Yesterday, after the SCOTUS came out with its rulings in the two mandate cases, I stated that, overall, I agreed with the dissent—while recognizing the differences. In doing so I quoted from Alito’s separate dissent, but referenced Thomas’ dissent that was joined by Alito, Gorsuch, and Amy. This morning, Margot Cleveland delves into both cases at The Federalist—finding the opinions distressingly weak:
The Supreme Court’s Ruling On Vaccine Mandates Is Frighteningly Weak
I want to look at Cleveland’s views on the Healthcare case, because the two dissents raise core issues for our country’s future.
In his dissent Thomas first presents the posture of the case, Biden v. Missouri, as it came before the Court. Please note that Thomas says nothing about the injustice of the mandate, about the Nuremburg code, about the safety of the injections, or any truly substantive matters:
Two months ago, the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS), issued an omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID–19 vaccine. Covered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements. As a result, the Government has effectively mandated vaccination for 10 million healthcare workers.
Two District Courts preliminarily enjoined enforcement of the omnibus rule, and the Government now requests an emergency stay of those injunctions pending appeal. Because the Government has not made a strong showing that it has statutory authority to issue the rule, I too would deny a stay.
To obtain a stay, the Government must show that there is (1) a reasonable probability that we would grant certiorari; (2) a fair prospect that we would reverse the judgments below; and (3) a likelihood that irreparable harm will result from denying a stay. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Because there is no real dispute that this case merits our review, our decision turns primarily on whether the Government can make a “strong showing” that it is likely to succeed on the merits. Nken v. Holder, 556 U. S. 418, 426 (2009). In my view, the Government has not made such a showing here.
In his concluding paragraph, Thomas reiterates that, in his view, the Government hasn’t satisfied the requirements for staying the preliminary injunction. In doing so Thomas specifically states that, in his view, the case is “not about the efficacy or importance of COVID–19 vaccines”:
These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.
Note that Thomas appears to presume that, had Congress given CMS the authority to coerce healthcare workers to be injected with experimental medications, that would somehow be OK. It would pass constitutional muster. None of the other dissenters took exception to that view. Thomas’ dissent rests strictly on whether CMS has the statutory authority it claims or not.
So, here is Margot Cleveland, addressing this case and the dissenting opinion. First she explains Thomas’ opinion, basically quoting Thomas making the same point as cited above—CMS lacks the statuory authority that it claims. Here is the passage of the statute that CMS relies upon, as quoted by Thomas:
CMS is authorized to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions,” and to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs, …”
And here is Cleveland basically quoting Thomas:
The mandatory vaccination rule issued by the Centers for Medicare and Medicaid Services (CMS) failed to find statutory support in the governing statutes, Justice Thomas explained. While Congress authorized the CMS to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions,” and to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs,” the vaccine mandate has no more than a “tangential” connection to the management of Medicare and Medicaid, Thomas wrote.
Nor did the various random statutory provisions grant HHS the authority to “require[] millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months,” Justice Thomas explained, before stressing: “Vaccine mandates also fall squarely within a State’s police power, and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”
Again, note that neither Cleveland nor Thomas are suggesting that the Court should have based their ruling on factors such as, for example, the experimental nature of these injections and the deceptive way in which emergency use authorization (EUA) was obtained, nor on their safety record—or lack thereof. Cleveland quotes—without comment—Thomas’ view that the State’s have the authority to mandate vaccines and that Congress could grant such authority to federal agencies if it so desired.
Yesterday, in a comment, I quoted from Alito’s separate dissent. Note that Alito’s objections are based on standard administrative law—the law governing the promulgation of regulations by the agencies of the federal government:
"Neither CMS nor the Court articulates a limiting principle for why, after an unexplained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment."
Again, this argument prescinds from considering the injections themselves, although Alito at least strongly hints—but politely—that the healthcare workers are being subjected to a shabby travesty of justice. Basically, Alito is arguing …
That when Congress passes a law there is a lengthy process of hearings in which We the People get to offer some input. Nowadays, however, the reality is that most “laws” are actually regulations promulgated by administrative agencies of the Executive Branch. Those agencies are supposed to get input from interested parties, but in this case CMS and HHS didn’t bother. That offends Alito and the other three dissenters—rightly so, IMO. Here, Alito explains this:
… “under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people.”
“Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns,” Justice Alito continued, noting, “today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators.” Under these circumstances, then, the notice-and-comment period proves indispensable, Alito explained—unless, that is, you are the Biden administration.
And that leads to Alito’s conclusion, as quoted above, that “regulating first and listening later” doesn’t pass muster—presumably constitutional muster.
Now, Cleveland concludes by commenting on all this. Note that she—as I did—also refers to the posture of the case as it reached the Court, and is disappointed that the opinions only considered “the propriety of a stay” rather than “the merits”—by which I presume she means the nature of these experimental injections and the constitutionality of coercing American citizens into participating in a medical experiment:
The Biden v. Missouri dissents, however, did not go far enough. The same separation of powers problems plaguing the OSHA regulation apply equally in the context of the CMS rule. Yet the dissenting justices gave short shrift to those concerns.
The question is, why? Also, why did Gorsuch’s concurrence in the OSHA case only garner three votes, including his own? Was it the procedural posture of the case: A hearing not on the merits but on the propriety of a stay? Was it the time crunch? Was it a desire for more detail and nuance?
Or was it because reaching a truly conservative five-justice majority is as elusive as an end to this pandemic.
Other commentators—and I forget where I read this—are raising the question of whether this case reveals a disturbing reality: whether, for all their fine talk in the past, a majority of the “conservative” justices lack the stomach to systematically take on the Administrative State in a principled way. We’re going to find that out definitively later this year.
Down here in Comanche County Texas rural property owners such as me have the distinct pleasure of keeping mesquite and prickly pear from taking over completely, "brush control" as it is termed. Methods used range from prescribed fire, manual cutting and digging, herbicides and root plowing at the most extreme, if you fail to kill the roots regrowth occurs. The Supreme Court has the duty to perform the legal equivalent of brush control. Applying the US constitution consistently to cases would root plow most all of the undesirable federal legal vegetation that has taken over our nation.
I'd like to push back a little harder than I did yesterday on the general view that the wonderful Margot Cleveland expresses with "these cases are not about the efficacy or importance of COVID–19 vaccines." It's much more correct to say the Court is just lazily assuming that the basic outlines of the claims about the vaccines' safety and efficacy profiles are not egregiously and dangerously wrong, and I think this is easily demonstrated.
What if a few of the Justices had close friends or relatives who died shortly after getting poked, if the decedents had been given autopsies and if it had been shown to the satisfaction of these Justices that it was all but a certainty the cause was indeed said pokes? What if a couple more Justices had severe adverse reactions themselves, maybe even of the sort that left them permanently injured in one way or another, and what if all the other Justices knew about all these problems? Does anyone think either the oral arguments or the opinions that came out yesterday would have been no different than what they actually were?
Or what if a famous NFL player had recently dropped dead of a heart attack, right on the field and on national TV? And what if an autopsy found microclotting and other spike and lipid nanoparticle damage all through his heart and other organs, and so a national scandal ensued once the cat got let out of the bag regarding the whole issue of what these shots often do? Would this have changed nothing that happened at the Court? Would the Court still have taken the attitude that these mandates are a purely legal issue and that the scientific facts on the ground are neither here nor there?
Of course not, and the only difference between the above hypotheticals and reality is that the actual victims of the shots have not yet been people close to the Court or the national conscience. But victims there are, countless thousands of them.
The fact is these cases were decided very much with the merits of the shots themselves on the minds of the Justices. It's just that what was on their minds was the lazy assumption that whatever the shots' ultimate pluses and minuses, they didn't add up to anything too terribly far out of bounds and so were not a factor they should give any weight to. This was a plain and simple scientific error on their part, and the only reason they made it is because neither they nor any of the Court’s petitioners ever bothered to actually take a serious look at the issue for themselves. They're all pure verbies and just have no radar at all to detect when the math and science of an issue is fundamental to it.
I don't think it's any sort of evil on their part, but I definitely do see it as worrisome that not one of the nine Justices, nor most lower-court judges or attorneys general, seem to be STEM-literate or even STEM-aware to any meaningful degree. They all take the basic position of, “Um, I was told there would be no math.”
It’s hard to feel this same blindness won’t bite us again, and maybe much harder.