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Why The Biden COVID-19 Vaccine Mandate Is Unconstitutional

Why The Biden COVID-19 Vaccine Mandate Is Unconstitutional

Authored by attorney and journalist Techno Fog via The Reactionary,

On September 9, President Biden announced he would circumvent the democratic process, ordering the Secretary of…

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Why The Biden COVID-19 Vaccine Mandate Is Unconstitutional

Authored by attorney and journalist Techno Fog via The Reactionary,

On September 9, President Biden announced he would circumvent the democratic process, ordering the Secretary of the Department of Labor to require employers with over 100 workers to “ensure their workforces are fully vaccinated or show a negative test at least once a week.”

This was essential, as Biden said, “to protect vaccinated workers from unvaccinated workers.”

As we have explained, the Secretary of Labor will issue these regulations through OSHA by way of an Emergency Temporary Standard (ETS). The ETS would allow the Secretary of Labor to issue the vaccine mandate without the normal administrative rulemaking requirements (like notice and public comment periods).

While the Biden Administration tells the public that there’s no time to waste in issuing the mandate, the truth is that OSHA/Labor failed to argue the necessity of a vaccine mandate since the vaccines have been available – a time period approaching one year. Moreover, the Biden Department of Labor is secretly meeting with the US Chamber of Commerce and business lobbyists to gather support for the mandate. As Bloomberg Law reports:

Solicitor of Labor Seema Nanda held a virtual meeting with Neil Bradley, the Chamber’s chief policy officer, and other business lobbyists. The Chamber, the largest business lobbying group in the U.S., has yet to publicly declare a position on the coming Occupational Safety and Health Administration emergency rulemaking.

It was one of at least three briefings the department held Friday for labor union leaders and employer associations—constituencies the White House hopes to forge partnerships with to lift the vaccination rate nationwide. Information from the calls was disclosed to Bloomberg Law by eight sources who took part, all of whom requested anonymity because they didn’t have approval to speak publicly.

Why the Vaccine Mandate is Unconstitutional

As you can imagine, the constitutionality of the vaccine mandate will be a litigated as soon as OSHA issues the rules. The media is running interference, telling the public that challenges to the mandate are “unlikely to succeed.”

Do not believe them.

The legality of the vaccine mandate will be assessed under what is called the major rules doctrine (also known as the major questions doctrine). Under this doctrine, the courts look to (1) whether the agency action is a major rule; and (2) whether Congress has clearly authorized the agency action.

As Justice Scalia stated in 2014, “We expect congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

From here we turn to the first question of the major rules doctrine: there is zero doubt that it is a major rule. It would affect the healthcare decision – and implicate the personal autonomy – of “some 80 million private sector workers.” It is an action never before taken by OSHA, the Department of Labor, and any other federal agency. It would affect the entire US economy.

In support of my position, we have seen lesser invasive agency rules be determined to be major rules. For example, “rate-regulations” of telephone companies has been held to be a major rule. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994).

From there we get to the second question: whether Congress has clearly authorized the Department of Labor/OSHA to mandate vaccines. The answer is no.

If Congress clearly authorized (not just authorized, but clearly authorized) Labor/OSHA to mandate vaccines, then we would have seen such authority in the OSH Act of 1970. Look for yourself – the language isn’t there. Instead, there are general grants of authority to “set mandatory occupational safety and health standards.”

Looking to the history of OSHA, this authority has been understood to regulate employer actions to provide a safe workplace (Benzene limits) or employee actions at work (operation of heavy equipment). The OSH Act has never been understood historically to include mandatory vaccinations. This is significant because the Supreme Court recently looked to agency history to determine the CDC lacked the authority to issue its latest eviction mandate.

For an example of “clear authority” relating to public health, look to the authority Congress gave HHS the authority to take action in case of “significant outbreaks of infectious diseases.” Going further, to allow the mandate would be to allow OSHA to require vaccination as a condition of employment. The OSH Act contains no such language or authority.

So there we have it. This is a “major rule” and Congress has not “clearly authorized” Labor/OSHA to issue a vaccine mandate. Expect further challenges on whether the ETS itself (and the finding of “grave danger”) is legal.

We also observe that we by no means concede Congressional authority to mandate vaccines. (In other words, Congress could not give OSHA/Labor this authority because Congress has no such authority to give.) Reliance on the 1905 case Jacobsen v. Massachusetts is misplaced, as that was another court in another time considering state, not federal authority.

One Final Point – Why Justice Kavanaugh Matters

In 2017, when Justice Kavanaugh was sitting on the DC Circuit, he wrote a dissent from a denial of rehearing en banc, in which he thoroughly summarized the major rules doctrine. He argued that the FCC’s net neutrality rule was unlawful, in that it was a “major rule” that was not clearly authorized by Congress.

Kavanaugh’s 2017 dissent was one of the most (or perhaps the most) comprehensive discussions of the major rules doctrine ever written in the DC Circuit. Kavanaugh went through a number of Supreme Court cases in support of his position and argued the doctrine essential to uphold the separation of powers. To this author, it reveals Kavanaugh values this doctrine and believes it should be applied with vigor. We see an example of this in Justice Kavanaugh’s concurring opinion in the original application to vacate the stay of the CDC eviction moratorium (June 29, 2021), where Kavanaugh wrote “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium.”

Whether Kavanaugh has the courage to apply his convictions is another matter.

Tyler Durden Tue, 09/14/2021 - 18:45

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The Bloc’s Secrets of Success: 5 Ways The Health Creative Agency Won 200 Awards

As a global pandemic has reshaped society, The Bloc has been at the forefront of changing not just what stories get told about healthcare, but how they are told. In doing so, the health creative agency has won more than 200 film and advertising awards…

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The Bloc’s Secrets of Success: 5 Ways The Health Creative Agency Won 200 Awards

The Bloc achieved unprecedented levels of acclaim and recognition by embracing creativity, racial justice, technology, new practices, and people

New York, NY, September 22 – Over the past two years, The Bloc has redefined health creative to become one of America’s most talked about agencies. As a global pandemic has reshaped society, The Bloc has been at the forefront of changing not just what stories get told about healthcare, but how they’re told. In doing so, they’ve won over 200 film and advertising awards in 2020 and 2021. Recently, The Bloc became the first ever health agency listed on the “Of The Year” ranking for the entire Cannes Lions International Festival of Creativity. In addition, The Bloc is a founding member of The BlocPartners, the acclaimed global network of independent health creative agencies. The BlocPartners recently placed second in the “Health Network of the Festival” category at the Cannes Lions Health Festival.

The Bloc CEO Jennifer Matthews (PRNewsfoto/The Bloc)

“The work we’ve been so awarded for lately has been a natural extension of our motto ‘Be Great to Do Good,’” said Jennifer Matthews, CEO at The Bloc. “Health is life. It deserves the very best in creative excellence.”

  1. Invest in Hollywood Level Filmmaking 

A man walks through a futuristic train station, suffering from a cough, and decides to seek help from an automated doctor. That’s the premise of The Bloc’s award-winning short film Instant Doctor. Made so as to give thanks to doctors and released on National Doctor’s Day (March 30, 2020), the film highlighted the importance of the human element in healthcare by showing a world where medicine is done via machines.  

Instant Doctor won the Grand Jury Award for Best Short at the New York International Film Awards and was declared the Best Sci-fi Short Film at the 2020 Rhode Island International Film Festival.

“Instant Doctor has shown the industry that healthcare advertising can have not just the production quality but also the storytelling excellence of Hollywood movies,” said Bernardo Romero, Chief Creative Officer at The Bloc. “Healthcare has never been more important, which means health creative should be of the same quality as what you would see in a movie theatre or stream on Netflix.”

  1. Tackle the Biggest Issues – Including Racism and Racial Bias in Healthcare

Some of The Bloc’s most acclaimed recent work has centered around racial justice, both in healthcare and in the broader world. 

In early 2020, The Bloc, in partnership with acclaimed ballet dancer Ingrid Silva’s EmpowHer New York, released “The Call,” a short film where an actress went undercover on nursing advice hotlines to expose racial disparities in healthcare treatment. 

The Bloc went on to work with Ingrid on two more films. First came Skindeep, an animated story about racial trauma told through watercolor frames by Black women illustrators. Skindeep was followed by Making Space, a documentary about Ingrid’s life journey which premiered at Cannes Lions. 

In partnership with the National Black Child Development Institute, The Bloc created ABC’s of Survival, a tear-apart book for black children and their parents. The book aims to support mental health and change laws by including postcards that can be sent to congress. The ebook can be found at abcsofsurvival.com.

  1. Hire and Promote the Best People

The Bloc continues to grow rapidly and has recently hired Stuart Goldstein as COO and promoted Antoinette Bobbitt to EVP, strategy director. Stuart will be The Bloc’s first COO, and he’ll oversee the management for over 4,500 projects a year, with the goal of increasing efficiency and profitability. Meanwhile, Antoinette will ensure that The Bloc’s competitive differentiation is present in all client work.

The Bloc’s commitment to its employees was underscored this summer when Fortune magazine listed it as one of the best workplaces in New York for 2021. The Bloc is one of three advertising agencies on the list, and the only health creative agency focused exclusively on health.

  1. Get High Tech

More and more agencies are realizing that their creative skills can be used to power tech innovations, and The Bloc has focused on the development of tech to address pressing health needs. At the beginning of the pandemic, The Bloc pioneered SafeCode, a device concept which combined a bar-code scanner with UV light to help stop the spread of disease on delivery packages. 

The Bloc has also created a tool to aid mental health. At the end of 2020, they worked with Rockwell Ventures to create Scrollaby, an app which takes the habit of “doomscrolling” and turns it into a sleep aid, with over 1,000 pieces of custom content that support rest and relaxation.

  1. Rethink Agency Practices

To expand upon the capabilities it has developed, The Bloc has established new practice areas that distinguish it in the healthcare agency space.

One new practice area is The Bloc Science Foundry, which applies behavioral science and scientific expertise to medical communications. The other is The Bloc Storytellers

And this year, The Bloc announced its Storytellers department, which is dedicated to bringing unsurpassed production and narrative quality to healthcare creative. Storytellers seeks to replicate the success The Bloc has had with The Call, Skindeep, and Instant Doctor. The Bloc is currently searching for the best creative minds from the film, theater, and TV industries to join their team. Resumes can be sent to storytellers@thebloc.com.

 

About The Bloc

The Bloc is a leading independent health creative agency in the United States. Celebrating 21 years in 2021, The Bloc delivers comprehensive omnichannel communications for audiences across the health spectrum and partners with innovative clients who are doing some of the most meaningful and exciting work in health today. A founding member of The BlocPartners, the leading global network of independent health creative agencies, The Bloc’s work has been globally recognized for creativity and innovation. For more information, visit www.thebloc.com.

 

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As inflation fears spike, 1build raises $14M to help construction firms optimize their cost estimates

It’s an extraordinarily exhausting time to estimate costs in the construction industry. Lumber prices skyrocketed during the post-pandemic construction spree, only to come hurtling back down to Earth in recent weeks. Copper, concrete, and steel have…

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It’s an extraordinarily exhausting time to estimate costs in the construction industry. Lumber prices skyrocketed during the post-pandemic construction spree, only to come hurtling back down to Earth in recent weeks. Copper, concrete, and steel have also seen wild price swings as supply chain breakages, workers shortages, border restrictions and more plague price stability.

Construction is among the world’s largest industries, with firms planning and building projects valued at trillions of dollars at pretty much any time. Yet, it’s also one of the most archaic industries, with a heavy reliance on paper even as IT has increasingly filtered into more of the industry’s processes. Paper though can’t match the extreme volatility in materials and labor happening today, and that means construction firms need better and more real-time software tools to handle cost estimates.

1build has a bold vision to own not just cost estimating, but everything that it takes to get a building under construction. “We are going to occupy the whitespace niche of pre-construction — your planing, your estimating, up until you break ground on your building,” CEO and founder Dmitry Alexin said.

Alexin had been scouting around for startup ideas in the real estate sector in 2018 and 2019, having previously worked in finance. He worked briefly at a stealth startup in the space, where he “helped to select real estate with data science.” He discovered a problem when it came to modeling the development of a property though: it wasn’t easy to determine what could be built or how much it would cost. “I just assumed you can just use an API to figure out the cost to build,” he said.

That led him into the rabbit hole that is the math of the construction industry. He discovered “this analog industry … three times as large as ecommerce and still in this offline, non-digitized way to consume,” he said. He wanted to automate more of these processes, but even that ran into challenges. “When I was forming 1build, it was creating a data standard for the construction industry,” he explained. Eventually, he zeroed in on cost estimating.

Alexin is a solo founder, who has since built up a management team around him. He and a few early employees joined the YC Winter 2020 batch, where 1build was identified as one of TechCrunch’s 20 most exciting startups in the batch out of several hundred (the company was my selection).

The startup’s timing, though, was horrific. “COVID happened right as we were graduating,” Alexin said. The company suffered a “50% reduction in usage in the first 30 days.” The company was still small and it hunkered down, but then something surprising happened: the construction industry just zoomed forward as millions of people moved to new homes and offices with the rise of remote work.

The company raised a previously undisclosed $5.5 million seed round from Initialized Capital and kept building. It focused on building a single platform (that’s the “1build”) around all aspects of estimating costs and handling the planning phase of construction. It’s “almost an experience that feels like interacting a spreadsheet, but we pull in the latest materials rate, the latest labor rates,” Alexin said. From there, you can “develop your estimate yourself, line item by line item.” He says that integrating all construction planning in one location can massively save time and money, and is particularly valuable for smaller contractors and construction firms who don’t have the scaled-up planning teams of their larger brethren.

1build’s team, with CEO and founder Dmitry Alexin sitting in center of first row. Image Credits: 1build

Alexin said that subscription revenues have risen 7x in the past 10 months, and 10x since April when we talked a few weeks ago. That excitement led it to a quick, $14.5 million Series A led by Brent Baltimore at Greycroft. Alexin said that Baltimore has been engaged in construction tech for a long time, and said that “we felt that they were the one firm that understood what we are doing.”

The team, as is typical these days, is spread out, with the majority in the U.S. and others in Canada and Europe.

1build wants to be the one stop for the construction industry, and hopes that the industry standardizes on a universal set of data formats. “The more and more builders that adapt that, the more we can build into the product,” he said.

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Long COVID: double vaccination halves risk of developing long-lasting symptoms

Want to avoid long COVID? Get vaccinated.

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Studio Romantic/Shutterstock

In unvaccinated people, around one in 20 who get symptomatic COVID-19 experience symptoms for at least eight weeks. Around one in 50 have symptoms that drag out for three months or more.

We wanted to know whether COVID-19 vaccines might protect against developing long-lasting symptoms. To find out, we looked at data provided by more than a million regular contributors to the COVID Symptom Study, a project in which members of the public log their symptoms via an app to help with research.

Our latest analysis of the study’s data, covering around 2 million vaccine doses, shows that vaccines significantly reduce the risk of catching COVID-19, with only 0.2% of those fully vaccinated later testing positive for the virus.

Even if you’re unlucky enough to catch the virus after being vaccinated, your chances of falling seriously ill or dying are slashed. Double-vaccinated people are 31% less likely to experience acute COVID-19 symptoms and 73% less likely to be hospitalised – a result that’s borne out in the relatively low hospitalisation and death rates we’re seeing now even as tens of thousands of people are still testing positive every day in the UK.

Reassuringly, for those who did fall ill with COVID-19 after being vaccinated, only around 5% went on to have symptoms that lasted for more than four weeks, meaning their chances of developing long COVID were cut by half. One of the best ways to reduce your risk of getting long COVID is to get fully vaccinated as soon as possible.

However, we did notice that frail older people and those living in more socially deprived areas were more likely to be infected and fall ill with COVID-19 after being vaccinated, especially if they had only had one vaccine dose. This suggests that we should prioritise further vaccination efforts and public health measures such as masking and social distancing among these groups, especially where infection rates are high and people are mixing and moving around.

Vaccines and long COVID

As the UK vaccination programme rolled out, we also started to notice anecdotal reports from people living with long COVID that their symptoms seemed to improve after being vaccinated.

The patient-led LongCovidSOS group chose to investigate this by surveying over 800 long COVID patients early in 2021. More than half of those surveyed noticed an overall improvement in their symptoms after vaccination, which then appeared to be sustained in about half of this group. Around a quarter of the overall respondents reported no difference and one-fifth said their symptoms had got worse. These findings have been released as a preprint, so haven’t yet been reviewed by other scientists, but they’ve been backed up by data from the COVID Symptom Study, which we’ll be publishing soon.

However, while there does seem to be some kind of link between receiving a COVID-19 vaccine and improvements in long COVID, it’s not clear exactly how the two are connected. It could be that the immune response triggered by the vaccine has a direct impact on symptoms.

Alternatively, it could just be that time has continued to pass since these people were originally infected and they’re experiencing a natural recovery from the virus. Or it could be a bit of both. Either way, more research is needed to tease out what’s going on.

A woman with long COVID lying on a bed, covering her face
There isn’t a definitive answer yet on whether vaccines can relieve people’s long COVID symptoms. True Touch Lifestyle/Shutterstock

What we can say is that COVID-19 vaccines certainly aren’t harmful for people with long COVID. What’s more, because we know that it’s possible to be reinfected with the virus, there’s a risk that catching it a second time could exacerbate symptoms for people living with long COVID and set them back even further. It’s therefore vital that we encourage anyone with long COVID who has not been vaccinated to do so as soon as possible, to help protect themselves and those around them.

A serious threat

Although the chances of developing long COVID after being vaccinated are small, this is a numbers game and a small percentage of a big number can still be substantial. As long as we are seeing tens of thousands of cases every day, we can still expect to see a substantial number of people living with lingering symptoms over the coming months.

This is particularly important for younger people, who may be less worried about hospitalisation or death, yet who can still be susceptible to the debilitating long-term effects of the virus. A lot can happen in a few months when you’re young, and long COVID can mean that people miss out on life-changing opportunities, like sitting an exam or taking up a new job, as well as the social activities that bring joy and wellbeing to life.

It’s likely that we’ll all be living with COVID-19 for some time to come. But with a combination of vaccination and public health measures where necessary, we can help to make sure that as few people as possible have to directly live with its life-limiting long-term effects.

Claire Steves consults for ZOE Ltd which is the company which developed the COVID Symptom Study together with King's College London. She receives funding from the Medical Research Council, the National Institute for Health Research, the Wellcome Trust and Chronic Disease Research Foundation.

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