Courts block two Biden administration Covid vaccine mandates
reuters.com
reuters.com
> "There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency," wrote Doughty.
That's a good point. You can agree that its within the federal authority to mandate vaccines, but it really should be a decision made and explicitly endorsed by elected representatives rather than some agency (Centers for Medicare & Medicaid Services) that I have never heard of until now and whose head is appointed by one person.
[EDIT]
Too often we look at the end results (e.g. will this increase vaccination rates) rather than the means of getting there. You see it on the left and right. If their guy is in power, they want to expand the scope and reach of their office. Everything is a crisis and someone can solve it if they're just given the right permissions.
And this eventually leads to dishonesty and loss of trust. Even news is reported through a utilitarian lens. Many journalists today think they're doing advocacy rather than reporting. They're not assigned topics but talking points. Someone could be the 'tech bad' guy and his stories are nominally about tech but about how big tech is subverting democracy, bad for the environment, you name it.
Could you imagine a news report about how the much touted vaccine efficacy of 95% didn't really pan out? It's true. Everyone was around 6 months ago and remembered the efficacy levels being thrown around. Now people are being gaslit to thinking they didn't hear what they heard and its about hospitalization. All because being honest could hurt the cause. And yes, vaccine efficacy was 95% and yes it does mean what you think it means [0]
/rant
https://www.thelancet.com/journals/laninf/article/PIIS1473-3...
CMS is one of the largest government agencies (by budget, >$1T annually).
(To be clear, I agree with you 100%)
Note that while the position is appointed by POTUS, it is a Senate confirmed position - she was approved with a vote of 55-44 [0] (with five R votes).
[0] https://www.senate.gov/legislative/LIS/roll_call_lists/roll_...
The elected representatives chose to delegate this power to the person they approved as the head of CMS. What principle would be involved in requiring Congress to execute its powers in a different manner (i.e. by not delegating), simply because one does not like the outcome in this case? Who would decide which powers Congress could delegate and which it had to exercise directly? Has someone already drafted the Amendment to the Constitution which would limit the powers of Congress in this way?
There's no reason in principle for Congress to directly make this decision about requirements placed on CMS contractors and not other aspects of vendor relations handled by CMS. (The narrow issue here is whether CMS can require its contractors to enforce vaccine mandates.)
The courts clearly disagree with you.
If the CMS does it, it is a public health decision. Doing it in Congress makes it a political decision.
IMO, the better route is that the CMS issues the mandate, but that Congress ratifies it. Ie, they have to provide a clear reason why the public health decision should be overruled.
You're acting like its a trivial procedural matter. These people obviously feel very strongly about it since they're under immense pressure everywhere to get it and they still refuse. Or they may have other reservations, but to dismiss that and just have some nameless faceless un-elected organization intrude in their lives in such a meaningful way is really gross
Whether it is a 'trivial' procedural matter simply isn't affected by people's strongly held beliefs
Strongly held beliefs don't exempt you from seat belt laws, from tax rules, or from any other law unless congress doing the thing congress is designed to do allows for it. It shouldn't.
CMS isn't unelected...it is an arm of the executive branch headed by the, elected, president and run by someone confirmed by the elected senate. It is given the authority to make rules in specific areas by the elected congress.
Your entire thread or argument is predicated on a false assumption...
I'm not a fan of the situation, but you're acting like it's forced sterilization. It's just a vaccine with a very safe profile. For God's sake, all healthcare workers including the cleaning staff have to get flu shots and show their immunizations every year, or they can't work. Even as a college student I had to get a meningitis shot.
The difference is that those examples aren't mandated by the federal government (as far as I know). I think most people are fine with companies and universities requiring people to be vaccinated.
I think given the context that if your under 65 you are more likely to have medical complications driving to the grocery store its a pretty understandable perspective.
Also the mandate has no exception for natural immunityI. It is I had it and no symptoms of it except I couldn't taste anything, given above, I why would I get a vaccine.
Congress often delegates their power to other agencies. It’s an important regulatory function that allows agencies to adapt to a changing world even in a gridlocked legislature.
That's just a backdoor for giving more power to the federal branch. Its like 'interstate commerce' where anything that has interstate implications (pretty much everything) can be influenced by the federal government. What if an anti-abortion president elected someone to this board and told them that no health care provider that accepts medicare or medicaid can offer abortions?
I don't see mandating people to get a vaccine that they don't want as non-political bureaucratic action, especially considering its coming from the president's office. It's mandating a medical treatment. Take a step back and ask under what authority and supervision should we require a government to be mandating a medical treatment.
The difference I see with abortion is that the SCOTUS held in Roe v Wade that women have an affirmative right to an abortion under substantive due process of the 14th amendment. If the government coerced healthcare providers to stop providing abortions, this would be a direct infringement on a right protected by the constitution. Conversely, there is no constitutional right to /not/ get a vaccine. Of course, the demographics of the court has changed, so it's very possible the SC will rule that not getting vaccinated is also a constitutional right conferred by substantive due process.
> Conversely, there is no constitutional right to /not/ get a vaccine
Doesn't it need to be framed as the government having the right to apply a medical treatment to me against my will?
I have a constitutional right to bare arms but presumably the federal government can decry that I do not have the right in certain places. Or is that not an affirmative right.
[EDIT] It appears that is what US v Lopez is about (federal restriction of guns near schools)
> Doesn't it need to be framed as the government having the right to apply a medical treatment to me against my will?
This will be tested in litigation in cases like OP, but remember, these vaccine mandates are NOT the government forcing you to accept medical treatment. These mandates have been coercing private employers to require vaccination as a condition of employment. This indirection muddies the water and I can't speculate as to what the courts will ultimately decide on.
Thats a problem when the demographics of a ruling body affect rights protected by the Constitution.
Wisely the Constitution also provides remedy for when that gets too out of hand: “the right of the people to keep and bear Arms, shall not be infringed."
I think one area the Constitution missed the boat is that when a politician or someone in delegated power makes a law or rule that infringes on someone’s freedom that person should be charged and punished for treason. I would think that you would see so many fewer laws a much stronger and law abiding Country.
If you don’t agree with those provisions there is a method to change them and too often short cuts are made that are only corrected after the fact in the courts. Take for instance Biden's vaccine mandate. He knew that was unlawful yet he knowingly did it anyhow. There should be a personal consequence to that beyond not being re-elected.
And I don't believe if the precedent is set regarding freedom from vaccinations being a fundamental right. Won't that have to be decided by the higher level courts? I don't think we're at that stage of treason yet, are we? After all, there will be appeals, and I don't know if a district judge should have the power to charge and punish POTUS.
The pollution solution is defending property rights. In the short term, the USA pollution solution is to offshore manufacturing pollution to other countries.
Even that might not be quite the best end result to be looking for (unless you own the jab patents).
Shouldn't we be looking at clinical outcomes of covid patients, or counts of severe covid cases instead?
If we optimized for marriage rate in the world we might end up with a whole lot of unhappy couples and/or broken homes.
More recently, we've also gotten data for many vaccines showing that they're also effective for children and adolescents.
Lastly, another important group is the elderly. Some studies suggest that they respond more poorly to the vaccine and that the protection may last a shorter time. In response, many countries have prioritized the elderly for receiving booster shots (3rd dose).
This is my principal area of concern. If I recall correctly, the studies that were submitted to FDA for approval for young children did not show improvement in hospitalizations or deaths, in fact there was not a single death in any of the groups, rather they relied on showing the jabs successfully produced antibodies (a much lower standard).
Well, it's not surprising that there would be fewer deaths in children. We'd need a much larger study and I expect that this data will become available now that the vaccines are started to be more widely distributed.
> rather they relied on showing the jabs successfully produced antibodies (a much lower standard)
IIRC the study also found that the vaccine was effective at preventing infections.
Strongly agree. Tangentially, I felt this way about net neutrality. It should have been law passed by Congress. Instead, everyone cheered when an unelected executive board passed a net neutrality bill that the public wasn't allowed to read.
And then, everyone had the audacity to be surprised when the FTC undid net neutrality as fast as it did it. There is a reason we have a legislature and not just an executive branch that can do anything it wants.
The net neutrality PR did work though, the FCC was under a lot of pressure . ATT didn't pay all of those marketing firms to fraudulently post thousands of anti-net-neutrality comments for nothing.
Congress has been delegating rule-making authority to the executive branch since before all of us were born. You may not like that, or you may think some amount of delegation is appropriate, but we've passed that point. But this is the reality here, and the functioning of our federal government pretty much has this baked in at this point, for better or worse.
Then, once the cause is understood, the next step would be to figure out an appropriate system that would work, or at least work better, and amend the Constitution to reflect that new system.
The alternative is to just let things continue as they are going, and I don't like that choice. It results in the president becoming more of a ruler and less of an executive. I expect less freedom down that road (and eventually none), and I don't like it.
My take on the questions I posed is this: Yes, it did work, at least adequately, and now it doesn't. What changed? I suspect that it was Roe v Wade. Since then, the right has been trying to get control of the Supreme Court to overturn Roe, and the left has been trying to block them. So both are fighting over control of the nomination process, which means the presidency and the Senate. I suspect that that's the cause of the trench warfare in Congress.
If I'm right, then it is in fact ultimately unfixable. Neither side is going to compromise, ever. You can't even fix it by amending the Constitution, because then there's going to be a battle about undoing the amendment.
I'm from a country (UK) where parliament has absolute power, but also where the populace largely trusts the civil service. Health decisions, prosecution decisions, and so on are explicitly devolved from the government so that they don't become politicized. To me, that seems better, rather than asking politicians to intercede in what should essentially be decisions for experts to make.
That's not at all generally true historically, even if you drop the made up specific number and say something like “vast majority", of US civil servants; it is true of some states, localities, or agencies, and reversed for others.
2020 looks like that, but the 2020-2021 election and transition cycle were rather outside of historical norms. [0]
There is some historical imbalance, but then, that people who adhere to the party that consistently demonizes government, government work aside from military and law enforcement, and government workers, aside from military and law enforcement don't tend to choose to work for government as much as people who don't adhere to that party is...somewhat unsurprising.
[0] https://www.opensecrets.org/industries/indus.php?ind=W03
I'm referring to the Federal government. I will amend down to 85%!
I think 2020 is more representative:
https://www.opensecrets.org/industries/indus.php?ind=W03&cyc...
I'd say the Federal civil service starts at Health and Human Services and below.
The historical chart on my first link shows that 2020 is wildly nonrepresentative.
Unless you think that Trump vs. the present Democratic party is somehow a new stable political alignment.
> I'd say the Federal civil service starts at Health and Human Services and below.
It does not. Department of State and USPS are largely federal civil service, whereas Los Angeles County and the City of New York are entirely not, for instance.
State and the USPS are a little different - State looks outwards, unlike the rest of the agencies, and the USPS is quasi civil service and a bit of a political football. Not only that, but it has a strong local presence across the country.
The rest of the agencies are, unfortunately, politicized and biased.
Edit: Not all the charts in your link show cumulative data.
But, look at the chart for "Party Split, 1990-2022" in the election years - that's when the civil service donates heavily to get "their party" into power: 2012: Dem 69% 2016: Dem 77% 2020: Dem 76%
That chart includes both "Public Officials" and "Civil Servants". The former group is far more balanced, since the Republican/Democratic split is pretty even. If there was a similar chart for just the Civil Servants, it would be a lot more biased.
Yes, although UK Govt ministers tend to retain accountability when things go wrong, at least in the eyes of the media.
They set rules for everything from how many hospitals can be owned by a single entity, to what sorts of qualifications are required for hospital administrators, to what types of medical orders are allowed to be given to patients. Their explicit charter is to ensure Medicare and medicaid patients are cared for and their health is looked after. From that lens, requiring a vaccination that reduces the likelihood that one of those patients is infected with a potentially deadly disease (particularly deadly for those on Medicare, given the demo), is eminently reasonable.
And the administrator is confirmed by congress. If this regulation was about almost anything else, this would be a nothingburger
Suppose an anti-abortion president gets elected and he elects someone as head and tells them that health care providers that accept medicare or medicaid cannot provide abortions. Not making it illegal per-se, but just for the providers that accept medicare or medicaid for any of their services.
You okay with this as well?
Not comparable. Based on current law, abortion is a Constitutionally-protected right. Based on precedent from the Spanish-flu era, the government has broad public health powers.
All that said, as someone who isn’t a fan of how much power Congress has ceded to the executive through administrative powers (which delegate legislative powers to the executive through rulemaking), I wouldn’t mind seeing those curtailed.
The decision is much more narrow that you've been led to believe.
It specifically addresses state police powers, not federal powers.
It also doesn't mandate vaccination, it allows a small fine to be paid instead.
Also, according to a well known attorney I consulted (who has argued several cases before the Supreme Court) the Jacobson decision has been overturned countless times and is considered an awful ruling, the Healthcare equivalent of Dred Scott.
[1] https://en.m.wikipedia.org/wiki/Jacobson_v._Massachusetts
Specifically avoided saying that. Stated simply, my point is there is positive precedent to the precursors to vaccine mandates, and reasonable ambiguity to the question per se. There is clear negative precedent for abortion. As such, comparing them is misleading. (Better analogy may be found in gun rights.)
It seems to me like you just don't think medicare or medicaid should be a thing to begin with. I think it's basic sense that if we're paying for medicare and medicaid we should require the healthcare providers receiving our tax dollars to meet some standard level of care, or else we're just wasting our money. We can argue over what that level of care should be, but I don't think it's all that debatable that requiring things like vaccines could fall into that level of care if not having them is particularly risky for patients.
There's no mechanism to enforce this reasoning. It's whether the agency has the power to do it or not. For instance it could be argued that natural immunity is far superior to vaccines, so excluding healthcare workers with natural immunity from working is not about protecting patients.
> It seems to me like you just don't think medicare or medicaid should be a thing to begin with.
???
The mechanism would be the judicial system, and in the case of restricting abortion services, the regulation would probably be subject to strict scrutiny.
I'm not sure what you're getting at, Congress gave the agency the power to set guidelines for requirements for caring for medicaid/medicare patients, that's what they do. If a guideline would not actually impact medicaid/medicare patients, then they can't do it and it would rightfully get struck down in court when it is challenged for not falling within their powers. That's quite literally the same mechanism currently being used to challenge their power to require vaccines.
Your point about natural immunity seems reasonable, it doesn't mean requiring vaccines for those without natural immunity wouldn't still make sense though so I don't think it really fits your point. Claiming that the particular way they went about this requirement is bad is different from saying they can't require a vaccine at all. I think your point makes some sense, but it could still be paired with a vaccine requirement making it effectively the same thing.
> ???
I thought what I said was pretty self explanatory. If Medicare and Medicaid are going to be worth it then we have to have some standard level of care that we're paying for - we shouldn't be paying tons of money just for medicare/medicaid patients to receive bad care. Why should my tax dollars to go a healthcare provider who doesn't want to get the vaccine when that money can go to one who will? The medicare/medicaid patients that we're paying for will get better treatment from those healthcare providers who require vaccination, and if better care is not the goal than what is?
Please don't ascribe beliefs or intentions to me that I didn't explicitly state.
> Why should my tax dollars to go a healthcare provider who doesn't want to get the vaccine when that money can go to one who will?
Medicare and Medicaid should be fee for treatment. Why shouldn't I be allowed to choose what provider I want to visit for the same treatment? They can have different covid policies, much like schools do. I don't think it should be a federal issue.
> The medicare/medicaid patients that we're paying for will get better treatment from those healthcare providers who require vaccination, and if better care is not the goal than what is?
You're mistaking treatment for safety protocols. A health care provider can have a certain doctor to nurse ratio or a million other things and they may not all be "optimal" as defined by the powers that be. We should allow people to choose what health care provider is right for them based on their constraints and not restrict options.
Disagree. If I'm footing the bill for that care (as a taxpayer) I expect to have a say in what constitutes minimum quality of care.
And allowing unvaccinated healthcare workers to treat patients is reckless, and falls well below that minimum quality bar.
(I would also accept healthcare workers with natural immunity, assuming we can establish some sort of testable minimum antibody level that confers a similar level of protection as a vaccine.)
You can, by paying for it yourself :P
> You're mistaking treatment for safety protocols. A health care provider can have a certain doctor to nurse ratio or a million other things and they may not all be "optimal" as defined by the powers that be. We should allow people to choose what health care provider is right for them based on their constraints and not restrict options.
I see what you're saying but I think it's an odd distinction, treatment outcomes and safety protocols are clearly linked, why should tax dollars go to treatment provided with substandard safety protocols when the same can be spent for better treatment elsewhere? Functionally it would just end up costing us and the program more over time and lead to worse outcomes. The other issue here is that most patients aren't even going to know enough about the various things you listed to make an informed opinion about them.
Lots of things could be argued; some things shouldn't be argued without evidence.
During a pandemic, statements that will be interpreted as suggesting that catching the disease beats vaccination fall squarely in that category.
The supreme court ruled that the 14th amendment[0], has somewhere hidden within it a right to privacy. This right to privacy appearently applies exclusively to abortion, as warrentless wiretapping of every US citizen has been determined not to be a constitutional violation.
I find it funny that they can find a right to privacy in the 14th, but give the thumbs up to civil asset forfeiture that directly contradicts the text and is a obvious violation. They seem to make things up as they go along depending on what is politically expedient.
[0]https://constitution.congress.gov/constitution/amendment-14/
> Women have a constitutional right to get an abortion.
Do they? Where is that written?
EDIT: the vague "life, liberty, or property" clause as interpreted by Roe vs Wade. This is such a blank-cheque it may as well not be in the constitution as in hands all power to the interpretation of the courts.
If you read federalist papers or any of the writings of founders on the constitution. The constitution is a living document that is decided by the courts. It is really hard to have a fruitful debate without people having even basic knowledge on this subject.
That’s how you end up with Russia taking over Odessa due to “national security” reasons.
If it’s a living document it’s not worth the paper it’s written on.
> having even basic knowledge on this subject
That's your opinion. People debate in echo chambers all the time, if that's what you'd prefer.
Forcing care workers to take a medicine against their will is constitutional you say?
All medical procedures should be voluntary, or we go back to the times of lobotomy and forced sterilizations of minorities (and that's not as many decades back as you may think).
> Government can and has jailed and/or fined people for not getting a vaccine.
This means being unvaxed is a something only the rich can afford. Pay fines, and have a good lawyer.
This is the top Google result for “fire in a crowded theater”: https://www.theatlantic.com/national/archive/2012/11/its-tim...
With firecodes what they are today, a bomb is a more comparable danger to what a fire was 100 yrs ago, anyway.
Be careful about so willingly giving up your right to self-ownership.
You may not ever get it back.
Apply that to other rights like the right to bear arms. If government couldn’t set standards and people could procure any weapon, how does society function? How does air travel even exist with people owning anti aircraft missiles.
That’s why our founders made our constitution a living document with courts interpreting the constitution and balancing individual rights with our collective rights.
The founders were purposefully vague in several areas of the constitution because they absolutely did want circumstances to determine interpretation, however they were not vague at all about delegated and reserved powers. These things are not "living" in a sense of judicial review.
By "living" document, it was intended that the constitution could be modified by an amendment process. There was never a provision for judicial review.
In fact, then entire concept of judicial review arose from Marbury vs Madison [1] where the court claimed this power.
The purpose of the U.S. Constitution, and one of the things that makes it unique in history, is to limit the powers of the government. The founders believed that individual rights were innate (granted by God), not granted by government and certainly not granted by the federal government.
All powers other than those specifically Delegated to the federal government are reserved for the States - the 10th Amendment makes this clear.
It is not the role of the federal government to decide on "greater good" mandates, those powers are very specifically reserved for the states, who are constrained on what they may do by the Constitution and its amendments.
We, as a country, have allowed the federal government to overstep this in many areas. The DEA, for example, only exists because of a very bad interpretation of the Interstate Commerce Clause, which arose from a bad Supreme Court decision (Wikard vs Filburn)[2] about whether or not you were allowed to grow your own wheat.
They are not forced to take the medicine. They are given an choice to take the vaccine or find another job. If they refused to take the vaccine, that is their choice, period. They cannot claimed they are being forced because they are given an choice in the first place. They are given a free will with their decision. Thousands of Thousands people screeching for being forced when they are given a choice. Society don’t have to conform to those people who want to endanger their people and their livelihood.
The government can’t violate your right to free speech. They also can’t “ask” a private company to censor you as it effectively the same thing.
Telling someone “its your choice but if you don’t do it you’ll lose your livelihood” is not a choice at all.
The ability of the government to establish vaccination requirements is long established. It's only becoming a hot topic now because anti-science folks have been programmed to fear a safe and effective vaccine.
I'm talking about 'well-established' in that it's been happening for 200+ years. The conservative right-wing theocratic extremists that trump appointed will destroy our judicial norms for the next 50 years but that doesn't make them right.
The difference is you flipped the switch and decided to turn up to work without clothes. You decided to radically change your behavior and actions in the workplace. This will obviously have consequences due to your unsightly naked body offending co-workers.
When someone doesn't flip any switch, but continues to work exactly as they did before, they have not done anything you can label a "choice with harsh consequences".
Unvaccinated people are not suddenly shedding and dangerous, in the way a naked person is shedding pubic hairs everywhere.
>Unvaccinated people are not suddenly shedding and dangerous, in the way a naked person is shedding pubic hairs everywhere.
Unvaccinated people are inherently dangerous. The change is that we now have the ability for them to become vaccinated people who aren't nearly as dangerous to their clients.
In June 2020, we had no choice but to have unvaccinated health care workers. Today, we do.
They are not dangerous. A person who has access to sharp knives but is currently not holding a knife, is no more dangerous than someone who does not have access to knives.
But even that analogy doesn't fit, since vaccinated people can certainly still get sick and transmit the virus.
Besides, I am not restricting my position in this debate to health care workers. I am talking about anyone with a job, who is now required to get vaccinated. That's what happened where I live (Australia). Everyone in my state from barristers, to builders, office workers, truck drivers... literally every professional who isn't working from home, is required to get the vaccine or lose their job.
Many are pissed off with the expanding scope of mandates.
I can understand the requirement for health workers to be vaccinated. But even then, they should have the option to be tested regularly instead.
This is what happens... incremental laws expand and eliminate choice. Suddenly you live in a world where you must get jabbed every 6 months, and repeatedly prove your vaccine status to everyone every day. Tagged, tracked and validated for walking around doing normal things is not a world we should be encouraging, even in pandemic times. If we must disagree on that point, then fine, we disagree.
Vaccinated people can get sick and transmit the virus, true, but it's much less likely that they will. People with STIs can also transmit the virus, so we wear condoms to make the risk of transmission substantially less. If your sexual partner is unwilling to wear a condom or unwilling to have sex with you if you wear one, you can just choose to not have sex with them and the risk of transmission goes to nothing. That choice doesn't exist with work. If my co-worker chooses to remain a massive public health risk, my chances of catching COVID-19 go up quite a bit. I can't choose to just not be around you and the rest of anti-vaxxers. Not to mention there are people who have legitimate medical reasons who are unable to get vaccinated who are put at substantially higher risk by being forced to be around conspiracy theory anti-vaxxers.
You are not an island. You live in a society, a community of people that requires individuals to give up some personal liberties for the good of the whole. Those who don't like that should go move to an isolated island where their harm to others can be limited.
CMS only controls this for patients covered by Medicaid/Medicare. It can set the tone for the entire industry, but does not solely control the industry. Typically, they create influence by setting/rejecting Medicaid/Medicare reimbursement standards. Since enough patients are covered by CMS, it tends to be easier for hospitals to broadly adopt the policies.
Your example is a covered procedure, some of which is defined by the CMS, but much of it is defined by federal statute that dictates what classes of procedure are covered by medicaid/medicare. To go to your example specifically, federal statute ALREADY limits medicaid abortion coverage to abortions arising from rape, incest, or that put the health of the mother at risk. 16 states go beyond that and cover abortion in more cases, but they pay for that with their own money (which is also allowed statutorily). So in your case, what the new CMS head was declaring is unlawful on its face, as this is something that congress has specifically addressed.
Assuming it is: I think policy measures like that should be subject to medical needs. I think there's a clear medical need to require COVID vaccinations for healthcare workers, but banning abortions doesn't pass that test.
And hell, didn't the Trump administration actually do this, though maybe through different means? Withholding federal funding from providers who offer abortions?
Congress does not delegate lawmaking, Congress delegates the execution of its powers to the Executive branch. This is how the country has functioned since the beginning, for it would be impractical for it to work otherwise.
Say more: delegation will happen at some level, by definition. In military matters, every step or shot a soldier takes is a decision that has been delegated through a chain of command from Congress. Since Congress is not ever going to be in a position to execute every decision for every individual over which Congress has power, Congress inevitably will delegate the execution of its powers. It has always been this way, and will be this way as long as we have a republic.
That's the Constitution, not Congress. Regulation, as well, is not execution. Thomas's concurrence on Whitman v. American Trucking Ass’ns signals where things might go.
This is an opinion that was not widely held for most of the last 100 years or so.
> Thomas's concurrence on Whitman v. American Trucking Ass’ns signals where things might go.
Definitely agree that our legal regime looks headed for major changes. I consider it likely that SCOTUS will reverse itself on a set of major principles, creating uncertainty for citizens and businesses until a new equilibrium is reached.
Most of our other problems are a consequence of that.
This is from someone who chose freely to get the vaccine. Even at my own peril I support other’s freedom to choose.
something, something, consequences.
If expect there are certain Catholic organizations who would fire you if you admitted to having had an abortion.
... Which goes to the court ruling that's the topic of the article: Congress has the power to decide these issues.
If you'd please review https://news.ycombinator.com/newsguidelines.html and stick to the rules when posting here, we'd appreciate it.
Most of the argument is whether this requirement is in the "employee must wash hands before surgery" category, which is about the patients' right to be safe not the employee's (in theory the patients didn't "choose" to be there).
The people complaining are reacting as if the ruling sounds like "male high school teachers get vasectomies, to keep teenage pregnancies down", because the effects are "permanent, * upto six months" and directly to your body without it being an on-the-job requirement.
The part that makes me leery is that these sort of "are your vaccines upto-date" checklists have always existed, but this time it is controversial (or maybe it was for MMR - but it wasn't news).
this is also the first time where the vaccine industry and the broader public health space have been put under this kind of scrutiny and the combination of politicization, outright lies and deception over masks and policy in both directions and the overall visibility of the sausage making process happens to be occurring alongside a decline of trust in institutional expertise. when most people got their tetanus shots, the faces of the medical profession were not acting as explicitly political agents.
Nearly every common-sense measure implemented during this pandemic has been derided by the right as some sort of unacceptable infringement on individual rights.
Not saying those in power have gotten it all right 100% of the time; I'm especially disappointed with the mask fiasco you mention, but... c'mon. Doctors are not acting as "political agents" in the vast majority of situations that have caused the US's pandemic response to be as lacking as it's been.
It's not common sense if a plurality of people don't agree with it. Denying children in-person schooling for a year wasn't "common sense", cancelling elective procedures like cancer screenings wasn't "common sense", forcing people to wear masks outdoors wasn't "common sense", and so on. Lots of people were denied rights in these cases and would consider those measures unacceptable.
It is? By Easter right? With what other coronavirus have we ever reached herd immunity?
Intentionally coughing on someone is a prosecutable crime in many parts of the world --- What do you think makes it a crime?
Why not? if the cost & benefit ratio is worth it, maybe we should. The same for any other diseases you can think of. If the answer is yes, then there are no reason for any of us to refuse unless we have good excuses.
Does that not include the unborn?
And would you be comfortable having a pediatrician who wasn't inoculated for diphtheria knowing that an infection could be fatal for your baby?
People very broadly give power to the CDC that I don't think they have.
Do you know that the two federal mandates were issued by CMS and by OSHA, two completely different organizations from the CDC?
BTW, the law as written gives very broad powers to OSHA and other agencies. This is controversial mainly because one political side in the country is anti vaccine right now.
My point still stands. Vaccine enforcement and mandates was not even considered as under their purview. It's quite hair-splitting to say "there's nothing that says they _can't start enforcing vaccine mandates_."
Even if the law as written allowed it? Since the OSHA act and Social security acts that give OSHA and CMS regulatory authority passed, the USA has never faced a deadly virus pandemic that could be combated with a vaccine.
If Congress specifically wrote the law to allow flexibility for new situations it doesn’t make sense to me to argue that because the situation didn’t arise in the 20th century that the authority and law has lost its power.
What I'm not seeing is engagement with the actual text of the statutes that Congress already wrote and put on the books. For instance, the OSHA Act specifically gave OSHA power to regulate "new hazards".
https://www.govinfo.gov/content/pkg/USCODE-2019-title29/html... "1) The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register 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."
Similarly the Social Security act already gave broad power to issue regulations. https://www.law.cornell.edu/uscode/text/42/1395hh# "such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter" "No rule, requirement, or other statement of policy (other than a national coverage determination) that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under this subchapter shall take effect unless it is promulgated by the Secretary by regulation under paragraph (1)."
the Act clearly envisions the secretary having authority to change standards for benefits, payment for services, and eligibility. There's no limitation saying that eligibility criteria can be based on other safety measures, but not vaccines.
EDIT: and SCOTUS precedent interpreting this language in the past was clear about the scope of authority it gave. See page 34 of the PDF here https://drive.google.com/file/d/1dGiMcVAxfziaoecQtd40-nERZr_...
A mandate for vaccinating healthcare seems a lot closer to existing regulations that the law was designed to allow. It’s clearly a health and safety regulation just like the dozens of previous health regulations regulating quarantine, mask wearing, sanitation, safe handling of items, etc.
The reason congress doesn’t reserve this power is because in our system congress can’t react quickly or sometimes at all. It has to pass laws giving up this type of authority to the executive branch because it knows its own processes don’t work quickly or efficiently enough.
Congress did give itself instead the authority to veto regulations it doesn’t like, using the Congressional Review Act. It used to give itself even stronger authority using the one-house legislative veto, but the Supreme Court struck that down. < https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article...>
Yes, but at some point there must be a limit to how much power they can delegate. If Congress created a new Super-Congress that it granted all the powers of Congress, I would contend that would be unconstitutional. It clearly goes against the founding principles of having three branches of government. That would be akin to the government creating a fourth branch without amending the constitution.
Amending the constitution is a process that is clearly defined by the constitution. If that process isn't needed to create a fourth branch of government, a change that changes the core of the constitution, what would it ever be needed for and why would they have included it?
If we are going to talk about what's the right answer from a position of "if the court says it that's how it goes" then I can assume you're happy with this court decision?
Still, I'm happy that we're not breaking the rules for the convenience of getting an outcome I'd like better.
Do you mean like "Efficacy of Pfizer/BioNTech Covid vaccine slips to 84% after six months, data show" (https://www.statnews.com/2021/07/28/efficacy-of-pfizer-biont...) or "Covid-19 Vaccine Efficacy: What Do the Numbers Really Mean?" (https://www.wsj.com/articles/covid-19-vaccine-efficacy-what-...)? Or did you have something else in mind?
I thought this was pretty well-discussed as VRBPAC/ACIP began to review the data guiding their third dose/booster recommendations but maybe I've misunderstood.
It didn’t pan out because of Delta, a way more infectious variant that became common well after the 95% figure was determined.
And it’s fully accurate to say that despite Delta, the vaccines are effective at preventing severe disease, hospitalization, and death. I think that’s a very good thing!
So that "95%" figure was a lie to begin with, because those who touted it knew exactly what was going to happen. Viruses evade, and any non-sterilizing vaccine will be evaded by a virus. This is how you get delta, this is how you get omicron (which, by the way, was first found in fully vaccinated individuals and likely created through this evolutionary pressure).
Thanks
If the vaccines don't work, why do people in the real world die much, much less often from covid once they are vaccinated?
If you are so sure an immune-evading variant will emerge, why hasn’t one? (There is no evidence at all that omicron evades the vaccines).
Vaccine evasion is happening, and it doesn't matter whether it's delta or omicron. Would Pfizer pay for a study that proves their vaccines are worthless? Would Fauci, who hands down government money in the form of grants, give a grant for a study that would demolish the pharma companies that he has his money tied to?
The vaccines obviously have SOME efficacy, but just enough to make a product that sells. If someone sold you a new car, and didn't tell you it would break down 6 months down the road, wouldn't you be angry? They polished the car just enough for you to buy, without telling you what lurked in the shadows the entire time.
Virologists knew the roll-out of a non-sterilizing vaccine would end in the scenario we currently have. Period.
Also the reason Pfizer or other people pay for studies that may disprove their drugs is because they actually don’t know whether the drugs work or not! They are paying to find out. Studies fail all the time. You’ve picked one of the most successful studies and treatments of all time to show the system is rigged. Look at all the ones that didn’t work. Why doesn’t Merck, the largest pharma company, have a vaccine? If it’s so easy to fabricate the data, why didn’t they? Why didn’t their virologists lie? Is Merck the only honest pharma company?
On what basis? It's proved impossible so far to make a strongly efficacious flu vaccine because of constantly shifting variants. But on the other hand, there are many examples of successful vaccines that have never had an efficacy-killing variant emerge (polio, smallpox, chicken pox). How would anyone who has taken a biology class know a priori whether COVID-19 would be a flu or a polio?
Thanks!
The initial studies on vaccine efficacy were designed to study efficacy at preventing serious illness, not transmission. So it was not known at the time how effective the vaccines would be on that dimension. To answer these questions requires novel research, it is not settled, freshmen biology knowledge.
That's a facile statement. I'd have to bait an HN into playing devil's advocate just to get an opposing view.
What are the "Zig and Rust" of protecting democracy in a time of crisis? Or maybe more realistically-- if we want a "Zig and Rust" for making democracy "memory safe," what are the sources to start with? (Note: I'll filter any citations that rely on invisible hands or, "let's start by decentralizing all the thingies")
Jacobson v. Massachusetts[1] established that it is within the State's power to mandate vaccinations, so shouldn't this be up to individual states? I'm also pro- nationwide mandatory vaccinations, but Congress also doesn't seem to be the right way to do it.
Odd, the fact that you have never heard about the CMS has no bearing on whether it has the authority to issue a vaccine mandate
This is not true at all. Media has been talking openly about "waning immunity" and "declining effectiveness" all along.
There’s a reason, for example, why we don’t let the market or public opinion dictate the efficiency or safety of drugs.
I remember that too, and I think its needed context.
Are you aware that Federal regulatory agencies are a result of Congress delegating their power, mostly to the executive branch? Congress has already delegated their authority…
Just wanted to add this comment from the middle of this discussion.
There is so much irrationality these days that we need to have a solid foundation for our decision making and not based on the whims of the panicked masses.
I have relatives who work in healthcare and refuse to get the vaccine. They're at risk of losing their jobs because regardless of external pressure, the hospital employing them is incentivized to let them go by the patients. They're a hospital focused on physical therapy, which is does as much elective business by volume as prescribed... And very few patients are willing to work with a physical therapist who isn't vaccinated, so they're simply losing business as word-of-mouth gets around that they don't require vaccines and patients sign up for their PT regiments with other hospitals in the region.
By the same token that the government (absent a law from Congress) perhaps can't force organizations to employ vaccinated staff, the government may have no say if an individual employee is fired because an organization requires vaccinated staff of their own accord.
This would be a good time for Congress to show some leadership and lay down some legal guidelines.
Better to wait for the updated booster before forcing more people to take it.
I mean this would be a good time for Congress to show leadership in general. As in, make a decision. Really, any decision that shows some reasoning behind it. Entirely too many people in the service of legislature are more worried about their electability than doing a good job. There's a reason that branch has, on average, a mid-teens approval rating most of the time.
2. Every temporary injunction issued in the litigation surrounding the wall and Muslim ban was conducted with the Democratic version of this same strategy.
This is the game. Sound and fury, signifying nothing. We will learn the law in time.
We require other vaccines.
There is plenty of room for dissent, but it stops being “dissent” when it is simply denying reality.
Ah yes of course, when the common view gets the label of “reality” dissent is no longer “dissent.” /s
If only everyone could see the line in the same place, but well if that were the case I don’t suppose there’d be any dissent at all.
I mean that is a common refrain among the various anti-basic science groups, but I'm curious if that is the view you take
You would be very hard pressed to find a self respecting scientist who calls any of their work “objective fact.” There are several ways to display views that are “anti-basic science,” and you are displaying one of them.
But to try and wrangle your question into what I think it was intending (though severely misled such that I needed the above preamble): Do I believe established high probability scientific consensus and recommendations can be discarded or disagreed with as mere opinion? Absolutely not. I am not at all “anti-basic science” in the way that you think I am. I think it’s quite possible to accept the scientific consensus on COVID as it exists so far and still argue currently against mandatory vaccinations in different settings.
https://www.kff.org/other/state-indicator/flu-vaccine-requir...
In other words most healthcare workers share the same demographics as those who currently have low uptake on the vaccine.
The lower tiers of nurse only require 2 years, IIRC, and I think those are more like technical programs than typical liberal-arts-informed degrees. Then there's the clerks, the front-desk people (to include the ones at the "front desk" of each floor, department, or section of the hospital, plus the ones at the actual main entrance[s]) the cleaning and housekeeping staff (someone has to go around restocking supplies and such), the entire billing department, the people who come around to bug sick people about their insurance details, the security guards (hospitals have lots of them), and so on.
Or maybe they are aware of drugs that received authorization in the past and that the same companies that are making bank of the vaccines, don't have the best history with being honest and transparent.
Not surprised by this ruling at all.
Even without vaccines, that means nearly half of Americans already have natural immunity which is vastly superior to vaccine immunity.
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/burd...
No- that many have had a positive test or other diagnosis confirming covid.
There were plenty of non-hospitalized, non-diagnosed cases before the tests existed. And plenty of people have had it and never saw a reason to get a test to confirm it.
I'd say we're far above that estimated number.
...but even if you full blown covid, there is no exemption from the vaccine requirement - that's one of the main arguments of many health workers.
Things like vaccines also threaten the status of people who use the virus in order to extract money from their audiences, like megachurch preachers and snake oil salesmen. Some people got really wealthy off Ivermectin and HCQ prescriptions during this whole thing.
To anyone paying attention it's obvious that this is not the case. Everyone should not get vaccinated, some folks can't get the vaccine. And not it's not safe and effective for everyone, some have had a bad reaction.
It would be one thing if the government realized this and placed reasonable exceptions for those who either can't get it or don't need to because they have natural immunity or immunity through monoclonal antibodies. But they don't and they continue to push this one way of getting immunity.
And that's where the distrust forms. More and more it seems that the government doesn't actually give a damn about these edge cases, all they want to do is check the box that says you have been vaccinated.
So that's not the case with all doctors.
Then again, I'm fit, healthy, great diet, low stress, eat well, lots of sunlight. Covid poses less risk to me than driving, my kids it doesn't rise to the level of conscious thought.
Covid's over here.
Their jobs are being threatened too, and are more likely to have large debt from school and to be the primary breadwinner of their family than nurses.
Nurses just have more realistic freedom to say no.
in her words no one really knows how the lipid nanoparticles actually work, and it is much too soon to be forcing this onto the public, and thats just the delivery mechanism. so you have a novel mRNA vaccine, with a novel delivery mechanism, and very little long term safety data. she does not feel like these have been tested to the same standard as other vaccines, we are at the point where if this is mandated for our children we will probably move somewhere they are not.
This is an international forum.
If you're not vaccinated or have natural immunity, there's likely zero increased reason for personal concern.