to make a slippery-slope argument that OSHA can mandate any number of intrusive medical treatments/practices, if it can mandate vaccination/testing. My point is that OSHA has the power to issue mandates over workplaces only insofar as the mandate relates to workplace safety. None of the horribles Brett and others are trotting out satisfy that basic requirements, so none of their slippery slopes would actually result.

            The fact that there are some mandates whose effects could go beyond the workplace, and others whose effect is limited to the workplace, is not actually relevant to the question, which is the scope of OSHA's power.

            But I suppose the distinction you've drawn would mean that you'd have no problem with a workplace mask mandate?

            1. Mandated by the business? No problem at all. Most of the businesses I go in now (even in Texas) appear to have one in place for their employees.

              Mandated by the government? That I have a problem with. And the reverse is true as well - governors shouldn't be telling businesses what requirements they can or can't put in place.

              1. So basically, ideology, right bevis? You want policy to vindicate your ideology, and how many people get killed to do it is less important. Or maybe you are not that extreme. Maybe you are just worried that a public policy which delivered wide-scale benefits might prove popular, which would tend to undermine politically your anti-government ideology. I'm guessing that's what bothers you.

              2. So, OSHA shouldn't be mandating use of helmets in workplaces where falling objects are a risk. Got it.

                The problem with this position is that it's clear it has nothing to do with vaccine mandates or masking requirements in the first place. It's about government power to regulate employers, specifically so that they don't injure their employees. Which is fine, you can embrace that particular libertarian dystopia. But don't pretend it's about COVID.

                1. Both of y’all are nuts and haven’t even approximated what I said.

                  Especially your come back, Simon. There’s no possible interpretation of what I said that indicates opposition to hard hats. And you’re the guy that accused me of bad faith.

                  Stephen you’re attributing tribal positions to me that I don’t have. I think just because I don’t agree with your tribe b

                  1. It's not my fault your positions logically imply absurd or extreme conclusions.

                    1. It is your fault you can’t interpret “you can take a hard hat off at the end of the day” correctly.

                      Of course I shouldn’t expect you or Stephen to care about someone’s job anyway. Y’all are on the team that loves to get people fired for things they said in grade school.

                    2. Bevis:

                      I have explained why the fact that a vaccine does not "wear off" after a work shift has nothing to do with whether OSHA has the authority to mandate vaccines for the workplace. I have also illustrated why your distinction, if taken seriously, ought to imply that you'd be fine with a mask mandate. When you complained that you weren't a fan of mask mandates, either, you shifted to a different argument about the government regulating workplaces. When I explained that was actually a broader argument about the role of government in workplaces, you accused me of arguing in bad faith.

                      That's all I'm going to say about it. Debating the point with you is like trying to swim in quicksand.

                  2. You did say you opposed the government interfering with "a voluntary relationship between two private entities," which seems to me to include the government requiring the wearing of helmets at work even if they can be taken off at the end of the day.

                    1. Josh, there’s a hell of a difference between permanent and transitory.

                      This comparison is bogus anyway. I worked plenty of years in operations where hard hats were required in some part of the organization and nobody cared. Same with steel toed boots. And gloves.

                      Those things aren’t comparable to having a brand new not entirely vetted drug injected into your system.

                    2. I understand the argument that distinguishes between permanent and transitory. My problem is your prior argument (the government should not interfere with "a voluntary relationship between two private entities") does not appear the depend on that distinction. As such, I'm not sure what position(s) you are arguing for.

            2. Do people not suffer heart attacks at work? I'm pretty sure they do. Does their behavior at work not contribute to those heart attacks? Yeah, looking at the contents of the vending machine, and my co-workers lounging around during their breaks when they're not eating, I'd say conduct at work does contribute.

              So, yes, I think the same reasoning that lets OSHA demand I get vaccinated would allow them to demand I spend a half hour on the treadmill and cut my calories.

              And since they can demand I get a vaccine for a disease I've already had, and have at least as good of immunity as the vaccine grants, I guess they could demand that I cut my calories and get more exercise, even though I actually fast 20 hours a day, and spend my 'lunch' time at work on a 45 minute speed walk.

              Because the demand being redundant doesn't seem to matter.

              1. Brett,
                The stubborn refusal of the US Government via its CDC to refuse to acknowledge "natural immunity" and factor that into its recommendations and guidelines is a major reason why its credibility is so weakened.
                Every EU country recognizes natural immunity and had substantive procedures to verify it. Yet the US ignores all medical data to claim that it does not exist or that it is too hard to administer in a public health program.
                When facts don't seem to matter to the government, it is not so difficult to understand why they don't matter to many US citizens

      2. And if the leading causes of death could be greatly reduced by a simple shot, then that would be great. The difference is this is preventable.

        1. Great. Here’s Molly. She wishes that all of those wrong thinkers would get sick and die with no medical care. Some fucking humanitarian she is.

  11. So, OSHA mandated vaccination or weekly tests for workers. But, it's very interesting what OSHA slipped in there.

    The employers don't have to pay for the weekly tests. That's interesting because OSHA almost always has the employer pay for the safety equipment. But in this particular case, the employer can choose to make the employees pay for the testing.

    So, how much is weekly testing for COVID? Roughly $130 a test...or more than $6,000 a year. So, Biden's "mandate" is going to cost some poor workers more than $6,000 a year potentially.

    And this type of bit is being pushed not even through new legislation, but through obscure OSHA provisions?

    1. Pay for your own hazmat suit everybody.
      We don't pass laws anymore.
      Decree is the way to go.

    2. Well, to be fair, only idiot poor workers will pay this. Non-idiot poor workers will pay nothing. Call it a moron tax, I guess.

      I think I can anticipate your next question. "Wait! If one dumbass doesn't want to get the vaccine and has to pay this weekly testing fee; will the moron who claims a religious exemption be excused from paying this? If so, how is that fair, and how is that not carving out a special favor for religion?"

      Answer: I am not sure if religious wackos (not to be confused with religious people who also believe in science and in vaccinations) will have to pay this same testing fee. I agree that if they do not, it's totally unfair.

      1. So, you're OK with this "moron tax"? You don't feel it's horribly abusive and wrong?

        1. Usually, when a workplace is unsafe, it's because of the nature of the work. If the employer needs employees to do dangerous things, it makes sense for the employer to shoulder the cost of protecting them from harm.

          In this case, the workplace risk is brought primarily by unvaccinated people. They ought to shoulder the cost of protecting their co-workers from harm.

          Say employers had to pay for the testing, and 20% of a workforce opted for the weekly testing option rather than getting vaccinated. In order to pay for this, the employer has to impose a temporary pay cut for all its employees. Is there any reason a vaccinated employee should be okay with that arrangement?

          1. Sounds like that's a yes from you.

            1. If I could bill you for all the time I put into explaining to you why your positions are wrong, I would.

      2. Well, to be fair, only idiot poor workers will pay this. Non-idiot poor workers will pay nothing.

        True enough. The non-idiotic ones know how to use a laser printer and approximate a nurse's hurried scribble.

      3. the only religious wackos are the ones who still think this is about health, even though natural immunity is being ignored, the "vaccines" don't prevent transmission and there is a massive coverup underway involving the side effects.

        1. "here is a massive coverup underway involving the side effects."
          Prove it, buddy! I was the facts and nothing but hard evidence

          1. I meant, "I want the facts..."

  12. all three judges on the panel (all of whom are conservative Republican nominees, for those keeping track).

    Not just conservative nominees, but serious nut cases.

    1. Your ability to swing your needle stops at my arm.

      1. How's your lawsuit against mandatory vaccines for public school going?

        Oh, you are only here to bitch about protecting people from COVID, but you're ok with other immunizations?

        Got it.

        1. It's pretty telling that you think the whole country is just like a public school. I guess you think you are the strict schoolmarm.

          1. The sudden cry that vaccines are anti-liberty doesn't include any kinf of logic that allows for an exceptions for school or military service.

            Instead, y'all just ignore how normal this has been in the past, and how much it shows how little you actually believe what you say versus are in it for tribal affiliation.

            1. Actually, there's a long long history in this country of exemptions for religious and ethical reasons to certain mandated items, like vaccines...or if you're bringing up military service...even conscription. Religious tolerance of others beliefs is one of the founding principles of the country. Many states have religious exemption laws on the books for vaccination in schools.

              It's only recently that certain parties have demanded compliance, and the long history of exemptions and tolerance have been discarded. If we're talking about extreme, it's amazing that certain parties are literally willing to shut down dozens of firehouses, and fire 20% of their police during a crime wave, in order to "mandate" vaccination, rather than give sensible exemptions.

              1. You shouldn't conflate the current "religious objections" to the vaccine with the longstanding exemptions you're describing.

                Some people believe that their religious commitments compel them to reject medical intervention of any kind, or any kind beyond certain types of treatments. They're a bit nutty, but you're right that they've often enjoyed religious exemptions.

                The religious claims being made now are... more nebulous. They are not being made, I think it's fair to say, in any kind of good faith.

                1. And you can judge their "good faith"?

                  1. Yes, of course. This is something we normally do in our real lives, all the time. You feign an inability to discern someone's good faith beliefs only because it serves the position you want to reach on this.

                    The people resisting the vaccines on "religious" grounds are not generally members of religious traditions that have long resisted medical interventions. Are you familiar with the claims that they are making?

            2. Nobody is calling vaccines anti-liberty. Stop conflating vaccines and vaccine mandates.

              1. Schools and the military have had vaccine mandates.

                1. And they had a long history of exemptions to those mandates.

                  1. This mandate has a blanket exemption: get tested.

                    1. ....every week. Forever. At your expense.

                      Yup, that works.

                2. Private employent, outside the health care industry, does not.

                  1. Think again Michael,. If a private company is even a subcontractor to a government prime contractor the requirement on employees is 100% compliance.

            3. Are you aware of any prior vaccine requirement related to employment? I was employed for 35 years and was never asked.

              1. I am also not aware of employment-related vaccine requirements. However, that observation doesn't address Sarcastr0's argument:

                The sudden cry that vaccines are anti-liberty doesn't include any kind of logic that allows for an exceptions for school or military service.

                1. I don't care about school or military.

                  I care about people not being allowed to support themselves because they choose - for whatever reason - not to put a relatively new substance into their bodies. I realize that a lot of those reasons are goofy as hell, but starvation shouldn't be an allowable punishment.

                  I'm vaccinated, even boosted. I'm protected. If I'm not, what's the point of making anybody get a vaccine that doesn't work?

                  1. I understand the argument that denying employment is harsher than denying entrance to school or the military (although a good counter argument can be made they are comparable enough). However, that means you aren't arguing for a liberty right in general (as Sarcasrt0 assumed), but rather a balancing of rights (you are channeling your inner Justice Breyer, which is fine).

                    The point of getting everyone vaccinated is to 1) protect those who can't be vaccinated for medical or other good reasons, 2) protect the vaccinated from breakthrough infections and 3) perhaps most importantly, stop the spread of the virus and end the pandemic through herd immunity. Sadly, it is increasingly clear there is enough vaccine resistance we will never achieve the latter goal.

                    1. "Sadly, it is increasingly clear there is enough vaccine resistance we will never achieve the latter goal."

                      Yeah it's pretty clear at this point that won't happen. So what do we do?

                      I am sort of making a liberty argument. On the other side, when DeSantis and Abbott tell cruise lines that they can't require vaccination as a condition of getting on their boats, I think Abbott and DeSantis are full of shit just like Biden is. Interfering with a voluntary relationship between two private entities (employer/employee, business/customer) shouldn't happen except in an extreme emergency, which I don't think this is.

                      We're at a level of population vaccinated that tens of thousands of people have been going to football and baseball games, and are now also going to hockey and basketball games, and plays and operas and concerts without one superspreader type event. It might actually be basically over.

                    2. I think Biden is hoping the mandate will change enough behavior to make some difference.

                      If you also arguing against Title II of the Civil Rights Act, then you have a consistent, but not to me persuasive viewpoint. Additionally, I now notice a strict liberty (not Breyeresque) argument would endorse a public school vaccine mandate but not a government mandate on private schools.

                    3. Not so fast Josh,

                      "2) protect the vaccinated from breakthrough infections"
                      Breakthrough infections can happen in heavily vaccinated populations.

                      "3) perhaps most importantly, stop the spread of the virus and end the pandemic through herd immunity."
                      It is likely that evolution of this virus and the relatively rapid decline in immunity will preclude :herd immunity"

          2. Even more telling is that you believe your conclusion accurately reflects my position.

        2. How's your lawsuit against mandatory vaccines for public school going?

          They're not mandatory. Not even close. You cannot possibly have children and believe that.

  13. Reason fails to use the triggers, "Republican", "GOP-appointed", "...appointed by Republican presidents...", "...Republican-aligned groups and politicians...", etc. enough in this article. See The Washington Post for an example of proper trigger word usage.

    1. The standard "news media bias" test: If it describes partisan grandstanding as partisan grandstanding, it's biased. If it pretends that politics has nothing to do with it, it's not.

      1. Just odd how seldom "left wing" judges or decisions are described as such.

        I guess they must never, ever happen.

  14. "We're all in this together" is no longer something that American conservatives believe in.

    1. Yup. They have rejected the entire notion of doing anything for the public good.

      1. What they're rejecting is being forced to do something against their will just because some politician says so. That's a good thing. You don't want to just let yourself be herded onto the train.

        1. Oh quit the Nazi death camp references. They are just absurd.

          1. I dearly hope you are correct (that the reference is absurd). A year ago I would have had no question about it. Now, I'm not so sure.

            1. Quit devaluing the Holocaust for your own partisan bullshit.

              1. Well, Biden wants people to starve if they don't get an injection. Kinda blurs that line a wee bit.

                1. That comment is irrelevant to Holocaust devaluation.

      2. They have rejected the entire notion of doing anything for the public good.

        Like carrying pregnancies to term to help assure a younger, robust ongoing population, for example?

        1. It's your patriotic duty to breed for the State, LoB? This where you're going with this?

          1. I don't think my point was particularly subtle, but I'll give you the benefit of the doubt exactly once since it's been a while.

            Piously invoking "the public good" as OP did as a trump-card rationale for overriding individual medical decisions is a massively slippery slope -- one that I suspect the gunpoint-vaxxers would be very unhappy traveling down were it expanded to other contexts such as the example I gave.

            That's all.

            1. Plenty of public requirements *are* in the public good. Required to have any kind of society, in fact.

              Your facile dismissal proves vastly too much.

              If you want to engage on the balancing of equities, do so. But your bright line is a silly one.

              1. Your facile dismissal proves vastly too much.

                As does your lazy bucketing of compulsory administration of medical treatments with taxes and traffic signals.

                1. You're the one drawing bright lines, chief.

                  If you want a more nuanced line, lay out the nuance.

                  So far, I see none.

          2. It's your patriotic duty to get an injection for a disease you have a miniscule risk of dying from. This is where you wish to go with this?

    2. And "my body, my choice" is no longer something that American liberals believe in.

      A rather curious turn of the tables.

      1. That got lost in some penumbra, or emanation, or something like that = "my body, my choice"

        1. Abortion is not a collective action problem.

          No one is arguing there is no liberty interest at issue, only that it is vastly outstripped by the public health interest.

          1. Anything is a collective problem, if you want it to be - just look at all the Leftists declaring that poverty and gun crime are collective problems.

            Humpty Dumpty rules your brain.

            1. Even assuming your not nutpicking, other people being wrong doesn't mean you get to be a hypocrite.

              1. Glad to see you admit you are wrong, but in what way am I being a hypocrite?

    3. "Do what we say or starve" is not going to generate any support from a large swath of the public, sorry.

      WE GAVE YOU FOURTEEN DAYS TO "SLOW THE SPREAD". You then demanded, well, about 18 months of abiding by insane public health proclamations with no science behind them and ostracize anybody who questioned them.

  15. I was speaking with a senior OSHA official who has concerns about the ETS surviving scrunity. He said that most OSHA employees because the agency is being used by the administration in an unlawful manner. What they suggest is that 5(a)(1) of the OSHAct, typically referred to as the general duty clause, would prevent OSHA from requiring workers be forcibly exposed to a known hazard to mitigate another hazard. The vaccine is a known hazard to some people - some fatally. This official believes that abusing the OSHAct in this way will undermine workplace health and safety. The damage is done even if the courts strike down the ETS immediately.

    1. The vaccine is a known hazard to some people

      No, it isn't.

      1. exists because ALL vaccines pose hazards.

      2. David,
        How can you say that?
        Every medication that we know have has some contraindications for some class of persons.

      3. Ah, the one vaccine ever with no negative side effects. Impressive.

    2. What you describe would only hold if there were no testing alternative.

      There is.

      So your 'official' doesn't seem to know the policy in the agency he is in and criticizing.

  16. OSHA is mandating experimental vaccines to stop the spread of the China Virus. The problem with that logic is the vaccines don't stop the spread. They apparently reduce the chances you'll be hospitalized with the China Virus but even if you are vaccinated, you're going to get infected sooner or later.

    The risks of dying from the China virus are much less than the long term risks associated with the vaccines for most people of working age. 99.8% of working age people will survive the virus if treated early with drugs that have been safely used for more than half a century.

    Those who have had the China virus certainly should not be inoculated against it. There natural immunity is more robust and durable than that which a so-called vaccine could ever provide. Where is the exemption for that cohort in this 500 pages of utter nonsense put out by OSHA?

    1. I count 4 things this commenter thinks are true that are, at the very least, seriously in doubt.

      Did I miss any?

      1. "There natural immunity is more robust and durable than that which a so-called vaccine could ever provide."

        That statment made by manbearpig is 100% accurate,

        " most people of working age. 99.8% of working age people will survive "

        That statement made by manbearpig is mostly accurate. 85%+ of the deaths are from people over age 65. The survival rate for individuals under age 65 is approx 98%, so manbearpig statement is off by approx 1%-2%.

        1. "That statment made by manbearpig is 100% accurate,"
          Where is the proof Joe?
          Cite the hard cold facts.

          1. Don Nico
            November.8.2021 at 5:35 pm
            Flag Comment Mute User
            "That statment made by manbearpig is 100% accurate,"
            Where is the proof Joe?
            Cite the hard cold facts."

            Don - at this point it is well known that natural immunity provides much stronger and longer lasting immunity.
            See the numerous studies cited at healthy skeptic - kevin roche

            1. Joe,
              Your "much stronger" is an exaggeration. Especially when the data is supports your claim you are better not to exaggerate.
              I agree that natural immunity does appear to be more robust for solid biological reasons

              1. Minn DOH reported for the week ended 11.8.2021 (should be 11.6.21)

                7821 vaxed cases out of 15617 total cases

                111 vaxed covid deaths out of 168 total covid deaths

                reinfections are running at approx 1-2%

    2. "mandating experimental vaccines to stop the spread of the China Virus"
      At least some of the vaccines now have full approval.
      The virus is called SARS-CoV-2 unless you deliberately want to sound ignorant.

      "Those who have had the China virus certainly should not be inoculated against it."
      Wrong. No one with any serious medical credentials says that.

      1. Apparently multiple people's doctors have done so.

        And Biden decided he knows better.

        And, apparently, you did as well.

        Nice of you to know everybody's medical situation better than their doctors do.

  17. Don't be so arrogant dami.
    Your claim is categorically broad and false.
    It is very clear from solid medical data from Israel that covered over 1 million persons that covid-recovered and vaccinated fared better than either the covid-naive vaccinated or the merely covid recovered.

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