The Volokh Conspiracy

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Vaccine mandates

My NBC Column on the Vaccine Mandate Cases Argued before the Supreme Court Today

In my view, the Court should uphold the CMS health care worker vaccination requirement, but rule against the overreaching OSHA rule imposed on employers with 100 or more workers.

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NBC just published my column on the vaccine mandate cases argued before the Supreme Court today. Here's an excerpt:

The Biden administration has adopted several policies mandating vaccination against the Covid-19 virus. The administration's desire to increase the vaccination rate is laudable. Vaccines are essential to limit the spread of the disease and especially to prevent severe disease, hospitalization and death — including against the new omicron variant. But the government must respect legal limits on its power.

On Friday, the Supreme Court heard oral arguments in cases challenging two of these policies for not respecting those limits. One case, brought by the National Federation of Independent Business and 27 state governments, questioned the Occupational Safety and Health Administration policy requiring employers with 100 or more workers to compel nearly all of them to get vaccinated against Covid or wear masks on the job and take regular Covid tests. The health care case challenges the policy requiring health care workers employed by institutions receiving federal Medicare and Medicaid funds to get vaccinated.

The court should uphold the policy imposing vaccination requirements on health care workers. But the regulation governing large employers is legally dubious and would set a dangerous precedent if upheld.

The broad large-employer mandate effectively gives presidential administrations a blank check to control nearly every aspect of every workplace in the country, going beyond the authority given to the executive branch by Congress. It also goes against long-standing legal doctrines that constrain presidential authority and limit power grabs.

By contrast, the health care worker requirement is much narrower, well within the scope of existing law and does not threaten to set a problematic precedent. It also focuses on protecting a group — hospital patients and nursing home residents — who are especially vulnerable and often cannot effectively protect themselves against the virus.

Later in the column, I explain how upholding the OSHA mandate would undermine the "major questions" and nondelegation doctrines, which are important constraints on unilateral executive power.

I suspect this column will - in different ways - annoy people on both right and left. The parts that some on the right may sympathize with are likely to annoy the left, and vice versa.

Be that as it may, I have at least tried to be consistent in emphasizing the importance of nondelegation and major questions. I raised the same issues in my critiques of the Biden and Trump administration's Title 42 "public health" expulsions, their eviction moratorium (begin by Trump and extended by Biden), and other Trump administration immigration and trade restrictions.

UPDATE: I should admit that I overstated part of my argument in the column when I said that viruses are "living things." I had always assumed viruses are a form of life. But it turns out there is actually a longstanding debate among experts about whether they are or not. This issue is only a small point in my argument. For reasons mentioned elsewhere in the article, The OSHA mandate is an overreach even aside from this question. Nonetheless, I should have been more careful about this issue, and I apologize for overlooking it.

NEXT: Brett Kimberlin (Speedway Bomber) Loses Attempt to Vacate Long-Past Convictions, Including First Amendment Challenge to Impersonating-Federal-Official Conviction

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  1. I come here for Libertarian opinions. Not for some ex-Soviet law professor who always wants to rationalize imposing his opinions on the rest of us.

    1. There is no way one can justify having government decide what professions get vaccinated and which don't, and still call one's self a libertarian.

      1. So long as this right-wing authoritarian blog calls itself libertarian, everyone and anyone is entitled to claim to be libertarian.

      2. Isn't this already happening for other vaccinations? Has been for decades?

        1. These right-wing tough guys were silent for more than a century as five-year-old boys and girls were vaccinated repeatedly for school, but found their voice when it was their turn. In the case of some clingers associated with the military, their god did not speak to them with respect to nine required vaccinations, but ostensibly had a fit about a tenth.

          How do these wingnuts handle the everyday tyranny associated with stop signs . . . center lines . . . tax returns . . . red lights . . . 'no parking in intersection' signs . . . ?

    2. You're certainly welcome to leave.

      1. Likewise, and I'm 100% with Roger.

        1. I appreciate knowing that you can safely be muted, and nothing of substance or importance will ever be missed.

        2. Of course you are. Heaven forbid the two of you ever have to read something that might disagree with the ideology you clutch so tightly. Cover your eyes and ears and sing very loudly.

    3. You come here for right-wing bigotry, superstition, and backwardness, Roger S.

      And you are rarely disappointed.

      1. You sure do a lot of name-calling.

        1. I use accurate descriptors.

          I have lost my taste for political correctness, especially with respect to useless culture war casualties. I now call a half-educated racist a half-educated racist, a superstitious gay-basher a superstitious gay-basher, a downscale immigrant-hater a downscale immigrant-hater, and a can't-keep-up backwater a can't-keep-up backwater.

          Some people dislike this, preferring to hide behind euphemisms such 'traditional values,' 'conservative values,' 'religious values,' 'colorblind,' and the like. In this context, however, accuracy is an important virtue, regardless of how much it displeases racist Republicans, gay-bashing conservatives, and Muslim-hating clingers.

    4. I come here for Libertarian opinions.

      That would require reading on your part. You might want to try that, if you're able.

    5. How is he “imposing?” Ilya isn’t in government. Do you know what the word imposing means?

    6. Roger S....The VC is 'Often Libertarian', not 'Always Libertarian'. 🙂

      1. Much as the Detroit Lions are "often champions" but not "always champions."

        That this blog advertises itself as libertarian without mentioning conservative reflects poorly on the character of every Conspirator -- and misappropriates the franchises of legitimate, mainstream schools with which this blog announces associations.

  2. Got to disagree with Somin on the OSHA case. If there were no clean drinking water in a workplace, but only a contaminated source that spread disease, would Somin rule that outside of OSHA's mandate? How would that be any different than avoidably spreading disease through the air?

    If it were Alito's reasoning expressed in oral argument, that OSHA jurisdiction can only apply to worker safety on a case-by-case basis, with workers entitled to take risks to themselves as they choose, what happens then? Can all the workers take the guards off their grinders?

    I hope everyone agrees that the healthcare case ought to be a slam dunk for Biden. If not, please explain why it makes sense to let a nurse go unvaccinated who works in a medical infusion center, with a job to suppress the immune systems of multiple patients, every day, shift after shift.

    1. "How would that be any different than avoidably spreading disease through the air?"

      OSHA could require clean water be provided in the workplace while not imposing drinking water requirements outside the workplace where OSHA has no authority.

      OSHA can not require employees be vaccinated only in the workplace.

      Do you think OSHA has a general power to regulate municipal water quality just because that water is delivered to workplaces?

      Can you name one prior OSHA rule that required employees to take specific safety precautions outside the workplace.

      1. Being vaccinated outside the workplace is a side effect of being vaccinated for the workplace. Since you can control your exposure outside the workplace but not in it, except by quitting, that is the determining criterion. We are protecting people in high density situations with unintended downstream effects.

        1. Who gets to decide whether it's considered a "benefit" or not? It shouldn't be OSHA.

          Should OSHA be able to require that you go to a gym in your spare time? Obviously not.

          1. That is the argument one would expect of a second-year law student approaching moot court; the student has begun to learn something about argument and the law but has not yet developed the judgment associated with persuasive argument.

          2. Should OSHA be able to require that you go to a gym in your spare time? Obviously not.

            What does that have to do with workplace safety? Does being a couch potato threaten the health of one's coworkers?

    2. "I hope everyone agrees that the healthcare case ought to be a slam dunk for Biden. If not, please explain why it makes sense to let a nurse go unvaccinated who works in a medical infusion center, with a job to suppress the immune systems of multiple patients, every day, shift after shift."
      Knowing that even vaccinated individuals can transmit disease, there are better control measures to help the severely immunocompromised and vulnerable patients, which do not take away the caregiver's own right to informed consent. Full respirators would make sense in some circumstances, but these details are beside the point of whether the federal government has Constitutional power, or is better positioned to provide guidelines to states.

      1. And now after having actually listened to a bit more of the argument, I remember that factors for injunction can be broader than elements of merits case . . .

    3. Got to disagree with Somin on the OSHA case.

      I don't have a firm position on the case yet, because I haven't read the briefs, but I do know that the issue isn't what Stephen Lathrop thinks is good policy. It's what the law actually says. OSHA doesn't have a "mandate"; it has a statutory grant of specific authority. It is not empowered to do anything it think might be a good idea just because the word "workplace" is mentioned.

      1. There is also nondelegation, beyond the statutory analysis.

        1. I thought the whole sidebar on the nature of ambiguity, and whether that applied was pretty interesting.

          I like the 'new' format of argument. They let the lawyers give a (hopefully) succinct summary of their case without interruption, and then questions by Justice. A lot different than what I remember from years ago. I distinctly recall numerous times when lawyers would start argument and literally 30 seconds into making their point, get peppered with questions and really did not let them develop their argument. I think this format makes arguments more efficient.

          Also, CJ Roberts made an amazing observation about the agency by agency approach (Justice Breyer picked up on the 'deep' question as well). To me, the entirety of the OSHA case rests on that section of his questioning and the points he made. I hope the decision discusses these important points. See pages 78-83 of the transcript (where Justice Thomas finishes questions and CJ Roberts begins his colloquy with SG Prelogar).

          1. Oral argument is less for the Justices and more for the public, or so conventional wisdom says.

            And this is a much better format for that, to be sure.

      2. And here I thought the subject under discussion was ambiguity about what OSHA is empowered to do. No doubt your awaited firm position will put that ambiguity to rest.

  3. Has there ever been someone as ill-informed and partisan as Sotomeyer and Breyer?

    Are they historically stupid and evil? Or is this common to have morons on SCOTUS?

    1. If you prefer Thomas and Alito, prepare yourself for complying with the preferences of your betters for the rest of your life, BCD.

    2. BravoCharlieDelta
      January.7.2022 at 8:18 pm
      Flag Comment Mute User
      Has there ever been someone as ill-informed and partisan as Sotomeyer "

      You mean dodomeyer?

      1. Completely wrong, and 100% sure of her wrong assertions about the virus. The liberal wing of the Supreme Court is pitiful.

        1. I'm sure they're crushed by not getting your approval.

          1. Do you approve of Sotomayor and Breyer spouting COVID misinformation?

            1. What they spouted was politically correct, which the modern left considers to be the best kind of correct.

            2. What misinformation are you talking about?

              1. 750 million new cases of COVID two days ago?

                100,000 children in serious condition?

                Kids on ventilators?

                Omicron deadlier than Delta?

                Hospitals full? Growing by factors of 10?

                OSHA mandate would prevent 100% of daily COVID cases?

                Do you live under a rock?

              2. Sotomayor asserted that the omicron variant is "just as deadly" as the delta variant, and also that "We have over 100,000 children, which we have never had before, in serious condition and many on ventilators".

                All the evidence to date indicates that omicron is less deadly than delta, and we have only 113,000 total Americans in hospitals who have COVID-19 -- most of them not children, many in the hospital for unrelated reasons. According to the CDC, there have been fewer than 6,000 total COVID-19-associated hospitalizations of children since the start of the pandemic.

              3. Sarcastr0
                January.8.2022 at 9:07 am
                Flag Comment Mute User
                "What misinformation are you talking about?"

                Asking that question indicates that you are grossly misinformed regarding most every aspect of covid.
                gotta get you info from reliable source. Follow don Nico's comments, most of his comments are spot on and based on source documents/ quality studies CNN, MSNBC, NYT etc are rarely close to accurate.

      2. Yet another valuable contribution to the discussion by Joe_Dallas.

        1. dodomeyer was the same justice who wrote in dissent that it was unconstitutional for a state to pass a state constitutional amendment requiring compliance with the 14th amendment of the US constitution. Shuttee v Bamm

          dodomeyer deserves distain from anyone that respects the constitution

          1. Yeah, your constitutional analysis is really underscored by your schoolyard nickname.

            1. He's not wrong about what Sotomayor wanted in that case, however childishly he phrases it.

              Michigan voters enacted a ballot proposal banning state institutions from racially discriminating. And she'd have struck it down on the basis that it stopped racial minorities from successfully lobbying for racial discrimination in their own favor.

              I doubt she'd ever apply that reasoning to racial majorities...

              By the way, I lived in Michigan at the time, and BAMN certainly lived up to their name: They had no scruples AT ALL about the means they'd use, and were proud of it.

              1. So you were there to offer professional courtesy?

            2. Sotomayer/dodomayer deserves her nickname with her constitutional judiprudence.

              Ricci
              shuttee v bamn

              enough said

    3. “ Has there ever been someone as ill-informed and partisan as Sotomeyer and Breyer?”

      Yup. Shocking amount of misinfo coming out of SCOTUS. Twitter needs to deactivate @SCOTUSblog immediately.

    4. Has there ever been someone as ill-informed and partisan as Sotomeyer and Breyer?

      How about Gorsuch? He did the dance about polio and influenza and that (to his knowledge) OSHA has never mandated workers get those vaccines. And he said that after the government's counsel pointed out that COVID has been unprecedented compared to those.

      Polio in 1952 in the U.S. (worst epidemic prior to vaccines): 57,628 cases reported that year, 3,145 died and 21,269 were left with mild to disabling paralysis.

      Bad flu seasons in the U.S. kill an estimated 50,000 people.

      In two years, COVID has killed over 800,000 people in the U.S. It is an order of magnitude worse than a bad flu season. Some might counter with how COVID is at its worst for older people and people with comorbidities, but given that between a third and half the adult population has at least one comorbidity, that is a weak argument. And wasn't it the GOP crying out about "death panels" that would let grannie die to save money under Obamacare? If COVID cuts short the life of a 75 year old by 10 years, it is still a tragedy.

      I should note that a transcript of the oral arguments have Gorsuch saying that "hundreds of thousands" die from the flu each year, but I just listened to that portion of the argument, and it sounds more like "hundreds, thousands", which would be accurate. So the twitterverse is jumping on him for that and it is unjustified. Just comparing COVID to the flu at all is not valid, though.

  4. NBC? I thought Newsweek was the publisher of choice around here . . .

    1. Hey, would it be okay if someone started an account called "Rev. Arthur L. KorkBrains"?

      Asking for a friend.

      1. Someone regularly posts on the main Reason site using the nickname Rev. Arthur L. Kuckland. For what it's worth.

          1. From what I've seen, that commenter's posts are worth no more than his namesake's -- they debase the electrons carrying them.

      2. Is my criticism and mockery of this White, male, stale blog and its bigoted, downscale target audience bothering some of you?

  5. I haven't seen as much detail on health care workers case as OSHA, but am surprised by the Professor's split. Were arguments confined to statutory authorities, or did they also speak to enumerated powers for impact on informed consent of individuals who are not federal employees? Saw some commentary on factual errors in questioning with respect to pandemic, but it seems that effectiveness of policy is beside the main point of Constitutional authority, especially if the federal executive/agency could simply provide guidance to competent state governments.

    1. Welcome to the VC comments section. Actually pertaining to the subject in some meaningful way is far less important than getting in ideological digs.

  6. You have to sympathize with Biden's situation. He's facing history's first pro-disease party, a right-wing leadership & propaganda machine campaigning against vaccinations and public health because they think there are votes to be found in people who are gullible, fearful and misinformed.

    But Professor Somin makes a strong case that the OSHA mandate is overbroad. Perhaps the Right's disgusting behavior in this pandemic is the best argument otherwise.

    1. "history's first pro-disease party"
      You would be a lot more credible if you stuck to facts than your partisan taunts.

    2. GRB - you have a delusional understanding of the reasoning of the unvaxed.

      A large portion of the unvaxed (probably more than half) remain unvaxed due to tension between the best long term solution ie, the short term ultra safety view vs the view of what is the best long term solution.

      On the pro vax side, the vax is reducing the severity of the infection, death rates and case rates. During the early stages, the vaxed were around 10-15x less likely to die, less likely to be hospitalized, beginning in the august / sept time frame that benefit dropped to around 6-8x, In Dec that benefit ratio dropped to down to the 3x-5x range (absent the 3rd booster). There are early indications that the omicron variant has dropped that ratio even lower (with the caveat, that 3 weeks into the omicron variant, its too early to have reliable data. I am basing that comment from data coming out of Ontario / climateaudit dot org)

      On the flip side, natural immunity is providing 5-8x benefit over vax. reinfection vs breakthrough. Likewise, there are strong indications at this point, that 90%+ of the population will catch covid, with or without the vax.
      With that in mind, at this point, there is significant merit to the proposition that acquiring natural immunity will turn out to be the only viable long term solution

      Note that the ratios I used are general ranges to illustrate the thought process.

      I for one think that everyone over age 50 should absolutely get vax while at the same time it is idiotic to vax children unless those children have health issues.

      1. On the flip side, natural immunity is providing 5-8x benefit over vax.

        Even if that were true, and I would point out once again that you're making it up, it has no bearing on the question of whether one should get vaccinated.

        1. I believe Joe_dallas is thinking like this guy.

        2. natural immunity is running about 5-8x better than vax immunity.

          that is fairly well established at this point

      2. Joe_dallas : ".... the reasoning of the unvaxed ..."

        Three Points and Questions:

        1. I know people who are unvaccinated, and I have followed the propaganda of your political masters. Your account bears no relationship to the "reasoning" of the unvaccinated, the fear mongling behind that "reasoning", or the disgusting political motives behind THAT.

        2. Whenever I look for scientific consensus on the relative effectiveness of vaccines vs natural immunity, I find none. I can find this authority or that study that supports one side, but it seems meaningless to quote it as definitive. Of course that's exactly what you do.

        3. Of course the CDC does say this : "Substantial immunologic evidence and a growing body of epidemiologic evidence indicate that vaccination after infection significantly enhances protection and further reduces risk of reinfection, which lays the foundation for CDC recommendations"

        4. So what do you think about that? I understand that you want your right-wing Pro-Disease Merit Badge (with anti-vaxx oak leaf cluster), but is it possible this isn't a question of either-or?

    3. I will also point out that the vaccine mandate quite possibly is a solution to yesterday's problem.

      A) the vaccines appear to be very ineffective against the omicron variant. So to some extent, it similar to get last years flu shot for this years flu strain.

      B) the second point is that with a high percent of the unvaxed catching covid, the percentage of the unvaxed with natural immunity will be higher than the percentage in the vaxed community with good immunity from the vaxes
      C) the last point is that with the typical cycles in respiratory virus pandemic waves, it is highly likely that this wave will end by mid to late february with the next wave of consequence not starting until late summer at which it will be time for the 5th booster shot.

      1. If natural immunity was always so great, then why do many people get colds every year? And sometimes more than once in the same year?

        You should be citing actual research if you are going to make claims like those.

        1. I am looking at the case rates
          current case rates are approx 40-45% vaxed, 55-60% unvaxed, reinfections approx 1-3%,

          approximately 15-20% prior infection , approx 70% vaxed, some overlap. original infections since march 2020 vs breakthrough since aug 2020 when vax effectiveness dropped off. the 5-8x is a reasonable estimate.

          1. Where are these numbers coming from? I haven't seen case numbers broken down by vaccination status like that. I could look myself, but I'm not the one making the claim here.

        2. If natural immunity was always so great, then why do many people get colds every year? And sometimes more than once in the same year?

          Well, that's one way to tell people that you are totally ignorant on the subject.

  7. Professor Somin has got it right. OSHA mandate is too broad, healthcare worker mandate is a slam dunk.

    1. Vaccines don't stop the spread or becoming infected. they are therefore not relevant for public health.

      1. Yes, they do, and yes, they are.

        1. No, they don't, and I and my entire family are living proof. The vaccine does NOTHING to stop the spread, COVID is extremely infectious, vaccines be damned. The whole family all got sick within days of each other, obviously from the same event. Three different households were involved. This was much more infectious than any flu or cold. 100% infection.

          1. Your family is an anecdote. In awful and sucky one, but it doesn't change what's being observed in the general population.

            1. No, my family is hard EVIDENCE. Wake up and open your own eyes.

              1. So do the actual studies, and the numbers being observed in hospitals. The same observations you did, only with a much larger number of people.

              2. Dave,
                Your family is only one datum not proof of anything.
                The mRNA viruses are easily evaded by the omicron variant. That does not mean that the vaccines do nothing. Clearly the efficacy is well below 80%. It could be as low as 40%. The same is true about "natural immunity" due to previous infections.
                Does the vaccine lower the severity of outcomes?
                Maybe. The case fatality rate in heavily vaccinated Denmark is about 0.15%. In essentially unvaccinated South Africa, it is 0.3%. Presently in the US it is about 0.8%.
                I hope you all get well soon.

                1. If we want to have real fun, the efficacy rate with the vaccine can be negative.

                  Vaccine efficacy against Omicron for the Pfizer and Modern Vaccine received more than 3 months ago was -40% to -70% from a recent Danish study. Meaning those who got vaccinated in that time frame were more likely to get Omicron than those who are unvaccinated.

                  https://www.medrxiv.org/content/10.1101/2021.12.20.21267966v2.full-text

                  Queue the handwaving and "well the statistics don't mean that!" now... Nothing about the "epidemic of the vaccinated spreading Omicron"...

                  😉

              3. "My grandfather lived to be 95 years old even though he smoked three packs a day. Therefore, smoking doesn't cause lung cancer."

                1. People who never smoked and had little to no exposure to "second hand" smoke get lung cancer.

                  Smoking increase the risk of getting lung cancer but that is nowhere near the same as smoking causing lung cancer. And statistical population level studies will never be able to bridge that gap.

                  Doctors can not look at cancer cells for any cancer, including lung cancer and determine what caused that particular cancer.

                  1. Doctors can not look at cancer cells for any cancer, including lung cancer and determine what caused that particular cancer.

                    Right. But something caused it. And when you see a strong statistical correlation like there is between smoking and lung cancer rates, along with a reasonable proposed mechanism for causation, then it is fair to say that smoking can cause lung cancer. It is also correct to say that smoking is the likely cause of the lung cancer in a smoker.

                    https://www.verywellhealth.com/what-percentage-of-smokers-get-lung-cancer-2248868

                    1. " But something caused it"
                      It could have been a comic ray. It could have been a spontaneous mutation. It could have been the exhaust from your auto. No one knows.
                      But any mutagens can cause a cancer and tars are mutagens.

            2. This isn't anecdote.
              https://www.healthvermont.gov/covid-19/current-activity/data-summary

              Every biweek since Vermont started logging breakthrough infections in May, over half of the recorded Covid deaths have been among the fully vaccinated. This past biweek it was over 65% of them.

              You can also look up the IL and MN state health stats and find similar (but lower numbers, more like 30-40% of the deaths being fully vaccinated) - they keep good records on breakthrough hospitalizations and deaths, too.

                1. S_0,
                  That really is not an answer to Debbie.
                  In Alameda county CA, the rates went from 150/day for six days to 450/day for 10 days to 3100/day for the last 5 days.
                  Such spikes have been seen all around the globe.
                  No base rate fallacy there, especially because there is no base rate.

                  1. I think Sarcastr0 is saying that Dewbie improperly ignores the base rate of death among unvaccinated people when commenting about the total or vaccinated death rate. Or perhaps the difference in rates of vaccinations among the general public and those most at risk from COVID-19 infections. Both are relevant here.

                    Vaccines provide some protection against COVID-19, especially against severe disease and death, but they are far from perfect. So a bunch of vulnerable people got vaccinated but still might die from a COVID-19 infection, but more would have died if they never got vaccinated.

              1. Almost 80% of Vermont is vaccinated, so if only 65% of deaths are amongst vaccinated people, there's your evidence right there that vaccines do something. If vaccines actually "did nothing", you'd see 80% of deaths (and 80% of infections) among the vaccinated - which is not the case.

                And the something they do is reduce the severity of infection. Despite what some stupid and ignorant people will tell you, they do not prevent infection. There is no magical forcefield covering you after you get a vaccine, so don't even think about "not getting infected". What you want is to minimize the impact of becoming infected - and vaccines are a good way (currently the best way) to do that.

        2. While vaccination status may be relevant to "public health", you are flat out wrong if you say that "vaccines stop the spread" or "vaccines stop you from becoming infected".

          These vaccines do not generate a forcefield around your body that only filters out COVID, and there are no invisible gremlins pushing the virus away from you either.
          Vaccines work by pre-training your body's response to being infected. They have no meaning or impact if you are not infected by the virus in the first place! Instead, you get a faster and better response by your immune system, which usually leads to a shorter and lighter infection than you otherwise would have faced. This is a good thing, and should be encouraged.

          But making blatantly incorrect statements like you did does nothing to persuade or inform anyone, much less encourage them to get vaccinated.

          1. Do brakes stop cars from getting in accidents? Do airbags stop people from being injured in accidents? Do bulletproof vests stop bullets? Yes, and yes, and yes.

            Interpreting "stop" as "prevent 100%" is a bad faith argument.

            There are no vaccines for anything that prevent 100%. That's obviously not how it is being used.

  8. What would health care workers know about health care? We can't let them make their own decisions. We have government "experts" to do that for them, experts like HHS Secretary Xavier Bacerra, who has no medical background whatsoever. Let's leave the decision to him.

    1. F.D. Wolf : What would health care workers know about health care?

      I can only answer from personal experience - in my case a sister who is an x-ray technican. We spoke about covid just yesterday and I can distill the conversation into three points:

      1. She is exposed constantly to covid, often by sloppy work from admitting officials.
      2. People who aren't vaccinated are dumbass fools.
      3. There are a lot of unvaccinated dumbass fools around.

      I didn't ask, but I suspect she welcomes the healthcare worker mandate, fewer dumbass fools in world being the laudable result.

      1. So it sounds like she's getting exposed via patients, not coworkers. How does the mandate change anything?

    2. Appeal to authority is good now?

      1. If you had listened to the oral arguments, or at least read about them, you would know that is precisely what Justice Kagan was harping on: leaving it to the "experts", a label she assigns the bureaucrats at HHS.

        I suggest the actual experts are the people running the facilities all over the country, who have varying needs, not the people sitting behind desks in Washington, D.C., with their usual "one-size-fits-all" approach to everything.

        One manager might think a mandate is best for his facility. Another might think a mandate will cost him half his employees, and he will have to close his facility. That is where the decsion-making should rest, not D.C.

        1. That's not what you're saying though - you're not saying leave it to the elected policymakers and their experts, you're just arguing health care workers are all experts who should be able to make individual decisions in a free rider type situation.

          One is about who makes the decisions in an institution. The other is a fallacy.

          1. Thank you for letting me know what I was arguing. You seem fond of pointing out logical fallacies. What's it called when you counter an argument no one is actually making?

            Quod scripsi, scripsi.

            1. What would health care workers know about health care? We can't let them make their own decisions.

              Here's what I said you were arguing: you're just arguing health care workers are all experts who should be able to make individual decisions in a free rider type situation.

              Seems like I got it bang-on. What did I miss?

              1. Seems like I got it bang-on. What did I miss?

                The clown word in use here is "all". The original poster in a somewhat tongue in cheek noted that many local health care workers were as good or better at making their own decisions than some bureaucratic apparatchik. This is likely true.

                The dishonest word game being played was a rift on the usual fallacy of the excluded middle Sarcastro loves so much. The statement is strawmanned by adding the word all and then pretending amazement because the meaning goes from likely accurate to ridiculous.

    3. "experts like HHS Secretary Xavier Bacerra, who has no medical background whatsoever"
      But... but .. he is Hispanic
      and the successor CA AG to Harris.

      1. Oh, come on, Don. No one is saying anything like that.

        1. But really, what qualifications did XB have except that he launched the most law suits against the Orange Clown (and his ties to Harris).

        2. Sarcastr0 : "Oh, come on, Don"

          Wanna know what's really hilarious? Our very own Don Nico said this a few posts back:

          "I don't care about pitiful US politics"

          To be fair, I think he honestly believes whatever he says at any given moment, and that moment he most wanted to avoid responding to an overview of the Right's pro-disease agenda. (He really doesn't like that subject).

          But dang if his interest in "pitiful US politics" hasn't taken a massive upswing since...

          1. grb,
            You are full of garbage.
            XB is head of HHS, for NO good professional reason whatsoever.
            Your Pro-disease Party rants are pitiful.
            I see you as just another authoritarian, caring little about the nature of the disease about the prospects for its control and focused on a pitifully narrow view of the entire pandemic.

  9. "My NBC Column on the Vaccine Mandate Cases Argued before the Supreme Court Today"

    How did your NBC column come to the attention of the Supreme Court?

    1. I think he realized that his headline gave that impression . . . and then decided to keep it that way. Josh’s egotism is rubbing off.

      1. This blog is resolute -- it will avoid the tyranny of editors, no matter how shitty its product becomes.

  10. Where this points is to "racism as an occupational hazard".

    Or just a medical occupational hazard.

    And how much authority the feds have to mitigate such.

  11. First the vaccines (which really are not vaccines in the traditional sense but more preemptive mortality effective propyalatics ) do not stop the spread and are more about private health than public health. This obsession with "vacines" and not aggressive treatment is typical of govt acting myopic. Second, govt can't discriminate or pass laws forcing the people to discriminate.

    Third, this author already got beat by Angela McCardle at Geno's debate (Soho)...three strikes and you out Bolshie..ha ha

    1. Bolshie? Yeah, just devalue that for your own asshole jollies.

      And wrong about vaccines. Sorry, 'preemptive mortality effective propyalatics'

    2. Oh, now I realize who Titus is talking about: the woman who actually committed vote fraud to "win" a debate.

  12. If nothing else, I look forwards to some specifics on the contours of the nondelegation doctrine.

  13. You can't force people to adopt a policy they ultimately don't want. Even in totalitarian states. When you cram an unwanted policy on people, the people find a way to go around it.

    So it turns out that long term the only stable government is government by consent of the governed.

    Look at what's happening with social media. They put the squeeze on free thinkers, and the free thinkers find alternative media. I subscribe to about a dozen Substack authors now. Where formerly I used to get my information from a website or a web service, I now get it from the "throwback" tech of email newsletters.

    You MUST convince, you cannot force!

    1. " When you cram an unwanted policy on people, the people find a way to go around it."
      Tell that to the Hong Kong people.

  14. If this is true:

    "The broad large-employer mandate effectively gives presidential administrations a blank check to control nearly every aspect of every workplace in the country, going beyond the authority given to the executive branch by Congress."

    Then this next needs something to defend it other than Prof. Somin's "so there!".

    "By contrast, the health care worker requirement is much narrower, well within the scope of existing law and does not threaten to set a problematic precedent."

    I think this next sentence is missing one or more words. Unless it's as simple as "under" was supposed to be "undermine".

    "Later in the column, I explain how upholding the OSHA mandate would under the "major questions" and nondelegation doctrines, which are important constraints on unilateral executive power."

  15. Prof. Somin seems to care more about being perceived as "consistent" (whatever that means) than reaching the truth.

    1. Truth in law is matched with consistency

  16. Would hospitals be allowed to decide to not accept medicare or medicaid patients moving forward? It would be like being out of network. I'm not asking if it would make business sense just if they would be allowed to turn away people. I have read about closing maternity departments due to staff shortages. Could they say it makes more sense to deliver babies than to treat 80 year olds?

  17. "It also focuses on protecting a group — hospital patients and nursing home residents — who are especially vulnerable and often cannot effectively protect themselves against the virus."

    They apparently cannot effectively protect themselves against the government as well.

  18. Regarding the CMS case.

    Parens Patriae: That goes to standing, correct? Does the case get tossed, or something? Justice Thomas was focused on that. Why?

    I also note a few references to APA violations (oh, the irony) in promulgating this mandate.

  19. I think that viewing the OSHA mandate as constitutionally problematic is dangerously short-sighted.

    There may be a valid case that the OSHA mandate exceeds the president's statutory authority, under the OSHA, to regulate workplaces so as to prevent transmission of disease in the workplace. If the OSHA mandate is to be vacated, hopefully it will be done only because the OSHA mandate exceeds that statutory authority.

    The problem with elevating it to a constitutional question is that we risk expanding the "major question" and "nondelegation" doctrines into a much broader cudgel against the administrative state. Like it or not, the fact of the matter is that we have decades of regulations and sub-regulatory guidance that might arguably be said to run afoul of an aggressive "major question" or "nondelegation" standard. Our modern economy is in many ways built on the settled expectations created by this body of regulation. You make the wrong move on this OSHA mandate, and you risk blowing all of that up.

    And this is regular, pocketbook-type stuff. How you're taxed. How you invest. I'm sure a lot of fauxbertarians here work in regulated industries where they don't even realize their jobs exist because of an agency regulation that created them. An aggressive holding on "major question" or "nondelegation" grounds would be like placing a bomb under the American economy and laying a fuse; it would only take a Court willing to light it to blow it all up.

    1. So, even though the jobs are likely due to illegal activity...we should keep them anyway?

      Seems like it'd be better for all to eliminate said jobs.

  20. Sadly, I think Somin is right on law regarding the healthcare mandate. As a libertarian, I bristle at the consequences of the healthcare vaccine mandate.

    He’s also right on the law regarding the OSHA Mandate. Further, I’m a safety professional and I can tell you that masking created all sorts of additional risk in industrial workplaces. The ETS provides a mild cover if an employers determines that a mask creates additional risk but it provides no method to make this determination. Further, no where in OSHA regulation has OSHA required a worker inject themselves with a hazardous substance as a method of hazard control. While the risk of the vaccine is low, the risk is not zero and OSHA acknowledges this by requiring time off to recover.

    But here’s my greater concern with vaccine mandates. If someone is forced to choose get a vaccine and they have a severe adverse reaction, especially one causing permanent disability or death, there’s no one to sue for damages. The pharma companies are shielded from liability. Want us to trust the vaccine? Subject the producers of the vaccines to liability.

    1. Thomas,
      Trump was correct. If you want pharma to move extremely quickly, you provide them with a liability shield. That worked. Now you want the government to go back on its word? That case will certainly fail.

      1. Then do not demand somebody take a medication where, if something goes wrong, they have no possibility of compensation for damages.

        1. Your comment does not follow from any legal basis.

        2. There is a no-fault compensation program for vaccine-related injuries: https://www.hrsa.gov/vaccine-compensation/about/index.html

  21. You lost me in the first paragraph "Vaccines are essential to limit the spread of the disease and especially to prevent severe disease, hospitalization and death — including against the new omicron variant..." with a reference to a PBS article based on medrxiv preprints as a proof text?

    There is little evidence for just about every word in your introduction:
    * "essential" - most recent reports out of Denmark and UK seem to show no significant protection against omicron infection (indeed, they point to the possibility of a negative efficacy, although this is subject to all sorts of demographic confounders).
    * "limit the spread" - again, I am aware of no study that shows this. There are a few studies that attempt to tie reduction in symptoms or antibody evidence to reduction in transmission, but this is by not means an obvious connection (especially, as we know of asymptomatic spread)
    * "prevent ... death" - I am aware of no study that shows this. COVID deaths, though horrible, occur much too infrequently for a properly (statistically-)powered study to show this
    * "... including the omicron variant" - this is just not a testable hypothesis given the very limited omicron data we have so far, and it is the height of foolishness to make such a claim in the current context.

  22. Whether living or not, viruses fall under OSHA's definition of "agent". From their web site, "Biological agents include bacteria, viruses, fungi, other microorganisms and their associated toxins. " Their usage is consistent with several dictionaries I've checked and my general reading.

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