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Who Decides About COVID Mandates?

Judge Sutton's important question lingered throughout the vaccine cases.


Yesterday, the Supreme Court heard nearly four hours of argument about vaccine mandates. Throughout the entire session, one question popped up over and over again: Who Decides? Who should decide to impose a vaccine mandate: Congress, the states, the agencies, the courts? Judge Sutton's new book eloquently addressed this important question. And I suspect several of the Justices and the advocates have been thinking about Judge Sutton's question, as have I.

During the first argument, Scott Keller, who represented NFIB, was answering a question from Justice Breyer. He concluded his remarks "The question is not what is this country going to do about COVID. It's who gets to decide that." Justice Kagan jumped in and said "Well, who does get--" Chief Justice Roberts interrupted her and said, "Maybe, at this point, we can go justice by justice." Come, on Chief!? At that moment, I knew exactly what Kagan was asking. And when Kagan's turn came during the lightning round, she jumped right into it.

JUSTICE KAGAN: Mr. Keller, your -your very last comment in your first part of your argument I want to come back to because your very last sentence, you said the question is, who decides? And I think that that's right. I think that that is the question.

Unsurprisingly, Kagan would answer that question differently than NFIB. She would let the expert agencies, who work for the accountable President, decide.

JUSTICE KAGAN:  Respectfully, I --I think it has a different answer than the one that you give, so I'll just sort of put a different version of it to you, which is, you know, you're --I'm sure you're right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this, all kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other.

So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the President? This is not the kind of policy in which there's no political accountability. If people like this policy, they'll go to the polls and vote it that way. If people don't like it, they'll vote that way.

This is a publicly --a politically accountable policy. It also has the virtue of expertise. So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question?  …. And why is it that courts would displace that judgment and say it is up to us to decide about vaccination policy in the employment settings of this country?

Presidential administration at its finest.

Justice Breyer also asked a variant (no pun intended) of Kagan's question:

JUSTICE BREYER: Should it be that we decide, you know, as against what the Secretary has decided, in performing his important function of evaluating these potential disruptions and weighing those disruptions against the health benefits that he sees in that rule? Should we say we think that the --that the disruptions are more, greater than the Secretary thought and we further would weigh them differently against the health benefits of the rural? Is that for courts to decide?

Justice Kavanaugh picked up on the theme of who decides.

JUSTICE KAVANAUGH: I want to follow up on Justice Kagan's who decides question because I do think that gets to the --the heart of this.

But Kavanaugh approached the question differently. He asked about the major question doctrine, and whether Congress wanted OSHA to decide this question:

JUSTICE KAVANAUGH:  You're relying on the major questions canon in saying that when an agency wants to issue a major rule that resolves a major question, it can't rely on statutory language that is cryptic, vague, oblique, ambiguous.

(A brief admin-law detour. The word "cryptic" here is important, because it has a different connotation than "vague" or "ambiguous" in the Chevron context. In other words, the major question doctrine would still apply even if a statute is not ambiguous. Kavanaugh repeated the word "cryptic" several other times, so he has telegraphed how he would apply the major question doctrine. Back to who decides.)

Justice Gorsuch also returned to the question of "who decides." He too framed the issue at whether the "appropriate party" gets to make these regulations. Has Congress given OSHA this power?

JUSTICE GORSUCH: Mr. Flowers, I'd like to return to the question of --of who decides. And I think we've all kind of come to the point where we all agree that states have --have a wide police power under our constitutional system that Congress has to regulate consistent with the Commerce Clause and --and make the major decisions while agencies can do the work that Congress has given them to do but not other kinds of work. And the major questions doctrine kind of regulates that interaction between Congress and agencies.

So it's not that judges are supposed to decide some question of public health. It's about regulating the rules of the system to ensure that the appropriate party does.

And so the question in my mind really turns a lot on the major questions doctrine in this case. Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven't heard a lot of discussion about that.

The Solicitor General says that the major questions issue only comes into play when a statute's ambiguous, and I'd like to give you an opportunity to explain your view.

Ben Flowers, the Ohio Solicitor General, directly addressed the "who decides" question during his opening remarks:

To Justice Kagan's question about the who decides point, Congress tell --told us who decides at 2112 --28 USC 2112 says that courts can issue stays, and the reason for that is they recognize that this was without notice and comment, and unless the courts could step in to abate illegal actions, nobody would be able to do so. And that's especially important here, where the --the action they're, in our view, mandating but at least strongly encouraging, vaccination, cannot be undone.

And Scott Keller addressed the "who decides" question during his rebuttal.

And my second point to close on is about who decides in the public interest. And I would submit that this Court's precedents answer that. We're not asking this Court to reverse anything. Industrial union 40 years ago in Justice Stevens's controlling opinion says that there was an absence of a clear mandate in the OSH Act, so it's unreasonable to assume that Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed, yet here OSHA has never before done mandated vaccines or widespread testing much less over all industries or on an emergency basis.

Everyone should read Judge Sutton's important book. My review of Who Decides? should be out later this month.

NEXT: My Law 360 Article on the Texas SB 8 Case and Prospects for the Future

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  1. Seems like the blue half of the country answers that question with it doesn’t matter who decides anything as long as the decision agrees with us.

    So it’s the states that decide when a state agrees with them, OSHA when OSHA agrees with them, judges other times. It's never Congress, because Congress represents the American people and so many Americans are the wrong kind of people and therefore don't deserve any input on any choices. And it's never, ever, ever individuals who get to decide questions about their lives (except for abortions).

    1. That's how Democratcy works, obviously.

        1. Nice to have high school students commenting here.

      1. Historically this would be understood as sarcasm but we live in the age of gaslighting now.

    2. I have no problem with individuals making decisions as long as they have all of the information—so at least with Delta the vaccines worked to reduce severity and public health mitigation measures worked with Delta to mitigate spread. So the Republican populations that rejected science during the Delta wave had a significantly higher number of deaths that were largely avoidable during that wave that is still going on and killing Americans in the NE.

      1. Understood. People are free to make their own choices as long as those choices meet your approval.

      2. I hadn't noticed that the NE is particularly infested by Republicans.

        1. You can check out Covid numbers county by county and certain counties in the NE are Republican with low vax rates and are seeing a Delta surge. And in the SE the major urban Democratic counties have either the lowest or near lowest death rates. The well to do Republican counties in the SE have high vax rates and low death rates…it’s the low information Republican counties that have high Delta death surges.

        2. Ever go to a Patriots game?

      3. SC,
        No one has "all the information" not even at any specific time. "All the information" includes many metrics that are retrospective AND time-lagged in nature. The information that is at hand is supplemented with models that are necessarily incomplete and may contain unquantified systematic errors or assumptions.
        And then comes you rant about Republicans .
        Neither you, I, nor anyone else knows how many deaths were caused by whatever thinking. All you are doing is spreading divisiveness and the leper-sheep narrative

        1. I know because I have county by county data. I also know that Republicans have been easily misled since the creation of the right wing echo chamber in 1989 by Rush Limbaugh—George Washington literally warned us of the dangers of tribalism in his Farewell Address. Once again, Trump is one of the more reasonable and responsible Republican leaders and he promotes the vax and booster and then got booed. DeathSantis is more like a Bush and Cheney and so he just goes with the flow of the echo chamber.

          1. "DeathSantis"?

            I mean, sure it sounds cute in your head. To others though, it just makes you look nuts.

            1. He’s responsible for killing more Americans than Osama Bin Laden.

              1. Even more then those Democrat governors who murdered all those elderly by sending COVID positive patients into nursing homes?

                1. I have evidence that DeathSantis’ actions killed thousands…there is no evidence that Cuomo’s actions killed thousands.


                    Fuck off and die, you partisan shitstain.

                    1. I’m a Trump Republican.

                  2. "I have evidence"

                    Do you now? Perhaps you should present your evidence before a court?

                  3. Oh, c'mon SC. You attribute one to an R governor and none to a D governor.

                    1. We have data—there is nothing that supports Cuomo sending grannies to their deaths. All of the data from the Delta surge shows Democratic populations having lower death rates because Democrats continued to urge vaccines and promoted masking. Republican populations in the southeast have significantly higher death rates.

              2. Now do Andrew Cuomo.

                1. I did, nursing home deaths in NY are in line with every other states’ numbers. Keep in mind Republicans believed Cuomo should be prosecuted for his executive order but for some reason they don’t think DeathSantis should be prosecuted for his executive orders that led to excess deaths…very strange.

        2. "Neither you, I, nor anyone else knows how many deaths were caused by whatever thinking. All you are doing is spreading divisiveness and the leper-sheep narrative."

          While you may not know how many were caused, we know for a fact that the GOP (Trump in particular) have blood on their hands from lying and downplaying whether COVID was worth taking seriously.

          Trump's infamous press conference where the CDC suggested mask-wearing, followed by his immediate remarks that "it was a personal choice" and he wasn't going to be doing it, comes to mind.

          1. Blame Trump for the confusion on mask wearing?

            From Yahoo News:

            "Here's a brief timeline of official rules and guidance regarding face masks.

            Feb. 29, 2020
            U.S. Surgeon General Dr. Jerome Adams tweets that wearing a face mask will not prevent the public from contracting the novel coronavirus.

            “Seriously people — STOP BUYING MASKS!” he wrote in a tweet that was later deleted. “They are NOT effective in preventing general public from catching #Coronavirus, but if healthcare providers can't get them to care for sick patients, it puts them and our communities at risk!”

            March 24, 2020
            Even as the coronavirus spreads across the United States — shutting down businesses, sporting events and schools — the CDC’s advice around masking remains unequivocal: Healthy people who do not work in the healthcare sector and are not taking care of an infected person at home do not need to wear masks.

            “Facemasks may be in short supply and they should be saved for caregivers,” the government agency says.

            April 3, 2020
            After insisting for weeks that healthy people did not need to wear masks in most circumstances, federal health officials change their guidance in response to a growing body of evidence that people who do not appear to be sick are playing an outsize role in the COVID-19 pandemic.

            “The transmission from individuals without symptoms is playing a more significant role in the spread of the virus than previously understood,” President Trump says when announcing the new advice at a White House briefing. “So you don’t seem to have symptoms and it still gets transferred.”

      4. "I have no problem with individuals making decisions as long as they have all of the information"

        Really? Shouldn't we be living in a representative democracy, where it takes Congress...not an make major decisions like this?

  2. Kagan: Courts have no epidemiological expertise.

    Sotomayor certainly proved kagan's statement

    1. And Gorsuch and Thomas. You must've been listening with your ideological earplugs during their time.

      1. This is a simple case - did congress give OSHA the statutory authority to issue the mandate - simple yes or no.

        Whether the mandate is good policy or bad policy is not relevant to the question.

        1. That makes me wonder why you think your comment on Sotomayor's epidemiological expertise is relevant. I guess taking irrelevant shots at justices is only okay against Sotomayor and Breyer.

          1. AWD,
            You did not answer Joe's question.
            But sure, Alito showed himself to be just as unprepared as Sotomayor. There is no excuse for either of them.

        2. There's the question of does the Congress have the constitutional authority to give such authority to OSHA?

          1. Are you questioning that employers with 100+ employees are engaged in interstate commerce?

            1. wickards not the issue.
              The sole question is whether Congress gave osha the authority to impose the mandate under the applicable statute

              1. Not according to IceTrey.

                And I agree with him. Not re: Wickard, but because nondelegation is a thing, albeit a completely amorphous thing at the moment.

                1. We agree. OSHA was not granted that authority.

                  My question is will it be stayed today?

            2. Not Guilty, would it be OK for Congress to replace all laws related to commerce with the following:

              1. The President may make, change, or repeal any regulation related to interstate commerce, or anything that affects interstate commerce, or anything that could hypothetically affect interstate commerce.
              2. The penalty for violating a presidential order is whatever the president decide.

              If you'd have a problem with that, and one hopes you do, then we agree that there are limits to delegation. And it's reasonable to ask whether Congress can give an agency arbitrary authority to do everything from rent control to detailed control of medical decisions, as long as the word "safety" is invoked.

              1. ^THIS (ducksalad nailed it)

      2. What did Gorsuch and Thomas say that was wrong?

        1. "Flu kills—I believe—hundreds of thousands of people every year," Justice Gorsuch.
          Don't know about Thomas.

          1. I thought I remembered cringing about something Justice Thomas asked or said, but I might be wrong. I do enjoy this new format freeing Justice Thomas to speak and ask questions during oral argument, he often asks excellent questions.

          2. rsteinmetz
            January.8.2022 at 2:05 pm
            Flag Comment Mute User
            "Flu kills—I believe—hundreds of thousands of people every year," Justice Gorsuch.

            that is likely a mistatement in the transcript/ audio

            several individuals indicate that Gorsuch said "hundreds, thousands" not "hundreds of thousands"

            1. has the audio. It's between 1:49:00 and 1:50:00. I don't hear any utterance between "hundreds" and "thousands", so I think he meant "hundreds, thousands" rather than "hundreds of thousands".


      The other problem with courts (judges) and legal minds generally is that they are steeped in the past, stuck in inflexible mental patterns and standard operating procedures, and averse to innovation and creative solutions to novel challenges and problems on the inane ground that new approaches are "unprecedented". -- So what? The moon landing was unprecedented once too. And so were cell phones and many other blessings of technological progress and mass production. And how about Zoom for court hearings and oral appellate arguments. It took the crisis of a pandemic to make that possbile.

      That's one reason why having too many lawyers in policymaking position is not necessarily a good thing, and for judges (as a subset of folks that think like lawyers) not second-guessing the judgment of the policymaking branches and impose their own supposedly superior precedent-infused solutions, or interfering with the doings of those who are politically accountable.

      And it is also preferably often to have policy made at the lower level (subsidiarity principle) so that policy can vary geographically and be attuned to variance in pattersn of community sentiments (values, priorities, and interests) and folks can at least pack up and go to a different state or location within a state to avoid policies they intensely dislike (and/or their consequences) but weren't able to stop or alter through the political process because their preferences or opposition represents a minority viewpoint.

      The other problem of the legal mind is the slavish deference to "authority" and not being able to acknowledge that prior legal decisions can be wrong, that current decisions may be wrong too, that court findings/rulings can be reality-remote and impractical, and that the physical reality out there is objective and cannot be manipulated like the presentation and admission of evidence in court can be manipulated in a controlled courtroom setting. And if policies are enacted by the political branches (rather than imposed by judicial fiat) they can at least be changed when they fail, or are counterproductive, and "stare decisis" won't be an impediment. Appellate (ie policymaking) courts have a hard time collectively admitting that they were wrong, what with their habit of routinely citing themselves as "authority".

  3. Major questions doctrine? Is that an originalism based interpretation, or just a recently devised way to justify involvement in clearly political questions? Interesting that none of the other justices addressed Kagan's question directly, but rather squirmed sideways on the issue.

    1. Why is that interesting? Does Kagan want to overturn the major questions doctrine?

    2. Major question doctrine - that is simple - congress has the power to make law, not the executive branch nor any agency of the executive branch

      1. And of course whenever an executive branch agency does something with which you disagree, they are "making law." Even when they act indisputably within their congressional mandate, you can jump to "non-delegation" and "major question doctrine." Gotta justify that political outcome somehow.

        1. No, its doing something that is not written in the law and changing policies.

          Requiring companies to enforce vaccine mandates is a new law.

          This is easy!

          1. A new law.not really. An application or misapplication of existing law yes. Every agency rule and regulation is not a new law notwithstanding that disobedience carries penalties

    3. Alpheus W Drinkwater
      January.8.2022 at 1:26 pm
      Flag Comment Mute User
      "Major questions doctrine? Is that an originalism based interpretation, or just a recently devised way to justify involvement in clearly political questions? Interesting that none of the other justices addressed Kagan's question directly, but rather squirmed sideways on the issue."

      The better question is why kagan even asked the question. She should know better.
      Perhaps the other justices did not respond to her question since they felt it would be inappropriate to correct her in open court.

      1. Her question is at the heart of this case. Can you not see how her question and your statement about who get to make law are exactly the same point? Even Prof. Blackman disagrees with you on this.

        1. Alpheus W Drinkwater
          January.8.2022 at 2:00 pm
          Flag Comment Mute User
          Her question is at the heart of this case. Can you not see how her question and your statement about who get to make law are exactly the same point??

          What - Congress makes law, not the executive branch - period.

          1. Not in Democratcies.

            Unelected and unaccountable Democrat six-figure civil servant lifers do.

  4. Who decides? The answer will prove more responsive to the severity of the emergency than to any legal doctrine. If tomorrow some bizarre twist of genetic happenstance rendered the Omicron variant promptly deadly in 10% of all cases—regardless of demographic distinctions—the nation would be looking at about a million (or more) additional fatalities in 3 weeks—with a death total potentially mounting at an accelerating rate thereafter.

    In any such baleful emergency the President would decide, and immediately impose and enforce with draconian severity the most likely combination of policies which in his judgment would abate the threat. Attempts at court intervention to impede that immediate action would be ignored—either ignored by the courts themselves if the Justices were wise, or if the courts proved foolish enough to try to intervene, ignored by the President, and by an overwhelming consensus of national opinion. Congress could play a role only under condition that it acted decisively, and with extreme speed—as it did for instance on behalf of the airline industry after 911.

    That is actually the reasoning the Court ought to use now, as it decides the two pandemic-related cases before it. It amounts to a restatement of Justice Jackson's widely misunderstood dissent in Korematsu—one of the subtler bits of reasoning in American jurisprudence. Jackson recognized wisely that the Court will only do itself harm if it acts in defiance of the practical limits of its powers, and that those limits are ultimately defined politically.

    1. The word health doesn't appear anywhere in the Constitution.

      1. LIve and Liberty bot appear more than once.

      2. General welfare anybody? ... Preamble-worthy core purpose of government stuff?

    2. Stephen Lathrop
      January.8.2022 at 1:40 pm
      Flag Comment Mute User
      Who decides? The answer will prove more responsive to the severity of the emergency than to any legal doctrine. If tomorrow some bizarre twist of genetic happenstance rendered the Omicron variant promptly deadly in 10% of all cases—"

      If that was the case, then the states have the authority to act quickly which no doubt every state would act extremely quickly.

      This case is a simple case of whether congress gave the executive branch the statutory authority to issue the mandate.
      Your hypothetical actually points to one of the problems with this mandate. To a large degree, the mandate is a solution for yesterday's problem. The vaccines are very ineffective / impotent against the omicron variant. To some extent, the current vaccines are similar to taking last years flu shot for the current year flu strain (though not quite as drastic)

      1. Delta is still killing people in the NE. The mere threat of the vaccine mandate probably saved lives but I agree that as of today those that are going to get Delta are probably in ICU in the northeast and now Omicron is the dominant variant going forward. With Omicron there is no public health issue because the vaccines don’t stop the spread of Omicron and so it is a personal health care choice for families to make.

        1. Sebastian, how do you get epidemiology info so far in advance of what is available to everyone else?

          1. With Omicron you just look at UK. The Delta numbers have been in a while—Democratic counties fared significantly better than low information Republican counties.

      2. Part of my point, Joe, is that the Court's decision cannot afford to be an answer to yesterday's problem. To be a wise decision it has to encompass response to emergencies of various kinds, and of almost unlimited severity.

        An extreme anti-regulatory opinion will willy-nilly be also an anti-emergency powers opinion—which among reasonably foreseeable more-severe emergencies will deliver not only harm to the Court, but also harm to the nation. With these vaccine mandate decisions the conservative majority has an opportunity to be wise beyond its political prejudices. What do you think they should do?

        1. No, all the court should care about is what the law says. That's it. Congress can act quickly if they need to. The states can act even more quickly.

          This is not the job for the federal executive AT ALL.

        2. What are you actually proposing out of the side of your mouth, SL?
          Is it that the Court overthrow 250 years of law and grant the executive unlimited power to stop the zombie invasion?
          If Mars invades POTUS will command the Army to act and it will or won't obey his/her orders. We'll have a true constitutional crisis in either case.
          Hard cases make for bad law, and so it is here with your hypothetical.

          1. Nico, all genuine national emergencies are destined to be hard cases. Few will be well-precedented. You are mistaken about 250 years of law. Emergency powers have always been a thing. See Lincoln's July 4, 1861 address to Congress for a famous rationale.

            1. If there were an emergency. There isn't one.

              March-April 2020 was 'emergency'. After that, it became management and mitigation.

            2. You nicely sidestep that the US Constitution nowhere gives the US President the power of the Roman Dictator, including the axes in the fasces.
              By the way I did not say that the POTUS has not tried to declare martial law, but that the Court will not overrule 250 years of US law.
              I am not mistaken. You distorted the comment and answered your own distortion. Mr Lincoln did not have the power to make law.

              1. Nico, mistaken again. Lincoln asserted emergency powers, explicitly. He explained why. He invoked a constitutional power to do so, in the case of suspending habeas corpus. No legal opposition prevailed. Maybe you didn't read the address I mentioned?

                1. Again,
                  Lincoln seized power. He did not MAK LAW no matter how elequent his speech.
                  But forget Lincoln.
                  Are you advocating force quarantine centers run by the Army as in Australia?
                  Are you advocating the arrest of unvaccinated?
                  Are you advocating the forced injection of citizens against their will?
                  These actions are taking place in what used to be genuine democracies.
                  No blah-blah as a response
                  Let's see three yes or no answers.
                  Then we can all decide how much of an authoritarian you are.
                  And I thought Trump was bad. Oy vey.

                  1. Nico, I advocate that the Supreme Court not depart from the historical recognition of an emergency power for the U.S. executive—conferring power commensurate to threats delivered by particular emergencies—and withdrawing that power after emergency conditions no longer apply. I hear the talk of tyranny, but see little in U.S. history to justify it. Currently, U.S. state governors as a group show inclination to shun responsibility for Covid suppression, not to embrace it as a means to enlarge their power.

                    I do not now have an anti-Covid policy to advocate. With facts being added and discarded so fast while the virus changes, it seems a good time to think things over. I doubt anything will happen to make me answer yes to any of your questions.

                    I do think ordinary vaccination records, and vaccine mandates as a condition of public mixing, ought to be tried before taking outlandish steps such as you enumerate. If Omicron turns out to be appreciably deadly after all, then those are the next measures I might suggest. Particulars would matter.

                    But why are you getting lathered up about stuff someone like me, with no power, might suggest? I answer your questions only out of courtesy, and a desire to be forthright.

                    In that same spirit, while we are at it, here is another policy I might consider. Are you familiar with the Rocky Mountain ski industry, and where its principal resort destinations are located? The NYT Covid infection map currently points toward a striking fact to be inferred by checking out counties which host big destination ski resorts.

                    In four states, Idaho, Wyoming, Utah, and Colorado, counties hosting big destination ski resorts, including Sun Valley, Jackson Hole, Park City, and Aspen, each lead its respective state in cases per 100,000. On the map, each such county stands out strikingly from the rest of its state. That suggests to me that air travel may play an outsized role in spreading contagion from one place to another—which will greatly complicate attempts to use testing or other location-relevant measures to fight outbreaks locally. That could mean restrictions on air travel, and possibly other kinds of interstate travel, might prove useful in support of programs to make Covid suppression a local effort instead of a national one. But don't worry, I can't imagine U.S. state governors embracing any such constructive, "tyranny."

                    1. "Nico, I advocate that the Supreme Court not depart from the historical recognition of an emergency power for the U.S. executive"

                      Do emergencies never end?

        3. A comment from healthy skeptic - Yet another paper on the hot topic of the day, vaccine effectiveness against Omicron. The study comes from the Kaiser system which has access to good data and a history of producing solid research. Effectiveness against Omicron infection was only 30% in the period shortly after vax and declined even further thereafter. Having a booster made effectiveness 95% against Delta and 63% against Omicron. Effectiveness against hospitalization was extremely high, with none of the Omicron infectees being hospitalized. Although not discussed in the paper, it appears from the table that prior infection is highly associated with a lower likelihood of infection. (Medrxiv Paper)

          As previously mentioned, the vaccine mandate is exceedingly ineffective. It only applies to a small percentage of the population. 3-4 months out, the vaccines are only 30-40% effective, probably even less than that for the next variant. When all said and done, this vaccine mandate will have a relatively trivial effect on the overall trajectory of the covid pandemic.

        4. Stephen Lathrop
          January.8.2022 at 2:11 pm
          Flag Comment Mute User
          Part of my point, Joe, is that the Court's decision cannot afford to be an answer to yesterday's problem. To be a wise decision it has to encompass response to emergencies of various kinds, and of almost unlimited severity."

          You out line the problem with giving Osha the authority for the vaccine mandate.

          The vaccine works for the alpha and delta variants, albeit, not very well after 6 months. However, the kaiser study shows the vaccines are very ineffective for the omicron variant, 40% after on 14 days, and close to zero effective after 180 days.

          Omicron is now the dominant variant. As previously stated, the mandate is for yesterday's problem , a problem which barely exists today. So what is being accomplished by the vaccine mandate.

          let osha mandate last years flu shot.

    3. Yup, POTUS will declare martial law as Mr Xi did and send the US Army on the streets to enforce the rules.
      And the power will devolve to the Joint Chiefs who then can decide if that is a legal order or whether to launch a coup more effective than the Jan. 6 riot.

      1. Once again Nico, U.S. history prior to the Trump administration shows American constitutionalism reasserts itself undamaged following national emergencies. That record is pretty robust. And indications from governors' offices all over the nation seem to show during the Covid pandemic a tendency toward timidity—to shun even wholesome, needful responsibility, to avoid imputations of unpopular overreach. But we will have to wait a bit to see if that tendency survives Trumpism.

        1. Once again SL, you make gross distortions of comments and answer your distortion. I guess you learned that dishonest practice running a neighborhood newspaper.
          And how this actually has anything to do with Trump, except for your obvious animus, is very far from clear. Do you what the National Guard out on the street at least once a year? WHat is it that you actually want? Chinese style military enforcement of the dictator's orders. Be clear for a change.
          Trump blew his golden opportunity to make COVID a political gift from the gods, but he did get us vaccines in amazingly short time.

        2. To repeat:
          Forget Lincoln.
          Are you advocating force quarantine centers run by the Army as in Australia?
          Are you advocating the arrest of unvaccinated as in Autria
          Are you advocating the forced injection of citizens against their will?
          These actions are taking place in what used to be genuine democracies.
          Don't give us blah-blah as a response
          Let's see three yes or no answers.
          Then we can all decide how much of an authoritarian you are.
          And I thought Trump was bad. Oy vey.

  5. No one. Vaccine mandates violate the NAP and are immoral because they require the initiatory use of force. This is a huge problem. The court is asking who should decide when they should be asking should anyone decide. The answer is no.

    1. It is interesting that you -- and similarly situated wingnuts -- were not ranting about this for more than a century while five- and six-year-old children were required to be vaccinated for school, yet you are waving your big, properly fringed sovereign patriotic Christian citizen flag today.

      I ascribe this to your lack of education, character, and judgment.

      Carry on, clingers. But, as usual, just so long and so far as better Americans permit.

      1. Well I haven't been alive for a century and I don't believe in government education. If schooling was private as it should be you could choose a vaccinated school or an unvaccinated school.

        1. Not a fan of public schools? How do you feel about public roads, water systems, emergency services, and licensing systems?

          Do you perceive any chance your beliefs might become popular or consequential in America during your lifetime?

          1. The function of government is to defend liberty, period.
            The way things are going I like my chances better every day.

            1. Give me a nice originalist definition of, "liberty."

        2. Vaccine mandates, at least in some states, have traditionally applied to private schools as well as public schools.

          1. Not in Libertopia.

    2. Right you are! Vaccine mandates violate the NAP. But exposing someone to a potentially harmful pathogen also violates the NAP. The answer is obvious: government should not punish you for choosing not to vaccinate, only for choosing not to vaccinate and then going into a place where you might expose others to the virus you would likely be carrying, without first getting permission from the owner(s) of that place. Just as you are allowed to drive while intoxicated, on private property whose owner says it's ok with him.

  6. The Court’s answer will be “not Democrats.”

    1. See above—Democratic populations had a lower death rate than Republican populations during the Delta wave.

      1. Sebastian Cremmington
        January.8.2022 at 2:04 pm
        Flag Comment Mute User
        See above—Democratic populations had a lower death rate than Republican populations during the Delta wave.

        At the same time, democrat populations had higher death rates during the alpha phase -
        but lets stop with the political bias

        The best metric to compare results is the death rates by age group. Unsuprisingly the death rate for the age 65+ group was remarkably a very narrow range in almost every state. as of mid Nov, which was the last time I ran the numbers, the death rate per 100k for most every state was between 1100 to 1250 with no correlation as to whether the state was primarily a red state or blue state. Florida was approx 1150, Colorado was approx 1120. Minn & Michigan was approx 1180. ie virtually no statsical difference. NY was a little higher (ME, VT NH WA and HA were notable exceptions being much lower). All other state fell into that very narrow band

        1. That’s incorrect. Health insurance companies use counties for their risk groups and those companies are Fortune 500 companies that are obviously very profitable. So in statistics you are looking for logical groupings and counties apparently make logical groups. Plus we can easily find demographic data and politics data about counties. Once again, 3 factors mostly influence a population’s death rate—
          1. Was the population in the initial wave?
          2. Could the population restrict travel?
          3. In 2021 was the population Democratic or Republican with Republican populations doing significantly worse.
          4. A fourth factor that is an anomaly is was the population young and fit because old and unhealthy is the rule in America.

        2. Britain’s first wave of coronavirus raised the risk of death by more than 40% for most adults regardless of their underlying health and other factors, research suggests.
          Scientists examined medical records for nearly 10 million people aged 40 and over and found that, whatever a person’s risk of dying before the pandemic, it rose 1.43 times on average as the virus spread between March and May 2020.

      2. And penguins in Antarctica had a lower still. That proves nothing except that people who take risks get bit more than those who don't.

        1. Republicans believe Cuomo killed thousands of grannies with no supporting evidence. I have actual data that shows Democratic counties with similar demographics as Republican counties have significantly lower death rates in the a southeast. If Republicans can blame deaths on Cuomo then why can’t I blame Republican leaders for tens of thousands of Americans dying needlessly because a governor chose to go with the flow of the right wing echo chamber instead of leading and allowing public health officials to implement mitigation measures?? The measures implemented in Democratic led areas in the southeast weren’t draconian but had a significant positive impact.

          Basically Republicans went with the “vaxxes are crappy and Covid is seasonal and there isn’t much one can do about it” a few months too early and it led to tens of thousands of excess deaths during the Delta surge.

          Btw, I’m getting the same vibe from you that I got with my liberal friends when I would attempt to explain why Rittenhouse didn’t murder anyone…their brains simply couldn’t process anything I was saying because their minds were made up and they refused to even examine the easily accessible evidence.

          1. "why can’t I blame Republican leaders for tens of thousands of Americans "
            Because it is all BS finger-pointing and little else.

            1. Except it’s not—Republican “leaders” rejected the science a few months too early. Trump was booed for saying he got the booster—the vaccines worked great against Delta but the right wing echo chamber had already politicized the vaccines and masking.

          2. Sebastian Cremmington
            January.8.2022 at 5:58 pm
            Flag Comment Mute UseBasically Republicans went with the “vaxxes are crappy and Covid is seasonal and there isn’t much one can do about it” a few months too early and it led to tens of thousands of excess deaths during the Delta surge.

            Covid like all respiratory viruses is seasonal, with seasonal variability partially a function of the regions of the globe. The seasonality of coronavirus pandemics has been well known since the late 1800's, and well documented in the medical literature since the 1970's. See the work of Edgar Hopes Simpson. Covid is following a similar trajectory.

  7. " Everyone should read Judge Sutton's important book. "

    In Alabama, West Virginia, Mississippi, Wyoming, Oklahoma, Tennessee, and Arkansas, maybe Judge Sutton's book is popular. In modern and advanced America, however, the mainstream increasingly disregards Judge Sutton's right-wing positions and arguments.

  8. Again, can congress (or OSHA or POTUS) make you eat broccoli?

    1. What if there were a contagious pathogen, and the only way to avoid spreading it to so many people that the patients would overwhelm the ICUs, ERs, hospitals, and health-care professionals, were for everyone to eat broccoli?

      1. How does a pathogen know if someone didn’t eat broccoli?

        If "everyone" really has to eat it, then give up now before you start making peoples' lives worse only to completely, utterly fail to prevent any outcome.

  9. "Who decides?" Well, really the phrasing means "Who should decide?". The answer most consistent with current American jurisprudence (as I understand it) is obvious, and, unfortunately, completely unsatisfactory and unhelpful. It's the same as the answer to "who decides whether a communication constitutes a 'true threat'?" or "who decides whether a particular bad outcome was 'foreseeable', and, therefore, whether a defendant in a civil suit is liable?". The answer is, of course, a hypothetical "reasonable person".

    1. Indeed.

      Blackman conflating his is and ought here.

    2. What ought-a be done by whom?

      Yup, in political science, it's called the distinction between normative and empirical questions. In science generally: causal relationships vs. to what ends cause-and-effect relationships are put. At the polity level (as distinguished from the individual level), it's a political decision/choice, not a legal or empirical one.

  10. In a society, culture, and segment of media/academia deem, feelings to take precedence over facts or law, unfortunately, the answer too many times is "who cares about who makes the decision". If "x" is something that is felt to be a "good" it should be done and Federal, state, local, government, corporations, or mob enforcement is irrelevant.

  11. Who Decides About COVID Mandates?

    I do.

    It's cute that government thinks they control my actions, but they are very, very mistaken.

    Perhaps they'll understand better after November.

    1. That's the point of government.

      You can argue to what extent it should exercise it's power, but government was created by people to create constraints on people's behavior.

      Voting Republican does not keep the government from controlling your actions to basically the same extent it currently is.

      1. I hope you're not suggesting that I intend to vote Republican, because after all, I agree with you that voting that way doesn't keep the government from doing much at all.

        I expect many will pull R, and maybe a few Ds will learn a lesson. But of course some Rs will forget whatever lesson they learned the last time around, and so on.

        My real point was that, to Gorsuch's very relevant question of "who decides", the answer should often be "no one in government". 10th Amendment and all. IMO the federal government does not have mandate authority here, but I'm just another internet shitposter.

      2. No, the point of government isn’t to control individuals. It’s not surprising that you think so.

        Government exists to do things that individuals can’t reasonably do without government. Controlling individual actions isn’t in that category because individuals can control their actions just fine.

        Free people would never create a government to do things they could simply decide to do themselves.

        You apparently see government as a club to hit people with — people who are not like you, not as a way to get roads and sewers built.

        1. Ludicrous. The most basic function of all government is to establish a monopoly on the use of violence to deter individuals from killing each other and doing other bad acts. Preferably the government is also legitimate so it doesn't have to use just the threat of violence and actual use of violence for restraint and punishment to maintain social order (or "domestic tranquility" in constitutional terms).

          See Max Weber on authority.

          1. Yes, that’s a function of government (as authority and government tend the go together), just like sewers are. Establishing an authority to regulate disputes isn't really something individuals can reasonably do themselves.

            That’s not the same as the whimsically-justified coercive control over everyday actions that Sarcastr0 routinely defends.

  12. Was this the first time Sotomayer heard oral arguments remotely this term?

    Seems she was trying to be dramatic - fake presentation

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