Good Friday Morning, and isn’t it great to have football back in our lives again? From college to pros, football is back in the best way possible. It’s just great to have it back. Since the main section is longer, I’ll keep this and the other sections shorter this week. Enjoy! Links at the end.
Where you can find me this week
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Abortion has to get decided in the political process – The Conservative Institute.
Biden is defiant because he has no honor – The Conservative Institute.
It’s a grab-bag sort of week. There are several topics I wanted to hit with two stories in the news this week. And multiple issues within those topics. Let’s start with abortion, and then we’ll hit Joe Biden and the vaccine mandate he’s proposing, or what we know about it. This newsletter will be a longer one. Blame the news. There’s too much of it.
Abortion and the lies about what happened
The abortion story you’re getting in the news is all wrong. The Texas abortion law did not end Roe at the Supreme Court. It was a hyper-technical case that hinged on a preliminary question of standing. To bring a federal lawsuit, you have to be able to show that you were harmed and an appropriate party to a case. The pro-abortion side of the Texas lawsuit could not prove that.
A quick explainer from Ilya Somin:
Instead of giving state officials the power to enforce the law, SB 8 delegates enforcement entirely to private parties, who can bring lawsuits against abortion providers, and get $10,000 or more in damages for each abortion. As the Supreme Court majority notes, this makes it difficult to issue an injunction against the law, because such injunctions are usually directed against specific people or entities who enforce laws, or have plans to do so. In this case, however, no government official has enforcement authority, and it is not possible to identify a specific private party who plans to enforce it, either. The one private defendant in the present case—a prominent Texas pro-life activist—claims he has no plans to bring any SB 8 lawsuits himself. Even if the Court had enjoined this particular individual from bringing SB 8 lawsuits, that would not prevent other people from doing so.
This approach to injunctions is closely related to the Supreme Court’s precedent on the doctrine of “standing,” which holds that plaintiffs can only bring cases in federal court if they have suffered an actual or imminent “injury.” Here, arguably, there was no such injury because neither the government nor a private party had taken any steps to enforce SB 8 against them, and it is far from clear that anyone will do so in the future. The four dissenting justices in last night’s ruling make several good points. But, at least as far as I can tell, they don’t have an answer for this particular procedural dilemma.
As a lawyer, I admire this legal strategy. It’s like another artist admiring the Sistine Chapel. Other ramifications concern me, but it’s brilliant purely on a “legal loophole” and tactics basis.
Texas designed their law to do one thing, and one thing only: survive an appeal to the Supreme Court where the Court would not issue an injunction to prevent the law from going into effect. They did that successfully. Everyone knows this case will eventually lose on the merits; this case can’t stand under current case law.
Texas doesn’t even care that liberals are trolling them by slamming the website that submits claims. The end goal was to survive an injunction challenge and go from there. The only thing the Supreme Court did was issue a ruling on that narrow issue, the injunction. And the majority got it right.
However, I do believe we’re heading towards a future where the Supreme Court strikes down the Roe/Casey precedents and sends abortion back to the states to fight it out in legislatures. That’s likely going to happen to some extent within the next Supreme Court term. Overall, this is a good thing. States should decide this issue, and getting all that pent-up energy out in legislatures will do a world of good to politics (see my column on this).
However, what everyone is saying about the Texas law is mostly wrong. And that includes the federal government.
The Biden DOJ filed a lawsuit against Texas claiming that they would uphold abortion if Texas would not. The DOJ lawsuit will fail for the same reasons that the original case couldn’t get an injunction from the Supreme Court. The complaint, which for you law geeks you can read here (27 pages), is a joke.
Here’s the tell, the parties section. The DOJ lists these as the parties:
10. Plaintiff is the United States of America.
11. Defendant, the State of Texas, is a State of the United States. The State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8.
Emphasis mine. The problem, as I stated above, is that you don’t know who the parties are to the case and there’s no direct injury. Because, theoretically, anyone can bring a complaint in Texas over the law, the DOJ complaint is attempting to sue and enjoin every single person in the country.
That is ludicrous on its face! They’re trying to say because anyone can enforce it, they can get an injunction against everyone, despite no harm being listed. It’s another stark example of the politicization of the DOJ by the Biden administration. I expect this case to get thrown out on essentially the same grounds as the case we just saw before the Supreme Court. The media made a big show out of that DOJ filing, but it’s just an absurd joke.
Don’t take my word for it, go with law professor Josh Blackman who quipped, “This case really should be captioned United States v. United States.” He added:
The Texas law does not require would-be plaintiffs to be residents of Texas. (Though, to avoid diversity jurisdiction, I suspect out-of-staters would not file suit). In effect, the United States has sued everyone in the United States. And there was no attempt to certify a class under Rule 23. This case really should be captioned United States v. United States. Is there any authority to bring such a suit? DOJ cites none, and I am not aware of any precedent. And a declaratory judgment is only feasible if there can be injunction to back up that declaration. Not even a nationwide injunction would fit the bill here. See Skelly Oil, a case we learned well from the ACA litigation.
When I say everything you’re likely reading in the mainstream media is wrong in this case, I do mean everything. It’s been amazing to see everyone latch onto the Handmaid’s tale memes or declare Roe over. Those are the opinions of morons.
Biden and the OSHA mandates
The Legal Issues with the mandate.
There are two aspects to the Biden “mandate,” the legal part and the political. The first question is this: can the President order mandatory vaccines through the Labor Department via OSHA? The answer: maybe, TBD. And the second question is this: is this a politically intelligent decision? No, not at all. People are intermixing the two issues here, and it’s annoying.
First on the law. The White House’s line is:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
To understand this, you have to know what they’re doing. This case isn’t a Constitutional Law question; it’s a statutory question. An OSHA ETS is unique:
Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals.
There are two things here: an ETS is a time-limited thing used as a placeholder until a permanent rule can be adopted and go through the usual rule-making channels. Sometime within the next six months, we’ll discuss what regulation should go in place here. A permanent rule has to go through regulatory hurdles.
Second, these ETS provisions can get challenged in court. The last time the Labor Department used ETS was over an asbestos case in 1983. The Labor Department does not use ETS provisions often because they lost a legal challenge to that asbestos case:
[A]lthough the federal courts have ruled on challenges to previous ETS promulgations, the courts have provided no clear guidance as to what constitutes a grave danger. In 1984, the U.S. Court of Appeals for the Fifth Circuit in Asbestos Info. Ass’n v. OSHA issued a stay and invalidated OSHA’s November 1983 ETS lowering the permissible exposure limit for asbestos in the workplace. In its decision, the court stated that “gravity of danger is a policy decision committed to OSHA, not to the courts.” The court, however, ultimately rejected the ETS, in part on the grounds that OSHA did not provide sufficient support for its claim that 80 workers would ultimately die because of exposures to asbestos during the six-month life of the ETS.
We don’t have the exact wording of Biden’s OSHA ETS rule yet. That means I can’t say whether or not a court would uphold this with a legal challenge. Overall, I’d call an OSHA ETS court challenge a 50-50 proposition. Anyone who says they know what is going to happen at this stage is simply lying. OSHA issued another ETS earlier this year related to COVID-19, which has provided preliminary guidance for employers to respond to the pandemic.
OSHA has Congressional latitude to issue rules like this so that the question won’t be constitutionality (at least, at first). The question is if OSHA has the power to mandate vaccines to prevent a “grave danger” in the workplace. I fully believe OSHA can demand employers grant access to vaccines or even force employers to offer vaccines to all employees. I don’t know about the second step where they force an employee into making an action (taking a vaccine).
That’s the million-dollar legal question, can OSHA go that extra yard? After THAT, can OSHA make that ETS rule a permanent rule? It’ll all depend on legal challenges to the emergency rule. TBD.
I don’t know the answer to that, and without the rule language from OSHA, neither does anyone else.
Mildly related to this: if you’d like to have a conversation about how Federal and State OSHA agencies are wildly overpowered — I’m all ears. OSHA does a lot of good, for sure. Still, I know lawyers who could give you stories of OSHA running roughshod over small businesses. It’s often cheaper to eat the fine and do what they say instead of fight it. That’s a topic for another day, though.
The political fallout of the “mandate.”
The second part of this mandate is the political fallout. I simultaneously believe two things: 1) State and local governments have near-absolute power to mandate vaccines. A state’s police/public health power is highly potent. 2) Mandates, in this case, won’t help unless you’re lining people up against their will to jab their arms.
Mandates that prevent working, shopping, or other activities will harden people against vaccinations — and it does so at a moment when vaccines are climbing again for the first time since the disastrous J&J pause. People are scared about the Delta variant, justifiably so, and getting vaccinated. My concern now is that, just like the J&J pause, people are going to look at Biden’s speech and choose not to vaccinate because they can’t stand his stupidity.
John Podhoretz hit on the most bizarre aspects of Biden’s COVID-19 plan speech:
Joe Biden’s speech on COVID was bizarrely incoherent.
He told the American people without qualification that fully vaccinated people are at incredibly low risk: “Only 1 out of every 160,000 fully vaccinated Americans was hospitalized for COVID per day.”
Then he promised to shield them against the evil people who are threatening their very lives: “We’re going to protect the vaccinated from unvaccinated coworkers.”
But Joe, you just said the vaccinated were already protected!
What’s happening with the Delta variant is terrible, and Biden spent a lot of the speech importuning the unvaccinated to get the shot. They should. If they don’t, they’re incredibly stupid, and yes, this means you.
But it’s not a crime to be stupid, or to be a foolish parent. People do self-destructive things all the time. Last year, when people did self-destructive things in relation to COVID, it was genuinely threatening to others because there was no vaccine.
Now there is, and it works, and it saves you.
No, this speech was a Rube Goldberg message aimed at neurotic vaccinated people. Biden was saying that they shouldn’t worry… but if they’re worried, their worries are justified.
Biden’s speech does again what Democrats, the CDC, and FDA have bizarrely done for months: undermine confidence in vaccines. Every week there’s a new scaremongering story about how some variant could defeat vaccines (not one of those stories has panned out in real-world data). We have mask mandates again, bizarrely, for the vaccinated for no discernable reason at all. Masks are far inferior to real-world immunity, but we’re catering to the most neurotic part of the populace, who all seem to believe COVIDZero is an actual achievable goal.
I do not think that. I’m the opposite. I think everyone will get COVID, so the best thing you can do is get vaccinated (if you’ve never had COVID) and get ready to go through that bumpy ride.
But here’s the most telling point: I can confidently tell you that if any state decided to mandate vaccines for all their citizens, they could do it with no legal issues. The critical case here is Jacobson v. Massachusetts. In this 1905 Supreme Court case, the Court upheld a vaccine mandate law for smallpox with monetary fines and jail times as penalties. Here’s a taste of the majority opinion:
The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.
Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that “persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned.”
A state’s police power, especially when combined with public health powers, is extremely strong. I live in Tennessee. Suppose the legislature mandated that everyone gets vaccinated for COVID-19. In that case, there is not a single thing you could do, legally, to stop that. The only reason I have questions about the OSHA is that I know the federal government’s powers on this front are far weaker than a state government.
The astonishing part of this entire pandemic: not a single state — red, blue, or purple — has even had a conversation about a mandate. Yes, you’ll see school systems or businesses talk about it. But an entire state? States that I know for a fact have the legal power to do this? Nothing. It’s a political non-starter to every legislature and governor in the country. And that is fascinating by itself and telling.
No one wants to take the one guaranteed step to “end” the pandemic. There is no appetite for it politically. If the Supreme Court got a case from a state for a vaccine mandate, they’d uphold it 9-0. But state governments won’t touch them right now.
My read is this: Biden’s mandate will be a political loser. Biden’s response to Afghanistan dumped his approval rating into the 45% range in the averages. The mandate will sink him into the 40% range. Biden is not a Trump or Obama, there are no fanbases to sustain him, and he lacks the talent for a comeback. Every other politician in America sees what Biden is doing as a political loser and unhelpful in their vaccination drives. The only politician who doesn’t is Joe Biden.
Read into that what you will.
(One parting note: there is a real, active threat here that would suggest it’d be necessary for some of these politicians to bite the bullet and run a mandate anyway. If it tracks the previous winter, the upcoming winter could be the worst surge of COVID-19 yet. Getting ahead of that is imperative, and it’s hard to say that we’re prepared for that reality).
Links of the week
Until Today, Joe Biden, Jen Psaki, and Rochelle Walensky Were All Publicly Opposed to Federal COVID Vaccine Mandates “That’s not the role of the federal government.” What happened? – Robby Soave, Reason
Biden’s ‘New Strategy’ on COVID-19 Is Just the Old Strategy with Another Mandate – Jim Geraghty, National Review
White House Pulls ATF Nominee David Chipman After Exclusive Reporting From The Reload Raises Character Questions – Stephen Gutowski, The Reload
Good Riddance, David Chipman – David Harsanyi, National Review
Why Isn’t the Attack on Larry Elder the Biggest Story in America? A white woman in a gorilla mask threw an egg at a black man seeking to become the first non-white governor of our largest state, and the media shrug. – Kyle Smith, National Review
Black Lawmakers, Now Winning in White Communities, Call for End to Packing Black Voters in House Districts: More say majority-Black districts, once a key to Black political power, hurt Democratic efforts to gain seats – WSJ
State Department obstruction of private rescue flights from Afghanistan revealed in leaked email: State Department ‘will not provide an approval’ of charter flights from Afghanistan, leaked email reveals – Peter Hasson, Fox News
Learning From Our Defeat: The Assumptions of Donald Rumsfeld – Tanner Greer
New Details Emerge About Coronavirus Research at Chinese Lab: More than 900 pages of materials related to U.S.-funded coronavirus research in China were released following a FOIA lawsuit by The Intercept. – The Intercept
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!