District Court Issues National Injunction Against Biden Administration Vaccine Mandate for Federal Contractors

Two federal district courts have now ruled against the mandate for federal contractors.

Yesterday, a federal district court in Georgia issued a national injunction against the Biden Administration's COVID-19 vaccination requirement for federal contractors. Last week, in separate litigation, a district court in Kentucky also enjoined the mandate, although this injunction was limited to the plaintiff states in that case.

The primary basis for the court's decision in Georgia v. Biden is that President Biden's executive order requiring federal contractors to mandate COVID-19 vaccinations exceeds the President's authority over federal contracting under the Procurement Act.  Wrote Judge R. Stan Baker:

The President expressly relied on the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. (hereinafter, the "Procurement Act"), for his authority to issue EO 14042 "in order to promote economy and efficiency in procurement by contracting with sources that provide adequate COVID-19 safeguards for their workforce." 86 Fed. Reg. 50,985–88. The Procurement Act was "designed to centralize Government property management and to introduce into the public procurement process the same flexibility that characterizes such transactions in the private sector. These goals can be found in the terms 'economy' and 'efficiency' which appear in the statute and dominate the sparse record of the congressional deliberations." Am. Fed'n of Labor and Congress of Indus. Orgs. v. Kahn, 618 F.2d 784, 787–88 (D.C. Cir. 1979). In Kahn, the Court of Appeals for the District of Columbia Circuit examined the history of and apparent congressional intent behind the Procurement Act, and stated its belief that, "by emphasizing the leadership role of the President in setting Government-wide procurement policy on matters common to all agencies, Congress intended that the President play a direct and active part in supervising the Government's management functions." Id. at 788. The court acknowledged that, "To define the President's powers under Section 205(a) [(40 U.S.C. § 121(a))], some content must be injected into the general phrases 'not inconsistent with' the [Procurement Act] and 'to effectuate the provisions' of the Act." Id. After considering the Procurement Act's emphasis on promoting "economy" and "efficiency" and ensuring contracts are awarded on terms that are "most advantageous to the Government, price and other factors considered," the Kahn court stated that the Procurement Act "grants the President particularly direct and broad-ranging authority over those larger administrative and management issues that involve the Government as a whole. And that direct presidential authority should be used in order to achieve a flexible management system capable of making sophisticated judgments in pursuit of economy and efficiency." Id. at 789.

Applying the Kahn standard (in the absence of controlling Eleventh Circuit precedent on the scope of the President's authority under the Procurement Act), Judge Baker concluded that it was difficult to characterize the vaccination requirement as a measure concerning the "economy" and "efficiency" of federal contracts. Rather, as the White House's own statements have made clear, this measure is primarily intended as a public health measure.

As a matter of first impression, Judge Baker's arguments have some force. It is hard to characterize a broad vaccination requirement that applies to all federal contractors as a procurement measure, particularly given the lack of exemptions or accommodations included in other vaccine measures (such as the OSHA ETS, which exempts remote employees, those that work outside, etc.). Rather, the measure seems to be a transparent effort to leverage federal contracts so as to increase COVID vaccination rates (which is certainly a worthy goal). It is, in effect, an effort to use federal spending for regulatory purposes. As such, it would seem reasonable to question this mandate as the sort of power Congress delegated to the President through the Procurement Act.

The problem, however, is that this is not a question of first impression. There is a reasonable amount of D.C. Circuit caselaw applying Kahn, and Judge Baker claims that to be "looking to the Kahn court for guidance" in how to resolve this case. While Judge Baker found that the vaccine mandate "goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health," the D.C. Circuit's Kahn caselaw is far more deferential to the executive branch.

In UAW-Labor Employment and Training Corp. v. Chao (2003), for example, the D.C. Circuit upheld a requirement that federal contractors post notices informing workers of their rights not to join a union or pay union dues. While such a requirement may be a good idea, it is not any more related to the "economy" and "efficiency" of federal procurement than is a vaccine requirement. (To the contrary, one could at least argue that ensuring workers are vaccinated reduces the risks of labor shortages and the like.) While this decision does not bind a federal district court in another circuit, it is a bit odd for a district court to claim it is following the lead of another circuit and then fail to do so.

Although purporting to "tread lightly when issuing injunctive relief," Judge Baker ordered a nationwide injunction. The judge concluded this was justified because one of the plaintiffs (Associated Builders and Contractors) is a trade association with members nationwide. As he noted, "given the breadth of ABC's membership, the number of contracts Plaintiffs will be involved with, and the fact that EO 14042 applies to subcontractors and others, limiting the relief to only those before the Court would prove unwieldy and would only cause more confusion." I am not sure I am persuaded on this point, but this a far more serious argument than was offered in the Louisiana decision enjoining the CMS vaccine requirement for health care workers.

The Biden Administration will promptly appeal both rulings enjoining the COVID-19 vaccination requirement for contractors.

Comments

[John F. Carr]

_Khan_ upheld a presidential order. Is there any appellate precedent striking down an order under the Procurement Act?

[Jonathan H. Adler]

Sure. One example is Chamber of Commerce v. Reich (D.C. Cir. 1996).

[Longtobefree]

Oh my God!
Fascists are not following the Constitution!
Damn, whodathunkit?

[Greg J]

By "fascists", you mean the gov't thugs violating people's bodily integrity with illegal and unconstitutional "vaccine mandates", right?

[Dilan Esper]

I'm getting really sick of judges telling us how carefully they tread when issuing national injunctions and then just issuing them in cases they know are extremely controversial.

We get it. District courts want to issue the broadest possible orders against Executive Branch policies they dislike. We saw it in the last Administration, and we see it now.

But at least have the basic honesty to admit that this is what you are doing. If you really felt that nationwide injunctions are reserved only for the most special of cases, and felt that caution was warranted, you wouldn't be issuing nationwide injunctions in these cases. You'd be ordering narrower relief.

[MP]

What would narrower relief be here? We are talking about something with a hard date.

[KeithK]

Narrower relief would be to have the order only affect contractors in Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia plus all members of the trade association. In other words, only the parties to the case.

In general I agree with the idea that national injunctions are problematic. It's hard to stick to principle when one feels very strongly about an issue. That's why we probably need more specific rules controlling their issuance and have said rules created outside of a particular high profile controversy.

[Jason Cavanaugh]

How about no national injunctions in the first place?

Either courts have boundaries to their jurisdiction, or they don't.

These courts are issuing rulings over people who:

1) Are not represented in the lawsuit by anyone.
2) Are not represented on the local level to help determine the process by which these judges are appointed or elected.
3) Have no recourse against the judges who issue such rulings, because they are from another jurisdiction entirely.

As such, I'd say there isn't any due process for anyone who is beyond the jurisdiction of the court, and therefore these rulings are legally void beyond the defined jurisdictional boundaries.

[KeithK]

Getting rid of national injunctions entirely might be the right choice.

[MatthewSlyfield]

1 is not applicable when the US federal government is a party to the case. They can represent the interests of all their agents in any district court.
2) How is this applicable in a case where the US federal government is the defendant?
3) Again how is this applicable in a case where the US federal government is a direct party to a case in the federal courts? The US federal government is already everywhere that there are US district court judges.

These would be fine arguments against a national injunction in a case involving only private parties, but AFIK, such "national" injunctions are issued only against the US government in cases where the US government is a party.

[David Nieporent]

In addition to the points you raise, I don't know what he means by "recourse against the judges."

Anyone affected by an injunction can appeal, which is the only recourse one ever has against a judge.

[Rev. Arthur L. Kirkland]

Some might consider one or more of these to constitute recourse:

A motion for recusal of a judge

A complaint to a Court of Judicial Discipline, bar association, or similar entity concerning a judge

A campaign against retention or election of a judge

There may be others; those are just the ones I thought of quickly and have participated in.

[David Nieporent]

Setting aside that we are talking about federal court — I don't see any state judges issuing nationwide injunctions! — and you can't campaign against retention or election of a federal judge, all of the things you identify are available to any affected party regardless of where the judge is seated.

[Jason Cavanaugh]

It was an error on my part in not realizing that even the district court judges are appointed for life.

[Brett Bellmore]

The obvious problem with circuit courts issuing national injunctions in the case of the US government is that there are multiple circuits, and they don't have to agree. The government could prevail in 10 circuits, lose in the 11th, and be subject to an injunction that applies in the 10 circuits they prevailed in.

Kind of a slap in the face of the judges who ruled in the government's favor, no? Not so co-equal now, are they?

And that's not even getting into the potential of a national injunction conflicting with a writ of mandamus, which might itself be national...

No, national injunctions really don't make a whole lot of sense when you think about the circuits disagreeing on a subject.

[MatthewSlyfield]

"No, national injunctions really don't make a whole lot of sense"

Limiting injunctions by geography makes even less sense.

Injunctions should be limited to the parties to the case and not limited in any other way.

[Don Nico]

Dilan,
In this case there is a rational in that it does directly impose a government order on employers in all 50 states

[Greg J]

I'm curious, were you "sick of this" when Democrats were doing it to Trump?

Or are you only "sick of it" now that it's coming the other way?

[Dilan Esper]

During the Trump administration, conservatives- including on this blog- gradually convinced me more and more that it is a problem.

I don't really buy the broadest arguments against it- I don't think, for instance, it violates Article III. But I do think it's pretty obvious that the combination of the national injunction and forum shopping is basically untenable, with anyone able to obtain a full block of any administration's policy from one pliant judge.

And I think this case is a nice example about how rhetoric against it is not enough. Ideologues are gonna ideologue- they may pay lip service to the problem, but they will always find some justification to enter a national injunction.

In any event, my approach to it would be procedural. I can think of three potential rules that can do the trick:

1. Only SCOTUS can issue a national injunction; only a panel of a Court of Appeals can issue a circuit-wide injunction; and District Courts are limited to the parties and their judicial districts.

2. Only a Court of Appeals motion panel can issue a national injunction.

3. A District Court can issue a national injunction, but it needs to be heard by a randomly selected national three judge panel (perhaps 2 random District Court judges at least 500 miles away from each other, plus one random active Court of Appeals judges).

All of these possibilities will continue to allow national injunctions in appropriate cases. It will just stop the forum shopping where people go to the district where they know they are likely to get an ideological judge who hates the President and his party.

[David Nieporent]

1. Only SCOTUS can issue a national injunction; only a panel of a Court of Appeals can issue a circuit-wide injunction; and District Courts are limited to the parties and their judicial districts.

Well, the last part is untenable.

You sue over the constitutionality of a state law, and the district judge enjoins the state from enforcing it. But only in part of the state, based on arbitrary federal district line drawing? Which has no relationship to the district judge's authority or jurisdiction?

For example, Texas's social media censorship law was challenged and recently enjoined by a judge in the WDTX. Saying that this ruling is only applicable in WDTX is unworkable.

[MatthewSlyfield]

I have to agree with David. No injunctions issued by any federal court should ever be limited by geographic boundaries short of the US territorial boundaries.

The whole "national" injunction thing is a very misleading label.

Injunctions at every level should be limited to the parties to the case.

If a plaintiff wins an injunction against the US federal government, that injunction should remain valid as to that plaintiff even if the plaintiff moves from the east coast to the west coast. A plaintiff who moves from New York to California ought not be forced to re-litigate an issue he already won against the federal government.

[Dilan Esper]

If a plaintiff wins an injunction against the US federal government, that injunction should remain valid as to that plaintiff even if the plaintiff moves from the east coast to the west coast.

If the plaintiff is individual, I have no problem with that.

But a big organization should have to get an order from a higher court if they want it to be national, or separate orders in separate judicial districts.

[MatthewSlyfield]

"But a big organization should have to get an order from a higher court if they want it to be national, or separate orders in separate judicial districts."

Why? Why should a corporation or non-profit entity be forced to re-litigate the same issue against the same defendant in multiple jurisdictions?

[Dilan Esper]

Because national injunctions are being abused by litigants engaging in massive forum shopping, and single judge District Courts should have limited powers to stop the entire country from doing something.

[Dilan Esper]

You sue over the constitutionality of a state law, and the district judge enjoins the state from enforcing it. But only in part of the state, based on arbitrary federal district line drawing? Which has no relationship to the district judge's authority or jurisdiction?

You can have a different rule, or no rule at all, for state laws. This problem is limited to national action (indeed, mostly executive action).

[Dilan Esper]

(And remember, my proposal is not to ban national injunctions. It's to funnel them to higher courts. Even if we did strictly limit District Judges' power, it would just mean that parties would have to go to un-forum selected courts for injunctions. That's totally workable, even if the rule were broad. Plaintiffs and ideological District Judges just wouldn't like it very much.)

[MatthewSlyfield]

If you want to do something like that, I would say then that two things are needed.

1. SCOTUS gets original jurisdiction for all lawsuits against the federal government and/or federal agents.

2. Make SCOTUS's original jurisdiction non-discretionary. They can not refuse to hear a case brought under their original jurisdiction.

[Dilan Esper]

You don't need to give them original jurisdiction over the suits. Just require that they sign off on certain kinds of injunctions before they can go into effect.

The suits can proceed in a District Court.

[Stephen Lathrop]

Rather, as the White House's own statements have made clear, this measure is primarily intended as a public health measure.

On what planet does a public health measure against a deadly pandemic, which has resulted in actual economic shutdowns, not implicate economy and efficiency? If the court's political motive were not so transparent, this would be baffling.

[Illocust]

USG can't cite its own actions as justifications. Otherwise they could shoot fifty at a protest and use that as justification to shut the protest down.

[Rossami]

How about "Every sane planet where:
- we can see from recent history that the lack of a federal contractor mandate has not led to the shutdowns you claim
- we can read the actual law and see that it talks about the "economy and efficiency" of contracting - that is, the process. That nothing in it gives the Executive Branch a mandate to control the entire economy
- people know that giving totalitarians a blank check in the name of "public health" is just as dangerous as every other excuse they come up with

If you want to lash out at transparent political motives, maybe you should look first to the motives behind this rule in the first place.

[Stephen Lathrop]

If you want to lash out at transparent political motives, maybe you should look first to the motives behind this rule in the first place.

Well, yes. For instance, you should ask if the motive is to accomplish a legitimate constitutional purpose. If it is, any proper means is authorized. A proper means is one which is reasonably chosen to get the job done. Thank you John Marshall.

Of course, if you have never advocated textualism, or originalism, and you think the Necessary and Proper Clause can be assigned to the dustbin of history, then resort to what you think of as analysis of congressional intent is a good method too.

[David Nieporent]

Stephen,

We get that you think a single out-of-context sentence from a court case 30 years after the constitution is the entirety of your understanding of the constitution and you think it can be applied to every constitutional issue, but why are you bringing it up in cases that don't involve constitutional issues at all?

Hint: this has nothing to do with the Necessary & Proper Clause.

[Don Nico]

Stephen,
I am order as a single independent contractor who never has to go onsite. So what is the compelling government reason EXCEPT politics.
By the way it was governments that shut down the economy.

[Stephen Lathrop]

By the way it was governments that shut down the economy.

Not in my case. Nor in the cases of any member of my extended family. For all of us, it was, first, foremost, and without regard to government, Covid which curtailed our economic activity. It is Covid now which prevents us from resuming much former economic activity we otherwise would be practicing, and long to practice.

Nor, by the way, was it the government which caused my wife's multi-decade employer to eliminate her position. Or which caused me to lose my job of 11 years, and which also chopped to less than half my income from self-employment. It was Covid in both cases which caused our unemployment and economic loss, and a combination of Covid and our age and immune status which have prevented our re-employment.

I try to be reasonable, and to stay polite. But I am privately furious about politically-motivated anti-vaccination obstructionists who are gratuitously prolonging the pandemic, and costing me and my family so much, and costing the nation so much more.

There is nothing constitutionally illegitimate about a government vaccine mandate to alleviate those baleful consequences for me, for my family, and for millions of other Americans. I suppose mixed motives behind this court's obstruction, and behind political opposition to vaccines, include both resistance on principle to public health measures as too great an empowerment of government, and pure partisan hatred. The latter seems to be more the driving force than the former.

It combines a perverse willingness to prolong economic damage, and to cause needless deaths by tens of thousands, so long as that will embarrass politically the Democrats. The former may be more principled by comparison, but is far from sufficient to establish a legal foundation for a court to intervene against exercise of the Necessary and Proper clause. So under either motivation, the court is acting irresponsibly.

The aim of the vaccine mandate is constitutionally legitimate, an economic justification was legally set forth by Congress, so the purpose is sufficient, and authorized. The means of a vaccine mandate is well chosen to accomplish the aim. The court practices constitutional nihilism, and does so as a political opportunist, pure and simple.

[David Nieporent]

To quote Bill Clinton: "It's not the Constitution, stupid."

[Joe_dallas]

"I try to be reasonable, and to stay polite. But I am privately furious about politically-motivated anti-vaccination obstructionists who are gratuitously prolonging the pandemic, and costing me and my family so much, and costing the nation so much more."

Based on the currently known short term effectiveness of the vaccines (six months) , vs the much stronger and longer lasting natural immunity, the vaccine mandate may actually prolong the covid pandemic.

In the short term, vaccines are doing a good job of reducing the severity of the covid infection, at least in the under 65 age group, though not nearly as effective in reducing severity in the 65+ age group.

If the vaccines were effective long term similar to the polio vaccine or other virus vaccines, then yes, a vaccine mandate would be an effective short term and long term solution. However, this is vaccine for a coronavirus which there never has been a successful long term vaccine,

[David Nieporent]

Based on the currently known short term effectiveness of the vaccines (six months) , vs the much stronger and longer lasting natural immunity,

Each of the facts in this quoted excerpt are made up.

[Joe_dallas]

David Nieporent
December.9.2021 at 10:14 am
Flag Comment Mute User
Based on the currently known short term effectiveness of the vaccines (six months) , vs the much stronger and longer lasting natural immunity,

"Each of the facts in this quoted excerpt are made up."

All the statements I made are correct - you would know that if you were up to speed on the current data. Quite frankly it is surprising that you are that illinformed on the current state of knowledge.

[Joe_dallas]

Neiporent -
Just one of the many studies showing natural immunity is much stronger than vaccine immunity
"Results SARS-CoV-2-naïve vaccinees had a 13.06-fold (95% CI, 8.08 to 21.11) increased risk for breakthrough infection with the Delta variant compared to those previously infected, when the first event (infection or vaccination) occurred during January and February of 2021. The increased risk was significant (P<0.001) for symptomatic disease as well. When allowing the infection to occur at any time before vaccination (from March 2020 to February 2021), evidence of waning natural immunity was demonstrated, though SARS-CoV-2 naïve vaccinees had a 5.96-fold (95% CI, 4.85 to 7.33) increased risk for breakthrough infection and a 7.13-fold (95% CI, 5.51 to 9.21) increased risk for symptomatic disease. SARS-CoV-2-naïve vaccinees were also at a greater risk for COVID-19-related-hospitalizations compared to those that were previously infected."

Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity: reinfections versus breakthrough infections
Sivan Gazit, Roei Shlezinger, Galit Perez, Roni Lotan, Asaf Peretz, Amir Ben-Tov, Dani Cohen, Khitam Muhsen, Gabriel Chodick, Tal Patalon
doi: https://doi.org/10.1101/2021.08.24.21262415

Try to be current on the science -

[David Nieporent]

If you want to be "current," and you think there are "many studies," why are you still citing the same one months-old non-peer-reviewed study that doesn't say what you claim as your entire argument?

[Joe_dallas]

David Nieporent
December.9.2021 at 3:03 pm
Flag Comment Mute User
"If you want to be "current," and you think there are "many studies," why are you still citing the same one months-old non-peer-reviewed study that doesn't say what you claim as your entire argument?"

A ) the study does state that natural immunity is much stronger 13x which is consistent with my statement.
B) breakthrough covid infection cases are currently comprise approx 30-50% of total cases while reinfections are comprising approx 1 % of total cases. See Minnesota data. at healthy skeptic dot com

[Brett Bellmore]

"For all of us, it was, first, foremost, and without regard to government, Covid which curtailed our economic activity."

What, it stood across your door, saying, "None shall pass!"? The virus fired your wife, and you? The virus did this?

No, it was your own and other people's reactions to the virus, that curtailed your economic activity.

It's important to retain this distinction, because if people overreact, you can't even say the virus was a proper causal factor.

[Life of Brian]

What, it stood across your door, saying, "None shall pass!"? The virus fired your wife, and you? The virus did this?

Hey, Peppermint Psaki basically said last week that COVID caused the recent wave of organized looting across the country.

It's become the secular equivalent of "the devil made me do it."

[Brett Bellmore]

Averaged over the last couple of years, Covid has been a distant 3rd cause of death. Most of the time it's been more like the 6th cause of death. Admittedly, it edged into the lead during peaks.

If heart disease doesn't disrupt the economy, there's no freaking way Covid could have. It just wasn't killing enough people to directly have any measurable economic impact.

Not that I would have recommended doing it, when even some cost-effective measures would have reduced the death toll, but we could have simply ignored Covid, gone about our lives with no changes AT ALL, and the economy would have been fine. It would have reduced life expectancy by an estimated 1-2 years, about what it was in the year 2000.

I'm sure we all recall the ghastly stench that year, from the dead bodies stacked up like cordwood, the way the entire economy was shut down on account of the life expectancy only being 76 years on average.

No, basically all the economic toll from covid was iatrogenic.

[Greg J]

On what planet does a public health measure against a deadly pandemic, which has resulted in actual economic shutdowns, not implicate economy and efficiency

1: The shutdowns were casued by idiotic government policies, not Covid.

2: Make a graph. X axis is "State % fully Covid vaccinated". Y axis is "State new Covid cases per 100k people"

Put in a data point for every State, for every week since April of this year.

If you find a nice line going from the upper left to the lower right, then it's a (valid) "public health measure".

Since that's not what you're going to get, it's not a valid public health measure, it's just bullies wanking off at throwing their power around.

[David Nieporent]

"Siri, show me someone who doesn’t understand science."

[Joe_dallas]

One of the best metrics to compare among states / counties is the per capita death rates by age.

As of the Nov 15th, deaths per 100k for the 65+ age group ranged in a very narrow band of between 1150-1300 per 100k . This was true in almost all states and down to the county level as well. It didnt matter whether the state was run by the covid paranioa crowd such as newsom, waltz in minnesota, CA, colorado or the run by the covid is a hoax crowd such as abbot in Tx or desantis in FL, or ND or SD.

the point being is that mitigation (or the lack of mitigation) is playing a far lesser role, if any role at all, in controlling covid.

[Stephen Lathrop]

This was true in almost all states and down to the county level as well.

Maybe so. Without a citation, who knows what you are looking at?

The figures you cite do not apply to my county (CDC data, published daily in the NYT), nor to many counties in the Northeast region, which show death rates higher than you say, even without the age 65 cutoff. Death rates above age 65 will of course be higher still in those places.

Notably, some regions and particular places have been far more severely challenged than others. In New York City, during the first few months of the crisis, it was literally true that corpses were accumulating too fast to bury them. They actually were piled in the streets, by the thousands, albeit tastefully concealed in refrigerated vans. It would seem hard to imagine anyone so callous as to conclude that to avoid social contacts during an occurrence such as that is, "overreaction," but at the VC we have Brett Bellmore to come right out and say so.

I guess Bellmore must think me a coward at age 75, with lifelong autoimmune disease, if I continue to avoid movie theaters and dining at restaurants indoors, even if the government does not order me to do so. Problem is, even with me triple vaccinated, my expert doctors are powerless to predict what will happen to me if I get exposed.

No one has done that research. People with my diagnosed conditions were systematically excluded from clinical trials. Subsequent case analysis has apparently failed to fill the gap. Very good clinicians say to me that I should be cautious. They have watched countless people die despite their best efforts. My case is not freakishly rare. There are millions of others similarly situated.

See, Joe-dallas, our problem is that your averages do not apply to us. Our hazards are greater, and we are all too conscious that the majority of Americans don't care about that. Many care so little in fact, that the inconvenience of a vaccination—or a foregone opportunity to, "own the libs," matters more to them.

I have lost patience with people like that. Your behavior, and Bellmore's behavior, example the reason why. If it takes employer mandates, or government mandates, to turn that around, it cannot come soon enough. If you had any sense, you would worry yourself about the hazard of leaving Covid unsuppressed, to do whatever ruin genetic happenstance might enable.

[Joe_dallas]

Lathrop comment - " I have lost patience with people like that. Your behavior, and Bellmore's behavior, example the reason why. If it takes employer mandates, or government mandates, to turn that around, it cannot come soon enough. If you had any sense, you would worry yourself about the hazard of leaving Covid unsuppressed, to do whatever ruin genetic happenstance might enable."

"The figures you cite do not apply to my county (CDC data, published daily in the NYT), nor to many counties in the Northeast region, which show death rates higher than you say, even without the age 65 cutoff. Death rates above age 65 will of course be higher still in those places."

True - the death rate for the the age 65+ in the NYC area are higher than the narrow range I previously mentioned (1100-1250 per 100k). That of course is due to the dumbass governor from NY. Florida death rate for the age 65+ group is on the lower range of the narrow band (approx 1140 per 100k)

You have lost patience because you are demanding that everyone take every mitigation step possible to reduce your risk , no matter how trivial it reduces your risk. Due to the weakness of the vaccines, a vaxed person ability to transmit covid is only marginally reduced whereas a person with natural immunity abilty to be a transmittor is substantially less than a vaxed person (after 6 or so months).

I am looking at the long term solution which is acquiring natural immunity through out the population. These vaccines are only temporary/short term solutions.

Lantrop comment - " Notably, some regions and particular places have been far more severely challenged than others. In New York City, during the first few months of the crisis, it was literally true that corpses were accumulating too fast to bury them. They actually were piled in the streets, by the thousands, albeit tastefully concealed in refrigerated vans. "

No they were not - Does your BS meter not work!

[Stephen Lathrop]

Joe_dallas, the NYC burial problem was the subject of multiple NYT articles. It was exceptionally well documented, with reports from the funeral industry, from hospital morgues, from public officials, from relatives of the dead, and with photographs showing corpses being loaded into refrigerated semi-trailers. Each trailer was equipped to stack corpses 4-high, along each side, so at least 48 corpses per trailer, probably more. Other photographs showed those semi-trailers lined up alongside the curbs on city streets, near hospitals, and in residential areas. There were counts of the trailers. If memory serves, at one point there was a report of 57 of them. In the photographs I saw published, the refrigerator units on the trailers were all labeled with big letters, "THERMO KING."

Please stop lying and minimizing. Before this is over—before this winter is over—there will be deaths from Covid approaching one million, heavily concentrated in one age demographic. In my county there have so far been about 1,600 deaths. If you drive from north to south through the county, on average, every mile, you pass the homes of about 30 people who Covid killed.

I am not demanding that, "everyone take every mitigation step possible to reduce [my] risk." I am demanding that everyone take the one trivial, barely-inconvenient-step which would do the most to protect everyone, and to restore the nation's economy—which is to get fully vaccinated.

I am of course mindful—as is everyone who is paying attention—that red-state, pro-Trump regions have also turned pro-Covid. That seems to include you. All your obfuscations are belied by the already massive, and continuously increasing, disproportion of Covid case rates and Covid death rates among Trump-voting states vs. Biden-voting states.

I don't know what to make of you personally. Your persistent cherry-picking, lying, and minimizing on this blog looks either staggeringly stupid, or staggeringly immoral, or both. I hope you are not actually in possession of normal cognition, and doing that cynically.

For the second year in a row, I will today cancel travel plans to visit extended family over the Christmas holiday. Previously, for 34 years running, my family had never missed attending. It was always a huge party, with more than 60 people. This year, almost no one will be there. The government is not making that happen. Covid—and stupid, mendacious, malicious responses to Covid made that happen.

[J Norton 2]

When district court judges issue nationwide orders summarily ending executive department public health measures during an economically crushing pandemic, can the populace be blamed for seeing the federal judiciary as unelected partisan politicians in black robes?

[AtR]

You seemed to like the unelected partisan politicians when Trump was in power ...

I think that there is no question to any objective observer that Biden is pulling out all stops and crossing whatever boundaries in search of a way to mandate vaccinations. Even if you feel that the goal is worthy, imagine how the approach can be abused by those you despise.

[J Norton 2]

I don't begrudge politicians being partisan--as long as they are elected to one of the two political branches. Political judges undermine public confidence in our legal system, whichever side their partisanship falls.

[Don Nico]

JN,
If you don't like our system, which the judiciary is operating squarely in, then you can vote with yur feet

[Stephen Lathrop]

Don Nico, there is nothing square about a junior-grade hack judge operating from a low level of the federal judiciary to overturn nationally the use of critically needed federal power to achieve a constitutionally legitimate end. That is ill-motivated overreach, with actually deadly import, courtesy of a pipsqueak.

You may suppose political disagreement justifies court intervention nationally. If so, think again.

The Biden administration was elected nationally, and is acting constitutionally. Judge R. Stan Baker, a 44-year-old recent appointee of the defeated Trump administration, acting from his perch in remote southern Georgia, enjoys no such national legitimacy. His normal jurisdiction extends to courts (or maybe just offices) in, Augusta, Brunswick, Dublin, Savannah, Waycross, and Statesboro—three of which are listed as, "Not always fully staffed."

[David Nieporent]

The Biden administration was elected nationally, and is acting constitutionally.

Whether it was "acting constitutionally" was not the question before the court.

And no, that's not what the district judge's jurisdiction is. You're using terms you don't understand.

[Stephen Lathrop]

Nieporent, among legitimate constitutional ends, it is not up to the court—not even the SCOTUS— to decide which are necessary, and which it may presume to bar the executive from pursuing. Of course you and I will probably also disagree whether the executive enjoys inherent emergency power during a deadly pandemic event. Whether it does or not, this judge is not the one to decide the question, even temporarily, for the entire nation.

[J Norton 2]

No, Don Nico, I will vote at the ballot box as true patriots do. My complaint is that I have no vote on judicial usurpers. The political branches can and should correct that.

[Kazinski]

I think the nationwide injunction isn't warranted, like most nationwide injunctions, although there is a much better case for it in the 6th circuits nationwide OSHA regulation case.

But I definitely think the contractor mandate should be struck down because it doesn't seem like congress gave the President that power in the procurement act. The Senate voting to rollback the vaccine mandate regulation for private employers seems to validate that viewpoint.

[MK Ultra]

Not all heroes wear capes.

[Greg J]

1: You had no problem with Democrats "judges" doing it to Trump

2: None of those executive department orders had the slightest bit of legality behind them.

You want a Federal gov't vaccine mandate? Get Congress to pass one.

What the American people are seeing is a lawless Administration being properly blocked by a judiciary that's enforcing the law and Constitution, rather than your personal political.

And no, we don't think that's a bad thing

[J Norton 2]

"1: You had no problem with Democrats "judges" doing it to Trump"
Yes I did.

[Greg J]

t happened

Now it's going to happen to the Democrat President

Welcome to the wonderful world of precedent

[Scribe]

I'm an employee of a federal contractor. All we make, we make for the federal government. Everything we buy or sell, is subject to federal procurement rules. We've been staring at this mandate for some time now. The workforce is almost all skilled trades of one sort or another, fully unionized, with excellent pay and benefits. I'm vaccinated.
When the idea of the mandate for government contractors was first broached, management decided it had to get out in front of it. So, they decided to make an offer employees would be loath to refuse: show us proof of vaccination and you get an extra day of paid vacation at Christmas, tacked onto the front of the break we take. Gratis. The unions went in on it, too.
And, if you need a vaccination, we'll make it easy for you to get it, here, free. And still give you the paid day off.
As an aside, this gave the company (and the unions) a good handle on just how many people were, in fact, vaccinated.
As the deadline started looming, there were wild "town hall" meetings featuring employees adamant against being vaccinated (for whatever reason) and livid over the possibility of losing their jobs over it. And management, as best as anyone could tell, caught in the middle really upset both by having to deliver this to their employees and by hearing what their employees had to say. And further upset by the knowledge that there was no way they could meet the government's procurement targets if the mandate went into effect.
This, because after all their efforts and giving away money and free time, the results of their campaign to get their workforce vaccinated were this: about half of the workforce was not vaccinated. And that "half" is not a small number.
I'm sure the number of unvaccinated has gone down since, but it wasn't that long ago and there aren't long lines at the immunization center.
How forcing the discharge of a substantial portion - whether a fifth, a quarter, a third, a half - of a skilled workforce performing difficult work requiring extensive training is going to promote "efficiency" and "economy" in federal procurement is beyond me. In reality, it will gut federal procurement.

[Stephen Lathrop]

Scribe, you sound thoughtful, but worried. Don't worry so much. Experience elsewhere with private employer mandates shows federal procurement won't suffer long.

Nor is there much reason to suppose federal procurement cannot do without whiney, politically-motivated anti-vax cases. Skilled though they may be, as Charles deGaul remarked, "The graveyards are full of indispensable men."

Others will step up. If need be, your employer will train them. The process will benefit the nation, by adding newly-skilled workers.

And by the way, when people choose to quit, nobody is, "forcing the discharge." Make no mistake, vaccination is not a heavy burden, and by your description not a burden at all at your workplace. Quitting a job in response to almost nothing is a choice.

[David Nieporent]

How forcing the discharge of a substantial portion - whether a fifth, a quarter, a third, a half - of a skilled workforce performing difficult work requiring extensive training is going to promote "efficiency" and "economy" in federal procurement is beyond me.

Well, it eliminates the stupid portion of the workforce, which would seem to make it more efficient.

Also, your numbers do not match the experience of large employers generally, which are seeing on the order of 1% of their workforces choosing unemployment over vaccination.

[Variant]

Can common sense apply at all here? There's no way congress intended the procurement act to ever be a vehicle for mandating vaccinations on people who don't even work for the federal government. It's just absurd on its face.

I think this injunction stands.

[OtisAH]

“Although purporting to ‘tread lightly when issuing injunctive relief,’ Judge Baker ordered a nationwide injunction.”

What he meant was his initial instinct was to make it a worldwide injunction.