Category: Law

We tried to predict what the Supreme Court would do with President Biden’s vaccine mandates on health care workers and on employees of larger companies (see Supreme Court hears arguments on forced vaccination in two parallel universes).

In the ruling on the health care industry, dependent on the twin rivers of Medicare and Medicaid cash, the Supreme Court said the following:

In many facilities, 35% or more of staff remain unvaccinated, … and those staff, the Secretary explained, pose a serious threat to the health and safety of patients. That determination was based on data showing that the COVID–19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated.

the Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking medically necessary care,” creating a further “ris[k] to patient health and safety.”

(The last one is interesting. Suppose that we find that patients are uncomfortable with white cisgender heterosexual physicians, whom they perceive as intellectually inferior due to being able to slide into medical school via privilege. Can the government order that the health care industry hire only the BIPOC and 2SLGBTQQIA+? Otherwise patients might forgo seeking medically necessary care.)

The core of the above-cited section is that a lawyer, with no technical or scientific training, has decided to disagree with a Stanford Medical School professor (see “Benefit of COVID-19 vaccination accounting for potential risk compensation” (Nature)) who found that the vaccinated might actually be more likely to get infected and spread disease if you assume (a) an imperfect vaccine, and (b) humans take more risks once they’ve been told that they’re invulnerable due to vaccination. (see also Perfect illustration of risk compensation rendering COVID-19 vaccines ineffective and Why doesn’t the raging plague in Maskachusetts cause doubt among the true believers in Faucism?)

So the Supreme Court accepts as scientific fact that vaccination and casting out the unvaccinated are critical to #StopTheSpread. This, plus potential patient discomfort with heretical providers, led to the Court approving Biden’s order.

In the ruling on generic private employers, however, COVID-19 seems to be a different, much milder, disease. Certainly COVID-19 does not present a “grave danger” to humans nor is SARS-CoV-2 “toxic or physically harmful.”

[workplace-related orders from the Pharaoh] are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.”

So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure,

The last paragraph says that there is an inevitable risk of COVID-19 exposure based on inhabiting the biosphere for workers, but, based on the previous ruling, this is apparently untrue for patients visiting Medicare- and Medicaid-funded health care facilities.

Let’s see who among us got this right…

• I was at 50% (correct about health care order being approved, a 95 percent prediction and incorrect on my “less confident” prediction that the workplace order would be approved)
• Craig said “I’m predicting the court will find the federal vaccine mandate to be an overreach simply because the narrative is already shifting towards Omicron <= flu and we must learn to live with it (like you predicted). There is no federal mandate for flu vaccinations, although I believe some federal agencies like VA hospitals can require staff to have flu immunizations.” (he didn’t separate out the two issues before the Court, but I think we might have to give him 100% since he mentioned “federal agencies” (and any enterprise on the Medicare/Medicaid dole is essentially a federal agency)
• Jack was at 50%: “My guess is the Court will rule against the Biden administration — seems that a substantial number of Americans are opposed to the vaccine mandate & therefore any mandate will be widely ignored. Affects the Court’s legitimacy to uphold law that will be ignored & will encourage civil disobedience. Also, as a matter of numbers, the statist justices are in the minority.”
• JT was at 50%: “Predict struck down and that it’s a blessing for Biden. It’s obvious it doesn’t stop the spread so all a mandate could possibly do is create onerous bureaucracy people hate.”

Can these rulings be considered logically consistent? There are sicker/older people who go to hospitals than to work. But on the other hand, hospital staff are highly competent at using the masks that the government says stop COVID-19 transmission. Also, the ruling is based on the vaccines being highly effective and sicker/older people are generally vaccinated. And if they can catch COVID-19 nonetheless, they will eventually catch COVID-19 indirectly from people who get COVID-19 in the unsafe workplaces. Ivan pointed out that “Sotomayor claimed that the federal government has ‘a police power to protect workers'”. If we combine these two orders do we find that the federal government has a police power to protect those visiting health care facilities, but as soon as the visit is over the police power evaporates?

Color me confused! The Supreme Court accepts that vaccination leads to reduced COVID-19 infection and transmission, and that the peasantry believe this as well, and therefore the government can order doctors and nurses to be vaccinated. Yet the government cannot order this vital protection for workers outside of health care? And, though this issue wasn’t before the Court, it sounds as though, unless prohibited by state law (as in Florida!), a mayor can order the peasants within a city to be vaccinated if they want to leave their hovels (see Washington, D.C. vaccine papers and Photo ID checks start tomorrow for example).

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Based on what Justices said during last week’s hearing regarding the constitutionality of President Biden’s forced vaccination orders, the Supreme Court seemed to be prepared to rule based on numbers.

There are some questions about whether these numbers are correct. See “Sotomayor’s false claim that ‘over 100,000’ children are in ‘serious condition’ with covid” (Washington Post), for example:

But then Sotomayor went off the rails: “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

That’s wildly incorrect, assuming she is referring to hospitalizations, given the reference to ventilators. According to HHS data, as of Jan. 8 there are about 5,000 children hospitalized in a pediatric bed, either with suspected covid or a confirmed laboratory test. This figure includes patients in observation beds. So Sotomayor’s number is at least 20 times higher than reality, even before you determine how many are in “serious condition.”

Moreover, according to the Centers for Disease Control and Prevention, there have been less than 100,000 — 82,843 to be exact — hospital admissions of children confirmed with covid since Aug. 1, 2020.

(We will not address remarks made by Justice Neil M. Gorsuch, which some readers also thought were wrong. The official court transcript suggested he had made an inflated statement about the annual flu: “Flu kills — I believe — hundreds of thousands of people every year.” The flu kills between 12,000 and 52,000 people in the United States a year, but the audio of the argument shows Gorsuch actually said that “flu kills, I believe, hundreds, thousands of people every year.” So the transcript is incorrect.)

Let’s assume for the sake of this blog post that perfect numbers are available for every statistic and that all of the Justices are able to comprehend and remember these numbers. A reader sent me an interesting email:

What is the definition of small? And who decides? What can they force you to do in the future with this precedent?

What if we had a pandemic with a 5% death rate and a “vaccine” with a 4% death rate?

If the Constitution limits what the federal government can do, it shouldn’t be necessary to resort to a statistical analysis to determine whether the government can constitutionally force healthy people to take a medicine that they don’t want.

I don’t think this is as simply as making an analogy to vaccinations required for children to attend taxpayer-funded schools. As far as I am aware, all of those vaccinations were and are intended to protect those being vaccinated whereas the argument for forcing a vaccine on a healthy 20-year-old is to protect others (since Science proves that the vaccine will prevent infection and transmission). Also, those vaccines had been through a traditional (non-accelerated) testing and approval process. (I would point out that those vaccines are more than 37% effective, but that gets us back to turning law into a numbers game.)

Readers: Will you be sorry if the Supreme Court refers to numbers and statistical studies when it finally rules on this issue of how much power the federal government has?

Related:

• Why doesn’t the raging plague in Maskachusetts cause doubt among the true believers in Faucism? (if one did want to use numbers to determine legality, it is tough to find statistical support for ordering vaccines or masks)
• Use testing and tracing infrastructure to enforce alcohol Prohibition? (If we are going to use numbers to justify government coercion, I think alcohol prohibition would be the obvious conclusion from any spreadsheet)
• “Yes, Immigration Hurts American Workers” (Politico, 2016) (if we follow the numbers, we would shut down low-skill immigration)

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