The Effect Of A Permanent Injunction in the Fifth Circuit OSHA Case

Would a permanent injunction bypass the Circuit Court lottery?


On Saturday, a Fifth Circuit panel entered a temporary stay of the OSHA Vaccine mandate. The panel also ordered the government to "respond to the petitioners' motion for a permanent injunction by 5:00 PM on Monday, November 8." Not a preliminary injunction. A permanent injunction.

DOJ filed its brief. And the government opposed the prospect of the court entering permanent relief.

This Court's November 6 Order directed the government to "respond to the petitioners' motion for a permanent injunction." Because the pending motions seek preliminary relief, the government understands that order to distinguish petitioners' requested relief from the interim, administrative stay entered by the Court. The government notes that one group of petitioners filed an opening merits brief seeking a permanent injunction but that this Court's November 8 letter confirms that the brief is "premature." It would, of course, be improper to fully adjudicate pending petitions before the multi-circuit lottery occurs or the administrative record is filed. See 28 U.S.C. § 2112(a)(3)("The agency . . . shall file the record in the court of appeals designated[by the Judicial Panel].");see also Camp v. Pitts, 411U.S. 138,142-143(1973) (per curiam) (judicial review is focused on "the administrative record"). The multi-circuit judicial review provision contemplates—at most—"stay[ing]"the Standard's"effective date"; that stay "may there after be modified, revoked, or extended"by the court hearing the 6 cases. Id. § 2112(a)(4). That language, the provision's structure as a whole, and principles of fairness and orderly presentation of arguments, all demonstrate that courts are not to resolve these challenges conclusively during the ten-day period prior to consolidation. Accordingly, the Court should not consider any request for permanent relief at this juncture.

Circa November 16, the judicial panel on multidistrict litigation will hold a lottery. At that point, all pending challenges to the OSHA rule will be consolidated to a single circuit court. To make things simple, I'll assume the case is directed to the D.C. Circuit.

Under the plain terms of the statute, the D.C. Circuit could stay the Fifth Circuit's temporary stay. 28 U.S.C. 2112(a)(4) provides:

Any court of appeals in which proceedings with respect to an order of an agency, board, commission, or officer have been instituted may, to the extent authorized by law, stay the effective date of the order. Any such stay may thereafter be modified, revoked, or extended by a court of appeals designated pursuant to paragraph (3) with respect to that order or by any other court of appeals to which the proceedings are transferred.

But it isn't clear to me that the D.C. Circuit could modify or revoke a permanent injunction. DOJ argues that it would "be improper to fully adjudicate" the case before the lottery. And doing so in the ten-day window would frustrate "principles of fairness and orderly presentation of arguments" that are contemplated by the policy. Still, what authority would permit one circuit court to modify the injunction of another circuit court? The All Writs Act? If the Fifth Circuit goes ahead and enters a permanent injunction, and the D.C. Circuit tries to stay that permanent injunction, then Texas would go to the Supreme Court.

Or, it is also possible that the Fifth Circuit wins the lottery, in which case the mandate would be stayed nationwide.

In either case, this matter may get to the Supreme Court by the end of November.

NEXT: Principles, Enforcement, and SB8

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  1. The following data from powerline and healthy skeptic

    data released yesterday by the Minnesota Department of Health cast doubt on the effectiveness of the vaccines, even as to those who receive them. For the week ending November 8, 111 out of 168 newly announced “covid deaths”–66%–were among the fully vaccinated. Likewise, 347 out of 883 hospital admissions for covid (or with covid)–39%–were of the fully vaccinated. (Via Healthy Skeptic.) There is nothing unique about Minnesota, so I assume that these numbers are being replicated, more or less, elsewhere."

    1. Seriously? Do you not understand anything about basic (Bayesian) statistics? From a certain point, where the US has already arrived, the higher the % of people that is vaccinated, the higher the % of sick people that is vaccinated, unless the vaccine is 100% effective, which it isn't.

      1. And he's of course also ignoring that the vaccinated and unvaccinated aren't similar risk pools.

      2. Also, no vaccine ever has been 100% effective at preventing infection.

        1. MatthewSlyfield
          November.9.2021 at 2:17 pm
          Flag Comment Mute User
          Also, no vaccine ever has been 100% effective at preventing infection."

          True no vaccine is 100% effective, but very few vaccines are this ineffective after just 6 months

          See the statement below from the VA study :
          SARS-CoV-2 vaccine protection and deaths among US veterans during 2021 -Science nov 4 2021

          Effectiveness against infection ranging from 13%- 58% after 6 months depending on the vaccine

          For the period February 1, 2021 to October 1, 2021, vaccine effectiveness against infection (VE-I) declined over time (P < 0.01 for time dependence, Table 1), even after adjusting for age, sex, and comorbidity. VE-I declined for all vaccine types (Fig. 1), with the largest declines for Janssen followed by Pfizer-BioNTech and Moderna. Specifically, in March, VE-I was 86.4% (95% CI: 85.2% to 87.6%) for Janssen; 89.2% (95% CI: 88.8% to 89.6%) for Moderna; and 86.9% (95% CI: 86.5% to 87.3%) for Pfizer-BioNTech. By September, VE-I had declined to 13.1% (95% CI: 9.2% to 16.8%) for Janssen; 58.0% (95% CI: 56.9% to 59.1%) for Moderna; and 43.3% (95% CI: 41.9% to 44.6%) for Pfizer-BioNTech."

          1. The right wing echo chamber is getting people killed!!

            So check out these adjacent counties in North Carolina with death rate and (election results)

            Buncombe county 168 (60% Biden)

            Rutherford county 492 (72% Trump)

            So liberal Buncombe county (Asheville) in North Carolina has significantly lower infection and death rate than adjacent conservative Rutherford county? Both have similar over 65 percentage so let’s check the vax rate—Buncombe is at 59% while Rutherford is at 37%. Asheville also still has a mask mandate.

            1. These local statistics are meaningless except as an amusement for partisans.

              1. Lol, no they aren’t. Republican leaders are killing their voters!! DeathSantis has killed more Americans than Osama Bin Laden! Deal with it!

                1. We cab agree to disagree about that.
                  The statistics are too sparse and subject to huge systematic uncertainties for a scientific conclusion in my studies.

              2. Actually the counties and stats he contunues to cite are confirm that the mitigation protocols and republican vs democrat officials in charge have very little , if any, impact on covid trends

                Sebastian mentioned several times, austin, Tx/ Travis county, Mecklenberg County NC and several other counties.

                The liberal counties and the conservative counties have very similar covid deaths by age -

                1. That just isn’t true. How do you explain Florida panhandle counties Escambia and Bay counties vs Orange County. Monroe is an old population county but because it could restrict travel it has a low death rate. And once again—NC has an older population than GA but it has a significantly lower death rate.

                  1. Sebastian Cremmington
                    November.9.2021 at 5:14 pm
                    Flag Comment Mute User
                    "That just isn’t true. How do you explain Florida panhandle counties Escambia and Bay counties vs Orange County. Monroe is an old population county but because it could restrict travel it has a low death rate. And once again—NC has an older population than GA but it has a significantly lower death rate."

                    Research the actual data, run the numbers before you continue to embarrass yourself. the actual data refuts your argument

                    1. Omg, you are such a clown. You just ignore the data from North Carolina vs Georgia. You are a joke.

          2. "True no vaccine is 100% effective, but very few vaccines are this ineffective after just 6 months"

            I guess you've never heard of the flu vaccine, huh? It's typically 30-50% per season.

            I'm curious to see if anyone has data on what the efficacy of vaccines that generally require 6 month boosters/doses look like after 6 months. It's possible that like with many other vaccines you just need more than two doses to get lasting protection.

            It's also possible that Delta will require a specific booster because it's sufficiently different from the initial strains.

            1. The Salus Project covered that. Each additional shot lasts a bit longer than the first one. Extrapolating from their figures, by the 5th or 6th shot you might get >50% protection (their definition) for a year.

              The Israelis are seeing this in real time, 70% of the nation has 3 shots and many already have a 4th shot on government recommendation. They're still getting infected, sick, and some deaths; but in markedly reduced severity and moderately reduced quantity compared to unvaccinated people.

              My opinion FWIW; it was a grave mistake to call it a vaccine. The shot actually works as a temporary (5-6 mo) reducer-of-symptoms. A lot of trust was lost by the 'vaccine' label.

              1. I still think they should have just taken the 4 coronavirus common colds, and distributed them as a live vaccine. It was known early on that having been infected with one of them reduced severity of Covid, and it was the sort of thing you could do almost instantly.

              2. So once again, do you think the flu vaccine is not a vaccine? It's less effective and you need one a year.

                1. Personally not comfortable with it... The 30%-50% is mostly forecast inaccuracy, not the shots' effectiveness. But even there, 'vaccine' conveys some thing that isn't the same as other things.

                  1. "The 30%-50% is mostly forecast inaccuracy,"
                    No it is not. It is a statistical plus systematic uncertainty 90% confidence level that have zero to do with forecast inaccuracy. You might try to learn a bit about statistics before making pronouncements.

                    1. You're full of it. Flu shots don't ever protect "against flu" but a flu strain or strains, which change each year. Shots are designed and produced against anticipated strain(s). When the prediction is correct, the shots give immunity and long-term (useless as the strains evolve or change) immunity against that strain.

                      Blather statistical uncertainty and confidence levels all you want, ignoring the biologic reality how flu shots work or not.

            2. "I guess you've never heard of the flu vaccine, huh? It's typically 30-50% per season."

              Are the Feds trying to force you to get it?

              Seems germane to me.

        2. But these vaccines appear to be esp bad, at maybe 20-30% reduction in number of reinfects or breakthrough cases. Interestingly, in a response to a FOIA response, the CDC recently stated that they had no record of reinfection by anyone with natural immunities (I.e. they had and survived COVID-19). This suggests that natural immunities ARE almost perfect in preventing the disease, while the vaccines don’t appear to do that much better protecting against getting the virus than nothing at all (though they do appear to lessen the severity).

      3. Martinned
        November.9.2021 at 12:20 pm
        Flag Comment Mute User
        Seriously? Do you not understand anything about basic (Bayesian) statistics? From a certain point, where the US has already arrived, the higher the % of people that is vaccinated, the higher the % of sick people that is vaccinated, unless the vaccine is 100% effective, which it isn't."

        Both the total case counts and vaxed cases are going up, not down, and they are going up faster than the unvaxed case counts. Those facts renders your rebuttal invalid.

        1. I'd get a lot more excited about "case" counts if they were doing random testing. As it is, the "case" numbers are hopelessly contaminated by selection bias and variations in the number of tests performed.

          1. concur - the most important measurement is covid death rate by age with the death rate for over age 65 being one of the most important.

            the majority of states/counties, etc have covid death rates for the over 65 age group in the range of 950-1200 per 100k .

            Michigan 940
            florida 1010
            Minnesota 1250
            massachucetts 950
            colorado 1190
            N Car 840
            A few liberal/democrat counties that Sebastian keeps mentioning
            Meckenberg, Travis county tx , Orange county florida all in the range of 1100-1200 deaths per 100k for the over age 65 group.

            I have omitted GA from the data since I am unable to get data for covid deaths by age (that I would consider reliable)

            Note that there is very little delta in the death rate by age between democrat run states/counties vs republican run states/ counties.

            Sebastian has found 3-4 outliners, yet the majority fall within a narrow range

      4. Martinned
        November.9.2021 at 12:20 pm
        Flag Comment Mute User
        Seriously? Do you not understand anything about basic (Bayesian) statistics? From a certain point, where the US has already arrived, the higher the % of people that is vaccinated, the higher the % of sick people that is vaccinated, unless the vaccine is 100% effective, which it isn't."

        If the vaxed case percent was going up because the total cases were going down, then you analysis would be correct. However, you will notice the total case counts are going up. As such,

        1. It’s almost like I can see your clown nose and honking your clown horn when I read your comment. Jozo the Clown! 😉

    2. While vaccines do not prevent all contagion or all serious consequences of infection The percentage of total vaccination has a moderately strong correlation with the case fatality rate (51%), the number of new cases per day (57%), and only weaker correlation with the viral reproduction rate (37%).

      The latter figure suggests that the administration and the CDC are selling a false hope. Countries with a significantly higher vaccination percentage than the US have seen Ro increase above 1.0 in the past several week. (Source Our World in Data, Oxford U.)

      1. New York counties with low vaxxed rate are seeing a Delta spike while so far NYC isn’t seeing one. Allegheny county is the least vaxxed county and it goes 70% for Trump…and it leads NY in recent cases!! I think NYC has such a high rate of natural immunity and vaxxed immunity and super immunity that it will avoid a significant Delta surge.

        1. I expect that the absence of a spike in NYC may definitely be connected with the large number of persons with vaccine enhanced natural immunity. There is really no substantive evidence for the "super-immunity" concept.
          Unfortunately tabulations of the wide range of day by day statistics that one can find at the national level are not available on a statewide basis in the US. So I cannot do the same in depth analysis that I routinely do over a very large sample of countries.

          1. NYTimes has good data for states broken down by county. Then I just cross reference with Wikipedia which has demographics and politics for counties…but because I’ve been involved in politics I have a working knowledge of demographics and politics of most American counties. I also know where most major college towns are across the country.

            The 3 big factors for Covid death rate are:
            1. Was a population in the initial wave?
            2. Could the population restrict travel? Guess which Florida county has the lowest death rate? The county with the Keys.
            3. Does the population have Democratic or Republican leaders and so that divergence happened in 2021 as Republicans began rejecting science and attacking public health officials and Republican populations saw a higher Delta spike than Democratic populations.

            1. Typically the most daily statistics that I can find by states is graphical data total figures through the pandemic. I'll look at the NYT again. One would like a unbiased set of smoothed data, vaccination data, hospitalization data as well a reproduction rates computed in an accepted or consistent manner. Johns Hopkins must compile these but I only find graphical data on their website.
              I would expect that your Items #1 and #2 are very importantant

              1. What’s sad is the divergence between red and blue death rates didn’t happen until 2021. So throughout 2020 both Republicans and Democrats did a good job mitigating spread with the Southwest getting unlucky because people traveled there thinking they would be safer there over the winter when really Florida and Hawaii and Puerto Rico are the places with the best weather in the winter to mitigate spread. So tens of thousands of lives were lost in the last few months that were very preventable because the pandemic was politicized.

                1. The polarization of the pandemic is one of the stupidest things that I have ever seen. Here we are, all in the same boat, and people are carrying on about completely bogus ideas such as the vaccines being gene therapy.
                  I'd love to run the analysis across the US States that I have been able to publish about the countries of Europe. I am sure there is much to be learned in the same way that one sees very interesting differences and similarities in comparing Swden, Norway and Denmark

            2. You are forgetting maybe the biggest: the seasonal effects of being indoors versus outdoors. The Delta surge in the south was while those in the south were indoors in the air conditioning. Now, they are outdoors more. Their COVID-19 rates have crashed. On the flip side, the COVID-19 rates in the NE, N, and Mountain West have soared in recent weeks, as people spend more and more in the heated indoors.

    3. " The following data from powerline "

      Featuring guest epidemiologists Aaron Rodgers, Joe Rogan, and Todd Zywicki and noted vaccinologists Herman Cain, H. Scott Apley, and Bob Enyart?

      (Those final three appearing by tape delay, naturally)

  2. If the case is transferred to the D. C. Circuit the D. C. Circuit owns the case.

    If the Fifth Circuit purports to issue a final decision within 10 days then it gets interesting. If I'm in the Supreme Court I vote to leave the injunction in place and take the case limited to the question of whether the cases can still be consolidated. And the liberals vote to vacate the injunction and take the case limited to the question of whether the cases can still be consolidated. Because nobody wants to wade through 500 pages of lawyerly obfuscation.

  3. As the Government points out, it would be procedurally improper for the Fifth Circuit to enter any permanent relief before the record is filed. Under Federal Rule of Appellate Procedure 17, OSHA has 40 days to file the record. Yes, one of the private parties in the Fifth Circuit case asked for the Circuit's proceedings to be expedited, but even that private party did not contemplate that the Government's one-and-only opportunity to contest permanent injunctive relief would have been the document the Government filed yesterday.

  4. I think the Administration is correct here. Permanent injunctions are final remedies after a full trial on the merits or other complete disposition of the case. They are not appropriate for the early phases of a case before all the evidencw and arguments arw in. The district judge is out of line here.

  5. So Josh believes the Fifth Circuit's procedurally defective permanent injunction cannot be modified for...procedural reasons. Procedure for me, but not for thee!

    1. (A hypothetical permanent injunction, that is.)

    2. So Josh believes the Fifth Circuit's procedurally defective permanent injunction cannot be modified for...procedural reasons.

      Cannot be modified by another peer court, no -- that's just silly. (Silly enough that it might be the last straw that finally rids us of this nonsense of nationwide injunctions from regional courts. Unlikely, I know, but I can dream.)

      1. Well, they can't modify the permanent injunction, but I suppose a peer court could issue a nation-wide writ of mandamus contradicting the injunction, a contradictory injunction.

  6. Don't you have to have a trial (or dispositive motion) before entering a permanent injunction?

    1. Question the magic of the clingeverse at your peril . . .

  7. The injunction would be void and the government could disregard it at will. A permanent injunction is available only after briefing on the merits following the filing of the administrative record. The Fifth Circuit has no power to enter an injunction before the administrative record is filed, so the injunction would be void ab initio. Even if the injunction were valid when entered, it would become void after the lottery. Unless the Fifth Circuit is selected, it will lose jurisdiction over the case following the lottery. An injunction entered by a court that lacks jurisdiction is void.

    These are all things that Blackman himself would point out if it were a Republican policy being challenged. Blackman doesn’t do so because he is a partisan cheerleader, not a real scholar.

    1. I do not think that a procedurally improper permanent injunction would be void, or that the Government could disregard it at will. The U.S. would need to try to get a permanent injunction modified or vacated, either by the appellate court that ends up with jurisdiction or by the Supreme Court. The transfer of jurisdiction to a different Circuit wouldn't by itself mean that any already-entered Fifth Circuit orders would be void.
      The private (non-Texas) petitioners have a chance to file papers today (by 5 pm CST) -- let's see what they say about the Fifth Circuit's procedural position.

      1. Jurisdiction is a court’s power to act. A court with no jurisdiction has no power to enforce an injunction. If the government violated the Fifth Circuit’s “injunction,” the Fifth Circuit would be powerless to enforce it. The injunction thus would be void.

        *Maybe* the lotto-winner court could modify the injunction. But Josh is suggesting that it couldn’t, that only the Fifth Circuit would have power to modify the injunction. If Josh is correct about that, then it means the injunction is void, because the Fifth Circuit lacks jurisdiction.

        1. Why don’t they have jurisdiction?

  8. I know I am picking nits but...
    The article reads as though the DOJ filed their response after the deadline. "This morning" based on the date/time of the article would be Tuesday morning. But judge said by 5pm on the 8th.

    And not about to faff around with the pdf to read it on my phone so I admit I may be missing something.

    But the question is... what happens if I miss a judge ordered deadline by a whole calendar day to file a motion or response in a case against the DOJ. Would I be given leeway and still get to file? Honest question about the normal goings on of courts. Knock on wood... I have limited experience with them.

    1. It very much depends on the judge and his relationship with the attorneys. I have seen judges enforce their deadlines, sometimes with draconian results. And similarly, I have seen judges set page limits on briefs, then get away with discarding anything beyond their page limit, to the detriment of those parties. But this is the US, so the court probably won’t go as hard on them. Maybe.

  9. This is something I've posted about before, and asked about before, but (sadly) no one ever responded with actual answers:
    Court One: X is forbidden, nationwide. [This happens first chronologically.]
    Court Two (same level as Court One): X is permitted, nationwide. [This happens second.]

    Now that you have two dueling orders, what happens? If One had forbidden X but only within that court's geographic area, and the same for Two, then it's easy...we deal with circuit (or state level) splits all the time. But here, we're dealing with nationwide injunctions. I can see a few possible outcomes.
    a. First in time rules. So the "Can't do X" wins out.
    b. First in time rules, except in the immediate jurisdiction of Two, where the attempted nationwide "Can do X" is narrowed to Two's location.
    c. The most recent prevails. So, "Can do X nationwide" wins.
    d. Can do X nationwide, except in the Jx of One (ie, similar to "b")
    e. Competing nationwide orders cancel each other that there is no longer any nationwide enforceable injunction.
    f. Something else???

    By this point in 2021, there must be many examples of this happening, right? Where Court A makes a ruling, and some other court looks at that ruling, says, "That's crazy-talk!"...and then rules the exact opposite way, nationwide. Or, as a matter of judicial comity, do these 'second' courts refuse to make conflicting nationwide orders, regardless of how Court Two evaluates the constitutionality (or merits) of One's nationwide injunction?

    1. Generally speaking, Courts One and Two won't actually be in conflict. The reason is that in these national injunction-type cases, the plaintiffs are usually individuals, while the defendants are government agencies. If Plaintiff A loses, that does not bar Plaintiff B from taking another bite at the apple, in the same or another jurisdiction. However if the Defendant govt agency loses, it is collaterally estopped from using he same defense again, which has the effect of creating a national injunction.

      P.S. I am not a litigator, and am remembering this stuff from law school, so seek competent legal advice before proceeding. 🙂

  10. A nationwide permanent injunction by an obviously biased court without benefit of due process, trial or opinion?

    This is why the public hates lawyers and our legal system. It is a legal system but it is not a system of justice.

    1. Justice most certainly ISN’T shutting down constitutional rights indefinitely because a few public health bureaucrats decided, on their own, that we’re in an emergency.

      1. You don't have a constitutional right to be unvaccinated.

        1. We do not have a constitutional right for bodily autonomy? That is a new one.

          1. no you don't.
            Next question

            1. Cite?

              I don’t see the difference between the privacy right guaranteeing an abortion and those protecting against a foreign substance being injected into you (and in particular a novel, marginally tested, gene therapy).

    2. The exact same argument could be made for the travel ban. You can't have it both ways.

  11. It sounds like this judge is deliberately gaming the multi-district lottery situation in order to impose an intentionally permanent injunction specifically so the government will have a hard time lifting it.

    Federal judges are not supposed to deliberately game procedural rules so they can benefit of one of the parties and screw the other. That’s what political hacks do, not an independent judiciary that sees itself as neutral.

    If the judge pulls this, and the court of appeals finds it doesn’t have jurisdiction, I would go to the Supreme Court to get this judge a fast writ of mandamus. And a spanking.

  12. The government completely ignores the potential harm of the experimental vaccines to working-age people, natural immunity, and the fact that the vaccines cannot prevent the spread of the China virus and its variants.

    There response is rooted in pure speculation and myth but not science.

  13. " the experimental vaccines "
    Now some are fully approved. Just keep spreading your lies

    1. Well ... they are CDC approved, sorta like Thalidomide.
      It seems the USA was the guinea pig for the rest of the world whether the shot was safe during pregnancy since it had never been tested - no pregnancies in the trial groups.

      CDC said yes, it's safe, and proceeded with the shots. Britain said it safe except for pregnant women (same as most vaccines) but in August '21 changed that due to '130,000 pregnant women in the US' getting shots with no reported problems. We were the trial group. Now there's another reversal due to complications (stillbirths) during some period of gestation.

      It's medicine, not a science. Because it's CDC approved doesn't mean they aren't experimenting experimenting.

      1. ... and to finish, Thalidomide was never approved in the US. Except the FDA authorized distribution (note the wording) to doctors and clinics, in quantity, "For Investigational Use".

        1. The one time the FDA's foot dragging paid off in something other than lost lives, and they've been milking it for decades.

      2. Well, that's a new goalpost. And one you had to reach back about 70 years to find.

      3. More crappola to justify your spreading misinformation.

      4. Well ... they are CDC approved, sorta like Thalidomide.

        You're confusing the CDC and FDA, and also completely wrong about Thalidomide, which wasn't approved.

        And you're also completely wrong about what the UK said and did, but hey, why not be consistent?

    2. Every vaccine in use in the U.S. is being administered under an EUA. The only FDA approved vaccine, Comirnaty, is currently unavailable here. Everyone has the legal right to refuse these deadly vaccines. For most people the disease is less harmful that the experimental vaccines.

      1. "these deadly vaccines."
        according to a self-identified Pig.

      2. Every vaccine in use in the U.S. is being administered under an EUA. The only FDA approved vaccine, Comirnaty, is currently unavailable here.

        This. Is. A. Anti-Vaxxer. Lie. Comirnaty is just a rebranded Pfizer shot.

    3. Yes -the FDA approved vaccine is not available to the public. Only those unapproved vaccines are generally available (under Experimental Use Authorizations). What’s going on? My guess is that the EUAs come with immunity from suit, while the approved vaccine does not. Plus, we have billions of dollars of the EUA available, non FDA approved, vaccines stockpiled. Who is going to pay for the FDA approved vaccines? Not the government - their money is tied up in the EUA available non FDA approved vaccines.

  14. The OSHA rule appears in today's (Nov. 10) Federal Register. Stayed before it was laid! (I can't recall another example of that.)

  15. An underappreciated aspect of the covid vaccines is the fact that the government actually owns them – i.e., not the IP, but the actual doses. As part of Operation Warp Speed, the Trump administration committed to buy hundreds of millions of doses, if and when working vaccines were available. This was a very successful way to encourage companies to fund the necessary R&D and to deliver the vaccines quickly.

    It also has some odd implications for administrative procedures. Federal agencies can say who is allowed, or not allowed, to get vaccinated without having to go through APA procedures. They do not even have to cite any statutory authority for their actions. On the other hand, because they are exercising property rights, this freedom of action has its limits. An agency can exclude people from accessing the agency’s property, but cannot force people to access it. The nature of the property right puts agencies on very firm ground when they allocate or withhold doses, but sends them looking for statutory authority when the Boss tells them to make it compulsory.

    Another consequence of government ownership: Governor Cuomo could direct doses to friends and family first. I think this massive procurement was very successful in achieving the goals of Operation Warp Speed, but is deeply flawed as a model for how health care should be provided generally.

  16. "the government actually owns them"Wow, that is what happens when one makes a purchase

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