SCOTUS Hears the Vaccine Mandate Case

On December 4, 2020 at an event in Wilmington Delaware President elect Biden was asked if he thought that COVUD vaccines should be mandatory. 

He replied “No, I don’t think it should be mandatory. I wouldn’t demand it to be mandatory,” … “But I would do everything in my power—just like I don’t think masks have to be made mandatory nationwide—I’ll do everything in my power as President of United States to encourage people to do the right thing and, when they do it, demonstrate that it matters.”

Well, here we are a year later and lo and behold, we are faced with a mandatory vaccine mandate. One whose legality was immediately challenged in the courts, and which finally wound its way into yesterday’s  Supreme Court hearing. 

After the hearing there was near universal agreement among the commentariat that the 6 conservative justices displayed a fair degree of skepticism about the legality of the mandate. One of the liberals, Justice Sotomayer, was a thorough disgrace and acted as a cheerleader for the Biden Administration, which was defending its mandate.  More about that later, but first a little background. 

As Omicron variant cases spike we are increasingly told that COVID has become a “pandemic of the unvaccinated”. This is simply not true. What is true is that vaccination provides a solid defense against severe disease. However, while vaccination is less likely to prevent infection than it was in the more recent past, vaccinated persons are still (thus far) less likely to be infected at all. But that could change since it is early in the Omicron cycle.

Two graphs published by NY State tell the story. The first compares daily case rates by vaccination status from May 3 of 2021 to December 27 of 2021. The second compares hospitalization rates, which implicitly measures vaccine effectiveness against severe disease. 

Daily Case Rates
Daily Hospital Admissions

The data make 2 things clear. The first is that the rate of “breakthrough” infections has soared with the introduction of the Omicron variant. The second is that the unvaccinated are still far more likely to be infected—and hospitalized—than the vaccinated. For example, recent data suggest that unvaccinated people may be 10 to 15 times more likely to be hospitalized. 

(Note: These data are only suggestive. In some cases, specifically Denmark and Ontario, Canada, data amassed so far indicate that vaccinated people have a higher case rate than the unvaccinated.)

Another consideration with respect to “breakthrough” infections is that vaccinated people can still transmit the infection. However, at this time the data suggest that vaccinated people are less likely to transmit the virus. See the CDC on transmission by unvaccinated persons.

So what does all this have to do with the Supreme Court? The question is whether and to what extent the Biden Administration has the legal authority to impose its vaccine mandate on private employers and therefore implicitly on their employees. 

The Biden Administration issued its rule through the Occupational Health and Safety Administration (OSHA) on an “emergency” basis. There are a lot of problems with this, not the least of which is that the President lacks constitutional authority to force people to undergo an intrusive medical procedure. (The argument that as a precondition to attend school the States may require vaccinations against things like measles is irrelevant to the current case. The police power is in the hands of the States, not the federal government). 

That is why the rule was issued as an emergency order through OSHA using the pretext that it was designed to protect workers. But a vaccine mandate strays far from OSHA’s statutory authority. Among other things, an emergency ruling triggers a 3 pronged test, all of which the order fails to meet. 

  1. The mandate is supposed to be necessary, which is to say indispensable for dealing with the emergency at hand. Well, OSHA hasn’t demonstrated that there is in fact an emergency, or that the mandate would deal with it. In February of 2021 OSHA announced an emergency rule requiring vaccinations. It didn’t get around to releasing its standards for vaccination and testing for 8 months—until November of 2021, to be effective in January 2, 2022. Some emergency. 
  2. OSHA is supposed to establish that there is a grave danger. Not only did they not do that, OSHA itself says that unvaccinated 18 to 20 year-olds have the same risk as vaccinated 50 to 64 year-olds. 
  3. OSHA’s authority does not extend outside the workplace. For example, it is one thing to require workers to wear protective clothing in a factory building. It is something else again to require workers to do something that affects their well being outside the workplace, but doesn’t affect fellow workers. 

For a more detailed discussion see Andrew McCarthy at National Review here.

In addition, the Wall Street Journal has published an op-ed by Luc Montagmier and Jed Rubenfeld that argues that the Court should send the mandate back for further review since the Omicron variant, and thus its efficacy, had yet to be discovered when the mandates were issued.

Quite simply, it is becoming more and more clear that the vaccine mandate is just another lawless power grab by the administrative state. 

What is especially disconcerting is Justice Sotomayer’s willingness to treat unvaccinated people as second class citizens—at best. From the transcript of the hearing: 

“JUSTICE SOTOMAYOR: So what’s the difference between this and telling employers, where sparks are flying in the workplace, your workers have to be — wear a mask?

MR. KELLER: When sparks are flying in the workplace, that’s presumably because there’s a machine that’s unique to that workplace. That is the —

JUSTICE SOTOMAYOR: Why is the human being not like a machine if it’s spewing a virus, blood-borne viruses? Are you questioning Congress’s power or desire that OSHA do this? It already in 1991 told OSHA to issue regulations with respect to Hep C and B.”

(Emphasis added). 

So the Justice is incapable of distinguishing a human being from a machine. Interesting, that. 

One should also expect that a Supreme Court Justice would be familiar with a statute or regulation that she cites. The regulation in question, apparently unbeknownst to Justice Sotomayer, specifically addresses requirements for dealing with Hepatitis, thus obliterating her argument for using the broad language of the authorizing statute to find some agency authority for issuing the mandate. And, oh yes. COVID, unlike Hepatitis, is not blood borne.

There should be little doubt that people who decide against getting vaccinated are taking a huge and probably foolish risk with their health and safety. But it is not clear that in so doing they pose a clear and present danger to others, either in the workplace or outside of it. But the constant and ongoing power grabs by the administrative state do pose a serious threat to American liberties. Let’s hope the Court begins to put a halt to it. 

JFB