Just days ago, the Supreme Court issued two rulings that have the internet chattering about how the Court killed the administration’s vaccine mandate. While I don’t want to throw cold water on the celebration, I have to say I don’t read things that way. Yes, one of the rulings killed the attempt to use OSHA to force businesses to require vaccination of their employees, that is the only bright spot I see. Rather than a decisive blow for freedom, it looks more like a fairly minor victory in a skirmish with the battle still to be won or lost.
When in the course of such disagreement, a decent respect to the opinions of the people requires that one should declare the causes which impel them to such disagreement. There are two decisions involved, both of which can be found on the Supreme Court website. The term Per Curiam merely means that the ruling was issued by the full Court, without reference to particular Justices.
The following summarizes salient points of the cases and the arguments, and points out significant issues that were either ignored by the Court, omitted from consideration, or where scientific information was incorrectly understood. This is not intended to be a comprehensive review and critique.
NFIB v. OSHA (21A244) (Per Curiam)
In this ruling, the Court granted the application to stay two injunctions that barred OSHA from enforcing a rule mandating that employers of more than 100 employees require those employees to be vaccinated with the experimental Covid vaccine or face termination of employment.
In more plain language, the Court ruled that OSHA, a government agency, couldn’t be used to impose a vaccine mandate on millions of unvaccinated workers. Vaccinate or else as a workplace condition was not acceptable. The lower court ruling halting the mandate was allowed to stand.
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The discussions revolved around two key issues. First, was the question of did OSHA have the Constitutional authority to issue workplace rules with the force of law. It was generally concluded that such authority was provided through the legislative acts that created OSHA in the first place. The argument was that Congress had the sole authority to create regulatory agencies to implement laws they passed. In essence, OSHA was merely the enforcement arm of Congress.
The second issue was the question of did a vaccine mandate fall under the authority of OSHA’s charter? Here was a significant split within the Court, with one faction arguing that OSHA could only regulate things that were unique to the workplace, and since Covid extended beyond the workplace and was not unique to the workplace, OSHA was not empowered to mandate remedies. The other faction argued that in the case of the Covid pandemic, OSHA was more broadly empowered.
Those In Favor
JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.
At the very beginning of their arguments in favor of the ruling, lies the statement:
“The central question we face today is: Who decides?” These Justices go on to consider whether it should be the Federal government, or the various State and local governments that should decide what health mandates should be issued.
Omitted from the listed parties were the people themselves, even though they have the greatest interest in the discussion. Consider that much of the Constitution, including all of the Bill of Rights, is written to protect the individual citizen from the depredations of a powerful government, this omission of the People as interested parties is significant.
They go on to show that the risks of the pandemic are not uniquely associated with any workplace, so arguing that it falls under the purview of OSHA is improper. They further argue that if Congress had wanted OSHA to have such far-reaching power, they would have said so, which they did not.
They also point out that, unlike other workplace regulations, vaccination is something that once done, cannot be undone. It, therefore, is unique among OSHA regulations.
JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting
Arguing in favor of the OSHA proposal, the above Justices begin by pointing out the pervasiveness of Covid and claimed that it has killed almost one million Americans. This despite the fact that the CDC has recently admitted that many, if not most of those deaths were likely from other causes.
They then use the OSHA claim that 6,500 lives would be saved among the 84 Million currently unvaccinated workers were all to be vaccinated. The underlying assumptions were that the alleged vaccines are effective at both preventing infection as well as preventing the spread of disease, that there are no significant adverse effects of vaccination, that natural immunity is not a factor, and that there are no effective therapies that would reduce the number of deaths from Covid infections. All of these assumptions are false.
They further argued that since Covid is so widespread, affecting nearly all workers everywhere, OSHA did have wide-reaching authority and the workplace limitation was incorrect.
What Was Left Out
Perhaps the most important consideration omitted was the adverse effects of vaccination. Currently, 249 million people in the US have received at least one dose of vaccine. According to the VAERS reporting system, a minimum of 22,000 people have died from the vaccine, giving a rate of 88 deaths per Million. As the Court points out, there are 84 Million unvaccinated workers. Even without considering that VAERS undercounts deaths, at the current rate, vaccination of the 84 Million workers would result in 7,400 deaths from the vaccine – 900 more deaths than OSHA claimed would be prevented by forced vaccination. That does not even take into consideration the much greater number of people with adverse reactions to the vaccine, including long-term disability for many. Quite literally, the cure would be worse than the disease.
Aside from the public health considerations, at no point was the question raised: Does Congress, or any regulatory body created by Congress have the Constitutional right to create and impose any mandate on the people, especially if that mandate falls outside the enumerated powers specified in the Constitution? Underlying the discussions, even among the supposedly Constructionist justices was the presumption that the government had whatever powers it chose to apply.
The apparent justification was that a national health emergency somehow gave the government special powers that overrode the limitations inherent in the Constitution. In other words, the Constitution is a nice set of guidelines that is useful in ordinary circumstances but it can be dispensed with whenever it is inconvenient.
Biden v. Missouri (21A240) (Per Curiam)
In this ruling, the Court was asked to stay injunctions against a ruling that the Secretary of Health and Human Services (HHS) had issued requiring that all health care workers in facilities that receive Medicare and Medicaid funding be required to be vaccinated against Covid. Lower courts had issued injunctions prohibiting implementation of that ruling.
The Supreme Court overruled those injunctions and allowed the HHS mandate to be enforced.
The principal argument in favor of the HHS mandate was that vaccination of health care workers was necessary to prevent risk to those in their care. It was assumed that the vaccine would be effective in preventing Covid infections in health care workers, and that vaccination would prevent spread of infection. Thus, requiring health care workers to be vaccinated was a reasonable condition to be imposed. As we have stated, those assumptions do not hold.
It was further argued that since Federal funding was being provided, Federal conditions on acceptance of such funding were reasonable and appropriate. It was argued that Congress had permitted such conditions as necessary to ensure the health and safety of those who were being furnished services.
In other words, if the government is paying for it, the government has the right to set whatever conditions it wants. Those who disagree don’t have to accept the payment.
Further justification was argued that the vast majority of health care workers were in favor of vaccination, and a Covid vaccination was no different from that for other diseases. Specifically dismissed were considerations of natural immunity, and considerations of adverse reactions to vaccination, under the justification that the Secretary had considered such risks and deemed them inconsequential.
Those In Favor
Unlike the OSHA case, there was no specific discussion by those in favor of the ruling. The Per Curiam presentation was extensive in its arguments and was probably considered sufficient.
JUSTICE THOMAS, with whom JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT join, dissenting.
The principal arguments raised are that the authority of HHS is limited to issuing such rules and regulations as are necessary for administration of its functions, and for issuing rules and regulations for administration of Medicare and Medicaid
insurance programs. Neither provision allows issuance of a vaccination mandate. In this way, the HHS is overstepping its statutory authority. They point out that had Congress wished the agency to have such authority, it would have so stated when it authorized the formation of the agency.
They further argue that it is inappropriate to require as a condition of employment that workers undergo a medical procedure they do not want and cannot undo.
As with the OSHA case, there was no discussion of any issues around adverse effects of vaccination, nor of Constitutional issues of government authority and individual rights.
What Was Left Out
With 10 Million health care workers affected, the vaccination requirement will mean that a minimum of an additional 880 health care workers will needlessly die and many more will suffer serious adverse effects and possible long-term disability. Since VAERS undercounts and that estimate is obtained from VAERS data, that number is more probably closer to 5,000 to 6,000 if not more.
There was also no consideration given to the unique position of government funding for contracted services. Since the source of government funds are tax revenues that are obtained from, among others, the providers of such services, there is a peculiar set of conditions that exist between contractor and contractee that exist nowhere else in the economy.
Imagine if a contractor, in order to obtain a contract, had to provide their customer the funds that would be used to pay them, and then in order to get paid had to meet certain onerous conditions to receive the payment they had provided in the first place. It is difficult to see how this situation differs greatly from a situation where the government uses funds obtained from taxpayers to provide services to the taxpayer, but where such payment was subject to conditions the government might impose, including a condition of exclusivity.
While some form of revenue to the government, including taxes, is necessary to support the legitimate and essential services such as providing for the common defense, there is always a temptation to claim more services as essential and to seek ever greater revenues in infinite cycle.
What It Might Mean
The fact that Constitutional issues of individual liberties were sidestepped has serious consequences. The Supreme Court, like most courts, follows a doctrine of Stare Decisis which simply means that they will not generally issue a ruling that contradicts a previous decision. In deciding that the government has a right to set peripheral conditions, including a broad mandate, on recipients of government funding sets a bad precedent. In this case, the condition is on who can provide certain services – only a vaccinated worker can provide care services. What other requirements may be set for any recipient of Federal funding?
There is a case wending its way through the courts that may end up before the Supreme Court, where it is argued that Defense contractors should be required to have their employees vaccinated in order to receive funding. This case with Medicare/Medicaid funding would suggest that such a vaccination requirement would be right and appropriate for Defense contractors as well as health care workers.
By extension, the Department of Education could require all schools that receive Federal funds have their teachers, administrators and students vaccinated. The Department of Agriculture could mandate all farmers receiving Federal subsidies be vaccinated. Cities that receive Federal grants for housing, roads, social services, and other purposes could be mandated to have all their administrators and workers vaccinated. The list of opportunities is almost endless.
Some will argue that extending the threat of such authority is taking matters to the point of absurdity – no government would think to go that far. Yet what government in the history of the world has failed to take advantage of any opportunity and excuse to extend its power?
Where Does That Leave Us
More properly, the Court should have ruled in the OSHA case that the proposed mandate stood in opposition to the protections granted to the individual against the power of the State. An attempt to extend those State powers through regulatory action was improper, and until such time as Congress and the People saw fit to amend the Constitution to grant the State such powers, such attempts should be automatically null and void.
In the case of health care workers, we again see an attempt to expand the power of the State by economic means. Medicare is funded by tax revenues. The government has no money of its own, so all expenditures it makes must be supported by funds extracted from the people in the form of taxes. The Constitution explicitly lists those legitimate activities of government for which taxes can justifiably be collected to support. Using funds collected through taxation in an attempt to extend the power of the State through economic means is outside the scope of the enumerated powers and should be prohibited.
Justices claimed, rightly, that they were not experts in the necessary scientific fields. It appears that at least some of them were also not experts on the Constitution.
Supreme Court Justices are not superhuman beings, imbued with god-like wisdom and infallible discernment. Rather, they are fallible humans subject to the same failings as the rest of us. Through flawed logic coupled with faulty, incomplete, and even incorrect scientific results, these Justices have delivered two bad decisions with far-reaching harm.
Far from providing a triumph for freedom and individual liberty, the Court has poured more concrete into a foundation for tyranny.
By David Robb
David Robb is a regular contributor to The Blue State Conservative and a practicing scientist who has been working in industry for over 50 years. One of his specialties is asking awkward questions. A large part of his work over the years has involved making complex scientific issues clear and understandable to non-specialists. Sometimes he even succeeds.
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