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The Supreme Court's Incoherent COVID Mandate Rulings

Erin Schaff/The New York Times via AP, Pool

Here’s the quick and dirty take of the U.S. Supreme Court’s two COVID-shot mandate decisions on Thursday: If one works for a private company with more than 100 employees, the Occupational Health and Safety Administration (OSHA) may not order them to get jabbed with a COVID shot, but if you’re a health care worker at a health facility that receives Medicare and Medicaid funding, you can. Apparently, Americans cease to have bodily integrity and religious rights if they work at hospitals that serve Medicare and Medicaid patients, but not if they work for private companies. There’s a word for that: incoherent.

This duplicity has Chief Justice John Roberts’ fingerprints all over it.

Americans who believe in freedom breathed a sigh of relief that the nation’s highest court retained the stay issued on OSHA’s rule forcing employers to require them to get a COVID shot. It turns out, the justices reasoned, that if Congress or states don’t explicitly give OSHA the power to order mandatory shots, and there was plenty of congressional intent and action proving they didn’t want it, the executive branch agency can’t. White House Chief of Staff Ron Klain’s “work-around” for Congress by issuing vaccine mandate edicts throughout agencies didn’t work.

The unsigned majority opinion stopped the implementation of the rule until there’s a full appeal to the Supreme Court. The court, in a per curiam ruling, said that “permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

In a separate opinion written by Associate Justice Neil Gorsuch and joined by Justices Thomas and Alito, he noted that “if administrative agencies seek to regulate the daily lives and liberties of millions of Americans … they must at least be able to trace that power to a clear grant of authority from Congress.” Gorsuch added, “the question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.” It’s worth noting here that the three liberals – Justices Kagan, Sotomayor, and Breyer – didn’t think so.

But things were far from clear in the case involving people who work at health care facilities that treat Medicare and Medicaid patients and receive federal funds. The majority unsigned opinion said the legal question there was that “the [Health] Secretary [Xavier Becerra] did not exceed his statutory authority in requiring that, to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

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They may be ruling on the law, but if you’re judging reasonableness, then facts matter. The oral arguments revealed that the hysterical subset of liberal justices who liberally misstated COVID facts controlled in this decision. How else to explain requiring hospital workers to be shot up with mRNA spike proteins if they’ve already had one or two cases of the virus and have natural immunity? What’s the big deal about not having a “notice and comment” period, they said. A resulting shortage of employees? Pfft. We’re sure that wonderful Secretary Becerra took into consideration all of those questions before he put a blanket policy into effect that would affect ten million health care workers, was the upshot in their opinion.

They found that Becerra had acted reasonably even though there were profound “flaws” the “District Courts found in the Secretary’s analysis, particularly concerning the nature of the data relied upon. The role of courts in reviewing arbitrary and capricious challenges is to “simply ensur[e] that the agency has acted within a zone of reasonableness.” So, the basis on which the rule was issued was flawed, but he was being reasonable?

And guess which justices went along with this? Justices Roberts and Kavanaugh.

Roberts’ split-the-baby approach to jurisprudence appears to have controlled in this decision. The man who re-wrote parts of the ObamaCare decision so he wouldn’t have to drop-kick the president’s signature initiative was back with a Ron Klain work-around so the court wouldn’t look bad.

Too late.

Justice Thomas wrote in his dissent that a “hodgepodge,” one-size-fits-all series of rules doesn’t support a “nationwide vaccine mandate,” especially without congressional input. Thomas and Justices Alito, Gorsuch, and Barrett joined the opinion, which basically said the Health and Human Services Secretary and his minions were just making up the right to issue a mandate with “the oblique reference to ‘infection control’ in the definitional provision for long-term care facilities,” which Thomas believed “cannot authorize an omnibus vaccine mandate covering every type of facility that falls within CMS’ purview.” In short, “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,” he concluded.

Well, Roberts, Kavanaugh, and the liberal wing were here to say that Thomas was wrong.

But hey, they’re the smart ones, right? How else to explain Justice Breyer’s assertion that America suffered “750 million” COVID infections in a country of 332 million people the week before oral arguments? Or that “100,000 children” were in the hospital suffering from COVID, “many on ventilators,” according to Justice Sotomayor’s made-up statistic. Or that COVID shots were wholly effective and the best medicine to treat the disease, as Justice Kagan asserted, ignoring natural immunity and preventative medications, which apparently she’d never heard of.

Justices are supposed to “call the balls and strikes,” Chief Justice Roberts said at his confirmation hearing. What he didn’t say was that as an umpire he’d give each side different balls and change the score sheet at will.

This CMS decision comes as the Democrats, the CDC, and their stenographers in the media are finally beginning to trickle out a little truth about COVID – the truth that their handmaidens in Big Tech have spent the last two years claiming was “misinformation.” Scores of people have been censored and defamed by these same tyrants for saying that positive test cases are not the illness, natural immunity is the best immunity, the shots don’t seem to be working as advertised, the asymptomatic spread isn’t a thing, kids have a near-zero chance of contracting this disease, the U.S. COVID death count numbers are junk, vaccines don’t prevent transmission, it’s not a “pandemic of the unvaccinated,” and on and on.

This Supreme Court’s decisions come days after California was forced to go against their previous lies and issue a rule allowing positive, but asymptomatic COVID health care workers to treat COVID patients in hospitals and medical facilities. Where’s Roberts on this? How is Becerra, an attorney and former congressman with no knowledge of health care issues, “reasonable” with his “hodgepodge” of COVID mandates if his own home state has just given away the game?

Related: Supreme Court Rules on Vaccine Mandate

The ruling came the same day that Maryland Governor Larry Hogan tacitly acknowledged the fact that Kagan’s holy vaccines aren’t working in his new nursing home protocol. Hogan acknowledged the surge in the milder omicron cases by requiring all people visiting their loved ones to show a negative COVID test. Not if they’re unvaccinated, but all people because the shots don’t prevent people from contracting the virus, especially this variant. How does Hogan know this and not these smarty-pants justices? How is it “reasonable” for the HHS secretary not to acknowledge that these shots don’t always work before issuing his “hodgepodge” provisions that constitute a shot mandate? Ask John Roberts. I’m sure he can re-write Becerra’s rationale for you.