January 7, 2022

"Conservative Supreme Court justices on Friday appeared skeptical that the Biden administration has legal authority to impose a broad vaccination-or-testing requirement on large employers."

"They seemed more in agreement with private businesses and Republican-led states that such policies need to be approved by Congress or implemented by state governments than a federal agency — in this case, the Occupational Safety and Health Administration (OSHA). Chief Justice John G. Roberts Jr. was among the conservative justices, who make up a majority of the court, to wonder whether Congress had given authority for agencies 'to enact such a broad regulation.' The Biden administration’s solicitor general, Elizabeth B. Prelogar, said Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

WaPo reports.

I listened to much of the oral argument, and I thought Prelogar was superhumanly great. I don't think I have ever heard someone speak so quickly for so long without sacrificing any lucidity, terseness, or enunciation. Here's her Wikipedia page. I see that she was Miss Idaho in 2004, she's fluent in Russian, and she has sons who are named Blaise and Beckett (which I'm just guessing is a tribute to Blaise Pascal and Samuel Beckett). 

173 comments:

wendybar said...

Harmeet K. Dhillon
@pnjaban
If some of the comments of the OSHA-friendly justices were being accurately fact-checked on this platform, they would be suspended for spreading dangerous misinformation.
12:10 PM · Jan 7, 2022

Joe Smith said...

'Chief Justice John G. Roberts Jr. was among the conservative justices...'

Where is the evidence for the 'conservative' label?

I haven't seen it.

wendybar said...

Today's deep question: Will Twitter suspend Sotomayor for COVID misinformation?

gspencer said...

The lack-of-knowledge show put on by the Wide Latina was eye-opening.

wendybar said...

The CDC said Friday that 4 children in 100,000 are admitted to the hospital with covid. Sotomoyor LIED and claims over 100,000 children are in the hospital, many on ventilators. We can't trust the liars on the Supreme court either.

rcocean said...

Shouldn't they just get rid of Oral agruments? How many times have been told the Justice X was grilling or seemed hostile to one side or the other, and in the end, they either vote for the side they were hostile to, or just voted the way everything thought they would before the oral agruements began.

Maybe it provides the Justices with some fun and a chance to take the stage and put on a performance. As for who is going to vote where on CV-19, we can predict the Leftwing judges will vote for the Government assuming this is the "Progessive side" . Where the rest will vote is unclear. It never is.

West TX Intermediate Crude said...

Next SCOTUS can tell us where the Constitution gives any branch of the Federal Government the authority to mandate the citizens take a particular medicine into our bodies. Seriously, they can look into all the emanations, under every penumbra, and they won't find it.

wendybar said...

We are f*cked.

Greg Price
@greg_price11
"Justice Breyer says that there were "750 million new covid cases yesterday"

There are 330 million people who live in America which means everyone apparently got covid twice in the last 24 hours."

TheOne Who Is Not Obeyed said...

Do all 9 justices really need to participate in orals? After all we can predict with 100% certainty that the Leftish justices (Kagan, Breyer, Sotomayor) are going to vote with the Biden regime. We should just give them a "get out of orals free" card so they can go do whatever it is they prefer to do that keeps them from thinking outside of the Dems' pre-determined political result.

Yancey Ward said...

Reading the arguments of Sotomayor, Breyer, and Kagan demonstrates that they are all three liars, or horribly misinformed.

I think the OSHA mandate is going to fall, but the court may split the baby and allow the CMS mandates to stand (they should fall, too, for the exact same reasons, but Roberts will want to seem balanced).

Lucien said...

I have listened to the argument, but unless a fact (true or not) is in the record on appeal, or the topic of a successful request for judicial notice, I don’t see how it is proper for any Justice to refer to it.

Darkisland said...

Is there a link that we can listen to?

Leeatmg said...

Of course the mandate is constitutional on its face. Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of employment for submission to vaccination. We can all feel offended by that (I certainly do) but how is this any different from the argument that DUI road blocks are legal and constitutional because driving is a privilege. Seems to me the same logic applies here, no matter how odious.

HSM said...

Was Sotomayor channeling Joy Reid? She sounded so ignorant.

Yancey Ward said...

Leeatmg,

I think you are right in part- Congress could pass and Biden sign a law mandating vaccination for employment, and this SCOTUS would buy the constitutionality. On first principles, the mandate should be tossed because Congress hasn't authorized it. I am done with Congress delegating its powers to unelected bureaucrats and the President. In short, the Chevron doctrine needs to die.

However, I will ask you this- can you think of a line to draw where even Congress couldn't issue a mandate on an individual? For example, is earning an income to live really a privilege rather than a basic human right?

Mike of Snoqualmie said...

The authority is in the penumbras of the OSHA act.

Owen said...

So we should think better of Prelogar’s argument because she can talk fast in complete sentences? And can pick up foreign languages, like Pete Buttegieg?

Color me disappointed.

exhelodrvr1 said...

In related news, Judge Sotomayor giving Kamala Harris a run for her money.

gilbar said...

Leeatmg said...
Of course the mandate is constitutional on its face. Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of employment for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of unemployment compensation for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of access to retirement benefits for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of access to medicare for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of access to public hospitals for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege to public housing for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege to public restaurants for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege to live alone in their own homes for submission to vaccination

Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege to live for submission to vaccination


back in the 1860's, Nobody was being forced to accept slavery against their will; they are being asked to trade the privilege to liberty for submission to the masters

Bender said...

Prelogar was condescending and robotic in her adherence to propaganda talking points, telling justices what they already knew and displaying complete obliviousness to recognizing the point of the questions.

Mike of Snoqualmie said...

Congress won't create a "symptom suppressor" mandate because that would require them to make a stand. Taking stands are bad for their reelection prospects. They'll just punt. It's the same reason that they can't pass a budget, just continuing resolutions. We need term limits so they prospect of being out of office concentrates their minds on doing their job.

RonF said...

Leeatmg said: "Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of employment for submission to vaccination. We can all feel offended by that (I certainly do) but how is this any different from the argument that DUI road blocks are legal and constitutional because driving is a privilege. Seems to me the same logic applies here, no matter how odious."

Driving on the roads funded by the public *is* a privilege that the State can grant or withhold. Being employed by a private company is not. While the requirement of sobriety constrains the driver remember that the mandate constrains the employer, not the employee. It is the employer's right to be able to employ who they wish regardless of their vaccination status that is being removed, not the employee's right to seek and accept (or continue in) a job.

Clyde said...

One thing I've noticed is that the faster people talk, the more likely it is that they are gaslighting you.

Leeatmg said...

Yancey Ward,

I don't disagree with any of that. I think OSHA probably has the authority as delegated by Congress to do this, so my comments were limited to the "would this action pass constitutional muster" and I think the answer is probably yes.

As to a line where even Congress could not issue a mandate, that's a tougher question because of the erosion over the years of the "original meaning" of the Constitution. As written, sure - much of what passes muster these days but should not. But in terms of what the current panel of nine justices might say...sadly, I don't think there's much that Congress could not mandate.

Earning an income as a basic human right? If that's the case, why isn't health care, or food, or clean water a basic human right? Seems to me they all could be under a broad definition. And that's an argument some will make. I prefer to think of "rights" as more narrowly defined and broadly based.

Everyone has a right to attempt to earn an income to provide for themselves, and this mandate technically does not interfere with that, because an individual could start a business for themselves, or choose a different employer with fewer employees than the 100 specified in the mandate. That is, to a degree, the insidiousness inherent in this mandate - enough restriction to effectively mandate the working population to help achieve a political goal, while leaving just enough wiggle room in the order to be able to argue "but people have choices."

Bender said...

Laughable argument that coercion and duress are not force.

RonF said...

Leeatmg's logic seems to me to lead to the Feds being able to require that Ford or Toyota determine if a prospective car buyer is an alcoholic (and thus more likely to put other drivers in danger) before selling them a car.

Mike of Snoqualmie said...

Leeatmg said...
Of course the mandate is constitutional on its face. Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of employment for submission to vaccination

Government has no right to dictate a "symptom suppressor" as a requirement for employment. The 1st Amendment's right of peaceful assembly applies. Such a requirement is the action of a fascist government. But, that's nothing new for Democrat governments. They are the party of "obey me or else."

DanTheMan said...

It's been 2 years! What kind of "emergency" is this, anyway?

Congress can't act in 2 years?

Bender said...

Anytime there is an "or else" or an "unless," there is force against the free will of the person.

gilbar said...

, is earning an income to live really a privilege rather than a basic human right?

The Meaning of “the Pursuit of Happiness

Arthur Schlesinger Sr. observed in an obscure book chapter that “pursuit” has a particular meaning at the time of the Declaration. While less employed today, this secondary meeting nonetheless remains in use when referring, for example, to the pursuit of medicine, or the pursuit of lawyering, etc. In this sense “pursuit” means occupation or practice. We might even think of it in the sense of vocation.

Leeatmg said...

RonF;

I'd generally agree with you, but in this case you are making a case that mandate constrains the employer but applying a standard (constitutionality) that applies more specifically to the individual. Employers do enjoy some (most) constitutional protections but the test here, I think, is on the individual side, and the individual has the option to move to a company with fewer employees (among other options.)

I find myself in the odd position here of arguing in favor of something I am strongly against. I wish that were not the case.

Bender said...

The OSHA regulation essentially requires that workers be fired, in the interest of those workers' safety, unless they submit to a bodily invasive substance that they believe is against their medical interest.

That's not only force, it is tyrannical.

RonF said...

Leeatmg:

"Earning an income as a basic human right? If that's the case, why isn't health care, or food, or clean water a basic human right?"

Earning an income is a right - something that you obtain through your own efforts, should you choose to do so. The role of the government is not to give you a job or an income but to ensure that no one interferes with your right to use your own efforts to obtain and hold one, or not, as you choose. Access to health care, food or clean water are rights in that the government is obliged to ensure that no one interferes with your efforts to obtain these things through your own efforts. It is not obliged to provide them to you whether or not you make any effort to obtain them.

The Second Amendment guarantees me a right to keep and bear arms. Based on the logic of those claiming that health care, housing, etc. are rights I expect them to support the Fed. Gov. to provide me with an AR-15 and a Colt Commander .45 Auto. Somehow they never seem to have an answer for that, except to attempt to deny the plain language of the Constitution as amended and multiple SCOTUS decisions.

walter said...

Hey. Whatever happened to Joe's promised Jabber-Walkies doing the vax persuasion welcome wagon?
Patience ran out before that even started.
"TAKE IT! OR ELSE!"

Mike of Snoqualmie said...

Earning an income as a basic human right? If that's the case, why isn't health care, or food, or clean water a basic human right? Seems to me they all could be under a broad definition. And that's an argument some will make. I prefer to think of "rights" as more narrowly defined and broadly based.

Yes, earning an income is a basic human right. Individual A is trading his effort to Employer B for money. Government has no business telling A & B that they can't enter into a contract to do that. Health care, food and clean water are not a right, they are services or goods that must be paid for by the exchange of money. Forcing someone to provide those services or goods for free is either slavery or theft.

Jim at said...

"Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

When? Chapter and verse, please.

RonF said...

Leeatmg:

It is the employer that is being forced to act, not the employee. Without the regulation the employer is free to retain an unvaccinated employee. The act that the regulation requires is not that the employee quit but that the employer fire them. Yes, the employee has options to avoid this or to deal with the consequences of it, but the action that the regulation requires to be taken is an act carried out by the employer.

Leeatmg said...

RonF;

"Leeatmg's logic seems to me to lead to the Feds being able to require that Ford or Toyota determine if a prospective car buyer is an alcoholic (and thus more likely to put other drivers in danger) before selling them a car."

Unfortunately, I don't disagree with that statement at all. I think that the court has allowed the government more and more latitude (as well as Congress) and votes that should be 9-0 are way too close. If that specific example came up, why wouldn't the court allow it? If seatbelts are legal to mandate, why not a breathalyzer (all in the name of safety, of course!) Might be a higher lift to exclude an entire class of person though rather than just force the issue through use of safety equipment.

Leeatmg said...
This comment has been removed by the author.
DanTheMan said...

>>"Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

Didn't Fauci say COVID will always be with us? So won't we ALWAYS be "in the midst"?
And is it really still a "pandemic"? A lot of folks are getting sick, but much fewer are dying.
Again, when does Congress act? How many years need to pass?

Or should we note that since Congress has not acted on anything like this mandate, there is no actual emergency?

Leeatmg said...

RonF;

My argument here is that you are correct - the government may not interfere with your right to earn an income to provide for yourself. However, the government may interfere with the conditions under which an employer may conduct themselves in offering that income and not run afoul of the Constitution. An individual's pursuit of an income and an employer's offering you one are unlinked to me (legally speaking.) You as an individual are always free to start a business, or buy land and provide sustenance that way, or in this case, to work for an employer with fewer than 100 employees. That's why I think it might pass muster. I don't agree with it, but I think that is an argument that reasonable people can disagree over (and therefore, what should be a 9-0 opinion becomes something much closer to a toss up.)

Gahrie said...

If seatbelts are legal to mandate, why not a breathalyzer

Indeed?

https://www.newswars.com/infrastructure-bill-to-require-breathaylzer-style-systems-in-all-cars-by-2026/

Bonkti said...

We are told that her children's names are Blaise and Beckett but not that she is married to Brandon???

Greg The Class Traitor said...

I listened to much of the oral argument, and I thought Prelogar was superhumanly great. I don't think I have ever heard someone speak so quickly for so long without sacrificing any lucidity, terseness, or enunciation
I did speech and debate in high school. We called that kind of action "spread" debating, because the goal was to spread so much BS that the other side couldn't respond to all of it, and whatever stupidity they couldn't respond to would be held up as a winning argument.


The Biden administration’s solicitor general, Elizabeth B. Prelogar, said Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

1: It's been over 18 months. That means it's not an "emergency", and not a proper subject for "emergency powers".

Those are good for 60 - 90 days. After that, you have had more than enough time to go to the Legislature and get approval.

2: Biden announced in Sept that he was going to do the mandates. If the various Fed agencies had acted immediately, then the APA's required "notice and comment" time limits would have expired before the actual time that the Biden Admin released their illegal mandates.

This shows that A: They're not for actual emergencies, and B: The Biden Admin is simply playing political games

3: The Covid "vaccines" do not actually slow down the Covid infection rate
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8481107/
Increases in COVID-19 are unrelated to levels of vaccination across 68 countries and 2947 counties in the United States

There can be no legitimate public health mandate for a shot that doesn't actually protect the public health

John said...

There's something to be said for l'esprit de l'escalier.

Jake said...

She was very good during the recent abortion case as well. Very young and clearly an outlier. I think I would mostly disagree with her, but she's definitely supremely talented and intelligent.

Gahrie said...

If George Washington, Thomas Jefferson and John Adams came back to life today, they would be amazed and greatly disappointed about how servile the American people have become to the government, astonished and amazed at how powerful the federal government has become, and they would immediately head to Idaho to start a rebellion.

Greg The Class Traitor said...

Yancey Ward said...
Reading the arguments of Sotomayor, Breyer, and Kagan demonstrates that they are all three liars, or horribly misinformed.

Are teh transcripts up?>. I don't see them here:
https://www.supremecourt.gov/oral_arguments/argument_transcript/2021

I think the OSHA mandate is going to fall, but the court may split the baby and allow the CMS mandates to stand (they should fall, too, for the exact same reasons, but Roberts will want to seem balanced).
Roberts doesn't have the deciding vote any more

RonF said...

Mike of Snoqualmie:

"Health care, food and clean water are not a right, they are services or goods that must be paid for by the exchange of money."

In an interview recorded during his days as an Illinois State Senator and a lecturer at the University of Chicago on Constitutional law our 44th President stated his opinion that the Constitution had a major flaw. While it contained what he characterized as "negative rights" - what the Federal government could not do to you - it did not contain what he characterized as "positive rights" - things that the Federal government would be obliged to do for you. This viewpoint is pervasive among the left. They believe that government should be obliged by organic law to provide people with the basic necessities of life. Furthermore, this is regardless of whether or not someone who has no impediment towards providing those things for themselves refuses to make the effort to do so. It is the road to serfdom, and trust me that they do not view themselves as being the serfs.

jmod46 said...

Anyone who questions the government's authority in this case should be forced to learn to code. It's in The Constitution. Look it up.

Greg The Class Traitor said...

Leeatmg said...
Of course the mandate is constitutional on its face. Nobody is being forced to accept vaccination against their will; they are being asked to trade the privilege of employment for submission to vaccination.

You are wrong, becomes employment is a "right", not a "privilege".

We can all feel offended by that (I certainly do) but how is this any different from the argument that DUI road blocks are legal and constitutional because driving is a privilege. Seems to me the same logic applies here, no matter how odious.

Driving on public roads is a "privilege". But being employed is not

But you've missed the relevant point:
The issue is not "can the Federal Government ever impose a vaccine mandate?"
The issue is "did Congress grant OSHA, CMS, etc. the right to impose vaccine mandates on American workers?"

And it's pretty clear that there's no reasonable interpretation of the legislation the Biden Admin is quoting, that would grant those agencies those powers.

This case is a re-run of the Biden CDC's "Eviction mandate", which got nuked 5-4 as an illegitimate over broad reading of the enabling statute.

The Biden Admin has had more than enough time to go to Congress and get such a mandate. They haven't even tried.
That means they can't do it, and any vote for it is a violation of precedent

Gahrie said...

They believe that government should be obliged by organic law to provide people with the basic necessities of life. Furthermore, this is regardless of whether or not someone who has no impediment towards providing those things for themselves refuses to make the effort to do so.

The current name for this is Universal Basic Income. And yes if this ever passes, even Elon Musk will receive it.

Greg The Class Traitor said...

Leeatmg said...
Earning an income as a basic human right? If that's the case, why isn't health care, or food, or clean water a basic human right?

Wow, that was impressively stupid.

All rights are "negative rights", which is to say all rights are a grant to you to keep someone else from doing something.

I have a right to work, support myself and my family, and you have no right to stop me from finding a willing employer.

I do not have the right to demand that someone else provide me with health care, or food, or clean water. Because that "right" would make the provider my slave.

You're in serious lunatic left land here

Owen said...

Greg the Class Traitor @ 1:44 and 2:00: I think you crushed it. Well done.

Mike of Snoqualmie: I like your "freedom of contract" angle. The gummint's position amounts to a claim that it can destroy essentially all commercial exchange (and, worse, the certainties on which any such exchange can be based) at will --with minimal notice and no public comment, with no objective standard or proof of danger-- just any old time it has a jones about "public health," and even after Congress has FAILED TO DO ONE DAMN THING FOR TWO DAMN YEARS. So much for limited government. So much for that thing we used to have, called a "productive economy."

And as for Prelogar: scary. Those characteristics touted by our hostess make me think of...Elizabeth Holmes. Unfair, I know.

Leeatmg said...

Greg;

Personal insults aside, I'll just say I disagree that being employed is, specifically, a right. It is not by most definitions of the word. Providing for yourself, generally speaking, could reasonably be called a right. Choosing to be employed by a specific employer of your choice is not.

Calling everything a right does not make it one, which was my original point in saying that. Health care is not a right. Employment is not a right. Expressing one's views free of interference from the government? That's a right. Defending yourself? That's a right. Just my perspective. You are certainly entitled to yours.

Achilles said...

Yancey Ward said...

Reading the arguments of Sotomayor, Breyer, and Kagan demonstrates that they are all three liars, or horribly misinformed.

I think the OSHA mandate is going to fall, but the court may split the baby and allow the CMS mandates to stand (they should fall, too, for the exact same reasons, but Roberts will want to seem balanced).


Roberts just wants to give the appearance that "Conservatives" in DC are fighting back.

Meanwhile giving as much ground as possible to his team.

Because he is on the DC team and the goal of people who on team DC is absolute power over everyone else in the Nation.

The people who most want power over others are sucked to Washington DC. It is a giant magnet for authoritarian assholes who want to tell other people what to do.

It needs to be nuked from orbit and the country needs to be free of those people.

TheOne Who Is Not Obeyed said...

"It needs to be nuked from orbit and the country needs to be free of those people."

Really have to disagree with this. If we nuke DC then the fallout would have really bad effects on the Chesapeake Bay ecosystem and the fishing and transportation industries in the area. And the radiation would make it impossible for me to take the kids to see the Memorials and some of the Civil War battlefields in the DC area.

But yes, we definitely need to be free of the power hungry bastards that populate the national capitol district.

Norpois said...

I did NOT listen to the argument, but I see reasonably-sourced reports online that, if accurate, make Justice
Sotomayor seem, um, ill-informed? Did she really describe COVID as a "blood-bourne" virus? If so, I wonder why we have been getting mucous membrane tests instead of....blood tests? I did appreciate her cinematic move of doing the argument from chambers to show she really really understands how transmissible this thing is. Ha! She showed them. The 80 year olds who might actually have more to worry about, but care about their public role.
More seriously, what we're seeing is that time after time Congress has enacted legislation giving broad powers to the President (Defense Production Act) and administrative agencies (e.g., OSHA). When you look at the words, I have to admit there is a point
here -- a loophole, if you want to demean it -- that Congress created. I don't what the S Ct is going to do here, but let's not forget they can only do so much when Congressional is so broad and vague. We need more lawyers in Congress!! Noooh...I didn't mean that.

walter said...

"Did she really describe COVID as a "blood-bourne" virus?"
Ah. Conflated virus with the injectable Spike generators.

JaimeRoberto said...

Her name appears to be Slavic and translates roughly as "one who drinks through". Not sure what she's drinking, however. Kool-aid? Booze? Power?

Dave Begley said...

Did the Wise Latina claim that 100,000 kids were on vents?

WTF!!!

Achilles said...

Gahrie said...

The current name for this is Universal Basic Income. And yes if this ever passes, even Elon Musk will receive it.

And the 1000$ he got a month from the government would be the most efficient 1000$ the government ever spent.

Gretchen said...

The "vaccines" have failed spectacularly in reducing transmission. They simply do not lower infectiveness, They temporarily lower the likelihood of having symptoms and the likelihood of being hospitalized. The idea the federal government can mandate something for the "health" of an individual is terrifying, especially something with ERO long-term safety data. Boosters really have no long-term data.

The simple fact that Florida has lower cases per 100,000 now than New York should make everyone wake up and realize mask mandates and vax passports are failing spectacularly. https://www.mayoclinic.org/coronavirus-covid-19/map

Mandating daily vigorous exercise and healthy diet for anyone with a BMI over 25 would certainly reduce hospitalization more than this vaccine mandate, and that would be unconstitutional too.

Achilles said...

Dave Begley said...

Did the Wise Latina claim that 100,000 kids were on vents?

WTF!!!


The DC regime is really not going to be able to recover from thee lies.

They are just too blatant.

Rejoice.

Fûz said...

Lucien: "I don’t see how it is proper for any Justice to refer to it."

I was thinking the same thing. Are Justices, or Judges, supposed or even allowed to introduce their own evidence?

walter said...

Given the low jab rate among blacks, when is ths guvmint effort deemed raaaaaaaacist?
Maybe an "equity" carve-out.
That would be fun!

Michael K said...

I have heard amazing stories about the "Wise Latina" today at oral arguments. Is there video ? Can someone do a highlights reel?

Fûz said...

"It is the employer that is being forced to act, not the employee."

And that force is not compelling the employer to fire the employee, but fining the employer a significant fraction of the employee's annual compensation per day of noncompliance. Even a fine equivalent to an hour of the employee's time per day of noncompliance would stack up quickly enough to make the employer tap out and dismiss the noncompliant employee.

It's hard for me to imagine a firm with such highly-compensated employees that would just clear the throat, call the company's accounting department, and pay up. A $5 fine per day, many companies would. They pay more for snow clearing.

Who set those fines? Where does the money go, what does it do?

Was this even discussed at oral argument?

Maynard said...

Reading the arguments of Sotomayor, Breyer, and Kagan demonstrates that they are all three liars, or horribly misinformed.

I vote horribly misinformed for Kagan and Breyer. The Wise Latina is an idiot who should be a host on The View.

These people (at the top of their profession) are as vulnerable to the misinformation that comes out of the corporate media/DNC propaganda machine as any mere mortal.

Gretchen said...

"Who set those fines? Where does the money go, what does it do?"
10% to the big guy?

walter said...

"fining the employer a significant fraction of the employee's annual compensation per day "
Roberts: A tax!

wendybar said...

"One of the nation's most respected Supreme Court scholars, Laurence Tribe of Harvard, suggested last year that President Obama not appoint Sonia Sotomayor to the U.S. Supreme Court because she's not smart enough.

"Bluntly put, she's not nearly as smart as she seems to think she is," Tribe wrote in a letter to Obama in May 2009, the day after it became public that Justice David Souter intended to step down. Tribe wrote the letter to encourage Obama to nominate Elena Kagan for the vacancy." -https://www.nbcnews.com/id/wbna39899713

Browndog said...

Of all the utterly dumb, false, and extra-judicial reasonings spewed by Sotomayer today nothing tops her assertion that OSHA can regulate human beings because they're no different than machines.

cubanbob said...

The fact the court is even listening to the government's antics is scary crazy. Setting aside constitutional reasons as a matter of rational public policy the mandate fails. There is no evidence that vaccination prevents the spread of the disease. Nor is there that masking does. Even if there were overwhelming proof the manadates work the proposed mandate fails the rationality tests since the virus can't distinguish between 99 employees or less as opposed to 100 or more.

The constitution exists to limit the federal government, not to diminish the basic intrinsic rights of the people. It exists to insure the inherent rights of the people of the people are not restricted or otherwise impinged upon. Any right that imposes someone else to provide it to you is a privilege.That is not my opinion, that is a ruling by the Supreme Court decades again in Nestor where the court ruled Social Security is a privilege not a intrinsic right or a property right. Furthermore the Roberts Court ruled in the first Obamacare ruling that the States cannot be coerced by the Federal Government and more importantly individuals cannot be forced to engage in commerce. getting vaccinated amongst other things is engaging in commerce.

Achilles said...

Wow Sotomayor shit all over herself today.

Brutal.

Drago said...

Achilles: "Wow Sotomayor shit all over herself today. Brutal."

Never go Full gadfly/Left Bank in public.

Or in private for that matter.

Drago said...

Maynard: "I vote horribly misinformed for Kagan and Breyer. The Wise Latina is an idiot who should be a host on The View."

Not necessary. Anna Navarro already occupies the far left lunatic latina seat on that show.

Mark said...

Doesn't the Supreme Court themselves have a Vaccine Mandate if you want to appear in front of them?

anonymous said...

"Prelogar was superhumanly great"

I disagree. I listened to her in both in this and for the abortion oral arguments. I don't discount she's well prepared, but just listening I found her voice very tonally annoying. But substantively worse, she repeatedly talks over the Justices or wouldn't stop immediately when a Justice interjected to ask a question.
And many times she just wouldn't answer the question asked. I thought Alito by the end of the arguments was going to go off on her after she talked over him for the fifth time. On the plus side it should be a great drinking game that you have to take a drink every time she said, "grave danger." No one would be left standing for sure.

Drago said...

Dave Begley: "Did the Wise Latina claim that 100,000 kids were on vents?"

No.

She claimed that 100,000 of the people in hospitals today supposedly with covid are children....which is strange since the total number of people in hospitals WITH covid (as opposed to BECAUSE OF Covid) is around 112,000.

Also, she said many of those mythical kiddos are in serious conditions and on ventilators.

So, yes, the idiot is saying that about 89% of all hospitalized patients with covid are children.

That's some serious lying.

But it got much worse than that and was only eclipsed by Breyer's lying, where he stated that the vaccines + masks could prevent 100% of all covid infections!!

LOL

Behold: the democraticals "Reality-based" party of "muh science" ignoramuses in action....and no, they still can't tell you how to define "girl" or "boy" or when a baby becomes a real live acceptable-to-democraticals human being.

tds said...

highly intelligent, conscientious, energetic, and evil is the worst combination in a person

Drago said...

Browndog: "Of all the utterly dumb, false, and extra-judicial reasonings spewed by Sotomayer today nothing tops her assertion that OSHA can regulate human beings because they're no different than machines."

The left has always viewed the proletariat in just that way, besides, you can't make a lefty "utopian" omelette without breaking many, many, many, many, many, eggs...which don't count, because those eggs were probably kulaks and wreckers and deplorables and irredeemables anyway.

Greg The Class Traitor said...

Leeatmg said...
Greg;

Personal insults aside, I'll just say I disagree that being employed is, specifically, a right. It is not by most definitions of the word. Providing for yourself, generally speaking, could reasonably be called a right. Choosing to be employed by a specific employer of your choice is not.


I do not have teh right to demand that a certain employer employe me.

I do have the right to earn a living, and if I'm doing that, I have the right to not have the Federal Gov't take that job away from me.

"Being allowed to continue working at my current employer" is not a "privilege" granted me by the government, and is entirely different from being able to drive on roads paid for and provided by the government.

Calling everything a right does not make it one, which was my original point in saying that. Health care is not a right. Employment is not a right. Expressing one's views free of interference from the government? That's a right. Defending yourself? That's a right. Just my perspective. You are certainly entitled to yours.

So, the Federal Government can order employers to fire anyone who publicly supports Trump?

Or the next Trump Admin can issue a rule ordering every single Federal Contractor to fire anyone who supported and Democrat in the last election?

That is what your'e arguing.

I advise you to read the Janus decision:
https://casetext.com/case/janus-v-am-fedn-of-state-cnty-mun-emps-council-2
States forcing State employees to pay part of their salary to a Union as a condition of employment was held to violate the 1st Amendment
If working for the State Government was a "privilege" like driving on the highway, then Janus would have faced the other way

I am Cyclone said...

I am a lawyer and so I understand the legal arguments on this matter, pro and con. But I am also the employee at a large mid-western manufacturer of an "essential" product (essential, both as recently defined by the govt, and in reality to most U.S. consumers) who is charged with interpreting and then leading the attempt to enforce this OSHA ETS with our workforce. If this mandate goes into effect, like many manufacturers, we will NOT require our workforce to be vaccinated - because our employees simply would not comply and the labor market is too tight to risk a critical number of key employees walking away as a result. Instead, we will take OSHA's option B, "merely" forcing our non-vaccinated employees to test every week and wear a mask at all times while at work. This will be a logistical and practical nightmare in our 24/7, rotating shift, unionized workplace, where half the workforce (we estimate) already were adamantly against getting vaccinated. Even though we employ nearly 1,000 hourly workers, we only have ten workers in certain key jobs and so if just five of those walk away, we would likely need to close our operations for some period of time. I am sure many manufacturers across the U.S. are looking at the same impending disaster if this mandate ever goes into effect. The Biden administration should be praying that the Supreme Court strikes this down and thus saves them from themselves.

effinayright said...


Personal insults aside, I'll just say I disagree that being employed is, specifically, a right. It is not by most definitions of the word. Providing for yourself, generally speaking, could reasonably be called a right. Choosing to be employed by a specific employer of your choice is not.
*************

Yeah, so much for the right "to life, liberty and the pursuit of happiness". According to you, a person's right to life derives FROM the government, which grants him the privilege of working, for himself, or for someone else. Ditto liberty. Ditto pursuit of happiness.

A trifecta of nonsense that runs afoul of our Founding Principles.

Sorry, not gonna fly.

Big Mike said...

@Cyclone, so did you file an amicus brief?

Achilles said...

Browndog said...

Of all the utterly dumb, false, and extra-judicial reasonings spewed by Sotomayer today nothing tops her assertion that OSHA can regulate human beings because they're no different than machines.

It really is quite insane.

The speed that these people are just flat losing their shit on national TV is crazy.

God of the Sea People said...

“You aren’t being forced to submit to the king, you only have to submit if you want to keep your head.”

Achilles said...

Greg The Class Traitor said...

Roberts doesn't have the deciding vote any more

As if Kavanaugh and Barret are any better.

They are still on team DC.

DanTheMan said...

>>The DC regime is really not going to be able to recover from thee lies.

Bill and Hillary Clinton beg to differ.

baghdadbob said...

"The Biden administration’s solicitor general, Elizabeth B. Prelogar, said Congress had given just such a power for the agency to enact emergency standards to protect workers in the midst of an unprecedented pandemic."

It is an emergency to protect workers of 100+ employee firms, but not 99 or fewer? It is a crucial mandate but carve-outs are acceptable (USPS workers, for example)?

Greg The Class Traitor said...

Achilles said...
Greg The Class Traitor said...
Roberts doesn't have the deciding vote any more

As if Kavanaugh and Barret are any better.
They are still on team DC.


They're not great. OTOH, they both voted to nuke the CDC Eviction mandate, and demanded a lot of religious protections that Roberts wanted to ignore.

They're certainly better the Kennedy and RGB

Bender said...

"Of all the utterly dumb, false, and extra-judicial reasonings spewed by Sotomayer today nothing tops her assertion that OSHA can regulate human beings because they're no different than machines."

What she actually said is not as dumb as people are making it to be.

OSHA exists to regulate the workplace against dangers to workers. In every other case until now, that has involved a dangerous machine or hazardous substance, etc., from a slippery floor to asbestos in the air. The Biden mandate, which says it is to protect unvaxed workers, is NOT aimed at the virus. Rather, it treats healthy unvaxed co-workers themselves as the workplace danger which need to be removed from the workplace (fired) if that danger is not mitigated by the vax.

I am Cyclone said...

Replying to Big Mike. No, I did not personally file a brief, nor did my employer. We are consumed with simply trying to keep our operations up and running. But if we do end up implementing this, there will be tremendous backlash, even if we manage to keep running. First, politically, most of the estimated 500 or so of our workers who will be forced to test weekly and mask - and many of their family members - will never vote for a Democrat again. Second, economically, this will be very costly for us to administer and so we will pass those costs on to our customers, who will add that to THEIR mandate costs when they pass them along to the end consumers.

Bender said...

Fact is, Sotomayor let the cat out of the bag with that comment.

Greg The Class Traitor said...

@greg_price11
"Justice Breyer says that there were "750 million new covid cases yesterday"

https://www.worldometers.info/coronavirus/#countries
There have been 303 million cases total, in the world
The US has had 60 million cases, total

There were 750 THOUSAND new cases in the US yesterday, according to world o meters

What's a factor of 1000 among friends?

cubanbob said...

Not that I would bet on it but this is the perfect opportunity for Roberts to undo the mandate as a tax ruling in the first Obamacare ruling. If Congress wants to impose a tax, it should legislate the tax. Once again an employer is to be punished for something the employer can't control.

cubanbob said...

Bender said...
"Of all the utterly dumb, false, and extra-judicial reasonings spewed by Sotomayer today nothing tops her assertion that OSHA can regulate human beings because they're no different than machines."

What she actually said is not as dumb as people are making it to be.

OSHA exists to regulate the workplace against dangers to workers. In every other case until now, that has involved a dangerous machine or hazardous substance, etc., from a slippery floor to asbestos in the air. The Biden mandate, which says it is to protect unvaxed workers, is NOT aimed at the virus. Rather, it treats healthy unvaxed co-workers themselves as the workplace danger which need to be removed from the workplace (fired) if that danger is not mitigated by the vax.

1/7/22, 4:03 PM

Very well said.

Achilles said...

Greg The Class Traitor said...


They're certainly better the Kennedy and RGB

Kinda like the Generals were better than the Globetrotters.

Browndog said...

"Why is a human spewing a virus not like a machine spewing sparks?"

-Sotomayer

Well said. No dif-

Bender said...

What's a factor of 1000 among friends?

A slip of the tongue. There are bigger and worse things that this quibble over a minor thing. When I heard him say it, I didn't even realize he said "million." I knew he meant "thousand."

Bender said...

it treats healthy unvaxed co-workers themselves as the workplace danger which need to be removed from the workplace (fired) if that danger is not mitigated by the vax

In practice, we are now seeing hospitals firing healthy unvaxed staff while allowing COVID-positive vaxed workers keep working if they don't have symptoms. Who really is the greater workplace danger??

Browndog said...

"I don't understand why the states would have power but the federal government wouldn't."

-Sotoamyer

Well said. Brilliant, in fact. Why do we even still have those stupid things anyway!

Dave Begley said...

Browndog:

The federal government has NO general police powers. Only the state governments do. SS is an idiot.

Jupiter said...

"Did the Wise Latina claim that 100,000 kids were on vents?"

The question is what she's on. This is the problem with affirmative action hiring. She's dumber than a post.

Yancey Ward said...

What's at stake

Yancey Ward said...

"Doesn't the Supreme Court themselves have a Vaccine Mandate if you want to appear in front of them?"

If they do, then the joke is on them and you- two of the lawyers just tested positive for COVID.

Achilles said...

Browndog said...

"I don't understand why the states would have power but the federal government wouldn't."

-Sotoamyer

Well said. Brilliant, in fact. Why do we even still have those stupid things anyway!

I cannot believe they let her out without a minder. She just crapped on the entire farce they had set up today. I am actually curious how she passed the BAR exam or if she ever actually did.

But you gotta admit the 9th and 10th amendments are ignored by everyone in DC.

The Defense of Marriage Act set a lot of this up and was a plank yanked out of the BORs by conservatives.

Browndog said...

Barrett: "When does the emergency end?" Will this still be going two years from now? When is OSHA supposed to use its regular, non-emergency authority?

SG: Well, maybe this will be over in two years. We hope.

Night Owl said...

"Why is a human spewing a virus not like a machine spewing sparks?"

What a dopey analogy. With that logic, shouldn't OSHA declare that we test everyone, every day, all the time? Anyone can be spewing something, vaccinated or not, Covid or not.

Did any of these geniuses make note of the reality that the shots do not stop the spread of the virus, so there is no justification in discriminating against the "unvaxxed"? Or did they all just pretend that these shots are real vaccines?

Have we reached peak stupidity yet?

Arturo Ui said...

Dave Begley said...
Browndog:

The federal government has NO general police powers. Only the state governments do. SS is an idiot.

*********************

Good point. The FBI has never arrested anyone.

Spiros said...

Jacobson v Massachusetts is still valid. But this Court won't be as deferential. I think this Court will expressly declare that the right to be free from mandatory vaccinations is a "fundamental right" and that regulations infringing upon this right will be analyzed under a "strict scrutiny" standard. The Court has already declared that the right to refuse medical treatment is a constitutional privacy right.

So, I think, the Court is going to wait a few months and then, after Covid is over, conclude that Biden's (sloppy and excessive) vaccination mandate was not "narrowly tailored" to serve a compelling state interest.

gilbar said...

TheOne Who Is Not Obeyed said...
"It needs to be nuked from orbit and the country needs to be free of those people."
Really have to disagree with this. If we nuke DC then the fallout would have really bad effects on the Chesapeake Bay ecosystem and the fishing and transportation industries in the area. And the radiation would make it impossible for me to take the kids to see....


This is a popular (REALLY popular misconception. With an airburst, and with a fusion devise; fallout is VERY low (nearly all coming from the fission trigger stage; which can be quite small). It is Surface bursts which are nasty and dirty, because they
irradiate the surface (soil, or WORST of all... Seawater)
and then blow that irradiated debris all over EVERYWHERE

We Would lose the District's memorials and sadly probably knock down LOTS of graves at Arlington
But Wait!
There's a more better plan than just using a 100kt airburst

an Enhanced Radiation devise (aka a Neutron Bomb)

It SOUNDS like this is the Exact Opposite of what we want;
but! it's a Totally Different type of radiation

The concept was originally developed by the US in the late 1950s and early 1960s. It was seen as a "cleaner" bomb for use against massed Soviet armored divisions....
Since the neutrons disappear from the environment rapidly, such a burst over an enemy column would kill the crews and leave the area able to be quickly reoccupied.

Lem said...

Newsweek: "Justice Neil Gorsuch Slammed After He Suggests Flu Kills 'Hundreds of Thousands' Each Year"

Justice missed the memo that says judges are not supposed to draw comparisons now. 🙄

rehajm said...

Just to review: there are Supreme Court Justices and Conservative Supreme Court Justices.

walter said...

Lem,
Referencing flu in a covid debate is now akin to breaking Godwin's law

Bender said...

Jacobson v Massachusetts is still valid.

Jacobson involved a compulsory vaccination regulation of a single city. It did not say that the federal government could impose a mandate on the entire nation.

Bruce Hayden said...

Why the >=100 limit?

Very likely because the federal government DOES NOT have a general police power. What it does have is the power to regulate interstate commerce. OSHA was, almost assuredly, enacted under the federal government’s power to regulate interstate commerce. That is Congress’ go-to Constitutional jurisdiction for much of what they do, including, interestingly, parts of the Civil Rights Act of 1964. Sure, it is possible that companies with smaller work forces could impact interstate commerce, but there comes a point where the argument in favor of impacting interstate commerce (and thus being regulatable by Congress) starts becoming extremely tenuous. So, my understanding is that much of what OSHA does has a similar cutoff, with more regulation for large companies. The >=100 limit seems a reasonable safe harbor for justifying Commerce Clause justification.

In this realm, what is going to be interesting is the attempt by the ATF of “ghost guns”, that are typically finished by hand (at which time, they legally become firearms), often for personal, or maybe family use. Currently if they aren’t sold, the firearms don’t need to be registered (in most states), nor carry a serial number. The ATF wants to change that, and has published proposed regulations to that effect. But, as with OSHA, the ATF takes most of its Constitutional justification from the Commerce Clause. I fully expect them to have problems with trying to regulate the individual manufacture of firearms, for personal use, which is far older, in our country, than is our Constitution.

Back to the subject at hand - if the mandate fails, it will more likely be from exceeding the language of the statute. It really isn’t an emergency, not if it has bee going on for two years. FJB said to his minions to force vaccinations, and this was the mechanism that’s came up with for larger employers. But every exception made, suggests that the purpose was political, and not employee health. FJB set the goal, and OSHA lawyers found a means - using the agency’s emergency powers. And the time they took writing the mandate suggests that it wasn’t a true emergency, but again was political.

Bender said...

Why the >=100 limit?
Very likely because the federal government DOES NOT have a general police power. What it does have is the power to regulate interstate commerce. OSHA was, almost assuredly, enacted under the federal government’s power to regulate interstate commerce.


More specifically, OSHA was enacted to protect workplace safety. OSHA is not a general public health agency. OSHA doesn't have jurisdiction to issue rules regarding the health of all of society. But that's what the federal lawyers said was the purpose of the regulation. On that point alone, Biden loses.

Bender said...

The Court doesn't need to get into the constitutional questions. It can strike down the emergency standard on statutory and administrative law grounds.

Greg The Class Traitor said...

Transcript if finally up

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21a244_kifl.pdf
The transcript quotes Breyer as saying:
I mean, there -- there were three-quarters of a million new cases yesterday. New cases. Nearly three-quarters, 700-and-some-odd thousand, okay?

I guess I'm going to have to go to the tape, and see if he really said 7000 million, and the transcript cleaned it up

Greg The Class Traitor said...

JUSTICE SOTOMAYOR: So, if it's within the police power to protect the health and welfare of workers, you seem to be saying the states can do it, but you're saying the federal government can't even though it's facing the same crisis in interstate commerce that states are facing within their own borders.
I -- I'm not sure I understand the distinction why the states would have the power but the federal government wouldn't.
MR. FLOWERS: The federal government has no police power if we're asking about that.
JUSTICE SOTOMAYOR: Oh, it does have power with respect to protecting the health and safety of workers. We have -- we have --accept the constitutionality of OSHA


What a complete fucking moron.

No, Justice Shit for brains, the Federal Government does not have a generalized police power, it's the whole fucking basis of Federalism.

At least it's nice that she understands that the Biden rules do require a generalized police power to have any chance of being valid.

Rollo said...

She blinded you ... with diction ...

But I guess that's to be expected. In the cloakroom the justices are always salaciously drooling over the enunciation of the best attorneys.

Bender said...

Justice Kagan: There is nothing that will better stop COVID than by strongly incentivizing people to get vaccinated. The second best thing is wearing masks.

With comments like this, who needs federal agencies having to prove their case by providing substantive evidence and a factual justification for their coercive do-this-or-else mandates?

Bender said...

And some were worried a few weeks ago about the Court losing its credibility and the trust of the people.

Bender said...

More Kagan: “the government is paying for the medical services so they have the right to dictate details of those services”

Dave said...

Journalism is not my job, nor is my job fact checker, but truth is its own motivation. According to:

https://www.pageantupdate.info/idaho-titleholder-history.html

Elizabeth Barchas was Miss Idaho in 2001 and not 2004. I will continue looking for photo evidence of this accomplishment.

I'm Not Sure said...

"Justice Kagan: There is nothing that will better stop COVID than by strongly incentivizing people to get vaccinated."

And then, we'll get to work at stopping colds and the flu.

King Canute to the white courtesy phone...

Dave said...

Update to unfolding story, She was

"Miss Idaho USA in 2001 and Miss Idaho America in 2004, and still makes frequent visits to her home state.

Read more at: https://www.idahostatesman.com/news/northwest/idaho/article255367621.html#storylink=cpy"

--https://www.idahostatesman.com/news/northwest/idaho/article255367621.html

Also according the quoted link her talent was, of course it was...classical piano.

effinayright said...

Bender said...
Jacobson v Massachusetts is still valid.

Jacobson involved a compulsory vaccination regulation of a single city. It did not say that the federal government could impose a mandate on the entire nation.
*****************

Correct. The city in question had been given authority to require vaccinations by a state statute, not by a judge, governor or school committee. The fine for not getting the vaccine was $5, hefty but not devastating, as is the threat of job loss.

And, of course, it was not a federal case.

Dave said...

Okay, photo evidence found.

https://thecareerist.typepad.com/thecareerist/2017/06/news.html

I don't know if this is a pageant photo, but it is all I can find with text linking it her pageant history.

I welcome other contributions.

effinayright said...

Arturo Ui said...
Dave Begley said...
Browndog:

The federal government has NO general police powers. Only the state governments do. SS is an idiot.

*********************

Good point. The FBI has never arrested anyone.
*****

Freder Fredersen strikes again!

No, you dope, the federal executive DOES have jurisdiction to enforce federal criminal statutes.

But it does not have a generalized "police power" over the states. If it did, the Commerce Clause would be superfluous.

walter said...

Did they happen to discuss the issue of blindly, repeatedly jabbing people who may have natural immunuity, making them yet more susceptible to admittedly undercounted "adverse events"?
Given some of the kindergarten level command of the issues displayed, I suspect not.
By the way, anyone in position of influence there not fully jabbed?
We repeatedly have our fates decided by those least naffected by their decisions.

effinayright said...

I should have noted that "Arturo Ui" is one of Freder Fredersen's pseudonyms.

He steals them from German fiction. Freder's from Fritz Lang's "Metropolis".

"Arturo Ui" is the main character in a 1941 Bertolt Brecht play.

In the latter work Arturo Ui dons a red clown nose and transforms himself into an outsider business man and candidate for office.

So remember : if you see a comment by Arturo Ui, it's just Freder with "clown nose on".

Big Mike said...

Elizabeth Prelogar articulately argues the evil side of the case. She is therefore herself evil.

Quod erat demonstrandum

Bender said...

Elizabeth Prelogar articulately argues the evil side of the case.

She didn't "argue" anything. She simply repeated what the OSHA regulation said.

n.n said...

What is a scientific experiment without controls? And a vaccine with a viral mechanism, no less. Vaccines necessarily take years, a decade or more, to establish safety data, before they are approved for general distribution.

That said, with therapeutic (i.e. non-sterilizing) vaccine(s), there is no actual, probable, or even plausible argument for a "public good".

n.n said...

Elizabeth Prelogar articulately argues the evil side of the case. She is therefore herself evil.

She argues for a wicked solution to a purportedly hard problem. Deja vu.

Owen said...

I Am Cyclone @ 3:38 and 4:05: Thanks very much for the incisive comment "from the real world." I am retired counsel for a company that made stuff and your remarks ring very true, in terms of assessing the threat and how to meet it, at what cost and with what consequences. Very complex stuff. And, yes, Emperor Biden doesn't concern himself with any of that. Why should he? He's too busy demonstrating how much he cares for Public Health: whatever that happens to be, today.

Best of luck to you and your people. Let's hope the Supremes get this right.

Butkus51 said...

This guy knows Hunter (the smartest man in the world). Listen to all the lies.

https://youtu.be/ce9_pVL37nw

walter said...

Jordan Schachtel @ dossier.substack.com
@JordanSchachtel

Jan 7
They’re both triple vaxxed, proving that any mandate would be laughably ineffective and purely draconian.
Quote Tweet
Aaron Parnas
@AaronParnas
· Jan 7
JUST IN: Two lawyers that argued against Biden's vaccine mandate in front of the Supreme Court have tested positive for COVID.

The irony.

effinayright said...

Big Mike said...
Elizabeth Prelogar articulately argues the evil side of the case. She is therefore herself evil.

Quod erat demonstrandum
****************

If what you claim were true, who would argue for the accused in any case? Why would there ever *be* a case, if one side is per se evil?

You've just engaged in a sillygism.

Narayanan said...

how is freedom of association different from seeking to associate as worker / boss in USA law - constitution framework?

Greg The Class Traitor said...

Blogger Bender said...
More Kagan: “the government is paying for the medical services so they have the right to dictate details of those services”

1: Really? I thought most people had private health insurance. Certainly, almost all the people working at employers w/ more than 100 people do

2: So this means that we can make gay men with HIV jump through any hoops we want, on pain of losing their coverage for anti-HIV drugs?

Scratch a leftist, find a fascist

Patrick Henry was right! said...

She sounds like a Valley Girl on caffeine pills. Horrible.

effinayright said...

walter said...
THE IRONY
**********

None at all. Why do you think those lawyers weren't vaccinated? In any event they were't arguing the case to benefit themselves, but to adjudicate the legal poosition that the Federal government had no authority to use OSHA as a way to create a national "police power".

And given that MANY vaxxed people are still coming down with (mild) covid, doesn't that weaken the case that the mandates are necessary to stop the illness's spread?

Mike of Snoqualmie said...

Narayana said:

how is freedom of association different from seeking to associate as worker / boss in USA law - constitution framework?

It's not. Earning an income is a basic human right. Individual A is trading his effort to Employer B for money. Government has no business telling A & B that they can't enter into a contract to do that.

From me @1:32 p.m.

That just an example of freedom of association. "Let's go, Brandon." He and his Democrat buddies are nothing but fascist tyrants who think they know better than the 330M other Americans not in government "service."

Mike of Snoqualmie said...

What's the use of "symptom suppressor" passports. They don't prove you're virus free. They won't save anyone from getting the virus from you. They're just a nonsensical government imposition.

Moondawggie said...

"Justice Kagan: There is nothing that will better stop COVID than by strongly incentivizing people to get vaccinated."

Does Kagan (who I previously believed to be quite smart), when judging an issue concerning administrative (not legislative) mandates, understand the difference between "strong incentives" and "requirements?" Does she recognize the difference between offering a reward for voluntary compliance, versus demanding unrewarded (and potentially injurious) involuntary compliance? Yikes! ​

As far as Sotomayor's grasp of scientific facts go today, once upon a time President Obama was encouraged to choose a "Wise Latina" for a Supreme Court appointment.

Too bad he didn't follow that advice...

Josephbleau said...

“that she was Miss Idaho in 2004, she's fluent in Russian, and she has sons who are named Blaise and Beckett “

Sounds like a modern day Sara Palin!

Moondawggie said...

As much as I respect Ann, her comment that "she was Miss Idaho in 2004, she's fluent in Russian, and she has sons who are named Blaise and Beckett."

Style winning over substance?

Brings to mind Billy Crystal channeling Fernando on SNL in the good old days:

"Dahling, looking good is much more important than being good. And you look mahvelous!"

walter said...

Blogger effinayright said...
walter said...
THE IRONY
**********
None at all.
--

Look closer at that.
A. The lawyers who came down with it WERE vaccinated...just arguing against mandate. (Which, BTW, might explain why they didn't explore the reasons folks are refusing jabs.)
B. The tweeter, Parnas, who insinuated irony actually missed the irony that it proved fallibility of the vax re transmission. That's what Jordan was pointing out.

(When I pasted the exchange, I probably should have removed the spacing.)

heyboom said...

In practice, we are now seeing hospitals firing healthy unvaxed staff while allowing COVID-positive vaxed workers keep working if they don't have symptoms. Who really is the greater workplace danger??

This is exactly the case with my RN wife now, who was exposed at work and had to be tested. They told her to come to work anyway until the test results come in (she doesn't have any symptoms).

I would add that the most outrageous part of this whole debacle is that she was expected to go to work before there was a vaccine, but now has been told to get the booster shot by 1/13 or be terminated. She is double vaxxed.

I hope the SC rules very soon.

walter said...

Some unvaxxed RNs are making bank as traveling nurses.

Josephbleau said...

From wiki:
“ Prelogar began her career as a law clerk for Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit and later to Associate Justices Ruth Bader Ginsburg and Elena Kagan of the Supreme Court of the United States. She was then an associate at Hogan Lovells. She taught a course at Harvard Law School on Supreme Court and appellate advocacy.
From 2014 to 2019, Elizabeth Prelogar was an assistant to the solicitor general. She was briefly detailed to the Special Counsel investigation into Russian interference in the 2016 United States presidential election. In 2020, she joined Cooley LLP as a partner.[12] She was named principal deputy solicitor general by President Joe Biden in January 2021”

She could have translated the pee pee tapes from the original Russian. Obviously very bright but, as Northeastern US academics say, she was “only a magna” at Harvard. Not a Summa. And only a finalist for the Rhodes.

Bilwick said...

She has sons named Blaise and Beckett.

How precious.

Bilwick said...

"Scratch a leftist, find a fascist."

Indeed. Or as Mencken once wrote (going from memory here), the desire to save the world often conceals the desire to rule it.

wildswan said...

“the government is paying for the medical services so they have the right to dictate details of those services”

The government is paying so it has a right to diagnose and prescribe.

Freder Frederson said...

I should have noted that "Arturo Ui" is one of Freder Fredersen's pseudonyms.

Wrong. I have never used any other pseudonym on this site. Why would I?

Arturo Ui said...

effinayright said...
I should have noted that "Arturo Ui" is one of Freder Fredersen's pseudonyms.

He steals them from German fiction. Freder's from Fritz Lang's "Metropolis".

"Arturo Ui" is the main character in a 1941 Bertolt Brecht play.

In the latter work Arturo Ui dons a red clown nose and transforms himself into an outsider business man and candidate for office.

So remember : if you see a comment by Arturo Ui, it's just Freder with "clown nose on".

********************

LOL, wut? I've always used only the Arturo Ui handle here. You're not as clever as you think.

Freder Frederson said...

And see how sneaky I am. I waited almost two hours before I responded with my alter ego

Drago said...

Freder Frederson: "And see how sneaky I am. I waited almost two hours before I responded with my alter ego"

You are all under the suspicions!

If I may paraphrase:

Commentariat: The Althouse blog is a priceless blog!

(after Freder arrival): Not anymore.........

Drago said...

Freder: "Wrong. I have never used any other pseudonym on this site. Why would I?"

What's all this I'm hearing about using pseudonyms on your wife? Why would you do such a thing? And what's this about "this wife"? Do you have more than 1? It just seems wrong to make your wife or wives believe you are not who you say you are....

....what's that?....

..really?.....

Well. That's very different.

Never mind.

Norpois said...

I sense everyone's frustration but....the Supreme Court is made up of lawyers. Not scientists. And they are not supposed to be a super legislature, reversing executive branch or Congressional decisions because "the evidence points the other way" or "Congress held a belief against the scientific evidence." Here it's a little muddier because it is an agency making a decision. But -- in general -- do the inhabitants of this blog really want the S Ct to be the final arbiter of "scientific fact", or indeed of MOST facts? Wasn't that the cardinal sin of Roe?
The Supreme Court doesn't take testimony, listen to cross-examination, etc. Not suited to fact-finding. In our form of government, the legislative and executive branches decide what "facts" should drive policy decisions, and S Ct only intervenes (and very rarely) if the action either violates individual constitutional rights or is "arbitrary and capricious" or otherwise fails some similar verbiage test meaning " too far out there". (BTW, fwiw, if I were a legislator, I would vote against the mandate. Different issue.)


Because the S Ct took this as a emergency matter without a fact record, the Judges are going to be (charitably) uninformed.

Frankly, if I were a Justice, I would vote to dismiss the application as not justified on the current record and I'd send back to a lower court with instructions to hold a quick trial or hearing and render a decision by the end of the month. My understanding is the mandate doesn't kick in till Feb 6. Frankly, one of the Justices should have asked the government if it would agree to extend that date. Biden's vaccine policy seems slightly flexible, at least as to timing.

On the whole, on reflection, the Justices didn't do THAT badly in their questioning -- Breyer made a slip of the tongue, which we all do from time to time; Sotomayor's analogy was easily answered, but isn't a stupid remark (humans are not machines, so there is a counter-balancing freedom interest when you regulate them; but workplace risks can indeed come from other humans). Her comments about the numbers of children etc WERE indeed the worst misstatement, though Gorsuch flubbed it almost as badly on flu deaths. It was pretty shocking that Sotomayor didn't feel it necessary to distinguish between "police powers" which are exercised only by the States except in times of insurrection, and the federal Government's broad regulatory powers under the Commerce Clause.


PS - There are a lot of commenters writing from the point of view of "vaccines don't prevent transmission and new cases." That is true, and it is an embarassment to the government that the CDC etc led the nation to believe that vaccines would do so. But that does not mean that a vaccine mandate does not serve a substantial public health/policy purpose. The most cogent
justification for the OSHA rule and for 95% of what every state government is doing along the same lines is that the vaccines reduce hospitalizations. The governments efforts from Day 1 have always been to avoid the feared "collapse" of the hospital and healthcare system. (This is even clearer if you read about the UK, where the Prime Minister expressly appears at podium with the (approximate) motto
"Get the Jab --Protect the National Health System"). No politician believes they can be re-elected if there are photos of piled up body bags. or people can't be treated because the ICU's are full. And, while recognizing the justified anger of those who point out that the vaccines don't work as expected, the vaccines DO very much appear to reduce hospitalization rates and especially ICU usage.



Bender said...

Prelogar began her career as a law clerk for Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit and later to Associate Justices Ruth Bader Ginsburg and Elena Kagan of the Supreme Court of the United States. She was then an associate at Hogan Lovells. She taught a course at Harvard Law School on Supreme Court and appellate advocacy.
From 2014 to 2019, Elizabeth Prelogar was an assistant to the solicitor general. She was briefly detailed to the Special Counsel investigation into Russian interference in the 2016 United States presidential election. In 2020, she joined Cooley LLP as a partner.[12] She was named principal deputy solicitor general by President Joe Biden in January 2021”.....Obviously very bright


Non sequitur. Nothing obvious at all. A big resume does NOT prove any particular intelligence or smarts. Most of the elites from big schools and incest careers are complete idiots. Just look at the elite law schools, law firms, and judiciary.

Greg The Class Traitor said...

Norpois said...
PS - There are a lot of commenters writing from the point of view of "vaccines don't prevent transmission and new cases." That is true, and it is an embarassment to the government that the CDC etc led the nation to believe that vaccines would do so. But that does not mean that a vaccine mandate does not serve a substantial public health/policy purpose. The most cogent
justification for the OSHA rule and for 95% of what every state government is doing along the same lines is that the vaccines reduce hospitalizations. The governments efforts from Day 1 have always been to avoid the feared "collapse" of the hospital and healthcare system. (This is even clearer if you read about the UK, where the Prime Minister expressly appears at podium with the (approximate) motto


Wrong

1: The government may not order you to engage in behavior because that behavior is "good for you". it most certainly may not order your employer to fire you because you haven't engaged in behavior that's "good for you".

If it could, you can kiss goodbye Lawrence v Texas, because engaging in anal sex isn't good for you, it leads to a lot more STDs, and a lot of unnecessary usage of our health care system.

2: The government may not order you to engage in behavior because that behavior is "good for society". Otherwise you could kiss goodbye Roe on the grounds that we need more kids to become the workers of the future, and your abortion is depriving us of those workers

3: The reason why the Democrat "Justices" were telling lies about the vaccine is because the only legitimate justification for a "vaccine mandate" is that it cuts the spread of the disease.

The current Covid "vaccines" do not cut the spread of Covid.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8481107/
Increases in COVID-19 are unrelated to levels of vaccination across 68 countries and 2947 counties in the United States

Because they do not block the spread of Covid, there is no legitimate ground for mandates, passports, or any other such bullshit.

The "vaccinated" can get it, and they can give it to others. Until someone comes up with an actual Covid vaccine that doesn't have those characteristics, there are no legitimate grounds for any Federal, State, Local, or Corporate mandates or "passport" requirements

Stephen St. Onge said...

        That the Supremes might rule in favor of the mandate is certainly possible.  That "Of course the mandate is constitutional on its face" is rather more dubious.

        The federal govt. has the right to regulate interstate commerce, but there are limits to that power.  The claimed power here is rather strained.  OSHA has the power to regulate workplaces to protect the health of employees, e.g. to prevent over-exposure to hazardous chemicals, or to require machine tools can't be started unless the employee has taken both hands out of the operation zone.  But what workplace hazard is the unvaccinated employee being protected from here?

        Presumably, the risk of catching covid on the job.  But since personal control over accepting or refusing medical treatment is a recognized constitutional right, it is not at all clear to me that OSHA has the legal authority to do this.  I can check out of a hospital against medical advice, even if the doctors are certain I will die as a result.  It seems likely I have a legal right to risk catching covid on the job too.

        Is OSHA then protecting the other employees from catching my covid?  That sounds somewhat stronger, but it overlooks the fact that
the vaccines DO NOT IN FACT stop vaccinated people from catching and spreading the virus.  Further, there are other recognized measures to control the spread of covid on the job.  And these alternative methods work to prevent both the vaccinated and the unvaccinated from infecting their coworkers.

        To say that an employer must use a method known not to work very well, but needn't use other methods first, or in addition, seems legally ridiculous to me.  In general, regulations must be rationally related to their alleged goals.  Instead, this looks like the Biden administration trying to ignore the usually mandatory opportunity for public comment.

        This interpretation is buttressed by the "emergency" power invoked to put the rule into effect immediately, without the opportunity for public comment.  I believe OSHA has only done this a handful of times (seven?), and had all but one subsequently overturned.  Further, the Solicitor General admitted the "emergency" that allegedly requires "immediate" implementation may last for years, far longer than the time required for the usually rule-making process.

        And then there's the one hundred employee threshold.  Are the risks to coworkers of a business employing ninety-nine employees really much different from one employing one hundred?  What evidence does OSHA have on that?

        So all this ends up looking to me like the Biden administration is just trying to "work around" the Constitution, using alleged workplace safety rules as a substitute for a police power that is reserved to the states.  I expect the Supremes will so rule.

Stephen St. Onge said...

"The constitution exists to limit the federal government."

        Nope.  As the text and history make clear, the Constitution exists to create and empower the Federal govt. in certain areas.

Stephen St. Onge said...

Arturo Ui said...

[In re to the police power] "Good point. The FBI has never arrested anyone."

******************************************

        Protip: before making a comment involving a legal term, find out what the legal meaning of the legal term is.  It keeps you from unintentionally looking like a fool.

‘In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.[1] Police power is defined in each jurisdiction by the legislative body, which determines the public purposes that need to be served by legislation.[2] Under the Tenth Amendment to the United States Constitution, the powers not delegated to the Federal Government are reserved to the states or to the people. This implies that the Federal Government does not possess all possible powers, because most of these are reserved to the State governments, and others are reserved to the people.’ Police power (United States constitutional law)

‘Police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good, although the term eludes an exact definition. The term does not directly relate to the common connotation of police as officers charged with maintaining public order, but rather to broad governmental regulatory power. Berman v. Parker, a 1954 U.S. Supreme Court case, stated that “[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power”; while recognizing that “[a]n attempt to define [police power’s] reach or trace its outer limits is fruitless.”

‘The division of police power in the United States is delineated in the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That is, in the United States, the federal government does not hold a general police power but may only act where the Constitution enumerates a power. It is the states, then, who hold the general police power. This is a central tenant to the system of federalism, which the U.S. Constitution embodies.’ police powers

Stephen St. Onge said...

Blogger Bender said...
‘More Kagan: “the government is paying for the medical services so they have the right to dictate details of those services” ’

Greg The Class Traitor said...
‘1: Really? I thought most people had private health insurance. Certainly, almost all the people working at employers w/ more than 100 people do’

******************************************

        Protip: Find out what someone is talking about, before commenting on whether they are correct.  It keeps you from unintentionally embarrassing yourself.

        The Supremes heard arguments in two cases, the second concerning hospitals that take money from Medicare and Medicaid.  The feds do indeed pay for those services.

Night Owl said...

"the vaccines DO very much appear to reduce hospitalization rates and especially ICU usage."

Amongst who? The old and the obese? So let them get "vaccinated".

The young and healthy, even without any shots, don't end up in the hospital.

Greg The Class Traitor said...

Stephen St. Onge said...
Bender said...
‘More Kagan: “the government is paying for the medical services so they have the right to dictate details of those services” ’

Greg The Class Traitor said...
‘1: Really? I thought most people had private health insurance. Certainly, almost all the people working at employers w/ more than 100 people do’

******************************************

Protip: Find out what someone is talking about, before commenting on whether they are correct. It keeps you from unintentionally embarrassing yourself.

The Supremes heard arguments in two cases, the second concerning hospitals that take money from Medicare and Medicaid. The feds do indeed pay for those services.


IIRC, Medicare and Medicaid combined come nowhere near to 50% of the average hospital's income. The rest is private payment and private insurance payment.

Kagan's delusion is that because the Feds are paying for SOME of the patients treatments, they get to tell everyone, serving every patient, what they must do.

And that is bullshit

Leaving aside that in NFIB v ObamaCare, 5-4 ruled that no, the Feds paying for things didn't give them an unlimited right to order the recipients around. See Medicaid expansion

Kirk Parker said...

In other news today, the National Organization of Posts announced it was filing a defamation action against blog commenter Jupiter, for his recent remark that "[Justice Sotomayor is] dumber than a post."