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Turley: Supreme Court Considers Trip To ‘Major-Questions-Land’ Over Vaccine Mandates

Turley: Supreme Court Considers Trip To ‘Major-Questions-Land’ Over Vaccine Mandates

Authored by Jonathan Turley,

Below is my column in the Hill on the vaccine mandate cases before the Supreme Court. Businesses and groups are still waiting..

Published

2 years ago

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Turley: Supreme Court Considers Trip To 'Major-Questions-Land' Over Vaccine Mandates

Authored by Jonathan Turley,

Below is my column in the Hill on the vaccine mandate cases before the Supreme Court. Businesses and groups are still waiting to see if the Supreme Court will issue an injunction in the OSHA case. The mandate goes into effect today. The issue is not what the decision should be on mandates but who gets to make that decision.

That question takes some justices to a place that they would prefer not to go …”Major-question-land.”

Here is the column:

“Major-question-land,” the term used by Louisiana solicitor general Elizabeth Murrill during Friday’s oral arguments over the Biden vaccine mandates, has an almost Disneyesque sound to it. However, unlike Yesterland or Tomorrowland, major-question-land clearly holds no attraction for the Biden administration or the court’s liberal justices.

The defenders of the mandates worked mightily to avoid the fact that it’s the first-ever national vaccine mandate and was decided without the approval of Congress.  Chief Justice John Roberts, a vital vote needed by the administration, noted that this administration was relying on language passed roughly 50 years ago — closer to the Spanish Flu than the novel coronavirus — and stated ominously, “This is something the federal government has never done before.” That sounds not just like a question but a major one.

The major-questions doctrine maintains that courts should not defer to agency statutory interpretations when the underlying questions concern “vast economic or political significance.”

The controversy over the mandates shows the wisdom of the doctrine demanding that Congress not only take action but responsibility, too, for such major decisions.

With increasing confusion over changing CDC guidelines and the risk profile associated with the Omicron variant, congressional action could bring both greater legitimacy and clarity to questions swirling around mandates.

Instead, the Supreme Court is grappling with an executive move that was openly discussed not only as an avoidance of Congress but a circumvention of constitutional limitations.

It was not a good sign for the administration that the most referenced individual during oral argument was Biden’s chief of staff, Ron Klain, who tweeted that the mandates were “workarounds” of the Constitution. Chief Justice Roberts, Justice Neil Gorsuch, and others referred to Klain’s admission as the administration’s lawyers tried to argue that the executive had the constitutional authority to implement a national mandate.

The liberal justices took the “time is of the essence” argument to an almost apocalyptic degree: 

  • Justice Stephen Breyer kept mentioning that every second they wait, more people are getting COVID, and he incorrectly stated there were “750 million new cases yesterday.”

  • Justice Sonia Sotomayor stated as a fact that “Omicron is as deadly as Delta and causes as much serious disease in the unvaccinated as Delta did.” That is not true. Omicron appears to be far more virulent, but less lethal than Delta. Sotomayor also claimed that “we have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.” That is also untrue. For patients, up to 17 years old, the seven-day average for hospitalizations was 797.

  • Justice Elena Kagan also raised eyebrows by claiming that “the best way” to prevent the spread of COVID-19 is “for people to get vaccinated,” and the “second best way” is to “wear masks.” Both claims were immediately challenged. While the vaccine can moderate or lessen the symptoms, states like Massachusetts are reporting that 95 percent of new cases involve the Omicron variant and that vaccinated people are contracting the variant in large numbers. Moreover, while long denied as “disinformation,” medical experts are now admitting that widely-used cloth masks are largely ineffective as protection. Even CNN’s experts now call the cloth masks “little more than facial decorations.”

The questionable claims by the justices were ironic in a case where they were arguing for sweeping deference to support sweeping agency mandates. (Justice Neil Gorsuch was also criticized for his claim on the death rate for flu).

Putting aside the factual claims supporting the mandates, there remains the even more dubious constitutional claims. Of the two rules at issue, the OSHA rule has the greatest reach and likely the greatest chance of being struck down. The conservative justices seemed more willing to recognize the government’s inherent authority to issue a mandate for health care workers. However, virtually no health care facilities challenged the rule, and the impact of the rule is not especially great given the industry-wide practice of requiring vaccinations. The OSHA rule attracted the most skepticism from all six conservative justices.

The OSHA rule was issued after months of President Biden claiming the authority to impose a national mandate and then admitting that he did not likely have such authority.

The OSHA rule was clearly “Plan B.”

Notably, while OSHA had discussed whether it could — or should — issue an “Infectious Diseases Regulatory Framework” covering airborne infectious diseases — long before the advent of COVID — it never did so. When the White House was looking for a workaround of the Constitution, OSHA suddenly found what it now claims to be clear authority.

It is not clear — from either a historical or a statutory perspective.

OSHA used an “emergency temporary standard” (ETS) that applies to a “grave danger” when such action is “necessary to protect employees from such danger.” An ETS is generally used to protect employees “from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards.” It can only be used in emergencies when “necessary to protect employees from such danger.”

The emergency need for the ETS seems as much political as health-based. After waiting for over a year, OSHA suddenly declared the need to promulgate an ETS without going through the required “notice and comment” process.

When President Trump sought to skip such notice and comment steps, it was challenged by Democrats as abusive.

If the Biden administration loses on the OSHA case, it would constitute a major political and legal blow. The administration has racked up an impressive list of losses in federal court — but this one could be particularly costly.

Various justices like Neil Gorsuch have long criticized the “Chevron Doctrine,” the basis for courts deferring to federal agencies in their interpretations and policies. The liberal justices continually returned to such deference in their comments on Friday. This case could offer a perfect vehicle to curtail that doctrine and reduce that deference in future cases. That would impact policies across the legal landscape — from environmental laws to work-safety regulations to banking rules.

At a time when liberals are demanding more unilateral action from Biden due to congressional opposition to his agenda, such a ruling could curtail the ability of federal agencies to circumvent Congress.

This is also a major question.

That’s why neither the administration nor the liberal justices want to visit “major-question-land.” For those who want unilateral presidential power, that is not the “Happiest Place on Earth.” It is, however, the most democratic.

Tyler Durden Mon, 01/10/2022 - 10:30

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Low Iron Levels In Blood Could Trigger Long COVID: Study

Low Iron Levels In Blood Could Trigger Long COVID: Study

Authored by Amie Dahnke via The Epoch Times (emphasis ours),

People with inadequate…

Published

4 hours ago

on

March 9, 2024

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Low Iron Levels In Blood Could Trigger Long COVID: Study

Authored by Amie Dahnke via The Epoch Times (emphasis ours),

People with inadequate iron levels in their blood due to a COVID-19 infection could be at greater risk of long COVID.

(Shutterstock)

A new study indicates that problems with iron levels in the bloodstream likely trigger chronic inflammation and other conditions associated with the post-COVID phenomenon. The findings, published on March 1 in Nature Immunology, could offer new ways to treat or prevent the condition.

Long COVID Patients Have Low Iron Levels

Researchers at the University of Cambridge pinpointed low iron as a potential link to long-COVID symptoms thanks to a study they initiated shortly after the start of the pandemic. They recruited people who tested positive for the virus to provide blood samples for analysis over a year, which allowed the researchers to look for post-infection changes in the blood. The researchers looked at 214 samples and found that 45 percent of patients reported symptoms of long COVID that lasted between three and 10 months.

In analyzing the blood samples, the research team noticed that people experiencing long COVID had low iron levels, contributing to anemia and low red blood cell production, just two weeks after they were diagnosed with COVID-19. This was true for patients regardless of age, sex, or the initial severity of their infection.

According to one of the study co-authors, the removal of iron from the bloodstream is a natural process and defense mechanism of the body.

But it can jeopardize a person’s recovery.

“When the body has an infection, it responds by removing iron from the bloodstream. This protects us from potentially lethal bacteria that capture the iron in the bloodstream and grow rapidly. It’s an evolutionary response that redistributes iron in the body, and the blood plasma becomes an iron desert,” University of Oxford professor Hal Drakesmith said in a press release. “However, if this goes on for a long time, there is less iron for red blood cells, so oxygen is transported less efficiently affecting metabolism and energy production, and for white blood cells, which need iron to work properly. The protective mechanism ends up becoming a problem.”

The research team believes that consistently low iron levels could explain why individuals with long COVID continue to experience fatigue and difficulty exercising. As such, the researchers suggested iron supplementation to help regulate and prevent the often debilitating symptoms associated with long COVID.

“It isn’t necessarily the case that individuals don’t have enough iron in their body, it’s just that it’s trapped in the wrong place,” Aimee Hanson, a postdoctoral researcher at the University of Cambridge who worked on the study, said in the press release. “What we need is a way to remobilize the iron and pull it back into the bloodstream, where it becomes more useful to the red blood cells.”

The research team pointed out that iron supplementation isn’t always straightforward. Achieving the right level of iron varies from person to person. Too much iron can cause stomach issues, ranging from constipation, nausea, and abdominal pain to gastritis and gastric lesions.

1 in 5 Still Affected by Long COVID

COVID-19 has affected nearly 40 percent of Americans, with one in five of those still suffering from symptoms of long COVID, according to the U.S. Centers for Disease Control and Prevention (CDC). Long COVID is marked by health issues that continue at least four weeks after an individual was initially diagnosed with COVID-19. Symptoms can last for days, weeks, months, or years and may include fatigue, cough or chest pain, headache, brain fog, depression or anxiety, digestive issues, and joint or muscle pain.

Tyler Durden Sat, 03/09/2024 - 12:50

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Walmart joins Costco in sharing key pricing news

The massive retailers have both shared information that some retailers keep very close to the vest.

Published

7 hours ago

on

March 9, 2024

By

As we head toward a presidential election, the presumed candidates for both parties will look for issues that rally undecided voters. 

The economy will be a key issue, with Democrats pointing to job creation and lowering prices while Republicans will cite the layoffs at Big Tech companies, high housing prices, and of course, sticky inflation.

The covid pandemic created a perfect storm for inflation and higher prices. It became harder to get many items because people getting sick slowed down, or even stopped, production at some factories.

Related: Popular mall retailer shuts down abruptly after bankruptcy filing

It was also a period where demand increased while shipping, trucking and delivery systems were all strained or thrown out of whack. The combination led to product shortages and higher prices.

You might have gone to the grocery store and not been able to buy your favorite paper towel brand or find toilet paper at all. That happened partly because of the supply chain and partly due to increased demand, but at the end of the day, it led to higher prices, which some consumers blamed on President Joe Biden's administration.

Biden, of course, was blamed for the price increases, but as inflation has dropped and grocery prices have fallen, few companies have been up front about it. That's probably not a political choice in most cases. Instead, some companies have chosen to lower prices more slowly than they raised them.

However, two major retailers, Walmart (WMT) and Costco, have been very honest about inflation. Walmart Chief Executive Doug McMillon's most recent comments validate what Biden's administration has been saying about the state of the economy. And they contrast with the economic picture being painted by Republicans who support their presumptive nominee, Donald Trump.

Walmart has seen inflation drop in many key areas.

Image source: Joe Raedle/Getty Images

Walmart sees lower prices

McMillon does not talk about lower prices to make a political statement. He's communicating with customers and potential customers through the analysts who cover the company's quarterly-earnings calls.

During Walmart's fiscal-fourth-quarter-earnings call, McMillon was clear that prices are going down.

"I'm excited about the omnichannel net promoter score trends the team is driving. Across countries, we continue to see a customer that's resilient but looking for value. As always, we're working hard to deliver that for them, including through our rollbacks on food pricing in Walmart U.S. Those were up significantly in Q4 versus last year, following a big increase in Q3," he said.

He was specific about where the chain has seen prices go down.

"Our general merchandise prices are lower than a year ago and even two years ago in some categories, which means our customers are finding value in areas like apparel and hard lines," he said. "In food, prices are lower than a year ago in places like eggs, apples, and deli snacks, but higher in other places like asparagus and blackberries."

McMillon said that in other areas prices were still up but have been falling.

"Dry grocery and consumables categories like paper goods and cleaning supplies are up mid-single digits versus last year and high teens versus two years ago. Private-brand penetration is up in many of the countries where we operate, including the United States," he said.

Costco sees almost no inflation impact

McMillon avoided the word inflation in his comments. Costco  (COST)  Chief Financial Officer Richard Galanti, who steps down on March 15, has been very transparent on the topic.

The CFO commented on inflation during his company's fiscal-first-quarter-earnings call.

"Most recently, in the last fourth-quarter discussion, we had estimated that year-over-year inflation was in the 1% to 2% range. Our estimate for the quarter just ended, that inflation was in the 0% to 1% range," he said.

Galanti made clear that inflation (and even deflation) varied by category.

"A bigger deflation in some big and bulky items like furniture sets due to lower freight costs year over year, as well as on things like domestics, bulky lower-priced items, again, where the freight cost is significant. Some deflationary items were as much as 20% to 30% and, again, mostly freight-related," he added.

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Walmart has really good news for shoppers (and Joe Biden)

The giant retailer joins Costco in making a statement that has political overtones, even if that’s not the intent.

Published

8 hours ago

on

March 9, 2024

By

As we head toward a presidential election, the presumed candidates for both parties will look for issues that rally undecided voters. 

The economy will be a key issue, with Democrats pointing to job creation and lowering prices while Republicans will cite the layoffs at Big Tech companies, high housing prices, and of course, sticky inflation.

The covid pandemic created a perfect storm for inflation and higher prices. It became harder to get many items because people getting sick slowed down, or even stopped, production at some factories.

Related: Popular mall retailer shuts down abruptly after bankruptcy filing

It was also a period where demand increased while shipping, trucking and delivery systems were all strained or thrown out of whack. The combination led to product shortages and higher prices.

You might have gone to the grocery store and not been able to buy your favorite paper towel brand or find toilet paper at all. That happened partly because of the supply chain and partly due to increased demand, but at the end of the day, it led to higher prices, which some consumers blamed on President Joe Biden's administration.

Biden, of course, was blamed for the price increases, but as inflation has dropped and grocery prices have fallen, few companies have been up front about it. That's probably not a political choice in most cases. Instead, some companies have chosen to lower prices more slowly than they raised them.

However, two major retailers, Walmart (WMT) and Costco, have been very honest about inflation. Walmart Chief Executive Doug McMillon's most recent comments validate what Biden's administration has been saying about the state of the economy. And they contrast with the economic picture being painted by Republicans who support their presumptive nominee, Donald Trump.

Walmart has seen inflation drop in many key areas.

Image source: Joe Raedle/Getty Images

Walmart sees lower prices

McMillon does not talk about lower prices to make a political statement. He's communicating with customers and potential customers through the analysts who cover the company's quarterly-earnings calls.

During Walmart's fiscal-fourth-quarter-earnings call, McMillon was clear that prices are going down.

"I'm excited about the omnichannel net promoter score trends the team is driving. Across countries, we continue to see a customer that's resilient but looking for value. As always, we're working hard to deliver that for them, including through our rollbacks on food pricing in Walmart U.S. Those were up significantly in Q4 versus last year, following a big increase in Q3," he said.

He was specific about where the chain has seen prices go down.

"Our general merchandise prices are lower than a year ago and even two years ago in some categories, which means our customers are finding value in areas like apparel and hard lines," he said. "In food, prices are lower than a year ago in places like eggs, apples, and deli snacks, but higher in other places like asparagus and blackberries."

McMillon said that in other areas prices were still up but have been falling.

"Dry grocery and consumables categories like paper goods and cleaning supplies are up mid-single digits versus last year and high teens versus two years ago. Private-brand penetration is up in many of the countries where we operate, including the United States," he said.

Costco sees almost no inflation impact

McMillon avoided the word inflation in his comments. Costco  (COST)  Chief Financial Officer Richard Galanti, who steps down on March 15, has been very transparent on the topic.

The CFO commented on inflation during his company's fiscal-first-quarter-earnings call.

"Most recently, in the last fourth-quarter discussion, we had estimated that year-over-year inflation was in the 1% to 2% range. Our estimate for the quarter just ended, that inflation was in the 0% to 1% range," he said.

Galanti made clear that inflation (and even deflation) varied by category.

"A bigger deflation in some big and bulky items like furniture sets due to lower freight costs year over year, as well as on things like domestics, bulky lower-priced items, again, where the freight cost is significant. Some deflationary items were as much as 20% to 30% and, again, mostly freight-related," he added.

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