OSHA Vax Mandate Legal Challenges

[Dutchrudder 11115]

10 minutes ago, Don Johnson said:

She additionally said Omicron is as deadly as delta. 

At this point, it's very difficult to prove that. Buuuuuut, the infection rate is skyrocketing, and while many fewer people may be hospitalized due to Omicron, much in part due to the very vaccines at question in this case, there are still a good amount of people requiring hospitalization due to the sheer numbers. The data proves out that vaccines help save lives, prevent hospitals from being overrun, and will keep workers working. There's really no disputing that right now, and it's relevant to this case if the counter argument is "Covid's not that bad, mmmmmkay."  People that would normally be getting surgeries for typical ailments are being forced to wait, because hospitals are trying to maintain open capacity for the rush of Covid patients. I have a friend who's daughter had to wait 8 months to get her "elective" feeding tube added because so many dipshits with covid took over the hospital. 

"Nationwide, 1 in 5 hospitals with an ICU said its beds in that unit were at least 95% full last week, according to DHHS data. And more than a quarter of ICU beds nationwide were occupied by Covid-19 patients.

The surgeon general reiterated what many doctors have reported this winter: The vast majority of hospitalized Covid-19 patients are not vaccinated and boosted."

[Bateshorn 9905]

Look, everyone acknowledges we are in a public health crisis. ICU’s all across the country are in dire straights and the medical community is burned out and at the end of the line.  This is not the time for the court to be deciding whether it’s time for the Administration to pump the breaks on protecting the general welfare based on the questionable harm a “get vaxxed or get tested” mandate does to, well, anyone.

 

 

Edited January 7, 2022 by Bateshorn

[Anastasis 23394]

 

13 minutes ago, Bateshorn said:

You are, in effect, making a point of why this should not be in front of the court right now: the Justices are woefully ill equipped to be making decisions ultimately affecting public health during a health crisis.

I am not sure that OSHA is in a much better position to be making these decisions.  The rule is inconsistent and illogical and appears to just be an attempt at a work around. 

[wildcat09 29258]

Just now, Anastasis said:

 

I am not sure that OSHA is in a much better position to be making these decisions.  The rule is inconsistent and illogical and appears to just be an attempt at a work around. 

What's illogical about requiring employees to either vaccinate or test negative to help prevent the spread of covid in the workplace?

With how easily omicron spreads it may not be sufficient to actually stop the spread, but that doesn't make it inconsistent or illogical, and more importantly, has nothing to fucking do with the legal questions supposedly at issue in this case.

[hobbes2702 12846]

25 minutes ago, Don Johnson said:

She additionally said Omicron is as deadly as delta. 

Who fucking cares and what does it have to do with the mandate?

[Bateshorn 9905]

2 minutes ago, Anastasis said:

 

I am not sure that OSHA is in a much better position to be making these decisions.  The rule is inconsistent and illogical and appears to just be an attempt at a work around. 

I would argue they are much better equipped than 9 justices who, outside of Comey Barrett, have basically been secluded in elite judicial circles for decades.

 

More importantly, incredible deference should be given to the executive during a crisis, especially when Congress has written laws creating that deference. 

[TwiceHorn 31283]

10 minutes ago, wildcat09 said:

Yeah, Gorsuch was harping on the fact that OSHA had never implemented a similar requirement for the flu when that is completely legally irrelevant.

Well, to be fair, there is a longstanding limitation on OSHA power that takes the following form:  OSHA can regulate only health hazards that are unique to the workplace.  One argument is that covid itself is not unique to the workplace and the mandate is not tailored to those workplaces where Covid does present a unique hazard, versus those where it does not.

That isn't something latter-day conservatives just invented out of the whole cloth to torch this vaccine mandate.  A limitation on OSHA's regulatory power probably found its origin in conservative thought, sure, but that doesn't make it illegitimate.

Similarly, I don't find the general notion of Gorsuch's hostility to Congress' broad delegation of authority to executive agencies to be completely wrongheaded.  It may go too far, but the fundamental idea has merit.

[Anastasis 23394]

Just now, wildcat09 said:

What's illogical about requiring employees to either vaccinate or test negative to help prevent the spread of covid in the workplace?

With how easily omicron spreads it may not be sufficient to actually stop the spread, but that doesn't make it inconsistent or illogical, and more importantly, has nothing to fucking do with the legal questions supposedly at issue in this case.

Based on what we know and have seen regarding omicron, exempting people from testing based on completing the primary vaccination regimen (and arguably even a boosted regimen) is illogical if the purpose is to address the grave danger of COVID in the work place. You have to do comprehensive testing, imo.  That is an approach that would be more consistent with the epidemiological data as we know it today.  

[wildcat09 29258]

It should also be noted that the second case, about the CMS vaccine mandates, may give us an even worse ruling than the OSHA case, though Roberts and Kavanaugh seem a little more hesitant to rule against the administration in that case. A ruling that the government can't condition funding to hospitals on compliance with certain safety standards would be... well about in line with much of what these ghouls have warped our law into.

[wildcat09 29258]

1 minute ago, Anastasis said:

Based on what we know and have seen regarding omicron, exempting people from testing based on completing the primary vaccination regimen (and arguably even a boosted regimen) is illogical if the purpose is to address the grave danger of COVID in the work place. You have to do comprehensive testing, imo.  That is an approach that would be more consistent with the epidemiological data as we know it today.  

Your criticisms about the efficacy of the standard are wholly irrelevant to this case.

[wildcat09 29258]

4 minutes ago, TwiceHorn said:

Well, to be fair, there is a longstanding limitation on OSHA power that takes the following form:  OSHA can regulate only health hazards that are unique to the workplace.  One argument is that covid itself is not unique to the workplace and the mandate is not tailored to those workplaces where Covid does present a unique hazard, versus those where it does not.

That isn't something latter-day conservatives just invented out of the whole cloth to torch this vaccine mandate.  A limitation on OSHA's regulatory power probably found its origin in conservative thought, sure, but that doesn't make it illegitimate.

Similarly, I don't find the general notion of Gorsuch's hostility to Congress' broad delegation of authority to executive agencies to be completely wrongheaded.  It may go too far, but the fundamental idea has merit.

Yeah, but this has to be pretty liberally construed. If construed narrowly, there's no hazards that are truly unique to the workplace. The appellants today even conceded that OSHA can take steps to prevent fires in the workplace and fires happen all the fucking time outside of work. OSHA's power is limited to regulating things in the workplace, and people transmitting covid in the workplace pretty clearly falls under their power. Otherwise OSHA shouldn't be able to require fire extinguishers in the workplace because people could die in a fire at home. 

[Bateshorn 9905]

10 minutes ago, TwiceHorn said:

Well, to be fair, there is a longstanding limitation on OSHA power that takes the following form:  OSHA can regulate only health hazards that are unique to the workplace.  One argument is that covid itself is not unique to the workplace and the mandate is not tailored to those workplaces where Covid does present a unique hazard, versus those where it does not.

That isn't something latter-day conservatives just invented out of the whole cloth to torch this vaccine mandate.  A limitation on OSHA's regulatory power probably found its origin in conservative thought, sure, but that doesn't make it illegitimate.

Similarly, I don't find the general notion of Gorsuch's hostility to Congress' broad delegation of authority to executive agencies to be completely wrongheaded.  It may go too far, but the fundamental idea has merit.

I don’t necessarily disagree, but that assumes that Congress will be able to function efficiently at a future date to fill the holes in governance once you start bringing down long standing statutes based on that principle. That is clearly not the case rn, and will create real consequences for the general public. That’s why I find the interesting academic notions Gorsuch toys with to be deeply problematic. Either he’s disturbingly naive, or uncaring about the implications. 

Edited January 7, 2022 by Bateshorn

[Anastasis 23394]

12 minutes ago, wildcat09 said:

Your criticisms about the efficacy of the standard are wholly irrelevant to this case.

Efficacy of the standard seems relevant in that the justification being used for an emergency rule is that the standard is necessary to protect employees from such danger. 

(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

 

Although I realize that efficacy may be wholly irrelevant to the legal considerations wrt public health mandates. What a world. 

Edited January 7, 2022 by Anastasis
dont telecon and drive.

[wildcat09 29258]

Just now, Anastasis said:

Efficacy of the standard seems relevant is the justification being used for an emergency rule is that the standard is necessary to protect employees from such danger. 

(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

 

Although I realize that efficacy may be wholly irrelevant to the legal considerations. What a world. 

C'mon man, I covered this like a half hour ago:

53 minutes ago, wildcat09 said:

No, vaccinated get an exception. This is irrelevant to the legal discussion though. The question, to the extent we take it seriously, is essentially whether Congress authorized OSHA to implement anything to protect against the spread of Covid in the workplace. 29 USC 655(C) provides that "the Secretary shall provide, without regard to the requirements of chapter 5 of title 5 (these are the standard notice and comment requirements), for an emergency temporary standard to take immediate effect...if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger."

 So one could try arguing that (1) COVID isn't a grave danger, or (2) that a virus isn't a toxic substance or agent, or even (3) that the emergency standard isn't "necessary" to protect employees. But 1 is obviously bullshit and they don't want to write an opinion dismissing the danger of something that's killed nearly six million people in two years. 2 is a pretty silly to hang such a big decision on. And the best argument for 3 is that actually, the policy doesn't do enough to protect employees, but if you're going to say that then it follows that actually OSHA is authorized to take even stricter measures. 

Plus, this isn't a hearing about the merits, but about whether a stay should be granted. So they're supposed to be balancing harms, and right in the middle of another spike it's pretty fucking clear how a decision balancing the harm of vaccines or testing at work vs. no vaccines or testing at work should come out. 

 

[JimmyJames 12271]

22 minutes ago, Anastasis said:

 

I am not sure that OSHA is in a much better position to be making these decisions.  The rule is inconsistent and illogical and appears to just be an attempt at a work around. 

They are in a much better position than the Supreme Court. Which is the entire point. 

[Anastasis 23394]

1 minute ago, wildcat09 said:

And the best argument for 3 is that actually, the policy doesn't do enough to protect employees, but if you're going to say that then it follows that actually OSHA is authorized to take even stricter measures. 

A broadly applied testing paradigm is not necessarily stricter, imo.  It is more logical and consistent if the point is to address a grave workplace danger though, true. 

[JimmyJames 12271]

19 minutes ago, TwiceHorn said:

Well, to be fair, there is a longstanding limitation on OSHA power that takes the following form:  OSHA can regulate only health hazards that are unique to the workplace.  One argument is that covid itself is not unique to the workplace and the mandate is not tailored to those workplaces where Covid does present a unique hazard, versus those where it does not.

That isn't something latter-day conservatives just invented out of the whole cloth to torch this vaccine mandate.  A limitation on OSHA's regulatory power probably found its origin in conservative thought, sure, but that doesn't make it illegitimate.

Similarly, I don't find the general notion of Gorsuch's hostility to Congress' broad delegation of authority to executive agencies to be completely wrongheaded.  It may go too far, but the fundamental idea has merit.

Well let’s just appoint the Supreme Court to oversee OSHA then and in charge of issuing workplace regulations as they may become needed. 

[TwiceHorn 31283]

8 minutes ago, Bateshorn said:

I don’t necessarily disagree, but that assumes that Congress will be able to function efficiently at a future date to fill the holes in governance once you start bringing down long standing statutes based on that principle. That is clearly not the case rn, and will create real consequences for the general public. That’s why I find the interesting academic notions Gorsuch toys with to be deeply problematic. Either he’s disturbingly naive, or uncaring about the implications. 

Yeah, definitely the rub.  Some delegation is going to be necessary.  But, I think it can go overboard, in terms of the breadth of the delegation (by a muddy or broad statute) and also with overly generous deference to statutory interpretations and rulemakings within those interpretations.

I practice before the oldest executive administrative agency in the country.  It has it pretty fine-tuned and working well, but it still has problems.  And a lot of agencies aren't nearly as fine-tuned.

[wildcat09 29258]

Ana, in the abortion case weren't you vaguely castigating us for wanting an outcome that you implied deviated from our understanding of the law? But here your legal stance, such as you'll actually make one, seems to be that the law in this area should be to let Sam Alito determine whether he thinks a particular covid safety protocol is the best possible protocol. 

Seems inconsistent.

Edited January 7, 2022 by wildcat09

[TwiceHorn 31283]

Just now, JimmyJames said:

Well let’s just appoint the Supreme Court to oversee OSHA then and in charge of issuing workplace regulations as they may become needed. 

Don't be ridiculous.  That's not what I'm arguing at all.

The concept that agencies need to "stay in their lane" shouldn't be controversial.  

I'm not against the vaccine mandate, but I recognize that there are limitations on what the executive branch of the federal government can do.  Even in a pandemic emergency.

[JimmyJames 12271]

Maybe the Supreme Court should step up it’s Covid research game and let us all know if omicron is dangerous or not. 

[JimmyJames 12271]

Just now, TwiceHorn said:

Don't be ridiculous.  That's not what I'm arguing at all.

The concept that agencies need to "stay in their lane" shouldn't be controversial.  

I'm not against the vaccine mandate, but I recognize that there are limitations on what the executive branch of the federal government can do.  Even in a pandemic emergency.

It’s not what you are arguing but it’s the practical result anyway. 

[wildcat09 29258]

1 minute ago, TwiceHorn said:

Don't be ridiculous.  That's not what I'm arguing at all.

The concept that agencies need to "stay in their lane" shouldn't be controversial.  

I'm not against the vaccine mandate, but I recognize that there are limitations on what the executive branch of the federal government can do.  Even in a pandemic emergency.

Sure. That's just not really what this case is about at all, because the statutory authority is clear. 

[JimmyJames 12271]

2 minutes ago, wildcat09 said:

Sure. That's just not really what this case is about at all, because the statutory authority is clear. 

This. Kinda tired of the dodges against this. We all know what this is really about. And it’s something the Supreme Court shouldnt be involved in but has chosen to inject itself into because of politics. To its detriment. 

[wildcat09 29258]

Like, this is pretty simple but may need to be expressly spelled out. Ana's argument (and an argument from some of the conservative justices) boils down to "this isn't the best way to address the danger of covid in the workplace so despite the clear statutory authority for OSHA to adopt emergency measures it can't do this." But that implicitly recognizes that OSHA has the authority to adopt measures to address the danger of covid in the workplace. So out of nowhere, this would be a wholly judicially-invented limitation on an authority that has been delegated to OSHA by Congress, or, in other words, a judicial usurpation of legislative and executive powers. In an area where they are the least equipped for it to make any sense to permit them to usurp such powers, and where political accountability for misusing such powers is more important than in nearly any other area. 

Every single factor but one counsels against what we all know they're going to do here. The law, equity, policy considerations, matters of political theory (e.g. separation of powers arguments), etc. all support upholding the mandate.  But the only thing that matters is the personal politics of a majority of the justices. 

Edited January 9, 2022 by wildcat09

[TwiceHorn 31283]

12 minutes ago, wildcat09 said:

Sure. That's just not really what this case is about at all, because the statutory authority is clear. 

I'm speaking more in terms of the whole "anti-agency" movement, generally.  I certainly don't mean they should all be abolished, but I do think at times Congress has gotten sloppy and lazy about it.

[wildcat09 29258]

1 minute ago, TwiceHorn said:

I'm speaking more in terms of the whole "anti-agency" movement, generally.  I certainly don't mean they should all be abolished, but I do think at times Congress has gotten sloppy and lazy about it.

Sure. The general doctrinal arguments, such as they are, are (1) Congress can't delegate that (anti delegation) or (2) on big issues Congress must be very clear and specific about what they're delegating (major questions). I think we can agree both that Congress is often (hell, I'll even say always) sloppy and that these doctrines are both ideologically motivated tools to destroy the administrative state with no real substantive basis in any theory of the law. I think anti delegation is 100% nonsense with no basis in any good policy arguments and certainly none in the Constitution. Major questions could be developed into something reasonable that it could make sense to apply to certain cases, but even if they tried to make it more than just a useful tool to destroy the administrative state, I think it would always be pretty problematic because I just don't see how a workable standard for what constitutes a sufficiently "major question" could be established. 

More importantly for this case, neither is really at issue yet. They'll use this opinion to lay the groundwork for further development later, but this case isn't about whether the OSHA protocol violates these doctrines because they don't really exist yet in a way that the Supreme Court would recognize.

[Bateshorn 9905]

29 minutes ago, TwiceHorn said:

I'm speaking more in terms of the whole "anti-agency" movement, generally.  I certainly don't mean they should all be abolished, but I do think at times Congress has gotten sloppy and lazy about it.

In @TwiceHorn defense, expansion of the executive has, IMHO, gotten out of hand. Having said that, with a non functional legislative branch, the agencies necessarily have to over reach in a sense just so this country can govern itself.  
 

The judiciary suddenly showing up and deciding it has the ability and wisdom to step into this arena is laughably. Especially given how narrowly groomed are the members of the bench.

[wildcat09 29258]

2 minutes ago, Bateshorn said:

In @TwiceHorn defense, expansion of the executive has, IMHO, gotten out of hand. Having said that, with a non functional legislative branch, the agencies necessarily have to over reach in a sense just so this country can govern itself.  
 

The judiciary suddenly showing up and deciding it has the ability and wisdom to step into this arena is laughably. Especially given how narrowly groomed are the members of the bench.

Right. But the expansion of the executive branch that people worry about has come at the expense of the legislature.  In other words, the executive has appropriated legislative power in areas where Congress hasn't given them powers. That's not the case here though, this will be an instance of the judiciary appropriating power from both the legislative and executive branches. 

[PenelopeWitherspoon 19092]

1 hour ago, Don Johnson said:

Lol. Using that rationale, Omicron “might” end up being less deadly than the flu so I have no problem with what Gorsuch said. 

Come on, no one who has kept up with this believes Omicron is as deadly as Delta.  Vaccinated or unvaccinated, which one would you rather have?

You have no problem with what Gorsuch said because it fits your world view.  You are being disingenuous here.

[Bateshorn 9905]

4 minutes ago, wildcat09 said:

Right. But the expansion of the executive branch that people worry about has come at the expense of the legislature.  In other words, the executive has appropriated legislative power in areas where Congress hasn't given them powers. That's not the case here though, this will be an instance of the judiciary appropriating power from both the legislative and executive branches. 

Este

[Don Johnson 4745]

3 minutes ago, PenelopeWitherspoon said:

You have no problem with what Gorsuch said because it fits your world view.  You are being disingenuous here.

You have no idea what my world view is nor do I agree with his statement. 

If you agree that 100,000 children are hospitalized and Omicron is as deadly as Delta, have at it. 

[PenelopeWitherspoon 19092]

2 minutes ago, Don Johnson said:

You have no idea what my world view is nor do I agree with his statement. 

If you agree that 100,000 children are hospitalized and Omicron is as deadly as Delta, have at it. 

I don't agree with that statement.  But his statement about the flu is also incorrect.  Shows that the court is pretty ignorant on the actual facts.

[hobbes2702 12846]

Which shows why they shouldn’t be dealing with this anyway and why complaints about mistakes in their argument are disingenuous. The fact that Gorsuch and Soto made incorrect statements underlines the problems with the supremes being involved 

[JimmyJames 12271]

53 minutes ago, TwiceHorn said:

I'm speaking more in terms of the whole "anti-agency" movement, generally.  I certainly don't mean they should all be abolished, but I do think at times Congress has gotten sloppy and lazy about it.

Agree. But because of the stupid filibuster the legislative branch is unable to govern on anything remotely controversial so the executive branch has to step in which the legislature itself has actually authorized so it doesn’t have to suffer the consequences. 
 

The supreme court stepping into that mess is a laughable joke and reflects extremely poorly on it and makes it lose respect, deservedly so. 

[TwiceHorn 31283]

23 minutes ago, Bateshorn said:

In @TwiceHorn defense, expansion of the executive has, IMHO, gotten out of hand. Having said that, with a non functional legislative branch, the agencies necessarily have to over reach in a sense just so this country can govern itself.  
 

The judiciary suddenly showing up and deciding it has the ability and wisdom to step into this arena is laughably. Especially given how narrowly groomed are the members of the bench.

Well, to be fair, the judiciary isn't replacing the agency except in the very broadest terms.  It's telling Congress and/or the agency that it fucked up, try again.

And the courts have always had that role.  Shit, Congress approved that role with the APA.

[wildcat09 29258]

20 minutes ago, TwiceHorn said:

Well, to be fair, the judiciary isn't replacing the agency except in the very broadest terms.  It's telling Congress and/or the agency that it fucked up, try again.

And the courts have always had that role.  Shit, Congress approved that role with the APA.

But it is. Congress expressly gave OSHA emergency power to act here and implicit in that is the power to determine HOW to act. The Court is stealing the role of determining how to act. And let's be real, there isn't a serious "try again" because any attempt OSHA comes back with will be rejected for political reasons as well.

Edited January 7, 2022 by wildcat09

[Brisketexan 104628]

There's definitely a LOT to the proposition that the legislative branch has ceded a ridiculous amount of power to the executive.

Fuck, for a long fucking time now, Congress hasn't done anything meaningful other than pass an occasional tax cut.   They can't even pass a fucking BUDGET.  Seriously, they can't even do THAT most basic function.  The Texas motherfucking legislature can do it, but the US Congress can't.  That's how utterly dickless and worthless Congress is.

I'm fine with reining in some executive power.  I'm even enthusiastic  about some of it.  But understand 1) in many respects, it will leave us leaderless, because Congress is utterly incapable of stepping into the void, and 2) the "administrative state" IS still a thing, and should be -- it was validly created and empowered by Congress, and it shouldn't just go away.

[wildcat09 29258]

And there's also the whole thing where this is very clearly within the express statutory authority that is perfectly reasonable to delegate. To the extent courts should second guess something like this, the questions should be did they follow the procedures set out in the statute and does whatever is being reviewed meet rational basis (unless it somehow otherwise implicates someone's fundamental rights). The normal notice and comment procedures weren't followed here, but there's a clear exception for emergencies (understandably) and if a fucking pandemic doesn't qualify, pretty much nothing does. And this easily meets rational basis. It's not like OSHA said "oh shit, we've got a covid emergency so we're implementing a requirement that all female employees abort their fetuses if they get pregnant." 

The more I think about some of the questions and arguments the conservative justices asked and made today, the angrier I get. The idea that it should be them, not a politically accountable agency with clear statutory authority, who has the real power and authority to determine what measures our government can take to combat a fucking pandemic, is maddening. And they seriously acted like the fact that OSHA didn't do this until this year made the action somehow more suspect, and not, I dunno, exactly how the system is supposed to fucking work. Yes, the pandemic began last year and OSHA didn't implement a testing requirement. And maybe, just maybe, the last administration's failures to take sufficient measures to combat the pandemic are why we voted them the fuck out of office, and now the new administration is doing more because we elected them to do more. For these fucking ghouls to pretend that makes this all of a suddenly legally suspect is maddening. It's just such a blatant example of their utter disdain for democracy. 

[Anastasis 23394]

On 1/7/2022 at 1:00 PM, wildcat09 said:

But here your legal stance, such as you'll actually make one, seems to be that the law in this area should be to let Sam Alito determine whether he thinks a particular covid safety protocol is the best possible protocol.

I think that SCOTUS should judge the rule on the basis of its legal merits.  ETS's don't seem to fare so well historically when subjected to judicial review. There is no legal precedent for a broad federal vaccine mandate using OSHA emergency rule making. I am not sure why given that background I should just blanketly accept that this one will on its legal merits.  But I don't know all the angles around the legal precedents related to OSHA ETS's like you do. 

I do however know public health and common sense, and this OSHA rule struggles when held to those standards. If OSHA is going to impose upon employers a set of requirements to protect workers from a grave public health danger, that rule should be logical and consistent with the epidemiology. It should not be arbitrarily applied, and the justification should clear. The grave danger to the target of the rule (in this case, the unvaccinated) should be clear.  I've read portions of the actual rule that provide the epidemiological justification, particularly as it related to individuals with prior infection. That section of the rule is not a balanced review of the literature available at the time it was written.  It is slanted and in some cases misleading, and just a few months after it was authored, already outdated in the context of omicron. The whole thing looks like an end around to me. We are talking about the government forcing employers to take away from employees the means of providing food and shelter to themselves and their family under the guise of a public health intervention. This is crazy public health strategery just on its face. 

  

 

 

Edited January 9, 2022 by Anastasis

[Anastasis 23394]

BTW, here is the transcript of the arguments:

 

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21a244_kifl.pdf

 

[Neonmoon 38127]

Is the Supreme Court really debating if Covid is considered a grave public danger after 800k Americans have died? 

[Nice Guy Eddie 13414]

21 minutes ago, Neonmoon said:

Is the Supreme Court really debating if Covid is considered a grave public danger after 800k Americans have died? 

the conservative justices will most likely have to claim the Covid isn’t that dangerous with omicron and therefore osha overstepped their bounds. My guess is that they probably know they cannot strip osha of the ability to provide worker safety so they need to come up with another argument.

[Neonmoon 38127]

26 minutes ago, Nice Guy Eddie said:

the conservative justices will most likely have to claim the Covid isn’t that dangerous with omicron and therefore osha overstepped their bounds. My guess is that they probably know they cannot strip osha of the ability to provide worker safety so they need to come up with another argument.

I understand they are trying to argue that point, but it seems shortsighted if we arguing the merits based on what variants are trending at the time 

[BrazilHorn 6576]

To me arguing a particular variant’s specs is silly. The next variant could be combo of delta/omicron. 
 

I have no issue with vaccine mandate, no issues even requiring vaccination for air travel/attending large public events 

Making this about omicron is a mistake 

[Don Johnson 4745]

I’m going to show my ignorance here, but if the mandate is ruled constitutional, will OSHA have free reign to also change the definition of fully vaccinated as they see fit, i.e. require boosters?

 

Edited January 9, 2022 by Don Johnson

[TwiceHorn 31283]

13 minutes ago, Don Johnson said:

I’m going to show my ignorance here, but if the mandate is ruled constitutional, will OSHA have free reign to also change the definition of fully vaccinated as they see fit, i.e. require boosters?

 

No.  Because that issue is not before the court, it will not be explicitly decided. The decision might provide some guidance in that direction, but strictly speaking, no.

[wildcat09 29258]

3 hours ago, Anastasis said:

I think that SCOTUS should judge the rule on the basis of its legal merits.  ETS's don't seem to fare so well historically when subjected to judicial review. There is no legal precedent for a broad federal vaccine mandate using OSHA emergency rule making. I am not sure why given that background I should just blanketly accept that this one will on its legal merits.  But I don't know all the angles around the legal precedents related to OSHA ETS's like you do. 

I do however know public health and common sense, and this OSHA rule struggles when held to those standards. If OSHA is going to impose upon employers a set of requirements to protect workers from a grave public health danger, that rule should be logical and consistent with the epidemiology. It should not be arbitrarily applied, and the justification should clear. The grave danger to the target of the rule (in this case, the unvaccinated) should be clear.  I've read portions of the actual rule that provide the epidemiological justification, particularly as it related to individuals with prior infection. That section of the rule is not a balanced review of the literature available at the time it was written.  It is slanted and in some cases misleading, and just a few months after it was authored, already outdated in the context of omicron. The whole thing looks like an end around to me. We are talking about the government forcing employers to take away from employees the means of providing food and shelter to themselves and their family under the guise of a public health intervention. This is crazy public health strategery just on its face. 

  

 

 

You obviously don't though, because you keep focusing on whether the rule is optimally effective and you clearly keep implying that SCOTUS should rule on that, despite that absolutely not being the law or what any legal ruling here should be based on. The plain language of the statute authorizes this. Hell, the very structure of the statute forsees exactly this kind of problem (that the initial emergency standard may not be perfect) and provides a mechanism for addressing it. The emergency authorization isn't a complete exemption from the standard notice and comment requirements; the emergency allows the new policy to be implemented immediately but still requires them to comply with the notice and comment process and adjust the standard as appropriate based on the process. So to attack the legal validity of the initial emergency standard based on its deficiencies in light of changed circumstances is absolute nonsense.

You say you want SCOTUS to simply rule based on the law, but keep vaguely hand-waving at shit that has nothing to do with the law at issue as if it should matter, or even as if it should be legally dispositive. And when the Court rules how we all know it will, you'll use the majority opinion as post hoc justification for the argument that the emergency order was indeed legally deficient, when in fact all it will be proof of is the conservative majority's willingness to abandon anything remotely resembling law to serve their personal politics. 

[Anastasis 23394]

12 minutes ago, wildcat09 said:

 

You say you want SCOTUS to simply rule based on the law, but keep vaguely hand-waving at shit that has nothing to do with the law at issue as if it should matter…

I am hand waving at the public health epidemiology and common sense, as they relate to this rule. I realize that these thing mean next to nothing once we are engaged in the administrative rule making and legal processes. 

[Willfully Horn 7916]

3 hours ago, BrazilHorn said:

To me arguing a particular variant’s specs is silly. The next variant could be combo of delta/omicron. 

This is why vaccine mandates might be necessary. Delta and Omi evolved in unvaxxed populations. Among the whites in SA and among the rural poor in India.