Reasons for Cautious Optimism from Supreme Court Oral Arguments on Vaccine Mandates Today?

opinion one of the most knowledgeable and reliable sources of information and actual, fact-based, data on the COVID-19 pandemic and the hysterical overreaction to it, it appears from today’s Oral Arguments at the United States Supreme Court that the heretofore unknown legal doctrine known as “the Constitutional workaround”, also known as the vaccine mandates, are about to go down in flames. This is just a very brief notice of the arguments, and not a researched piece about the various legal points involved, but it does appear that a majority of the Justices are ready to hold these incredible overreaches on the part of the current “Administration” what many thought they were the day they were announced- blatantly violative of the Constitution of the United States. 

Here is the NYT lead, as quoted in the Berenson newsletter:

Conservative Majority on Supreme Court Appears Skeptical of Biden’s Virus Plan

The court seemed more likely to sustain a separate requirement that health care workers at facilities that receive federal money be vaccinated.

The Berenson newsletter summarizes the outlook as follows:

The OSHA mandate is clearly at the greatest risk, as it is the biggest reach both legally and medically. The Centers for Medicare and Medicaid Services mandate on health-care workers at least fits with what CMS does, and trying to protect patients from communicable disease is a worthy goal. (Too bad the Covid vaccines don’t stop infection or transmission.)

I suspect the OSHA mandate goes. What happens to health-care workers may depend on whether Roberts and Brett Kavanaugh know the science well enough to understand how useless the vaccines have become. If not, they might just decide to split the difference and allow the CMS mandate to move forward. That would be a (seemingly) reasonable decision, and Roberts likes to seem reasonable…

A good summary of the arguments of this morning can also be found in the New York Post in a column entitled “Divided Supreme Court weighs vax mandates for large companies, health care workers” and contains these interesting passages about the views expressed by some of the Justices:

Conservative members of the court expressed skepticism about the rule, with Justice Neil Gorsuch and Chief Justice John Roberts suggesting the administration had overstepped its bounds. Roberts said it was “hard to argue” that officials had been given the power to act by Congress. Justice Amy Coney Barrett suggested that a problem with the rule was its broad scope.

At one point, Gorsuch asked Prelogar why OSHA has not mandated vaccines for other viruses such as the flu, which the justice said “kills hundreds of thousands of people a year.” Prelogar responded that COVID-19 is unprecedented, adding that if there was “a similar 1918 influenza outbreak,” then OSHA would consider taking similar measures. 

Meanwhile, Justice Samuel Alito floated a possible administrative stay of the rule – asking Prelogar what a difference of a few days could make since the mandate was announced months ago and has yet to be implemented.

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Justice Sonia Sotomayor’s interventions bordered on the hysterical. At one point, Sotomayor — who took part in arguments remotely — wrongly claimed that 100,000 children were “in serious condition” due to COVID-19, with “many on ventilators.” In fact, the current number of pediatric hospitalizations with the virus stood at 3,342 as of Friday, according to the Department of Health and Human Services.

As this appeal and Oral Arguments were granted on an emergency basis, one might be entitled to be optimistic enough to expect a ruling in the very near future. If one, or most optimistically, both, of these outrageous abuses of power are reined in, it should give all of us reason to be hopeful that other acts of this lawless “Administration” will be similarly restrained.