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The Supreme Court takes up President Biden’s vaccine mandate on Friday, and the stakes are larger than pandemic policy. This is a crucial test of how far the administrative state can go in stretching ambiguous statutes for its own political ends.
The Justices are hearing challenges to worker vaccine mandates by the Occupational Safety and Health Administration (OSHA) and Centers for Medicare and Medicaid Services (CMS). The Fifth and Sixth Circuit Courts of Appeal handed down conflicted rulings on the OSHA mandate, while three federal judges have enjoined CMS in 25 states.
The Administration wants the Justices to defer to regulators and uphold the mandates as necessary to protect Americans during an emergency. But emergency or not, federal agencies can’t exercise powers not granted by Congress, especially when they ignore proper administrative process.
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The Court’s ruling in this case will echo into the future about how far the executive branch can go in rewriting statutes. Some Justices will be tempted to defer to the executive given the pandemic emergency. But Presidents have been increasingly eager to find emergencies whenever they are politically convenient.President Trump declared an emergency to repurpose funds that Congress appropriated for defense to build his border wall, and Mr. Biden will do the same as he finds his legislative agenda stymied on Capitol Hill. Don’t be surprised if he finds emergencies to declare on climate change and student loans.
Over too many decades the Supreme Court has become lax in its oversight of administrative agencies, even as they have grown ever bolder in their assertion of federal power. The vaccine mandate is an ideal opportunity to rein them in.
Also writing, in the Wall Street Journal, on the legal case against Biden’s abominable vaccine mandates are David Rivkin and Andrew Grossman [3]. Two slices:
Hours after President Biden’s Sept. 9 speech announcing a series of vaccine mandates for private-sector employees, his chief of staff, Ron Klain, retweeted an MSNBC anchor’s quip that wielding workplace-safety regulation to force vaccinations was “the ultimate work-around.” Congress has never enacted a law requiring American civilians to be vaccinated—assuming it even has the constitutional authority to do so, which is doubtful. The Supreme Court hears arguments Friday on two of the mandates, which are likely to meet the same fate as other recent attempts to circumvent Congress that the courts have rejected.
The Constitution vests the power to make laws in Congress and charges the president with the duty to execute them. That’s what many in Washington derisively call the “high school civics class” model of government. It’s slow, it’s cumbersome, it rarely approves measures that don’t enjoy widespread public support, and it forces compromise, moderation and tailoring of policies to address the circumstances of a vast and varied nation. The temptation of avoiding it via executive fiat is obvious.
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Although the mandates are flawed in other ways, their lack of clear congressional authorization is the most striking defect. Excessive judicial deference to agencies’ statutory interpretations is what enabled Mr. Obama’s “I’ve got a pen” agenda and its revival under Mr. Biden. The result has been to distort the entire federal lawmaking apparatus. Members of Congress now lobby the executive branch to make law through regulation rather than legislate themselves. Agencies enact major policies that have the durability of a presidential term before they’re reversed. And the president would sooner blame the courts for legal defeats than admit he lacks the power to do his allies’ bidding.The courts share blame for this state of affairs, having lost sight of the basic separation-of-powers principles that should guide questions of agencies’ statutory authority. A decision rejecting the vaccination mandates because they weren’t clearly authorized by Congress would serve as a shot across the bow signaling that the work-around era is over.
Wall Street Journal columnist Allysia Finley explains that tennis star Novak Djokovic is paying for “Australia’s unforced Covid errors.” [4] Here’s her conclusion:
Requiring Mr. Djokovic to be vaccinated is doubly pointless. He tested positive for the coronavirus in June 2020, and studies show natural immunity is at least as protective as vaccines. But infections are common with the Omicron variant among both the previously infected and the vaccinated. Ninety percent of Australians over 12 are fully vaccinated, yet cases are surging.
Mr. Morrison has conceded that Australians will have to “live with the virus.” So why can’t they welcome, or at least tolerate, Mr. Djokovic? Perhaps because he’s a reminder that the suffering they’ve endured for nearly two years has been futile.
Kyle Smith right celebrates Florida [5]. Two slices:
The greatest feeling about Florida is the sheer “Gonna ride this hog wherever it takes me” exuberance. I’ve been down there maybe eight or 10 times during the pandemic and arriving in any airport is like crossing the Wall out of East Berlin. Quite a lot of people wear masks in malls and stores, but most don’t. Nobody mask-shames anybody. You don’t need a vaccine card at all, much less have to dig out your Excelsior Pass three times a day.
This is because Florida accepts the basic truth that should have been Washington’s guidance from Day 1: If you’re vaccinated, the COVID-19 emergency is over for you; if you’re not, well, the risk is yours.
Florida schoolchildren have been back in school and unmasked since August 2020. Life is normal for them, except for the amusement value of seeing panicky teachers in masks. New York’s children, like those in many areas where the Democratic Party and its affiliated teachers unions rule, are essentially being used as human shields by educrats committing mass state-sanctioned child abuse until they get good and tired of it. Kids are suffering so badly here that even the New York Times is starting gently to suggest [6] that maybe we should take our hands off our children’s throats — masking them, forbidding them to socialize and exercise and even talk at lunchtime, canceling their extracurriculars, canceling childhood.
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Heavy restriction is getting us nowhere. If we’re going to get hammered by the Omicron wave anyway, can we please have some freedom back?
California Rebel Base tweets [7]: (HT Jay Bhattacharya [8])
Unbelievable: San Francisco teachers are planning a Chicago-style walk out.
It was never about the kids, was it?
(DBx: Correct. It was never about the kids.)
Joel Zinberg explains that New York City mayor Eric Adams is right to keep that city’s schools open [9]. Two slices:
As new cases of the Omicron variant surge, thousands of schools have delayed a return to in-person learning [10]. Cities including Atlanta, Milwaukee, Cleveland and Detroit have switched to online learning or canceled school altogether. A notable and laudable exception — thanks to new Mayor Eric Adams [11] — is New York City
Policymaking involves trade-offs. Here the decision is easy: the benefit of limiting in-person classes is far outweighed by the damage remote learning inflicts on children. As an editorial in The BMJ (British Medical Journal) concluded a year ago [12], “Closing schools is not evidence- based and harms children.”
Closure advocates assert they are protecting children from becoming infected and, in turn, protecting vulnerable people the kids come into contact with. Neither claim is true.
As I noted nearly a year ago, a Centers for Disease Control and Prevention report confirmed that K-12 schools are not associated with COVID-19 transmission from students within the schools or out into the community. Transmission in education and child-care settings is rare, especially if mitigation strategies, such as masking, distancing, and keeping students together in cohorts, are employed. As Adams opined, “The safest place for our children is in a school building.”
Even if they are infected, COVID-19 poses little risk to school-age children. They account for a vanishingly small percentage of US COVID-19 deaths. [13] In the two years of the pandemic, just 708 kids between 5 and 17 have died out of 825,000 total COVID-19 deaths. The COVID-19 toll was comparable to the flu which killed 572 children ages 5-17 in 2017-2018 and 2018-19, the last two flu seasons prior to the pandemic.
Severe complications have been uncommon in kids and will be even less likely with the currently prevalent, but less virulent, Omicron variant. Children 5 to 17 currently account for just 0.8% of COVID-19 hospital admissions and as many as 40% of these are incidental COVID admissions — children without COVID symptoms admitted for other medical problems who tested positive on routine admission screening.
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The current spate of school closures is based on fear, not science. Students have endured two years of harmful educational disruption. Enough is enough.
(DBx: While fear – fear far in excess of the underlying danger – is indeed still in play today, also in play is venal exploitation of fear. If teachers in America in 2022 truly are so unaware of the realities of Covid that they sincerely demand, because of fear for their and their students’ health, that they and their students be kept from coming into non-electronic contact with each other, then these men and women should be immediately fired as teachers. Such persons are either too uninformed or too ignorant to be trusted to teach. But I’m pretty sure that what’s actually going on today is the exploitation of fear, and the feigning of fear, by teachers’ unions, all in an effort to enable their members to avoid, for as long as possible, doing their jobs.)
John O. McGinnis argues that “[t]he Chicago Teachers Union–imposed school shutdown is about politics, not the pandemic.” [14] A slice:
Chicago mayor Lori Lightfoot rightly notes that closing the schools is unjustified and breaks faith with the children whom teachers have a responsibility to educate. She is also correct in saying that closing schools will only increase the achievement gaps between poorer and wealthier students. The school system has spent $100 million making school facilities safer and improving air-filtration systems. Chicago’s commissioner of public health has also pointed out that the Omicron variant does not pose a substantial danger of serious illness to children or to vaccinated teachers. For these groups, it is more on par with a serious flu outbreak, for which schools are rarely if ever shut down.
True as these observations are, they just show how little facts matter in the world of power politics that the union inhabits. A study has shown [15] that the most important determinant of school closures in a region during the pandemic has not been the severity of illness in the area or various demographic characteristics, but the strength of the teachers’ union, as measured by four factors—whether the state has a right-to-work law, the state ranking of union strength (using the Fordham Institute’s measure), the share of unionized employees at the state level, and the share of unionized employees at the county level. According to the Fordham Institute, the CTU is a Tier One union in terms of power. Illinois has no right-to-work law and Cook County has a high proportion of unionized employees. As a result, the CTU is in a powerful negotiating position. And what it wants in this case is reduction of risk, even if the level of that risk is already reasonable and comparable to what other workers in stores across the city tolerate. Even more importantly, by forcing Chicago Public Schools to back down, even for a short time, the union also wants to make clear to management that anything important in the system must be cleared with it first.
Kate Andrews protests vaccine passports [16]. A slice:
It’s edging towards dystopian — a glimpse into what our future could be — if we continue this experiment with vaccine passports, with virtually no discussion of what’s going wrong. The idea that anyone should be free to move within a country, and free to leave it, is hardly extreme. It’s something protected in Article 13 of the UN Declaration of Human Rights. But liberty, once ceded only in an emergency, is hard to win back.
Britain has never had a tradition of identity cards and this has long been a point of principle and pride. The balance of power between the individual and the state has long been tipped in favour of the former, and until recently the Prime Minister was the most passionate and dedicated critic of the ‘creepy reality’ that comes with forcing proof of identification on the public. When Tony Blair called for ID cards, Boris Johnson, then MP for Henley, declared: ‘I will take that card out of my wallet and physically eat it in the presence of whatever emanation of the state has demanded that I produce it.’ But he’s now in lockstep with Blair, who argues the introduction of vaccine passports is ‘inevitable’. If you can’t beat the system, design it instead. Don’t discuss the tradeoffs between security and liberty: just do it on the quiet, and even deny it.
In December 2020, nine months into the pandemic the then Cabinet Office secretary Michael Gove insisted he ‘certainly [was] not planning to issue any vaccine passports and [didn’t] know anyone else in government who would’. Gove is now one of the leading advocates in cabinet for the scheme.
Douglas Murray insists, quite rightly, that it’s time to get on with our lives [17]. A slice:
It is the same around the world. Over in the Netherlands the government seized the opportunity of Omicron to order their umpteenth national lockdown and curfew. A large demonstration against these measures took place on Sunday and culminated in the Dutch police wielding their batons against the locals and setting police dogs on to them. For their own good. It is a more brutal version of what some Americans are doing to each other.
Mask mandates on planes may not be stopping anyone from getting Omicron (cloth masks now being officially declared useless against this variant), but they are certainly setting passengers against each other on domestic flights. One video that did the rounds this week showed a woman so enraged at a maskless man on her plane that she whipped off her own mask to scream at him for being maskless. The exchange did not disrupt Dorothy Parker’s reputation as the wittiest woman in American history, but it did culminate in the female passenger spitting at the male passenger. Because if there is one thing that is sure to stop the spread of the virus it is people on planes spitting like camels at each other for not taking the necessary precautions to prevent particle transmission
My point is that in country after country, it is becoming clear that none of this is sustainable. That does not mean that it will not go on for some while longer. Things that are unsustainable usually do. But it will soon become clear that there are societies, states and whole countries that are successfully getting on with life, and others that are not. And as people in the countries that want to lock down for the rest of the decade look to those places like Florida which are successfully getting on with things, they will want their own lives to look like that too.
Willy Forsyth reports from zero-Covid Antarctica [18]. A slice:
In the time between my two Antarctic deployments, I received a Master of Public Health degree from Columbia University’s Mailman School of Public Health. There, I learned the importance of evidence-based public health interventions, of carefully analyzing health risks, of targeting interventions based on those risks, and of always considering unintended negative consequences.
So, throughout the pandemic, I have been baffled to see many public health professionals and scientific institutions advocate for broad, extreme, and unprecedented measures without supporting evidence.
Let’s hope that Cato’s Ryan Bourne is correct that “[m]ild omicron will bring down the Covid police state.” [19] A slice:
Seeing the virus everywhere, even those most hawkish about it are waking up to the extent to which it is endemic and the futility of attempting to eliminate it. As millions and millions recover from infection, locking them down again for no benefit creates an ever-strengthening political barrier against society-wide lockdowns.
As home tests become the default for most mild cases, two further developments will occur. First, more people who test positive but are asymptomatic will live their lives normally “under the radar”, forcing authorities to shorten isolation periods to encourage compliance. US isolation guidance for this group has already been cut to five days. Expect this to be shortened here [in Britain] in the future.
Emmanuel Macron also has an election coming up, and recently found cause to pick a fight with the unvaccinated. They are an easy target: easily caricatured as selfish refuseniks, whose obstinacy is dragging down the whole country. Macron this week promised to “emmerder” (a word best left untranslated) the unjabbed. Such tough language tends to go down well, and we can expect more of it in the coming months. For politicians standing for election, the unvaccinated are a perfect punching bag.
el gato malo reports on an MSNBC podcast host’s encounter with Covid derangement [21].
Phil Magness on Facebook [22]:
It hasn’t always been this way, but the most active iterations of left-libertarianism right now are distinctive for their pairing of (a) hard-left economic and social opinions with (b) a superficial and – in the age of Covid – fickle commitment to the rhetoric of caring about civil liberties.
As long as it persists in holding those priorities, it’s difficult to see what if any value left-libertarianism brings to the table. Or how it is meaningfully different from the run-of-the-mill far left.