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Vaccine mandates

Thoughts on Sixth Circuit OSHA Vax-or-Test Mandate Stay Decision and What Comes Next (Updated)

The question of whether to stay the BIden Administration rule requiring large employers to mandate vaccinations or testing is now before the Supreme Court.

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Friday evening, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the stay barring implementation of the Occupational Safety and Health Administration's Emergency Temporary Standard requiring large employers to mandate vaccination or regular testing for COVID-19. (Josh Blackman noted the decision here.) The stay had been entered by the U.S. Court of Appeals for the Fifth Circuit before challenges to the rule were consolidated in the Sixth Circuit. Earlier this week the Sixth Circuit also denied a petition for initial hearing en banc by an 8-8 vote.

The first applications for emergency relief were filed at One First Street almost immediately. Numerous states and interest groups challenging the OSHA rule filed emergency applications for a stay of the rule, in addition to petitions for certiorari before judgment.

The Sixth Circuit opinion vacating the stay was written by Judge Stranch, written by Judge Gibbons, who also wrote a brief concurrence. Judge Larsen dissented. Although the panel split 2-1, half of the Sixth Circuit joined Chief Judge Sutton's dissent from denial of the en banc petition.

Unlike the Fifth Circuit opinion imposing the stay, both Chief Judge Sutton and Judge Larsen's opinions focused more narrowly on OSHA's statutory authority without unnecessary forays into broader constitutional questions or overbroad claims. On the Sixth Circuit, the judges honed in on the language of the OSH Act, how that language has been interpreted and applied by OSHA and  the courts over the past fifty years.

Judge Stranch's opinion vacating the stay was also carefully reasoned, but was also sloppy at points. For example, at page 29 Judge Stranch writes that OSHA tailored the ETS by excluding workplaces where the risk is significantly lower, including those where employees are working exclusively outdoors, remotely from home, or where the employee does not work near any other individuals," citing 86 Fed. Reg. 61516. This is wrong. OSHA's rule does not exempt such workplaces. Rather, as OSHA makes clear on the very page Judge Stranch cites, the exemption "depends on the working conditions of individual employee."

In my view, the dissenters have the better of the argument. While OSHA likely has the authority to impose more stringent rules to prevent the spread of COVID-19 in the workplace, the actual ETS OSHA issued is difficult to square with the agency's statutory authority.

Insofar as one thinks the statutory question is a close one, the major questions doctrine may tilt the scales. As the Supreme Court has made clear in a number of decisions (and most recently in its decision rejecting the CDC's eviction moratorium), courts should be wary of broad assertions of agency authority, particularly where an agency seeks to exercise authority it has not identified or utilized previously. The idea here is that agencies only have that regulatory authority that Congress has delegated to them, and the onus is on the agency to demonstrate that such authority exists. The broader, more unusual, or less precedented the assertion of  authority is, the greater the burden on the agency to show it was delegated the authority it asserts. In effect, courts must engage in a "step zero" analysis to assure themselves that an agency has the authority it purports to exercise before worrying about whether the agency exercised that authority in a reasonable or acceptable way (or so I argue in this forthcoming book chapter).

For these reasons, insofar as the justices find the statutory question a close one, I suspect the major questions doctrine will make the difference with them as well. As noted, the Court's majority cited such concerns when invalidating the CDC's eviction moratorium. The Court further signaled its interest in this approach to interpreting regulatory statutes by accepting certiorari in a set of cases concerning the Environmental Protection Agency's authority to regulate greenhouse gases from power plants in which the major questions doctrine will have a starring role.

Assuming the Supreme Court does take up the OSHA ETS, either to impose a stay or accept certiorari (if not both), I suspect the Court will rule against OSHA and, in effect, put an end to the rule. Under the OSH Act, an ETS may only be in place for six months, before it must be replaced with a permanent rule (adopted after notice and comment). So if the rule is stayed, it may expire before it ever really takes force.

The Sixth Circuit may have given OSHA good news on Friday, but the outlook for the OSHA vax-or-test ETS is still not a good one.

UPDATE: Given some of the comments I have received I thought it was worth digging a little bit deeper into some of the considerations that will affect whether the Supreme Court intervenes.

When the Supreme Court was first asked to block the CDC's eviction moratorium, Justice Kavanaugh cast the deciding vote against enjoining the rule, opting to let the policy expire on its own accord, while warning that (unless Congress were to authorize a moratorium) a renewed CDC effort would be struck down. Is it possible that the Supreme Court would take the same course here? I do not think so, for a few reasons.

First, when the Supreme Court first confronted the eviction moratorium, it was due to expire within one month. The OSHA ETS, on the other hand, has a fair amount of time left. Although the ETS is "temporary," it lasts for six months, and because it took effect in early December, it will last until May (longer were a Court to allow OSHA to toll the standard in light of the Fifth Circuit's stay).

Second, compliance with OSHA's ETS is, in many respects, more "permanent" than the CDC eviction moratorium. While a landlord could evict a tenant when the moratorium ended, once employees are vaccinated, that cannot be undone. So, as when the Court stayed the Clean Power Plan, I suspect some justices will be concerned that letting the OSHA standard stay in place will allow the agency to get the benefits of its rule without meaningful judicial review.

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  1. "Under the OSH Act, an ETS may only be in place for six months, before it must be replaced with a permanent rule"

    OSHA extended the deadlines under the rule after the 6th circuit vacated the stay. https://www.osha.gov/coronavirus/ets2

    I am a little unclear whether this resets the clock on the 6 months.

    1. It shouldn't. The six month period relates to the time needed to do notice-and-comment rulemaking, not how long an emergency lasts.

  2. Not to change the subject, but what happened to "Short Circuit" this week?

      1. Thank you! I looked for it this morning and totally missed it! It's one of the posts each week I try not to miss.

  3. Not a lawyer, so unable to make a legal argument for this, but it has long seemed to me that in at least two kinds of cases—military emergencies, including rebellions and foreign invasions, and public health emergencies—the Constitution has been treated as conferring an inherent emergency power to the executive branch. If that were so, it seems to me that Blackman's invocation of the major questions doctrine would be off the mark here.

    Are there any lawyers who want to weigh in on whether my intuition is legally supportable? For instance, the legal basis of the Korematsu case—which seems not to have been in question when the case was overturned on a factual basis—would, it seems to me, have been contrary to Blackman's major questions interpretation. I suspect that a good deal of military conduct during the Civil War has likewise been treated as lawful by emergency military necessity—including even the emancipation of all the slaves in areas under Confederate control. Surely Lincoln's emancipation of slaves was understood at the time as a major question.

    Likewise the massive, systematic destruction of Confederate civilian property ordered by generals Grant, Sherman, and Sheridan, which as far as I know was challenged only unavailingly by southern property owners. Is there any instance to the contrary, where a property claim from a southern citizen was granted due process and prevailed? Keep in mind that from start to finish of the Civil War, it was the official position of the Lincoln Administration that the Confederacy remained part of the United States.

    Originalists like to reach to pre-Constitutional sources for precedent to justify the 2A. Perhaps they should likewise stay mindful of Washington's emergency smallpox vaccination program at Valley Forge. That was implemented at a time when everyone understood that the crude vaccination techniques available would certainly deliver deadly results to a notable fraction of those vaccinated, as it did among Washington's army. Was that legally challenged?

    Is there a legal case to be made that the Constitution and legal precedent protect an emergency power inherent in the executive branch, and if so, how far does it extend?

    1. "it has long seemed to me that in at least two kinds of cases—military emergencies, including rebellions and foreign invasions, and public health emergencies—the Constitution has been treated as conferring an inherent emergency power to the executive branch"

      Everything is a public health emergency and we are at war with everything, like drugs.

      Quite the opposite, the framers were afraid that the executive would declare perpetual war to justify exorbitant powers.

      1. "Quite the opposite, the framers were afraid that the executive would declare perpetual war to justify exorbitant powers."
        exactly correct DWB

      2. Well it's just a darn shame that the framers didn't do a better framing job. They should never have let the executive be the declarer of war. Might I suggest we amend the constitution to let only the Congress have the power to declare war. That way the executive could constitutionally take action to prevent the death of another million or so citizens from a disease that has a safe and effective vaccine. Surely that would be reasonable to anyone who isn't a trogdolyte zombie.

    2. SL,
      We'll see this week as Biden is going to declare defeat in crushing the virus and scold the nation that we must live with it. That will implied he is a failure OR he will declare a perpetual emergency and claim perpetual emergency powers.
      That extends until is majorities in Congress are broken.

      1. Don Nico : (Biden will "declare defeat" or "claim perpetual emergency powers")

        And he'll do so this very week !!!!

        In one small way, I'm envious of the right-wing mind. If I want fantasy drama, I have to go to the movies, theater or opera. A right-winger can conjure up phantasmagorical spectacles in the fevered depths of his mind.

        So let's go on record here: Faced with the choice that Biden will "declare defeat" or "claim perpetual emergency powers" (in this very week!), I chose "none of the above". I'm going out on a limb here, but it's a very solid non-phantasmagorical limb.

        1. I guess that you did not read the CNN news pieces today. This did not come from Breitbart or Fox or some other right wing news source. You actually should be more careful when you think you can identify someone's political or sources of information,
          Try this from CNN
          "Some of Biden's advisers are encouraging the administration to begin discussing publicly how to live alongside a virus that shows no signs of disappearing, a potentially stark shift in messaging for a White House that once touted "freedom from the virus."
          Steering public attention away from the total number of infections and toward serious cases only -- as some Biden advisers have encouraged -- could prove a challenge after nearly two years of intense focus on the pandemic's every up and down. It is a part of a growing conundrum that Biden faces as the Covid-19 pandemic refuses to abate."
          In other words, the message is to "live with COVID-19". Biden's stark message about severity in the vaccinated and unvaccinated, is going to be his way of justifying prolonged mandates.
          But "living with COVID-19, is an acknowledgement of a perpetual emergency.
          Try opening your eyes and ears for a change.
          And while you're at it get a flu shot.

          1. When is the last time anyone talked about eradication? Messaging about Covid being endemic is not really news, nor is it declaring defeat since no one has been tracking that style of victory since Delta became a thing.

            Also, stories about 'some of Biden's advisors' are not really something to go with as 100% what Biden's gonna do.

            1. When is the last time anyone talked about eradication?

              Type "Zero Covid" into your search engine of choice and get back with us. You really don't appear to get out much.

              1. I don't mean twitter randos stanning for the PRC.

            2. S_0,
              Just because the word is not used, that does not imply that the the intention is not there. You know better than that.
              Moreover, the message that we will have to live with the virus is very likely in biden's mind. Also you may have noted on CNN.com that Kamela Harris says that the administration was taken by surprise by Delta and Omicron.
              I am afraid that partisan don't want to face the realities of what the inner circle is thinking.
              The US is extremely unlikely to get to the point of control of the UAE or China because dictatorial measures will not be imposed here.

              1. I disagree with you that eradication has been the message. In fact, elsewhere I quoted the actual campaign promise, which is pretty clearly crafted to not be aiming for eradication.

                IOW, I agree with you about what the inner circle is thinking, I just don't think it's new or news.

                I don't read cnn.com, but I'm a bit surprised the variants were a surprise, since the CDC is actively tracking variants.

                1. What CDC employee do and what reaches the inner sanctum are very different matters.
                  But do listen to what the defenders of the Administration post or imply. Their message is that SARS-CoV-2 will be eliminated as a public health threat that has not been done ecept in places like China (if you believe their numbers) or the UAE. It is true that Taiwan has done well acting as an actual democracy.
                  I've had CNN as my home page since the 2000 election.

          2. Don Nico : "I guess that you did not read the CNN news pieces today... (etc)"

            A week has seven days, dating from tomorrow. You sound very confident the second hand chatter above will result in a Dramatic Event, and Biden will "declare defeat" or "claim perpetual emergency powers".

            I think your belief is laughable. The clock is ticking......

            1. GRB,
              Nice response. your just another one who can't face the relity that there is near nothing that the administration can do to control infections. So the plan is NOT to discuss thenumber of cases.
              Your naïveté is laughable.

              1. Please don't try and change the subject, as that would be uncharacteristically low-grade weaseling. You said Biden will do one of two things this week: "Declare Defeat" in the fight against covid, or "Claim Perpetual Emergency Powers".

                Now, you said that because it sounded nice rolling off the tongue and you couldn't resist the temptation. Fair enough, but it was a still a ludicrous thing to say. Politicians don't "declare defeat" against an enemy unless there's overwhelming political pressure, which isn't the case here.

                And Biden won't be claiming "Perpetual Emergency Powers" either. Not this week, or the one after, or the any week following. That's just more drama-queen silliness on your part.

                My point is this : You engaged in a little hyperbole and got called out - end of story. Your smokescreen retreat above is totally unnecessary.

                1. !) I did not say "Or." I basically said "and."

                  2) Read his speech, he is basically trying to scare his political opponents (as foolish as they may be) into submission. I read that as declaring defeat. Of course, he is not saying, I f*cked up or I give up.

                  3) If the nation is going to have to live with new VoC's, the either he is going to declare an effective perpetual emergency OR orders like the OSHA mandate will expire.

                  I don't have advice for Biden. I do recommend that people be vaccinated and follow prophylatic measures such as masking. I that is not enough for you, too bad. Your polemicizing makes you the drama queen.

                  1. Don: I did not say "Or." I basically said "and."

                    This is getting a tad obsessive on your part. I graciously invited you to stop digging, and yet here we are. The quote from you:

                    "We'll see this week as Biden is going to declare defeat in crushing the virus and scold the nation that we must live with it. That will implied he is a failure OR he will declare a perpetual emergency and claim perpetual emergency powers"

                    Dude, you even wrote "OR" in capital letters. Or - to rephrase - you even basically wrote "OR" in capital letters.

                    Why on earth are we still discussing this ?!? Just let't go....

    3. Even if you think there is inherent executive power (which I don't really buy- it would be terrible if Congress enacted massive restrictions on POTUS' power to fight a pandemic, but if did so with veto proof majorities, the President would either need to obey them or face impeachment and removal), in THIS instance, we're dealing with a statute. This regulation isn't enacted pursuant to any free floating executive power- it is enacted under the OSHA statute. I think it complies with that statute- others, including OP, disagree. But its legality is definitely measured against that statute- if the statute does not authorize it, Biden can't do it.

      1. Dilan, your remark seems predicated on the notion that an executive emergency power is not inherent, but derived only from legislation. Fairly obviously, constitutionally authorized executive powers cannot be outlawed by Congress. The President is commander in chief of the armed forces; the Congress can't change that by law. I'm sure you get that.

        My hypothetical asks whether the President has emergency powers which Congress does not govern. History, at least, suggests that has at times been a thing. I am asking for the case from law and history to overturn any such presumption. How do you get rid of the Civil War precedents?

        1. Youngstown Sheet & Tube rejected President Truman's claim that as Commander in Chief during the Korean War he was authorized to seize the steel mills without Congressional authorization.

          1. Right. Stephen Lathrop is engaging in the old "whatever I personally think the Constitution ought to mean is what it means" trope. Youngstown certainly suggests that the notion of inherent executive power not subject to Congress is very dicey. And SCOTUS is entitled to make that decision under the Constitution, whereas Article III doesn't appoint any Volokh commenters to decide it.

            At any rate, Congress HAS spoken here. There's a statute. "What if there were no statute?" is an irrelevant question.

            1. Dilan, I did not ask, "What if there were no statute?" I did ask (by implication, but clearly) whether a statute could deprive the President of his power as commander in chief. I thought it safe to concede you got that. Oh, well.

              Nor, by the way, am I indulging any fantasy about a personal power over constitutional meaning. I actually don't think you can suppose that in good faith.

              I am trying to put a few legal experts on your mettle to deal with a few bits of history which you seem to want to avoid talking about.

              1. A valid statute can deprive the President of power. The President's obligation is to take care that the laws be faithfully executed. That means any violation of a valid statute by the President is a constitutional violation. And obviously Congress can enforce that through the impeachment power.

                The Youngstown decision pretty much resolves that. Truman thought it was needed to seize the steel mills to fight the Korean War, but it didn't matter- there's no inherent power.

                Again, though, I emphasize- there's a statute here. Even if you believe that Presidents have some inherent power to act in emergencies in the absence of a statute, there IS a statute here, and Biden, by the way, is acting under that statute. He's not asserting any emergency power; he's just saying he can act under the OSHA standard. So that determines its legality.

                1. Dilan, tell me what is wrong with these sentences:

                  1. A valid statute can deprive the President of the veto power.

                  2. A valid statute can deprive the President of the pardon power.

                  3. A valid statute can deprive the President of the power to command the army.

                  1. I did not see DE suggest that congress can remove powers specified to the executive in the constitution. I also did not see you provide any actual verbiage in the constitution conferring emergency powers. You seem to find these powers "inherent" but would help your cause to quote some.

                  2. Stephen,
                    Your examples are childish and rather irrelevant to the point you had been trying to make. But it is to be expected from someone backed into an intellectual corner.

                  3. The constitution grants the president the veto power, the pardon power, and the power to command the army. Therefore, a statute that purports to take those powers away is definitionally not valid.

                    What does that have to do with your bizarre pandemic obsession, given that the constitution gives the president exactly no power over pandemics? (Or any other emergency, for that matter?)

                    1. Nieporent, your second paragraph sorts poorly with history, although of course emergency power is not mentioned explicitly in the Constitution. For Lincoln's interpretation on behalf of constitutionally implicit emergency power, see below my quotation from his July 4, 1861 address to Congress.

                      That instance of emergency power is of course more than rhetorically evident, given that Lincoln acted on it repeatedly, delegated it to the military, and for several years—during an emergency caused by insurrection, which Lincoln cited—made use of that power a feature of his wartime governance of the nation. In all of that, Lincoln suffered no legal constraint, except the self-constraint he mentioned. History seems to show that Lincoln's use of implicit emergency power was acknowledged.

                      One point which seems to be all-but-explicit in Lincoln's justification for that kind of emergency power, is that the threat to the nation should be overwhelming, perhaps existential. I can understand why vaccine mandate opponents might conclude that condition is not met by the present Covid pandemic. But that overlooks at least the fact that the pandemic has demonstrably been an existential threat to older Americans, killing them by hundreds of thousands, with no certain end in sight.

                      In a similar vein, that lack of an end date is cited by emergency power opponents, as implicating a threat of open-ended usurpation. That does not seem cogent. Emergency conditions cannot be expected to conform to pre-designed timetables. They define their own durations. If assessment that such threats are existential is warranted, then fears of hypothetical usurpations fade by comparison.

                      Until the end of Covid is not only predicted, but also realized, the extent of threat it represents cannot be fully known. A possibility of far worse to come can neither be ruled out nor wisely belittled—and what has happened already makes that possibility imposing. In my view, the threat continues, and is threat enough to justify emergency power on the basis of Lincoln's criteria.

                      I understand you may disagree, and certainly expect others to. Many of those others have already shown by their arguments that wise practical judgment does not feature among their concerns so much as defense of purely ideological priors. In a case such as this one, I have more patience for practical arguments than ideological ones.

                2. It is often the case that when an emergency occurs there is no statute on the books to deal with it. That's why its called an emergency. It is always the case that an emergency leaves little time for legislative debate. The president doesn't need no stinkin' statute like the OSH act to order vaccine mandates. He has that inherent power. He is not a figurehead for God's sake. The Congress can by statute nullify such an order, and the Supreme Court can also be asked to overrule his judgment. At some point the populace has to have faith that one of these two other branches will quickly deal with outrageous executive orders. But it is folly to tie his hands behind his back.

                  1. Blackstone
                    December.19.2021 at 5:11 am
                    Flag Comment Mute User
                    It is often the case that when an emergency occurs there is no statute on the books to deal with it. That's why its called an emergency. It is always the case that an emergency leaves little time for legislative debate. The president doesn't need no stinkin' statute like the OSH act to order vaccine mandates. He has that inherent power."

                    No he doesnt - and you know he doesnt - or at least you should know

        2. "History, at least, suggests that has at times been a thing."

          No, it suggest that Congress at times has let the President get away with shit that they probably could have stopped if they wanted to.

          I'm not a lawyer either. My personal opinion is that the only emergency power the President has directly from the constitution is the power to use the military to repel a foreign military invasion of US territory. This would be inherent in his position as Commander In Chief, but from what other provision in Article 2 would any other emergency power derive?

        3. "The President is commander in chief of the armed forces; the Congress can't change that by law. I'm sure you get that."
          Wow! Telling a lawyer that is about as insulting as one can get and from the former publisher of a neighborhood news paper to boot

    4. Is there a legal case to be made that the Constitution and legal precedent protect an emergency power inherent in the executive branch, and if so, how far does it extend?

      The problem is in the first three words of your comment. Because you're not a lawyer and just revert to your talking points about sovereignty or emergency or whatever whenever challenged, you routinely fail to grasp the issue. Not everything is about the constitution. There are threshold statutory questions.

      To answer your question, I know of absolutely nothing in U.S. law or history that says anything about the executive having constitutionally inherent emergency powers relating to public health. (The Valley Forge example — besides predating the constitution — only applied to the military, so is not relevant. Generals can order troops to do lots of things that they can’t order civilians to do.)

      Now, to the extent that you're talking about military exigency, I suggest you read Youngstown Steel, a/k/a the Steel Seizure Case.

      1. Nieporent, Youngstown? No invasion. No rebellion. No public health emergency. With regard to my question, not really on point.

        You say you know of nothing from history. What do you make of the Civil War examples? You know they happened of course.

        1. I'll turn it back on you, Stephen. President Lincoln closed newspapers and imprisoned publishers without trial. Do you think the President has the unilateral power to do that, without congressional approval and despite the First Amendment, purely because he unilaterally asserts there is an emergency that justifies it?

          This notion of "emergency" isn't the sort of talk that is compatible with constitutional democracies. It's what strongmen and caudillos talk about. And there's a reason it has a bad reputation- we have had two Presidents who threw journalists in prison in wartime, and both of them did it despite it not being at all necessary to win the war. "Emergency" is the all purpose excuse for dictatorial powers.

          1. Please, Esper. No one who wants them ever runs out of subject changes.

            I asked about particular Civil War examples. You have not commented on them. One of them—the Emancipation Proclamation—was specifically justified as an emergency measure, undertaken in defiance of the customary law of the time. It was enforced. It was not overturned legally. The Emancipation Proclamation remains to this day an acclaimed ornament of constitutional democracy.

            Do you really suppose that to cite examples which do not support an argument amounts to refutation? I do not think that works in logic. I know it does not work in historical reasoning. In history, the fact that this happened then over here has nothing at all to say to the question whether something else happened at another time over there. That latter question depends on its own separate proof in the record. History is content to let even apparent contradictions stand paradoxically, if the record demands it.

            As for your counter-factual conclusion about Lincoln and the newspapers, I have no comment. It is better practice in historical activity to give short shrift to counterfactuals. Entertaining them undermines one of the harder precepts governing historical study—that to keep present-minded errors out of historical narratives requires confining readings entirely to those supported by the historical record. In the historical record, even the future is already past. That makes counterfactuals—depending as they do on speculation about future effects—mostly pointless. (If it amuses you, indulge them as entertainments.)

            Nobody can know whether Lincoln's treatment of hostile newspaper publishers was necessary to win the war. You can know that Lincoln thought it was. You can know that after he did it, the war was won.

            1. 1. The Emancipation Proclamation was lawful, because it what it essentially did was free slaves as a military tactic as the US army reconquered territories. Having said that, it's an unanswered question what the courts might have said about it after the war had the 13th Amendment not been ratified.

              It had nothing to do with "it's an emergency, though". The military took dominion over slaves when it won battles. It had to decide what to do with them. It's also worth noting that even before the EP, General Butler was taking the slaves away from their owners as contraband of war. In other words, the military issue predated Lincoln's actions.

              2. The fact that you have no comment about the closure of newspapers and imprisonment, without habeas corpus, of publishers shows me you are a dangerous totalitarian who really has no business talking about the US Constitution at all.

              3. And in addition, you are incredibly naive as well. Guess what- leaders, like Lincoln, LOVE to shut down critics if they can. There's thousands of years of history of leaders doing this. It's not because it's "necessary to win the war". It's because human beings love to use power to quash their critics and enemies. This is a basic notion of human nature.

              The fact is, you not only don't understand the importance of constitutional government and following the rules, but don't understand the basic notion that power corrupts and absolute power corrupts absolutely, means you really have no business commenting on these issues.

              1. Dilan, your repeat of a present-minded, counter-factual take on Lincoln is noted. It is weak tea, but at least it is your first attempt to deal substantively with the questions I asked.

                Can you tell me if you count yourself a libertarian? If so, I will adjust my take on, "totalitarian," to conform it to the usual libertarian hyperbole regarding that term. That way, I can credit you with being a naive ideologue, instead of someone who makes reckless accusations heedlessly.

                The fact that I withhold comment on that part of Lincoln's history tells you nothing about my views. We have also commented about slavery, and I have not denounced it. Do you suppose that makes me pro-slavery?

                But since you brought it up, is it your opinion that Lincoln was a totalitarian? My opinion is that his record shows him to have been one of the more conscientious constitutional structuralists ever to hold the presidency.

                1. Lincoln threw newspaper editors and others in prison for criticizing how he prosecuted the war. He ignored all their legal protections to do this. He defied the Supreme Court and Congress and the Constitution in his rush to punish his political enemies. How is that not totalitarian?

                  You don't have to be a libertarian to oppose such wanton violation of the law in service of personal animosity.

                  Dilan mentions it because you being a well known newspaper editor would make you most likely to recognize the horror of Lincoln's actions in these cases. Instead, you regularly call them justified and good. And now seem to think he had some kind of inherent power to do them despite what the law said.

                  1. How is that not totalitarian?

                    For Lincoln's own answer to your question, see below the lengthy excerpt from Lincoln's July 4, 1861 speech to Congress.

              2. Guess what- leaders, like Lincoln, LOVE to shut down critics if they can.

                That reads like something from someone unfamiliar with Lincoln's biography. As I suppose you know, Lincoln was among the most savagely criticized of American presidents. Even when criticism came to him from subordinates he had power to discipline, Lincoln's temperament for mild endurance of it could be astonishing. That did encourage heedless critics like McClellan—who mistook generous tolerance for indecisiveness—to go too far.

              3. Dilan, while we are on the subject of Lincoln's tyranny, here is an excerpt from his remarks to Congress on July 4, 1861:

                Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to "take care that the laws be faithfully executed" should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that "the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it" is equivalent to a provision--is a provision-that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it. It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.

                No more extended argument is now offered, as an opinion at some length will probably be presented by the Attorney-General. Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress.

                I offer that to you because it provides basis for my own opinion that first, Lincoln was not a tyrant, and, second, you can see in Lincoln's remarks as good a case as can be made for emergency powers as vital protections for institutionalist government. The nub of it is famous, of course. The entire lengthy address to Congress is worth reading for nuance and context.

        2. I said I know of nothing from history relating to public health. The Civil War examples were not about public health.

          And, no, Youngstown is directly on point. You don't understand how law works. There's no special "invasion" rule separate from any other military exigency rule.

          1. There's no special "invasion" rule separate from any other military exigency rule.

            What do you make of this:

            The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    5. "Is there a legal case to be made that the Constitution and legal precedent protect an emergency power inherent in the executive branch..."

      No, at least not unless congress acts to declare a National Emergency, just as they have to declare war. But even that doesn't give Congress any extra powers, and does allow them to delegate powers they don't have to the President, or executive departments.

      Madison said that giving Congress the power to declare war would leave the President with power to repel sudden invasions, but that's a far cry from giving the president the power to order a vaccine mandate 2 years into a pandemic.

    6. The Steel Seizure Cases, Youngstown Sheet & Tube Co. v. Sawyer recognized limits to the President’s inherent emergency powers in an emergency.

      The court held that even in time of war, a President lacked authority to seize property unless conferred that authority by a statute passed by Congress.

      1. I am skeptical that this aspect of the challenge witll prevail. But a claim that the President is acting outside the scope of his Congressional authority is at least plausible. Such claims do exist.

        It’s one of the reasons Congress gave Presidents broad, general autiority to act in emergency in various statutes passed in the years following the decision, authority that Trump was able to exploit.

        1. ReaderY
          December.19.2021 at 10:40 am
          Flag Comment Mute User

          "It’s one of the reasons Congress gave Presidents broad, general autiority to act in emergency in various statutes passed in the years following the decision, authority that Trump was able to exploit."

          Can you list any that Trump exploited?

          1. Reprograming Defense construction funds for the Wall.

      2. Do you have reason to suppose Youngstown applies to cases of insurrection, or foreign invasion?

        1. Yes. Do you have reason to suppose otherwise?

          1. Yup. The fact comes to mind that neither insurrection nor foreign invasion was any part of the case.

            Another useful point might be no actual existential emergency. If implicit emergency power requires existential threat, as Lincoln implies, then Youngstown is far afield.

    7. This is Adler, not Blackman.

      And the rest of your post is ahistorical. Most specifically the notion that Washington's actions at Valley Forge are some kind of precedent to American Presidential power when there was no America yet and Washington wasn't President yet either.

      1. I understand your point, benji. It makes some sense. It would knock some of the stuffing out of Heller, though.

  4. "Judge Stranch's opinion vacating the stay was also carefully reasoned, but was also sloppy at points. For example, at page 29 Judge Stranch writes that OSHA tailored the ETS by excluding workplaces where the risk is significantly lower, including those where employees are working exclusively outdoors, remotely from home, or where the employee does not work near any other individuals," citing 86 Fed. Reg. 61516. This is wrong. OSHA's rule does not exempt such workplaces. Rather, as OSHA makes clear on the very page Judge Stranch cites, the exemption "depends on the working conditions of individual employees.""

    Um...

    "(3) The requirements of this section do not apply to the employees of covered employers:
    (i) Who do not report to a workplace where other individuals such as coworkers or customers are present;
    (ii) While working from home; or
    (iii) Who work exclusively outdoors."

    Of course it depends on the working conditions of individual employees. If an individual employee works from home, then their workplace - home - means they aren't subject to the rule. That's how a rule works.

    It seems Adler's post is a bit sloppy at points.

  5. Lot of effort to protect the vaxxed from the unvaxxed isn't it? Its almost as if they don't have any confidence in the vax at all. ????

    1. Shhhh ... the first rule of regulating elephants is, don't talk about the elephants!

    2. AmosArch : "Its almost as if they don't have any confidence in the vax at all. ????"

      It's almost as if you're a witless dunce. The effectiveness of a vaccine is based on two things combined: The raw protective power against the disease, and the degree a population threatened by the disease is vaccinated. Even a vaccine extremely effective in the first sense has a failure rate. The IPV vaccine against polio works exceptional well, but still only to 99%. The reason we don't see numbers approaching 1% of the population affected by polio is because vaccination is almost universal. The disease gets no foothold.

      Covid will not be eliminated by any of the current vaccines, but if our vaccination rate reached the highest possible percent we'll still see its progress slowed, its infection rate decrease, the possibility for new mutations lessened, and the covid patients choking our hospital wards reduced by massive numbers. We'd see the same massive reduction in fatalities.

      The problem? I describe self-interested action by everyone for everyone. But today's Right has devolved to the immature selfishness of petulant children. The idea someone's vaccination helps the greater good - even beyond private health benefits - doesn't even register in their child-like mind. That's why Right-wing leaders have fed their sheep a steady diet of bullshit disinformation on covid. It's the kind of pap their children enjoy.

      God only knows what would happen if the U.S. ever faced another national emergency like in WWII. This country's entire right-wing would be screeching bawling two-year-olds at every hardship.

      1. Oh btw I'd like to see a coherent stat that all the havoc and civil rights loss is going to be worth mutation slowdown we'll see from the +1.0% of the resistant population we'll be able to harangue into getting the shot. All the arguments to this angle tend to conveniently assume a fantasy scenario of near 100% compliance and furthermore disregard the fact that protection and thus slowdown of mutation will come from natural immune populations anyway.

        1. Seems like job-related vaccine mandates have been achieving 90%+ compliance—after initial bluster to the contrary, of course.

          1. Good if its been as effective as you are imply I guess we don't need all this whining and fearmongering and punishments anymore since everybody's vaxxed already anyway.

          2. Yup, most people who need to work for a living, want to be employed

        2. AmosArch: "All the arguments to this angle tend to conveniently assume a fantasy scenario of near 100% compliance"

          Oh really? Per CDC data, here are vaccination rates by disease:

          Polio (3+ doses): 92.6%
          Measles, Mumps, Rubella (MMR) (1+ doses): 90.8%
          Hepatitis B (Hep B) (3+ doses): 90.6%
          Chickenpox (Varicella) (1+ doses): 90.2%

          The only difference from covid is your Right-wing handlers haven't yet launched a pro-measles or pro-chickenpox propaganda campaign. Though if they think they can squeeze a polling point or two from their base doing so, I'm sure they'd be perfectly willing.

          1. A decades long process slowly trickling in people is totally the same as a sudden universal draconian mandate!

            1. AmosArch : " ... universal draconian mandate!"

              Explain how the covid mandate is more "universal" or more "draconian" than those listed above (aside from the fact your Right-wing handlers are mounting a 24/7 propaganda campaign against it)

              You have lived with vaccine mandates your entire life, AA. Your parents lived with vaccine mandates. Your family, relatives, friends, co-workers and acquaintances have all lived with vaccine mandates. The only difference now is your handlers plugged a cable in the download port at the base of your skull, did a wipe of all previous vaccines thoughts, and programed "outrage" in their stead.

              Here's what I find amazing: Much anti-vaxx drivel is accompanied by bluster about "freedom". Yet this is coming from people who changed the way they think and talk about vaccines at the snap of their handler's fingers. Compared to that degree of abject slavish obedience, the "jab" ain't nothing......

              1. Make a list of vaccines that were required to patronize a bar or restaurant.

                1. Ejercito, prior to the invention of vaccines effective against dangerous contagion, the response to suspected disease carriers who would not abide self-quarantine was more draconian—exile or imprisonment. Typhoid Mary, leper colonies, etc.

                  Compared to that, perhaps you can agree that even blanket vaccine mandates would not be more oppressive.

                  1. So you cpncede that you can not come up with a list of vaccines required to patronize a bar or restaurnt.

                    1. I can come up with a list of vaccines required to get an education, public or private. I can even come up with a list of vaccines required to service in the military - one I met when signing-up with the Army National Guard. So what's your point? Are you creating a special "tyranny" exception for grade-schoolers, college students, and baby-faced PFCs? Why is a mandate for health-care workers any more "tyrannical"?

                      Or maybe you're just looking for any excuse to be a good obedient member of the pro-covid party? (Just like all those Republican governors who insist the commanders of their state NG units disobey Pentagon orders on covid vaccines. The pro-disease party is very demanding of its members)

                    2. grb: so you admit you still can't come up with a list to patronize a bar or a restaurant.

                      So ya, the vaccine mandate is tyranny. Thanks for agreeing.

                    3. Haha, You're a very unserious man.

                      'You gave examples of stuff more important than going into a bar. But not my specific example of a bar. Therefore I am completely right in any thesis I care to name. VICTORY!'

                      What are you, 18?

                2. That's being done at a state and local level, not the federal level. Why shift the discussion away from OSHA's regulation, good or bad?

                  1. Since the Right's leaders decided there was political gain in birtherism-style disinformation on covid, they've told their followers the disease isn't serious, its effects exaggerated, the covid statics lies, the death numbers fabricated, all measures against it to be resisted at any cost, their justification untrue, the medical experts nazi-grade villains, every quack treatment a secret hidden from the public and every vaccine government tyranny.

                    So I'm talking about a consistent position opposing every anti-covid measure on every front. As for your objection, we see the same anti-vaxx propaganda from the Right at state and local levels too. We've seen state Republican leaders trying to prohibit anti-covid actions at the local level. We've seen state GOP governors try to ban private companies from requiring vaccination. We've seen state GOP governors insist the Generals leading their state NG units disobey the Pentagon's orders on vaccine requirements. Gov. Stitt of Oklahoma fired Major General Mike Thompson because he wouldn't

                    We're dealing with history's first pro-disease party. That's where the discussion starts.

              2. I'm not antivax I'm more provax than you. I believe enough in the vaccine that I know it can work while we also maintain basic freedoms and bodily autonomy. You and the powers that be on the other hand lack confidence in the vaccine/want to use it as an opportunity to layer on authoritarian bs. Thats the difference between me and you.

              3. Explain how the covid mandate is more "universal" or more "draconian" than those listed above

                Not to put too fine a point on it, but that would be because in the vast majority of states the vaccinations you listed above are not actually mandated. That you so strongly claim otherwise demonstrates you're either disingenuous or naive.

                1. Life of Brian : "Not to put too fine a point on it ....(etc)"

                  Not to put to fine a point on it, but the degree of right-wing ignorance is astounding. It's a friggin' bottomless pit. Quote:

                  "All states require vaccines against diphtheria, tetanus, pertussis, polio, measles, rubella, and chickenpox. All but Iowa require vaccination against mumps"

                  There are four holdouts on hepatitis-B : Alaska, Iowa, New Jersey and South Dakota. If you wanna be less "disingenuous or naive", LOB, there's a research opportunity in the link below.

                  https://www.pewresearch.org/fact-tank/2021/10/08/states-have-mandated-vaccinations-since-long-before-covid-19/ft_21-09-30_stateimmunizations_1/

                  1. Those are for public education which is not a requirement for everyone.

                    Sorry you are just wrong.

                    1. This is also not a requirement for everyone.

                      And your choice of metric is...highly convenient. And random.

                    2. Patrick Henry, the 2nd : "Those are for public education which is not a requirement for everyone"

                      Two points:

                      1. They're mandates for public AND private education.
                      2. Admittedly that only covers the +90 of the population who have received any education at all.

                      For instance, it probably excludes you....

          2. grb,
            The UAE reduced the daily new case rate to about 25 per million once the vaccinated percentage of the TOTAL population reached 80%. It is now at 90%. Still the reproduction rate of the virus there hovers just above 1%.
            I'd say that is about as good as any country could hope tod o.

            1. Even if that's the case (given the effectiveness of the current vaccines and the mutation rate of this kind of virus) a high vaccination rate would make enormous progress in reducing the stress on our overtaxed healthcare system, limiting the impact of the disease on its victims, and reducing fatalities.

              1. You know what else would reduce the stress on our overtaxed healthcare systems? Stop mass firings of healthcare workers who decline the vax.

                Healthcare system “you people didn’t get vaxxed. You’re fired, all 50,000 of you. Go on, skedaddle!”

                Also healthcare system “damn, we’re suffering from a shortage of beds. How did this happen? Our people are overworked. And it’s your fault out there! Nothing we did for sure!”

                Stupidly reigns.

                1. Do we have numbers on the actual resignations? Because a lot of these stories have turned out vastly less than initially promised.

                  1. No, I don't. But I've got pretty solid anecdotal stuff - I have two daughters who are nurses in the Tx Med Center. Both vaxed and working. One is at a hospital that made a huge showing back in May of running off unvaxed workers. It creates a two part problem, first you lose the people you fire, then you lose the people who are vaccinated but pissed because of how you treated their friends - and of how little regard you have for your employees. All we've heard since from that daughter is how short-staffed they are. Lots of double dipping of jobs and carrying more patients than there were before the mass whack.

                    The other is an ICU nurse. There's an assumption that "all the healthcare workers will become carriers" but that's just not the case. In her ICU they've always got random covid patients, and during the surges they're 100% covid and up to their eyeballs in the sickest of the sick. Two of the surges here came before vaccinations were out. But she never got sick, nor did most of her coworkers. They're protected out the ass - best masks, gowns, gloves, face shields. She held the hands of dying patients that were spewing covid all over the room and never got a fucking cold.

                    There's too much public show and panic going on, and not enough thinking. Personal opinion.

                    1. I'm afraid I answered this at the duplicate post below. From that, one statistic : Though numbers from the Texas Medical Center don't seem available via Google's magic, the example of Houston Methodist Hospital perhaps can stand in its place:

                      24,972 workers got vaccinated,
                      153 resigned.

                      Incidentally, the decision to require vaccination for healthcare workers at the Texas Medical Center came from the CEO of the healthcare conglomerate that owns it. That private mandate predated Biden's by many months and was a response to an explosion of covid cases inside the hospital.

                    2. There isn’t a healthcare conglomerate that owns it. They are individual hospitals. You’re thinking of Dr Boom at Methodist, who did initiate a vax required policy before the mandate stuff started. That also happens to be the hospital that the daughter who is telling us about understaffing works at. The number was more that 153, from TV reports it was something like 500.

                      And that doesn’t count all of the sympathy quitters that came later. Methodist’s original policy was that it was worker’s choice, but when Dr Boom decided he could get good pub by changing, he changed it on a dime. Methodist had also really hosed their employees by handling the period during the Great Freeze very poorly. Watching their friends get screwed was basically the last straw for a lot of people, so they left.

                      I’m not going to argue numbers here - neither one of us has great numbers. The point is nationwide it’s a significant number, and any reduction in headcount equals a reduction in available beds.

                    3. bevis the lumberjack : There isn’t a healthcare conglomerate that owns it

                      First of all, I know nothing of the hospitals in Houston, so there is every chance I'm mistaken. However the conglomerate Memorial Hermann does own a facility in Houston called "Texas Medical Center" , and on that I based my comment.

                      Second of all, unless you want to put on your tin-foil-hat, the number of people who left Houston Methodist Hospital was exactly the number I quoted. I'm not going off someone's second cousin's nephew's chiropractor's uncle's gardener's recollection of a TV soundbite: I quoted the final reckoning after the last extension expired.

                      Third: "Sympathy quitters" ?!! Really ?!?

                      Fourth: No one got hosed. If your political handlers hadn't decided to tell their docile followers to resist every anti-covid measure, this would have all been normal matter-of-fact common sense.

                      Before right-wing leaders went searching for political gain among the most gullible, how many of those poor dumb fools who threw away their jobs were anti-vaxx, or believed their was some bizarrely tenuous religion objection to vaccines, or decided remaining unprotected against covid was a really cool way to own the libs?

                      Almost none. They were taught to be fools They were taught to be self-destructive.

                      https://memorialhermann.org/locations/texas-medical-center

                    4. (There probably are two Texas Medical Centers, so it's likely I was wrong on that)

                2. You know what else would reduce the stress on our overtaxed healthcare systems? Stop mass firings of healthcare workers who decline the vax.

                  There have been no mass firings. Stop lying.

              2. That may be what you think, but the data from country after country across the globe dis nt substantiate that supposition until the percentage of TOTL population vaccinated is more than 75% and even then infections are rising rapidly where vaccination at lower than 80% of total population.
                You partisan view clouds your understanding of the global epidemiology

              3. "would make enormous progress in reducing the stress"
                grb,
                why not eliminate the modifiers for which you have no firm evidence and go with the obvious fact
                "would reducing the stress on our healthcare system"

      2. "Covid will not be eliminated by any of the current vaccines, but if our vaccination rate reached the highest possible percent we'll still see its progress slowed, its infection rate decrease, the possibility for new mutations lessened, and the covid patients choking our hospital wards reduced by massive numbers. We'd see the same massive reduction in fatalities."

        This is pure speculation ... and it's sad that desperate people are willing to bludgeon their neighbors with it.

        1. AtR,
          Read my post right above yours. This pure speculation is called the United Arab Emirates.

          1. The baseline rate depends on the testing discipline, social graph, etc. All countries, even the most highly vaccinated, are seeing ebbs and flows in infection.

            Let me ask you a more pointed question. We are now about 1 year post introduction of mass vaccination. Are you better off now than you were 1 year ago?

            1. Wrong question, because it assumes static background conditions.

              The right question is a counterfactual, and thus one we cannot answer.

              1. You are right ... there is no control, in part because we have viciously fought against having one anywhere in the world.

                Still, it was not I who promised and end to COVID ... it was the current president, and I think it is valid to ask the political question of whether he delivered on his (ridiculous) promise.

                1. "I’m never going to raise the white flag and surrender. We’re going to beat this virus. We’re going to get it under control, I promise you. "

                  Not that Biden doesn't overpromise a bunch, but this doesn't seem the promise you said it was.

                  1. "I will take care of this ... I will end this. I’m going to shut down the virus, not the country.” 10/2020 debate

                    "Just 100 days to mask — not forever, just 100 days. And I think we’ll see a significant reduction" (PBS newshour, 12/4/2020)

                    “You're not going to get COVID if you have these vaccinations,” CNN Town Hall, 7/22/2021

                    1. -An October 2020 debate statement is puffery to all but the most motivated interpreters

                      -'I think we'll see a significant reduction' falls way short of your 'end to Covid' thesis.

                      -the vaccination statement is clearly incorrect by Biden, but also not relevant to you thesis.

              2. The right question is a counterfactual, and thus one we cannot answer.

                That's twice in about three days you've shamelessly said the quiet part out loud. It's really bloody convenient that we can't really know if the oppressive systems we've jammed in place around the world really have any net positive effect, amirite?

                1. Think about that for a moment, if you can only evaluate a policy by locking in the scenario where that policy didn't occur, you could never evaluate the wisdom of any action.

                  Luckily for the paradox you just wrote us into, there are plenty of ways to check on whether a policy is good other than trying to figure out what would have happened if it wasn't in place.

                  Risk analysis is a great example. Picking a metric of success is another.

            2. AtR,
              " All countries, even the most highly vaccinated, " is simply untrue.
              Have a look at the UAE. or even Taiwan, both of which had only one "wave."

            3. AtR, Here is a direct answer.
              " We are now about 1 year post introduction of mass vaccination. Are you better off now than you were 1 year ago?"
              Yes.
              We know much more and have more tools at our disposal. That does not mean that the virus is not mutating faster than our ability to respond.

      3. Yeah, that is pretty silly and quite the canard.

        They proclaimed that herd immunity required 30-60% of people to be resistant - either through infection or vaccination. Source? Anthony Fauci himself... At a time when 30% infection was plausible for new York city in the near term.

        We are at way over 60% vaccination alone... And much higher if you include prior infections... Which for some reason they no longer discuss.

        Yet the notion of herd immunity has been completely dropped. In sensitive communities the vaccination rate is close to 100%.

        The fact that they are increasing threats and penalties to insist on vaccinating no rolls who probably would we no benefit from the vaccine at a time when vaccination of the vulnerable is complete is telling...

        And indeed, they have adopted an incoherent message - get the vaccine to protect yourself. The pandemic is a pandemic of Tue unvaccinated. Only the unvaccinated are at risk. Don't allow the unvaccinated near you... They will kill you! WTF?

        The Fauci strategy of telling people what he thinks they need to hear in order to get them to do what he thinks is the best course of action has destroyed the public trust. Those who lionize him trust his edicts as articles of faith, born of political allegiance, not through earned trust.

        He lied about masks to get people to leave masks for healthcare workers. Then he lied about cloth masks effectiveness to protect n-95 supplies. Then he lied about children being at risk because the teachers union said so. Then he lied about "one mask good, two masks better!".

        Lately he has been scientifically incoherent... Claiming that a vaccine which is ineffective against the omicron variant will magically become effective if you get a booster of the ineffective vaccine.... Because antibody titers!!! I am a molecular immunological by training. I know enough to know that he was spouting incoherent nonsense on that one.

        And around here we often like to follow the money. How many billions do Pfizer and Moderna stand to make by selling third and fourth doses.. Via mandate?

        The current variant seems to really thrive among the vaccinated. So your proclamation that higher vaccination rates will slow the spread are not well supported.. And they sadly echo the 2 weeks to flatten the curve language that has aged so badly.

        If public health officials want to make progress, step one would be to stop trying to figure out what to tell people to gain compliance and start telling the unvarnished truth. Stop blocking people from discussing policy and science online. Allow an informed populace to make their own choices and to inform their representatives of their preferences.

        That is how these things function in a democracy.

        1. I heard 90% for heard immunity off the break, I don't know where you got your number from.

          Insisting honesty means consistent messaging as the science continues to come in is misunderstanding the situation entirely. Or, more likely, an excuse to attack that mean ole Biden for lying.

          The current variant seems to really thrive among the vaccinated
          No more so than the unvaccinated. Immunity escape applies to everyone. And mRNA tech now means we can formulate a vaccine really quickly...if we need it. Which is not at all clear yet.

          I don't know what sources you are reading, but those sources *are* lying to you. Or, at best, being reckless with their accuracy.

            1. "We need to have some humility here. We really don't know what the real number is. I think the real range is somewhere between 70 to 90 percent. But, I'm not going to say 90 percent."

              Not really supportive of Cyto's point at all.

              1. Ha ... Fauci shows his humility after the article's author makes a mockery of his earlier predictions (https://www.cnbc.com/2020/12/16/cnbc-transcript-dr-anthony-fauci-speaks-with-cnbcs-meg-tirrell-live-during-the-cnbc-healthy-returns-livestream-today.html - "I say between 75 and 80 85% of the population. If we get that we would develop a umbrella of immunity."

                1. No matter how wrong Fauci was, none of those are the 30-60% Cyto claimed however.

                2. What I quoted came from the article you posted...

        2. Cyto,
          The US is NOT way over 60% from vaccinations alone.
          It is unclear whether there can be "herd immunity" for SARS-CoV-2. That view is common among virologists; not surprising that Fauci does not use the term.
          Omicron does not "thrive among the vaccinated." It is highly infectious in all populations.
          Flattening the curve is likely a bogus concept: you might look at "Successive waves in pandemic infections: physical diffusion theory and data comparisons," by R. Duffy, https://www.medrxiv.org/content/10.1101/2020.11.03.20225235v1

    3. Well now that is clear that the vaccinated can catch covid and transmit the virus to both vaccinated and unvaccinated, just what really is the rationale of the mandate?

      1. The rationale is that 'can' contains multitudes. A .1% chance is a lot less than a 99.9% chance, even if both are possibilities.

        This has been told to you many times. Pick a better argument.

        1. That's a bad rationale which can be summed up as "BECAUSE SHUTUP". That's it.

          1. You are a big fan of just declaring you're right and those who disagree with you are wrong, eh?

            Care to expand on why my counter to Kazinski is wrong?

            1. I don’t. But I do have anecdotal stuff.

              I have two daughters who are nurses in the Texas Med Center in Houston, at different hospitals. Both were voluntary vaccinated before the mandates. Both are now complaining about how short staffed their units are since the terminations. With no end in sight. It’s been a two fold issue, first the people that were chased off, then a bunch of others leave because they’re pissed at how the situation was handled.

              A related side note. Everyone seems to think that “unvaccinated healthcare workers are certain to become carriers”. One of my daughters works the ICU and has Covid patients. During surges they’re 100% Covid patients. She’s worked through 3 surges, two of which happened prior to vaccines being available. Never got sick. Maybe two of her coworkers did. Because they’re super duper protected.

              This mandate crap is doing more harm than good with majority vaxxed. It’s past time to stop, but Biden can’t seem to fathom that.

              1. This looks to be a response to a different comment of mine.

              2. bevis the lumberjack : "I have two daughters who are nurses in the Texas Med Center in Houston"

                A couple of points :

                1. For the record: Memorial Hermann, the healthcare conglomerate that runs Texas Medical Center, announced a vaccine mandate for healthcare workers on 28July21. Its President and CEO David Callender said this:

                “We think it’s very important for health care workers across the country to be vaccinated, as vaccination is really the only way to stop this pandemic,”

                Callender then said that COVID-19 cases within the health system have jumped since July 3 — increasing from about 100 to more than 430. Biden's mandate followed months later. The ever-helpful internet refuses to tell me how many Memorial Hermann employees resigned to own the libs by refusing vaccination, but perhaps the example of Houston Methodist Hospital can stand in its place: 24,972 workers got vaccinated, 153 resigned.

                2. Hell, I can get anecdotal too! My sister is an x-ray technician and complains about staffing shortages all the time. However she doesn't blame the problem on a few score losers who refused vaccination, but the money-grubbing corporation that runs her hospital. They prefer to squeeze more work from the staff at hand rather than hire new. She's probably got at least 20yrs in and is close to retirement, but still has to work Christmas Day this year.

                Also: She's had a least a dozens exposure scares, mainly from sloppiness passing on patients without warning her to suit-up. Needless to say, she got her shots at the earliest possible moment - including the booster when available. Owning the libs just didn't seem a very high priority compared to her health and the heath of her family.

        2. Except that the probablities are not as different as you grossly exaggerate them to be.

          1. I thought it was pretty clear I chose those numbers to explain the fallacy, not because they had anything to do with the real world.

            1. Yes, but they seem to be meant to be misleading when the probabilities are most likely closer to 60:40.

              1. Don Nico, choosing at random a number closer to the real range would be far more likely to mislead than what Sarcastr0 did. He chose numbers so far outside the probable range that they signaled plainly his intent to make an argument in principle, without promoting particular data.

                1. The recommended (and intellectually honest) policy is not to make up numbers to try to make a point.

  6. I got the vaxx. But I don't see why that has to go in hand with forcing other people to, and persecuting them if they don't comply. I made my choice, they made theirs. If you were a complete outsider judging who was more confident in a product would you pick the guy who simply takes it or the guy who takes it and runs around like a scared headless chicken blowing up at everyone?

    1. AmosArch: ".... runs around like a scared headless chicken ...."

      A Monmouth Poll this week found 96% of Democrats were at least partially vaccinated, 79% of Independents, but only 54% of Republicans.

      See, that's what happens when you belong to the pro-disease party: You run around like a scared headless chicken repeating your handler's bullshit about "government tyranny", or their sneers on the vaccines' effectiveness, or their lies about covid statistics.

      See, your handlers like headless chickens. They figure the more headless, the more they gain at the polls. It would be nice if they were wrong, but I've afraid they have the full docile measure of the sheep they herd.

      1. Those are some nice statistics ya got there. Shame if anything were to happen to them.

        1. Yep. I'm ensconced inside a fortress of numbers.
          (fortunately I remembered to bring snacks)

      2. A poll? Really? Why would you need to "poll" this kind of thing, just go out and freakin' measure it.

        But, oh wait, we don't in fact ask people their political affiliation when they get a vaccination, so we have no idea what the real answer is. Nobody could, or ever can know, because the data doesn't exist.

        Whelp, I guess we'll just have to conduct a "poll" and make it the answer we're looking for. Well, I call BS on this kind of sloppiness.

        1. DaveM: "Well, I call BS on this kind of sloppiness"

          So which is it, Davey? Do you believe Republicans are lying about their vaccination status out of shame because they went against their party's pro-disease message? Or do you think the Dems are lying about their vaccination status out of shame because they went against their party's anti-disease message?

          Bonus Question: Their have been dozens upon dozens of polls that analyzed vaccination rates by multiple factors - including political affiliation. Can you explain what makes you want to kill the messenger with this one?

          1. How do you know the Democrats aren't the ones lying about their vaccination status?

            The pre-COVID anti-vax movement was pretty bipartisan.

            1. MatthewSlyfield : The pre-COVID anti-vax movement was pretty bipartisan.

              Without question. The small handful of crackpots on each side was almost evenly divided by ideology. But since then, one party has dedicated itself to a pro-disease anti-vaxx message.

              It ain't bipartisan no more. You only need to look at the comments here to see that.

            2. How do you know the Democrats aren't the ones lying about their vaccination status?

              The pre-COVID anti-vax movement was pretty bipartisan.

              We know generally how many vaccines have been administered, because that doesn't depend on self-reporting. So we could figure out if someone was lying, even if we didn't know who.

          2. "So which is it? Do you believe X or Y?"

            I believe that polling is a completely inappropriate way to answer factual questions. Factual questions are answered with measurement and observation, not opinions.

            I believe that polling is inherently unreliable for even what it can report, unless A) the actual questions asked are given with the results; B) the demographics of the respondents are given along with the results; C) the error range is given along with the results; and D) the sampling technique is described, along with the results.

            So, in your example, not one of those things are included -- which, and I'm not trying to slam you specifically on this, this is something EVERYONE does with polling -- which makes the entire basis of your argument null and void. Garbage in, garbage out.

            1. I am certain that the poll is an intentional lie.

              You would have to poll completely different cohorts to get those results.

              Like, all your democrats are in Manhattan and all your republicans are in rural Wisconsin or Indiana, where people are spread out and do not see the need.

              1. Which is, of course, where those people are found in reality.

              2. I am certain that the poll is an intentional lie.

                Well strap on your tin foil, then.

              3. I am certain that the poll is an intentional lie.

                Facts don't care about your feelings.

            2. Here are the questions and crosstabs.

              https://www.monmouth.edu/polling-institute/documents/monmouthpoll_us_121521.pdf/

              I do agree that there is a growing issue with people just lying to pollsters. Or certain cohorts just not responding and the algorithmic attempts to compensate being subjective.

              On the other hand, multiple polls over the past year have shown Republicans have become the main demographic resistant to getting vaccinated. And looking at their media's messaging, it's not hard to see why.

            3. I believe that polling is a completely inappropriate way to answer factual questions. Factual questions are answered with measurement and observation, not opinions.

              This is gibberish, a way to put your hands over your ears and yell lalalalalalaalaIcan'thearyou. It is true that factual questions are not answered with opinions. This was not an opinion poll, however, so that observation is utterly irrelevant to the discussion. You seem unclear on the very concept of polling. "Did you do X?" is not asking for an opinion. It's asking about a factual issue. Which can answer a factual question.

      3. Point 1:
        "Across these 42 states, as of December 13, 2021, 58% percent of White people had received at least one COVID-19 vaccine dose, which was close to the rate for Hispanic people (56%) but higher than the rate for Black people (51%)."

        Point 2:
        "Approximately 83% of African Americans are Democrats or Lean Democratic."

        Something's not meshing here. How can 96% of Democrats be vaccinated, and 83% of African Americans be Democrats/Lean Democrat (67% identify as Democrat), but only 51% of African Americans be vaccinated....

        1. OK: Let's go with Gallup from September :

          A Gallup survey released on Sept. 29 confirmed the KFF findings. As of mid-September, 75% of adult Americans have been vaccinated, including 73% of non-Hispanic white adults and 78% of non-whites. Along party lines, however, the breakdown was 92% of Democrats, 68% of Independents, and 56% of Republicans.

          (Note to the Right-wingers here: If you let me know what level of Republican recalcitrant STUPID you find acceptable, I promise to attempt to find a poll meeting that benchmark)

          https://www.brookings.edu/blog/fixgov/2021/10/01/for-covid-19-vaccinations-party-affiliation-matters-more-than-race-and-ethnicity/

          1. What percentage of vaccinated democrats were also previously infected? it would have to be about 30%... Minimim... Since that is about the infection rate.

            So.... You have already had the virus. Do you get a vaccine that is useless to you and only carries additional risk?

            If you think that answer breaks down purely on party lines, you have the entire explanation.

            What about city dwellers versus rural folk? If you live in Manhattan or downtown Philadelphia, what is your political affiliation? And what is your perceived risk? Compare and contrast with those who live in much less densely populated areas.

            That also could explain the majority of the disparity.

            This is why quoting polls is stupid. They are easily manipulated and they rarely mean what pundits claim they mean.

            1. Natural immunity isn't at all clearly better. And it's also not at all clear how it interacts with the vaccine in terms of immunity.

              Someone is selling you stuff and you should maybe check before you swallow it and then post nonsense here.

              1. Sarcastr0
                December.19.2021 at 9:11 am
                Flag Comment Mute User
                "Natural immunity isn't at all clearly better. And it's also not at all clear how it interacts with the vaccine in terms of immunity."

                natural immunity is much stronger - numerous studies now show that. see healthy skeptic for the numerous citations to those studies

                1. Healthy skeptic has an agenda. IOW, it is selling you something.

                  1. Sarcastr0 always finds a way to dismiss that which he disagrees with.

                    "Show me evidence"
                    "No, not that evidence"

                2. What would you do if I pointed you to an ivermectin pushing website? They have studies too!

                  1. Sarcastr0
                    December.19.2021 at 5:28 pm
                    Flag Comment Mute User
                    "What would you do if I pointed you to an ivermectin pushing website? They have studies too!"

                    Unlike most progressives, I have the ability to ascertain the reasonableness of the studies

                    1. Taken on their own, the Ivermectin studies look pretty legit.

                    2. And considering the website you keep pushing, I don't know if you are actually the science evaluator you think you are.

                      You outsource your expertise, just not to actual experts.

                      Again: humans are not as good at this as they think they are.

            2. So.... You have already had the virus. Do you get a vaccine that is useless to you and only carries additional risk?

              Even the non-studies that people cite claiming that natural immunity is better than vaccination find that vaccination is not "useless" to the previously infected, but rather acts as a booster.

        2. Age is the other big factor.
          Those that identify as Republicans are less likely to claim to have been vaccinated (especially the "booster" shot), but when you look at the crosstabs, you see some interesting things.

          For example, age - Young Leftists, despite being at almost no risk from COVID, are very likely to be vaccinated, where younger conservatives are not.
          Among the at risk groups, it's more like 95% to 85%.

      4. It's interesting the Monmouth Poll does have 12% black respondants, and while they break out some responses by race not the 'are you vaccinated' question.

      5. Its not pro-disease, its pro-science. Republicans believe in natural immunity - a long standing scientific concept - while Democrats don't.

        That is the reason for the difference. Dems are taking an unneeded vaccine, where as Repubs aren't.

        1. This is really, really dumb. It is a scientifically shaky, but supportable argument to declare that those who have gotten Covid should count as vaccinated.

          But declaring the vaccine unneeded? That's not science.
          That's really dumb. That means your goal is for *everyone* to get Covid. And risk death. And risk long Covid. And almost certainly pass it along to others.

          Which is dumb enough I think it's safe to call it pro disease.

          1. You don't get to be a Republican these days with sound judgment, good character, adequate education, respect for science, or a preference for modernity and reason.

            You get to be a Republican by being a half-educated, superstitious, backwater bigot with a gullible taste for birther- and QAnon-class delusion.

            These virus-flouting bigots can't be replaced fast enough. It's probably time to deny hospital treatment to covid victims lacking a legitimate medical reason for being unvaccinated. Maybe if enough of these disaffected, antisocial clingers start wheezing to death the others will begin to emulate responsible adults.

      6. Given the, "headless," theme, it's kind of ironic that the word, "polls," literally refers to head counting.

  7. Two quick thoughts. First, the debate over whether the Executive should still have presumptive prerogatory powers in a state of emergency given the perpetual emergency (described by Agamben and others) might be pragmatically unwise. If states of emergency are being artificially extended, normalizing government functions within the emergency might normalize the situation instead of making people conscious of it.

    Second, an (entirely rhetorical) hypo. Imagine that a new perfume has gone viral. Everyone is wearing it. Thing is, a certain number of people that the enscented person encounters will shortly develop an allergic reaction that might put them in the ICU. Could federal workplace regulations ban the perfume? If so, how is that different, given that we're talking about the objective dangers within the workplace, and having to be tested for the current plague (one that's about to get significantly worse) presents very little intrusion on privacy and personal liberty?

    Mr. D.

  8. The Brandon administration is now literally Hitler. The courts are endorsing fascism and our democracy is at peril. The time will come when good men no longer have the option to do nothing.

    1. Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha! Ha!

      whew! - that much laughter is a massive workout of the diaphragm and abdominal muscle. please give us some warning next time, Jimmy, when you decide to go into pure Clown-Mode.

      1. The Brandon administration has been in clown mode now for almost a year. Or maybe I don't find nazi fascists funny...

        1. Somehow, Jimmy, I don't think the time will ever come for ya. You'll just keep posting about it from the comfort of your angry keyboard.

          1. We shall see...we shall see....

            Until then we will continue to live in the Brandon administration fascist clown world.

            1. I do remember a comment or two on this very blog, featuring actually prescient alerts concerning an insurrection on January 6. Was that you, Jimmy?

              Also, I haven't been keeping track, are you one of the right wingers who now denies it was an insurrection?

              1. There were some mostly peaceful tourists that roamed around a public building and took some pictures. Is that what you are talking about?

            2. That's the thing, Jimmy, we won't ever see. That line will never be crossed. You can tell because you don't actually draw a concrete line, just talk about how there is one. Thus it can always be closer and closer and never get there.

              1. So you are fine with nazi style fascism, just as long as it comes from "your" guy here?

                1. Totally got me there, Jimmy!
                  I freaking love Hitler Nazi fascism so long as it keeps you making these sweet impotent posts calling for blood.

                  1. Lol. It’s Civil War Sunday on the VC!!!

                    From one side - if they keep doing this they’ll leave us no choice to defend our homesteads but violence!

                    From the other - the President did all sorts of unconstitutional shit when the country was in an active war with itself and this is totally exactly the same!

                    What is there even to say?

    2. "Literally" seems to be a bit much.

    3. " The time will come when good men no longer have the option to do nothing. "

      Here's what you will do, Jimmy: You will continue to have progress shoved down your whimpering throat by your betters, and you will continue to whine about it inconsequentially. That's the way it has gone throughout your desolate clinger life, and that's the way it will be until the moment you are replaced.

      The icing on that cupcake is the pleasure some of your betters derive from shaping our national progress against the wishes, efforts, and whimpers of right-wing losers.

      Blustering, all-talk Republicans are probably my favorite culture war casualties.

  9. The ETS is only valid for 6 months

    It should be noted that respiratory virus pandemics typically only go through 3 waves. We are currently on the middle of the 3rd wave which will likely end by early to mid February. So good chance the Covid pandemic will have basically ended within 3 months without a vaccine mandate.

    Between vaccines, however ineffective, and naturally acquired immunity, close to 80 % of the US population will have some form of immunity.

    1. Joe_dallas : " ... Between vaccines, however ineffective, and naturally acquired immunity ..."

      Speaking of what is & isn't "ineffective", the CDC says vaccines cause a "more predictable immune response than infection with the virus that causes COVID-19."

      They say: "Getting sick with COVID-19 can offer some protection from future illness, sometimes called “natural immunity,” but the level of protection people get from having COVID-19 may vary depending on how mild or severe their illness was, the time since their infection, and their age." They further suggest the safest course is to get vaccinated even if you had covid, which sounds sensible.

      (I only bring this up because you forgot to add "however ineffective" after "naturally acquired immunity". It's a mistake anyone might make if they belonged to the pro-disease party)

      1. grb statement -
        "Speaking of what is & isn't "ineffective", the CDC says vaccines cause a "more predictable immune response than infection with the virus that causes COVID-19."

        The CDC has been beclowning themselves through the covid pandemic. they have been making multitudes of mistatements from the kentucky study using a bogus numerator to the AZ school masking study from Auugst to name just a few

      2. the CDC says vaccines cause a "more predictable immune response than infection with the virus that causes COVID-19."

        Well, see, that's actually true, but not in the way you want to think: it's clear now that vaccine immune response predictably fails after a few months, and they still don't know if natural immunity ever wanes.

        But they know if they word it cutely like that, they'll rope in suckers like you thinking it means exactly the opposite.

      3. grb,
        With respect to infection acquired immunity, the CDC continues to maintain a fringe position with respect to the rest of the industrialized world. They have offered various excuses for that in the past. Too hard to administer, level vary. etc.
        Even countries with much stricter COVID protocols than the US blue states recognize such immunity for their pas sanitaire of green passes.

        1. Don,

          Your statement and my quote don't necessarily conflict. I made two points using CDC statements:

          1. That natural immunity isn't necessarily superior to the protection accorded by vaccines. Per my (admittedly incomplete) understanding, the efficacy of one protection vs the other is still under scientific debate. I made this point because joe_dallas is following the party line that says vaccines offer nothing and natural immunity is all. Without question, that's incorrect.

          2. The CDC (and others) recommend vaccination even if a person gets the disease.

          You reply some countries accept natural immunity as a degree of protection in deciding on anti-covid measures. Does that conflict with my points above?

          1. grb
            December.19.2021 at 1:34 pm
            Flag Comment Mute User
            Don,

            Your statement and my quote don't necessarily conflict. I made two points using CDC statements:

            "1. That natural immunity isn't necessarily superior to the protection accorded by vaccines. Per my (admittedly incomplete) understanding, the efficacy of one protection vs the other is still under scientific debate. I made this point because joe_dallas is following the party line that says vaccines offer nothing and natural immunity is all. Without question, that's incorrect."

            GRB - you have grossly misrepresented my statements.

            A) "Your statement / CDC statement - 1. That natural immunity isn't necessarily superior to the protection accorded by vaccines. Per my (admittedly incomplete) understanding, the efficacy of one protection vs the other is still under scientific debate.

            It is well documented at this point that natural immunity is much stronger than vaxed immunity. numerous studies are available that confirm that - See healthly skeptic for the numerous citations to those studies. The CDC statement is incorrect.

            I have never said the vaccines offer nothing. What I have said and which is very well documented and well known by those who are current on the data is that 1) the vaccines do in fact reduce severity of the covid illness,and 2) the effectiveness wanes significantly after 6 months. That is not any party line , but well documented facts.
            What is a "party line" is the denial of well known facts.
            Far too many people are resorting to political talking points instead of being current and informed on the subject matter.

            1. "natural immunity is much stronger than vaxed immunity"
              Joe, that statement appears in that form in just one paper, by Gazit et al, https://doi.org/10.1101/2021.08.24.21262415.
              It is completely unstudied the degree to which the claim is true with respect to Omicron or even variants of concern other than Delta.

                1. Joe,
                  Thank you for the citations especially the most recent ones

                  1. I would have linked more frequently, but previously every time I linked the post went into moderation.

                    I only went back to early December, there are probably another 10-15 from Nov & Oct

                    1. I have seen many of the earlier papers, but I have been working on own manuscript that has limited how many very recent reports that I have seen. So thank you again.

          2. grb,
            I never said that they conflicted.
            In fact I offered evidence to support your comment. However, I noted that the public posture of the US CDC is an outlier in the public health profession. That has noting to do with whether previously infected persons are better off also getting the vaccine .
            Try reading my posts objectively without assuming that I am trying to pick a fight with you.

    2. Joe,
      A number of countries show 5 or more wave of the virus or plateaus of hig infection that that so long that you cannot talk about waves.

      1. Don - in the grand scheme , there has only been 3 major waves, the initial wave, the winter wave of 2020/2021 and the current late summer 2021 or the winter 2021/2022 wave. The US for example had sub waves , depending what part of the country consistent with the well documented historical hopes simpson curves The others waves that you refer to are basically subparts of the three major waves.

        The point is that following historical trends for respiratory virus pandemics, there should be a major drop off after the end of this third wave, with a relatively minor 4th wave in the summer for a few southern states and and a relatively minor 4th wave in the winter of 2022/2023 for the northern states.

        1. Joe,
          Your statement is simply false on a global basis. The statement about dropoff is an hypothesis not borne out by any mathematical or epidemiological model of the transmission of disease in space and time.
          You might try to understand, "A COMPREHENSIVE SPATIAL-TEMPORAL INFECTION MODEL," by H. Ramaswamy et al.

        2. Joe,
          I have run times series and Fourier analysis on 20 European and Asia countries plus the US. Only in a distinct minority (roughly 30%) of cases can three "waves" fit either the time series or the frequency. A similar percentage require 4 or more Lorentzian or gaussian waveforms plus a very low frequency background to replicate the data.
          Your claim is simply wrong and without any evidenciary basis.

          1. Don - While some regions show 5 or more waves, and other regions show only one or two waves, There is a legitimate debate on how closely the various waves (3 waves in my opinion which are remarkably similar to the 3 major waves of the 1918 spanish flu)

            That being said, it would seem that only you, I and a few others are actually reviewing the research studies, sometimes reaching different conclusions, but we are at least reviewing the current research. The GRB, Sarcastros, Nieprorants, and a host of others are flat out refusing to look at the current research and reach the standard paranoia safetyism positions.

            1. Joe,
              I am not only reviewing previous studies but conducting my own research and publishing in peer reviewed journals.
              The issue of waves is one that I have just started analyzing along with an Italian colleague. The relevant data is quite diverse and in other phenomena and epidemics is highly influence by time-varying externalities. Therefore, I try to be careful with what I say (though not always succeeding).
              Best wishes for the holidays

              1. Don - I concur with most of you what state, often with minor differences in interptation. At least you and I and a few others are basing our comments on current and valid studies, even if we misintrepret the study. We are probably not as far apart from our interpretations of the current state of knowledge as it would seem.

                On the other hand, Most of the commentators, such GRB are making no attempt to making no attempt to be current.

  10. Meanwhile, the HHS requirement for health care workers is subject to conflicting courts of appeals decisions, yet Justice Alito, in no hurry to resolve the conflict and without referring the request to the full Court, gave the states two weeks to reply to the DoJ application to stay the fifth circuit ruling affirming as modified the LA. district court injunction, even as the eleventh circuit denied comparable relief to Florida. What plausible basis is there for granting two weeks to reply to the DoJ motion in the face of well thought out conflicting Courts of Appeals decisions? Is Justice Alito preempting the Court (or more precisely Justices Kavanaugh and Barrett) based on his seemingly well documented belief that expansive unitary executive powers apply only during republican presidencies? Or is he just a troll?

  11. There seems to be a problem with the "major question doctrine", particularly as it is phrased, "courts should be wary of broad assertions of agency authority, particularly where an agency seeks to exercise authority it has not identified or utilized previously."

    I would agree, that if an agency suddenly discovered that they had the power to regulate the production of food to eliminate hunger in this country that should be viewed with suspicion. However, the idea that the fact that an agency had not previously addressed a pandemic should not be viewed in the same manner.

    The issue is not necessarily that the agency did not have the authority, rather that the need for such authority never existed.

    Since the information is likely still classified I will not go into great detail, but legislative authority was ... granted ... to a number of federal agencies to deal with the aftermath of a nuclear war. This authority was exceptionally far ranging. If the judiciary managed to survive the nuclear exchange, I don't think their response would be "the US Strategic Command Surgeon has never claimed that it has the authority to take over the U.S. medical system previously, so we don't think it has the authority now", rather it would likely be, "that authority was never claimed previously since we never had a nuclear war previously."

    The fact that federal agencies have "exercise(d) authority it has not identified or utilized previously" must be viewed in the light of the fact that the situation where they might have exercised such authority never existed previously.

    It is not a valid legal argument to state that prior to (say) 2004 no court has issued a warrant to search a smartphone, therefore, no court has the authority to issue such a warrant. I believe the correct observation would be that no court had previously had the opportunity to issue such as warrant. The same analysis applies to actions taken by federal agencies to address a pandemic; the fact that they had not previously addressed a pandemic has no relevance.

  12. The three scariest phrases to a healthy democratic republic:

    "Unitary Executive".
    "Perpetual State of Emergency".
    "No Limiting Principle".

    Democracy may "die in darkness", but republics die in servitude.

    1. Without question, a horrific list

      However, it took an agitprop pro-disease campaign by right-wing leaders (aimed at the most gullible & docile of its members) to add "vaccine mandate" to that list.

  13. Some of y’all are granting that there’s an emergency. Where’s the emergency. In my undervaccinated red state we’ve been living normal life for months now. The pandemic here is over.

    Comparisons to the civil war are terribly overwrought, besides nobody is really celebrating, say, Lincoln suspending habeas corpus any more. That’s kinda like the sedition laws of WW 1 or the internments of WW2. Yeah they did them, but it probably would have been better if they hadn’t and it’s certainly not somowe would do today.

    A bunch of people are going to lose their ability to feed their families needlessly if y’all get your way, but you don’t care because you assume they’re people you hate anyway because they think wrong and all.

    Our current president is every bit the pompous dumbass our former president was. Remember when that guy declared an emergency and ignored congress to build his wall? There was an explosion of bovine birth events among the same people who think this one is swell. Seems it’s impossible to do politics without hypocrisy.

    1. Comparisons to the civil war are terribly overwrought, besides nobody is really celebrating, say, Lincoln suspending habeas corpus any more.

      How dare you, Stephen Lathrop is an actual person! And he posts regularly on here, including in this very thread!

    2. bevis the lumberjack : "Comparisons to the civil war are terribly overwrought"

      Well not in one way. Measures of excess death in the United States from covid are in the hundreds of thousands - somewhere in the range of 470-570K for the year 2020.

      Our country had another period with excess death on that scale: The Civil War from 1861 to 1865. I understand historians now tally that carnage at 750K.

      Looking from numbers to numbers, that seems like reasonable grounds for comparison, don't ya think? (Granted, a lot of the covid deaths were older Americans, and Bevis may feel they don't really count)

      https://www.nytimes.com/interactive/2021/01/14/us/covid-19-death-toll.html

      1. Are you familiar with the fact that the population of the US has grown a little bit since 1865?

        1. Yeah, he’s ignoring that our population is more than 10x what it was in 1860. It’s a ridiculous comparison made worse by the fact that all the war related unconstitutional stuff that presidents did has been widely disavowed.

          He seems like one of those that gets off on feeling superior to people he disagrees with - can’t seem to post without including an insult directed at the person he’s responding to. Of course in my case I said nothing that would indicate that I didn’t think that elderly Covid deaths should count, but I guess that’s the best he could come up with. I was assuming he insult me incorrectly for being anti vax.

      2. BTW,
        1) Excess deaths is not a universally valid means of reckoning in all countries. Some have experienced negative excess deaths.
        2) By December 31, 2020, only 354K deaths were reported as due to COVID-19.
        You have been caught in hyperbole

        1. Two points :

          1. From the link above:

          "Since March 2020, about 574,000 more Americans have died than would have in a normal year, a sign of the broad devastation wrought by the coronavirus pandemic. An analysis of mortality data from the Centers for Disease Control and Prevention shows how the pandemic is bringing with it unusual patterns of death, even higher than the official totals of deaths that have been directly linked to the virus. Deaths nationwide were 21 percent higher than normal from March 15, 2020, to Feb. 20, 2021. Our numbers may be an undercount since recent death statistics are still being updated"

          I sought other sources as a check, and found another tally that claimed only 470K. Thus I used a range in my comment above. You're free to shower us with alternate sources - just be careful you don't get "caught in hyperbole". You've been known to do that.

          2. You have a strange tendency to throw out world-wide anecdotes that have no relevancy to what's being discussed. I haven't yet worked out the motive on this, just make a point of it now.

          1. ""Since March 2020, about 574,000 more Americans have died than would have in a normal year, a sign of the broad devastation wrought by the coronavirus pandemic."
            So what. You love to cherry pick quote that cannot be verified from official statistics. You may check COVID-statistics on the WHO website or Oxford's Our World in Data.
            If you attribute "excess deaths" in the US all to COVID-19 you are caught in more than hyperbole. The Excess death statistic is all over the place when you look at the topp 100 countries in terms of COVID-19.

            2) "You have a strange tendency to throw out world-wide anecdotes "
            Not strange at all as I have been doing SARS-CoV-20 epidemiology professionally for the past 20 months nad looking beyond the borders of the US is the best way to eliminate political biases in discussions and news reports.

            1. What a strange bind I find myself in!

              1. If I quote the covid death statistics in the U.S. (such as the 801K number from the attached), I'm forever hearing it's an inflated number, and deaths from normal diseases are willfully added to the count

              2. If instead I quote the excess death numbers - deaths beyond the statistical average - I now hear that they're completely irrelevant to the pandemic. That hundreds of thousands of excess deaths have nothing to do with the pandemic raging around us - (perhaps being the result of zombie Martian pirates)

              Huh. I expect I'll never be able to quote a number, which may be the point..

              https://www.nytimes.com/interactive/2021/us/covid-cases.html

              1. You're not in a bind if you quote official numbers reported by national authorities to the WHO and published by neutral third parties such as the University of Oxford or Johns Hopkins.
                I'd avoid quoting newspapers and refer instead to their neutral third party source.
                Best wishes for the holidays

    3. Which state is that, bevis? Let us know so that everyone can analyze the data for themselves

    4. Where’s the emergency. In my undervaccinated red state we’ve been living normal life for months now. The pandemic here is over.

      I assure you that the fact that you're pretending that it's over does not mean that oodles of people in your state aren't dying from it.

  14. Disappointing that Prof. Adler asserts that "...the actual ETS OSHA issued is difficult to square with the agency's statutory authority." Considering this is the main argument for both sides of the 6th circuit opinion, he doesn't offer any backing for his assertion, unlike the majority opinion. Other opinion pieces, like one by Eric Segall at Balkanization, offer much more detailed argument and conclude that OSHA is well within its statutory authority.

    Also amazing, but not that surprising, is that almost none of the commentary here was on this question, but rather on superfluous topics like vaccine effectiveness or constitutional questions not reached or debated in the opinions.

    1. Balkinization doesn't always address a subject, but when it does . . . it generally makes the Volokh Conspiracy seem a paltry, polemical, partisan trifle.

      A blog featuring the better Conspirators and the Balkinizers would be a worthwhile development.

  15. Note today's CNN report about the interview with the Surgeon General:
    Omicron will lead to a spike in cases in the upcoming weeks, but those who are vaccinated and unvaccinated will have a “stark difference” in experience, US Surgeon General Dr. Vivek Murthy told anchor Tony Dokoupil on “CBS Mornings” Monday.

    “In the coming weeks, Tony, we are going to see a spike in cases. And that’s because Omicron is incredibly transmissible, and you know, we have to be prepared for that,” Murthy said. “But there will be a stark difference between the experience of those who are vaccinated and boosted versus those who are unvaccinated.” For people who have maximum protection from vaccines and boosters, Murthy said that they either won’t get an infection, or if they do, it will most likely be mild.

    In fact NO ONE has enough information about Omicron to make that statement. Hence, we have a political statement not sound medical judgement.

    Had Murthy would have been far more justified had he stuck with his final line:
    “If you are unvaccinated, I’m worried about you. I’m worried that your risk of being hospitalized, or God forbid, losing your life to this virus, is quite significant,” ...“It still remains the case that getting vaccinated and boosted is the best way to protect yourself, even against Omicron.”

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