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Supreme Court considers derailing federal vaccine mandates – appears inclined to keep for health workers, but not wider workforce

The court appears split over the future of vaccination mandates, with conservative justices skeptical of the Biden administration’s authority to enforce requirements.

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Did justices give oral arguments an icy reception? AP Photo/J. Scott Applewhite

Conservative justices on the Supreme Court appeared to signal a belief that the Biden administration may have overreached in ordering private companies to require that staff be vaccinated or subject to regular testing. But a separate requirement that health care workers at institutions receiving federal funds be immunized may be judged to be on firmer legal ground.

Oral arguments over just how far the federal government can go to require employees to get vaccinated came before the Supreme Court on Jan. 7, 2021. The case, Biden v. Missouri, comes at a critical time: A surge of COVID-19 cases resulting from the highly contagious omicron variant has put added pressure on workplaces and hospitals across the nation. And arguments took place just days before a key mandate is due to come into effect on Jan. 10.

As a law expert who has closely followed the treatment of vaccine mandates in the lower courts, I envision a divided court issuing decisions soon. Although oral arguments are not a solid predictor of how the court will rule, justices seemed to be moving toward allowing vaccine requirements for health care workers but curbing federal powers to implement a broader mandate affecting the wider workforce.

The oral arguments in front of the justices related to two vaccine mandates put forward by the Biden administration.

The first, issued by the Occupational Safety and Health Administration, requires that all employees at private businesses with 100 or more staff be vaccinated or submit to regular testing. The OSHA ruling affects more than 80 million American workers.

The second, issued by the Centers for Medicare and Medicaid Services, requires that over 10 million health care workers at CMS-funded providers be vaccinated.

Enforcement of both mandates is held up in specific states following decisions in lower courts, and is awaiting final rulings by the Supreme Court.

How did we get to this point?

Federal vaccine mandates are seen by the Biden administration as a linchpin in the national strategy to quell the pandemic, which has now taken over 833,000 American lives.

Since their introduction on Nov. 5, 2021, the OSHA and CMS vaccine mandates have faced extensive judicial challenges by mainly Republican states.

Federal appellate courts had different opinions on the legality of OSHA’s mandate, ultimately allowing it to take effect through a unified decision in the 6th Circuit Court of Appeals.

Lower federal district courts in several states determined that the CMS vaccine requirement should be set aside. Based on multiple appeals, the Supreme Court agreed to hear the cases in two consecutive oral arguments.

The question before the court now is not whether mandates work to get people vaccinated – we know that they do. Rather, the central question in front of the justices is whether the federal government, as opposed to states, can actually implement them.

States’ abilities to mandate vaccines as a condition of employment, school attendance or admission to certain events are largely unquestioned and have been confirmed in lower-court rulings. Provided exemptions are allowed those who are medically unfit, or religiously opposed in many jurisdictions, state-based vaccine mandates are constitutional. Such was the Supreme Court’s decision in Jacobson v. Massachusetts, which affirmed in 1905 the constitutionality of a local vaccine mandate to counter a smallpox outbreak in Cambridge.

The issue is that not all states approve COVID-19 vaccine mandates. From the onset of the coronavirus pandemic, largely conservative-leaning states, including Arizona, Florida and Texas, prohibited them. Residents could choose to be vaccinated, but no one was going to be forcefully inoculated.

Losing patience with contrary state approaches and a minority of Americans steadfastly refusing vaccination, President Biden determined in September 2021 that federal employees, members of the military and contractors would be required to be vaccinated.

These mandates faced their own judicial challenges. The contractor rule, affecting millions of workers at federally supported enterprises, has been stalled in multiple courts.

Constitutional questions

Central to cases in front of the Supreme Court now is the question of whether the federal government has the authority to impose a vaccine mandate on large employers, regardless of the public health benefits.

Justice Elena Kagan, a reliable member of the court’s minority liberal wing, stressed the “extraordinary circumstances” of the pandemic in justifying OSHA’s vaccine mandate. OSHA’s authority to regulate workplace health and safety broadly is beyond debate, observed fellow liberal Justice Sonia Sotomayor.

Other justices diverged. Chief Justice John Roberts expressed reservations over agency-hopping, suggesting the Biden administration sought new legal arguments to vaccinate Americans through multiple agencies’ authorities.

Meanwhile, conservative Justices Neil Gorsuch and Brett Kavanaugh persistently questioned whether Congress had empowered OSHA to impose sweeping national vaccine requirement through “cryptic” or “broad” language contained in the Occupational Safety and Health Act of 1970.

Resolution of these issues will prove pivotal in the court’s forthcoming decision.

An ‘easier case’

The legal issues at stake in Biden v. Missouri challenging CMS’ vaccination mandate for health care workers presented an “easier case,” noted Roberts. The reason is simple: In crafting its mandate, CMS relied on a slate of existing legally approved statutory authorities that allow the center to set terms of provider participation in furtherance of patient safety and health.

Hospitals and other providers were largely in favor of CMS’ vaccination mandate.

It was conservative states and localities like Missouri and Kentucky that objected, on grounds that CMS exceeded its conditional spending powers.

Kagan insisted that requiring vaccinations to curb risks to patients and workers in hospitals and other health care settings was logical and consistent with its legal duties.

Opposing counsels and Gorsuch suggested otherwise. They argued that CMS failed to provide adequate notice and and attempted to “commandeer” health care workers in violation of federal statutes and principles of federalism.

What’s to come?

With enforcement of the OSHA standard due to start on Jan. 10, 2021, the court may issue a rapid decision, or it could provide a temporary stay. A third option is to simply do nothing and allow the vaccine mandate to take effect.

Justice Stephen Breyer repeatedly questioned how the court could issue a stay under the “public’s interest” at a time when hundreds of thousands of Americans are being infected daily and hospitals are filling to capacity.

Other justices seemed inclined to stall enforcement of OSHA’s standard while mulling over their arguments.

CMS’ rule has a more generous enforcement timeline, allowing more time for health care providers to comply without penalties. Consequently, the court has more time to finalize and issue its decisions regarding its legality.

Weighing the options

Could the court restrict the federal government’s capacity to issue vaccination requirements? It is possible.

[Over 140,000 readers rely on The Conversation’s newsletters to understand the world. Sign up today.]

Over the course of the pandemic, the Supreme Court has repeatedly struck down public health measures on constitutional grounds. Even if CMS’ vaccine mandate looks likely to stay, the court’s conservative justices’ concerns about overreach of OSHA’s authorities are telling.

Skeptical justices are weighing their concerns of federal overreach against the deadliest public health threat to ever confront the nation.

James Hodge does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Survey Shows Declining Concerns Among Americans About COVID-19

Survey Shows Declining Concerns Among Americans About COVID-19

A new survey reveals that only 20% of Americans view covid-19 as "a major threat"…

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Survey Shows Declining Concerns Among Americans About COVID-19

A new survey reveals that only 20% of Americans view covid-19 as "a major threat" to the health of the US population - a sharp decline from a high of 67% in July 2020.

(SARMDY/Shutterstock)

What's more, the Pew Research Center survey conducted from Feb. 7 to Feb. 11 showed that just 10% of Americans are concerned that they will  catch the disease and require hospitalization.

"This data represents a low ebb of public concern about the virus that reached its height in the summer and fall of 2020, when as many as two-thirds of Americans viewed COVID-19 as a major threat to public health," reads the report, which was published March 7.

According to the survey, half of the participants understand the significance of researchers and healthcare providers in understanding and treating long COVID - however 27% of participants consider this issue less important, while 22% of Americans are unaware of long COVID.

What's more, while Democrats were far more worried than Republicans in the past, that gap has narrowed significantly.

"In the pandemic’s first year, Democrats were routinely about 40 points more likely than Republicans to view the coronavirus as a major threat to the health of the U.S. population. This gap has waned as overall levels of concern have fallen," reads the report.

More via the Epoch Times;

The survey found that three in ten Democrats under 50 have received an updated COVID-19 vaccine, compared with 66 percent of Democrats ages 65 and older.

Moreover, 66 percent of Democrats ages 65 and older have received the updated COVID-19 vaccine, while only 24 percent of Republicans ages 65 and older have done so.

“This 42-point partisan gap is much wider now than at other points since the start of the outbreak. For instance, in August 2021, 93 percent of older Democrats and 78 percent of older Republicans said they had received all the shots needed to be fully vaccinated (a 15-point gap),” it noted.

COVID-19 No Longer an Emergency

The U.S. Centers for Disease Control and Prevention (CDC) recently issued its updated recommendations for the virus, which no longer require people to stay home for five days after testing positive for COVID-19.

The updated guidance recommends that people who contracted a respiratory virus stay home, and they can resume normal activities when their symptoms improve overall and their fever subsides for 24 hours without medication.

“We still must use the commonsense solutions we know work to protect ourselves and others from serious illness from respiratory viruses, this includes vaccination, treatment, and staying home when we get sick,” CDC director Dr. Mandy Cohen said in a statement.

The CDC said that while the virus remains a threat, it is now less likely to cause severe illness because of widespread immunity and improved tools to prevent and treat the disease.

Importantly, states and countries that have already adjusted recommended isolation times have not seen increased hospitalizations or deaths related to COVID-19,” it stated.

The federal government suspended its free at-home COVID-19 test program on March 8, according to a website set up by the government, following a decrease in COVID-19-related hospitalizations.

According to the CDC, hospitalization rates for COVID-19 and influenza diseases remain “elevated” but are decreasing in some parts of the United States.

Tyler Durden Sun, 03/10/2024 - 22:45

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International

Rand Paul Teases Senate GOP Leader Run – Musk Says “I Would Support”

Rand Paul Teases Senate GOP Leader Run – Musk Says "I Would Support"

Republican Kentucky Senator Rand Paul on Friday hinted that he may jump…

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Rand Paul Teases Senate GOP Leader Run - Musk Says "I Would Support"

Republican Kentucky Senator Rand Paul on Friday hinted that he may jump into the race to become the next Senate GOP leader, and Elon Musk was quick to support the idea. Republicans must find a successor for periodically malfunctioning Mitch McConnell, who recently announced he'll step down in November, though intending to keep his Senate seat until his term ends in January 2027, when he'd be within weeks of turning 86. 

So far, the announced field consists of two quintessential establishment types: John Cornyn of Texas and John Thune of South Dakota. While John Barrasso's name had been thrown around as one of "The Three Johns" considered top contenders, the Wyoming senator on Tuesday said he'll instead seek the number two slot as party whip. 

Paul used X to tease his potential bid for the position which -- if the GOP takes back the upper chamber in November -- could graduate from Minority Leader to Majority Leader. He started by telling his 5.1 million followers he'd had lots of people asking him about his interest in running...

...then followed up with a poll in which he predictably annihilated Cornyn and Thune, taking a 96% share as of Friday night, with the other two below 2% each. 

Elon Musk was quick to back the idea of Paul as GOP leader, while daring Cornyn and Thune to follow Paul's lead by throwing their names out for consideration by the Twitter-verse X-verse. 

Paul has been a stalwart opponent of security-state mass surveillance, foreign interventionism -- to include shoveling billions of dollars into the proxy war in Ukraine -- and out-of-control spending in general. He demonstrated the latter passion on the Senate floor this week as he ridiculed the latest kick-the-can spending package:   

In February, Paul used Senate rules to force his colleagues into a grueling Super Bowl weekend of votes, as he worked to derail a $95 billion foreign aid bill. "I think we should stay here as long as it takes,” said Paul. “If it takes a week or a month, I’ll force them to stay here to discuss why they think the border of Ukraine is more important than the US border.”

Don't expect a Majority Leader Paul to ditch the filibuster -- he's been a hardy user of the legislative delay tactic. In 2013, he spoke for 13 hours to fight the nomination of John Brennan as CIA director. In 2015, he orated for 10-and-a-half-hours to oppose extension of the Patriot Act

Rand Paul amid his 10 1/2 hour filibuster in 2015

Among the general public, Paul is probably best known as Capitol Hill's chief tormentor of Dr. Anthony Fauci, who was director of the National Institute of Allergy and Infectious Disease during the Covid-19 pandemic. Paul says the evidence indicates the virus emerged from China's Wuhan Institute of Virology. He's accused Fauci and other members of the US government public health apparatus of evading questions about their funding of the Chinese lab's "gain of function" research, which takes natural viruses and morphs them into something more dangerous. Paul has pointedly said that Fauci committed perjury in congressional hearings and that he belongs in jail "without question."   

Musk is neither the only nor the first noteworthy figure to back Paul for party leader. Just hours after McConnell announced his upcoming step-down from leadership, independent 2024 presidential candidate Robert F. Kennedy, Jr voiced his support: 

In a testament to the extent to which the establishment recoils at the libertarian-minded Paul, mainstream media outlets -- which have been quick to report on other developments in the majority leader race -- pretended not to notice that Paul had signaled his interest in the job. More than 24 hours after Paul's test-the-waters tweet-fest began, not a single major outlet had brought it to the attention of their audience. 

That may be his strongest endorsement yet. 

Tyler Durden Sun, 03/10/2024 - 20:25

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Government

The Great Replacement Loophole: Illegal Immigrants Score 5-Year Work Benefit While “Waiting” For Deporation, Asylum

The Great Replacement Loophole: Illegal Immigrants Score 5-Year Work Benefit While "Waiting" For Deporation, Asylum

Over the past several…

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The Great Replacement Loophole: Illegal Immigrants Score 5-Year Work Benefit While "Waiting" For Deporation, Asylum

Over the past several months we've pointed out that there has  been zero job creation for native-born workers since the summer of 2018...

... and that since Joe Biden was sworn into office, most of the post-pandemic job gains the administration continuously brags about have gone foreign-born (read immigrants, mostly illegal ones) workers.

And while the left might find this data almost as verboten as FBI crime statistics - as it directly supports the so-called "great replacement theory" we're not supposed to discuss - it also coincides with record numbers of illegal crossings into the United States under Biden.

In short, the Biden administration opened the floodgates, 10 million illegal immigrants poured into the country, and most of the post-pandemic "jobs recovery" went to foreign-born workers, of which illegal immigrants represent the largest chunk.

Asylum seekers from Venezuela await work permits on June 28, 2023 (via the Chicago Tribune)

'But Tyler, illegal immigrants can't possibly work in the United States whilst awaiting their asylum hearings,' one might hear from the peanut gallery. On the contrary: ever since Biden reversed a key aspect of Trump's labor policies, all illegal immigrants - even those awaiting deportation proceedings - have been given carte blanche to work while awaiting said proceedings for up to five years...

... something which even Elon Musk was shocked to learn.

Which leads us to another question: recall that the primary concern for the Biden admin for much of 2022 and 2023 was soaring prices, i.e., relentless inflation in general, and rising wages in particular, which in turn prompted even Goldman to admit two years ago that the diabolical wage-price spiral had been unleashed in the US (diabolical, because nothing absent a major economic shock, read recession or depression, can short-circuit it once it is in place).

Well, there is one other thing that can break the wage-price spiral loop: a flood of ultra-cheap illegal immigrant workers. But don't take our word for it: here is Fed Chair Jerome Powell himself during his February 60 Minutes interview:

PELLEY: Why was immigration important?

POWELL: Because, you know, immigrants come in, and they tend to work at a rate that is at or above that for non-immigrants. Immigrants who come to the country tend to be in the workforce at a slightly higher level than native Americans do. But that's largely because of the age difference. They tend to skew younger.

PELLEY: Why is immigration so important to the economy?

POWELL: Well, first of all, immigration policy is not the Fed's job. The immigration policy of the United States is really important and really much under discussion right now, and that's none of our business. We don't set immigration policy. We don't comment on it.

I will say, over time, though, the U.S. economy has benefited from immigration. And, frankly, just in the last, year a big part of the story of the labor market coming back into better balance is immigration returning to levels that were more typical of the pre-pandemic era.

PELLEY: The country needed the workers.

POWELL: It did. And so, that's what's been happening.

Translation: Immigrants work hard, and Americans are lazy. But much more importantly, since illegal immigrants will work for any pay, and since Biden's Department of Homeland Security, via its Citizenship and Immigration Services Agency, has made it so illegal immigrants can work in the US perfectly legally for up to 5 years (if not more), one can argue that the flood of illegals through the southern border has been the primary reason why inflation - or rather mostly wage inflation, that all too critical component of the wage-price spiral  - has moderated in in the past year, when the US labor market suddenly found itself flooded with millions of perfectly eligible workers, who just also happen to be illegal immigrants and thus have zero wage bargaining options.

None of this is to suggest that the relentless flood of immigrants into the US is not also driven by voting and census concerns - something Elon Musk has been pounding the table on in recent weeks, and has gone so far to call it "the biggest corruption of American democracy in the 21st century", but in retrospect, one can also argue that the only modest success the Biden admin has had in the past year - namely bringing inflation down from a torrid 9% annual rate to "only" 3% - has also been due to the millions of illegals he's imported into the country.

We would be remiss if we didn't also note that this so often carries catastrophic short-term consequences for the social fabric of the country (the Laken Riley fiasco being only the latest example), not to mention the far more dire long-term consequences for the future of the US - chief among them the trillions of dollars in debt the US will need to incur to pay for all those new illegal immigrants Democrat voters and low-paid workers. This is on top of the labor revolution that will kick in once AI leads to mass layoffs among high-paying, white-collar jobs, after which all those newly laid off native-born workers hoping to trade down to lower paying (if available) jobs will discover that hardened criminals from Honduras or Guatemala have already taken them, all thanks to Joe Biden.

Tyler Durden Sun, 03/10/2024 - 19:15

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