Supreme Court Blocks Vaccine Mandate

It’s an emergency podcast! (Well, at least in part). David and Sarah recorded a mailbag ...

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It’s an emergency podcast! (Well, at least in part). David and Sarah recorded a mailbag podcast Thursday morning, complete with fretting about when the Supreme Court would rule in the vaccine mandate cases. Then, SCOTUS ruled! So this podcast keeps the mailbag and cuts the fretting. Instead David and Sarah spend the first half walking through the vaccine opinions. It’s exactly the kind of conversation that everyone loves, a deep discussion of administrative law.

Show Notes:

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  1. Avatar photo
    Taylor

    I am certainly no word expert, but I feel like I've heard blunderbuss quite a bit in the last decade. I think it is just a matter of which nerd subcultures you are in. Blunderbuss is an item in World of Warcraft, the name of the gun in the movie Looper, and so on. It must be going through some resurgence with a particular type of writer.

    Great show as always. I am enjoying the longer episodes.

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  2. Paul and Megan Davidson

    In late 18th century and early 19th century upper class British entertainment, dinner was served to a select group of guests before other pursuits, usually around 7-8 o'clock. Dancing, cards, visits to the opera and the like took place afterwards. If entertainment was provided at home by the hostess, supper was served later on in the evening to all the guests. In London this could be as late as midnight, but many books refer to country hours, which place dinner around 4-5 and supper somewhere closer to 10. The use of many candles was a sign of affluence. Misers did not entertain as they would be required to light up parlours and ballrooms for their guests, instead of a simple library fire. Interestingly, lunch was not a regular part of British upper class life until later in the 19th century, which led to a later dinner, and finally teatime: a light snack before getting dressed for dinner. All of which should underline the superior (and simpler) rules of American 19th century farmlife: Breakfast, lunch, dinner, bed. :)

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  3. Diana Palecek

    I’ve been listening to Advisory Opinions for about 3 months. The topics are interesting and timely, and I love the nerdy, whimsical nuggets. Keeping up with important Supreme Court cases (for interest, rather than professional need) by listening to the pod is way more enjoyable than reading legal newsletters (Law360 and others). Keep up the good work!

    On the topic of 19th century party habits, I recommend “What Jane Austen Ate and Charles Dickens Knew” by Daniel Pool, also a lawyer.

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  4. William in Ecuador

    The court recognised that the unvaccinated present a risk to their colleagues, patients and visitors in medical settings and agree that it's worth trying to prevent them from, you know, killing anybody.
    But at the same time it thinks that the unvaccinated should be free to kill for example immune deficient colleagues, clients and visitors in non medical settings.
    That's bizarre.
    It's difficult to think that this was a well decided case when David and Sarah struggle so obviously to justify the ruling and other commenters describe the court's ruling, for example, as *cartoon villain level dishonesty* (Opening Arguments podcast). It would be nice though to have a podcast discussion where for example proponents of the decision like David/Sarah talk with opponents such as the gorgeous ladies of the Sctict Scrutinty or Amicus podcasts. Is that possible?

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  5. Avatar photo
    DrDread

    A view from rural health care: I'm a fully vaccinated health care worker (HCW). I wish everyone would choose to be vaccinated. Some Americans celebrated that 80 million Americans will not have a federal vaccine mandate. But also importantly, 15 to 20 million health care workers WILL have a vaccine mandate, unless some court decides to do the right thing.
    The last 2 years have been exhausting and demoralizing in health care. Forcing anyone to have a vaccination against their will is morally wrong. And, just because its been somewhat done in the past does make a proper argument for doing it now. Many bad things have been done in the history of medicine and our country, but those past bad actions do not make it ok to do bad actions now.
    The CMS mandate violates two important ethical principles of health care: autonomy and privacy. Autonomy means that people can consent or refuse any medical treatment. I can recommend, educate and ask my patients to get vaccinated. But, ulitmately, THEY get to choose. If I FORCE someone to have a vaccine, that is considered ASSAULT. Privacy: people should not have to disclose their health care decisions. HCWs believe autonomy and privacy are of highest importance. SO, now we are being denied those basic ethical principles with this CMS mandate. CMS is extorting HCWs (with threats to witholding payments for services) in order to force vaccinations and disclosures of their statuses. It is traumatizing and harmful to force medication, injections or procedures on ANYONE (HCWs included). Examples of past atrocities in this area are easy to find with any google search. If everyone else gets to have autonomy and privacy about their bodies, then HCWs deserve the same respect and regard.
    I appreciate the explanations from AO about these court rulings. It is bitter sweet to me. I'm glad for everyone else (and congratulations to Scott, he must feel big and amazing), but the second ruling is one more degradation to health care. This CMS mandate will likely cause a some (probably small) percentage of HCWs to quit. The lasting impact on morale is huge.
    I was one of the first HCWs to accept vaccination early in the process. I felt like a guinea pig. Some friends and patients said they were glad I did it and they waited to see how my health affected before they made decisions. I accepted risk to myself because I believed it was the right thing do. I know a few of my co-workers have not vaccinated. I wish they would. But, again assualting them and coercing them is not the right decision. One person's right to "protection from the virus" should stop at another person's skin.

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    1. William in Ecuador

      Privacy? Not if you have an embryo the size of a blueberry (7 weeks pregnant) inside you in Texas - then it is suddenly everybody's business.

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      1. Avatar photo
        Mike B

        What exactly does the size of the fetus have to do with it?

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        1. William in Ecuador

          Irrelevant question, but you should ask the Texas legislature, they wrote the 6 week limit into their bounty system. Why not start at conception if they believe there's something sacrosanct about human life?

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          1. Avatar photo
            Mike B

            Well, you made a point of the size of the embryo in your post. If it's irrelevant, why bring it up? In any case, I agree: why not start at conception? If I "believe there's something sacrosanct about human life" (and I do) then any other point in human development, after conception, is arbitrary.

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    2. GregS

      Nah. I have to show proof of vaccination for Hep B, influenza, measles, mumps, rubella, pertussis, tetanus, and diphtheria, and proof of being free of tuberculosis, in order to be able to work in my hospitals.

      I don't have a right to be a healthcare worker - if I don't want to have these vaccinations, I can go do something else. My patients have a right to expect that I won't make them sick when they come to see me for care, and so I have a responsibility to make sure I have done all I can to not be a vector of transmission of disease to them.
      So if I refuse to wash my hands, I can be fired.
      If I refuse to wear a mask while operating, I should be fired.
      If I refuse to put on clean surgical scrubs before entering the operating room, I must be fired.
      I really don't see why a COVID vaccine is any different at all.

      Also, no healthcare worker is being "assaulted" or "coerced." Unless you think you are being coerced when your hospital makes you do an annual HIPAA training as a condition of continued employment. If a HCW doesn't want to get vaccinated without a good medical reason - they shouldn't be in healthcare.

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      1. Avatar photo
        Mike B

        I can see two glaring differences right off the bat. All of the requirements listed were known in advance, and the long-term risks (if any) are known.

        I dislike the argument that I hear frequently, "If you don't like it, get another job!" I'm 62 and have dependents. I have nearly my whole working life invested in my career. I cannot just go out and get a new job and pay my bills and support those dependent on me.

        That's not to say that I'm against the vaccine (I've had my vax and booster, and had Covid itself in 2020) or even that I'm against the mandate. Just that "get a new job" is kind of glib.

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        1. GregS

          It's "get a new job" if you can't meet the requirements of the current one.
          The requirements are neither onerous nor unreasonable - a majority of the population of the US and billions around the world have had the vaccines. They are now well studied and proven to be very very safe.

          There's nothing glib about it.

          Medicine changes constantly. I used to get a PPD skin test for TB - now its a blood draw, which is far more invasive.

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  6. Avatar photo
    John Russell

    In this podcast Sarah, quite properly, made an effort to furnish the expansion of the abbreviation GSA. I can not say the same about her multiple use of the abbreviation APA. For the record, am I right that APA stands for Administrative Procedures Act?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      It does! Sorry! Or APA=A Pain in my A** :)

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  7. GregS

    If the two results were just good conservative, clear-headed decision making, what are we to make of the fact that 4 justices voted against the CMS mandate?

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  8. GregS

    Here is your (and the right-wing justices') argument regarding fire vs COVID as it relates to OSHA rules:

    Rules for fire safety are OK because the risk of fire is *at* work. A fire at home is a *different* fire than one at work. COVID is a different category because you can catch it anywhere. It's the same disease regardless of where you catch it, so it doesn't count as a workplace hazard.

    Ok.
    Do you think that when you get a 90% body surface area burn, it matters to your health whether you got it at work or at home?
    Does it matter to your health if you caught COVID at work or at home?

    In what way is a fire at work different than at home or in movie theater? Is it no longer a collection of hot plasma, superheated air, and dsngerous smoke? Is a fire at home a different entity than a fire in your office cubicle? In what way is the COVID you catch at work different than the COVID you catch at home or in a movie theater?
    Do fires cause burns and smoke inhalation regardless of where they occurred?
    Does preventing fires at work protect you from fires elsewhere?
    Do you know that your risk of fire injury may be higher at home than it is at work?
    Does that mean OSHA cannot regulate fire safety?

    I am at a loss for why you reach the conclusions you do on the fire safety vs Covid argument.

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    1. Avatar photo
      Ethan Cordray

      Yeah, I'm with you. I don't find that fire argument persuasive.

      "Protecting against fire" is in the same conceptual category as "protecting against COVID infection." "Protecting against fire from dangerous wiring at work" is in the same conceptual category as "protecting against COVID infection from dangerous air circulation systems at work," or, in this instance, "protecting against COVID infection from breathing in droplets from infected co-workers at work."

      OSHA can't regulate whether you use your space heater safely at home, but they can regulate whether you use your space heater safely at work. Likewise, OSHA can't regulate whether you go to a party unvaccinated, but I think it can regulate whether you go to your job unvaccinated.

      I find the blunderbuss argument far more persuasive, though, in that this was a sweeping one-size-fits-all policy that might have had lots of highly burdensome, unnecessary, and perverse effects on workplaces that don't actually have much COVID transmission risk.

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      1. GregS

        The blunderbuss argument is better, agree.
        But here we run into the "things are moving so fast" argument that necessitates a ETS posture rather than usual notice-and-comment. If you spend 6 months writing an Uber detailed regulation that is perfectly focused, you will be too late. They did narrow it by size, and made exceptions for workers who spent their time outdoors, and had a mechanism to ask for exceptions. To me this is the right balance of quick and as focused as possible within that timeframe.

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    2. Mads Lindstrøm

      Fires are specific, the pandemic is global. That's the difference.

      Imagine a global fire encompassing the entire globe. That fire would not be specific to any place and would therefore NOT be in the domain of OSHA. In the same way the pandemic is global and not specific to any one place.

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      1. GregS

        The vaccine mandate doesn't address "a global pandemic."
        The vaccine mandate addresses the risk of catching COVID at work.

        Fires can happen anywhere in the world.
        A fire safety mandate addresses the risk of getting burnt alive at work.

        If you start with the premise that OSHA is trying to "solve the pandemic" with their mandate, then you can conclude that OSHA doesn't have the authority to solve a global pandemic with a workplace mandate. But that is a tautology.

        OSHA is trying to reduce the risk to workers of catching COVID at work, much as they try to reduce the risk to workers of dying in a fire at work.

        I don't see the validity of the argument that says: workers may be going home to a poorly ventilated and cramped apartment complex where they might die in a fire, so what's the point of regulating fire safety in their office?

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        1. Mads Lindstrøm

          Sorry, about the late reply.

          My point is NOT that OSHA is trying to "solve the pandemic", though I do think that is the intention of the Biden administration.

          My point is that the risk is not specific. It is the same pandemic you face eating at McDonalds as you do in an office. It would be two different fires at McDonalds and your office.

          However, I could buy the argument that if there is some increased work related risks, then that would be different. For example, if you work in a hospital COVID ward, then there would be an increased risk that could be addressed.

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          1. Avatar photo
            Ethan Cordray

            It is not "the same pandemic" but "different fires." You are imposing a false category error on this.

            Each opportunity to breathe in virus particles is a different incident of exposure to infection, in the same way that every opportunity to be roasted by a malfunctioning space heater is a different incident of exposure to fire. The risk of catching Covid from Brad in the break room is a different incident from the risk of catching Covid from my wife in our bedroom.

            This is true even if we consider (for the sake of argument) every Covid exposure event to be equally dangerous, which of course is not the case (as there are multiple strains of varying danger, and multiple circumstances that can increase or decrease the risk of infection from each particular exposure event). OSHA's mandate is circumscribed to only workplaces, but there are a whole bunch of things that they regulate within workplaces that are exactly as dangerous in exactly the same ways if they are encountered outside of the workplace (toxic chemicals, air quality, stairs, wet floors, etc.).

            If OSHA can regulate the presence space heaters at work but not in your home, then why can't OSHA regulate the presence of unvaccinated nearby breathers at work but not in your home?

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  9. Avatar photo
    Holly

    Did anyone else feel concern that the fire pit guy was going to use "a bottle of 'lemonade' left there by someone else". I saw that going in a different direction. Clearly he didn't have older brothers...

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    1. Avatar photo
      Bill Dyer (aka Beldar)

      Still would have smelled very bad. But that's better than burns.

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  10. Avatar photo
    Bill Dyer (aka Beldar)

    A data point, contrary to Ms. Isgur's and Mr. French's assertions that no one reads those posters in the break room:

    I spent two years defending an employer in a federal wage & hours/overtime case in which one of said posters led directly to an employee contacting the Department of Labor, which in turn led directly to a lawsuit — in pretty much EXACTLY the manner in which the hypothetical reasonable Congresscritter who voted for the underlying law's and resulting regulations' notification requirements anticipated.

    My client had serious defenses to the alleged wage & hour violations, and the case ended up settling on terms very favorable to my client. In the process, however, the DoL's enforcement lawyers ignored a pretrial scheduling order and in particular its discovery cut-off, which led to a very angry federal judge dressing down said lawyers, which in turn led to the favorable settlement. And this badly embarrassed the DoL lawyers, who prevailed upon their colleagues at ICE to subject my client to a series of pure harassment raids that, in turn, resulted in my client being driven out of business — destroying permanently all those jobs. WTG, Department of Labor; you sure showed THOSE employees, instantly made jobless, how you were from the government and you were there to help!

    CONGRATS again to Mr. Keller on his stay of that sweeping-S emergency temporary standard.

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