The Supreme Court and Congress Humiliate Themselves
By: Clarice Feldman
Two important cases came before the Supreme Court last week, and in Congress the Nancy Pelosi Reichstag Fire Revisited was being played out. In both cases these bodies deserved our disrespect for their violation of established norms and display of ignorance.
The Supreme Court
Article III, Section II of the Constitution establishes the jurisdiction (legal ability to hear a case) of the Supreme Court. The Court has original jurisdiction (a case is tried before the Court) over certain cases, e.g., suits between two or more states and/or cases involving ambassadors and other public ministers. What this means in simple terms is that with rare exceptions when the court has original jurisdiction as detailed in Section II above, the court sits as an appellate court. That means that it is not a trier of fact. It must decide the legal issues based solely on the factual record. Anyone with even the most basic knowledge of civics knows this, but apparently three justices do not, and in going beyond the scope of the trial court record, they not only exceed their constitutional role, but showed why this limitation is important. They cited purported facts which are in substantial error in a forum where there is no opportunity to really contest them as would be the case in a trial court. The question in these two cases is whether the mandates were properly issued under the Administrative Procedure Act and in accord with the agencies’ congressionally delegated powers, not the individual justices’ views on the spread of COVID-19. It was hoped that these cases would rein in administrative agency overreaching and end a period of too lax judicial oversight of their activities.
Here’s the background. The Court heard two cases respecting COVID vaccine mandates on an emergency basis and, “in an unusual move, the justices opted to fast-track the cases for oral argument on the question whether the mandates can remain in place while challenges to their legality continue in the lower courts.”
The first case, National Federation of Independent Business (NFIB) v. Department of Labor challenges the Occupational Safety and Health Administration (OSHA) mandate requiring all employers of at least 100 persons to submit to vaccinations or regular testing. This mandate would apply to 84 million workers. Citing a retweet by White House Chief of Staff Ronald Klain referring to this mandate — which would cover most of the nation’s private work force as “work around” — that is, a way to cover everyone in the absence of congressional legislation, Chief Justice Roberts indicated that he thought the government had overreached. He asserted that COVID mitigation policies were a matter better handled by the states and Congress. Justice Neil Gorsuch seemingly endorsed this view. In the course of the discussion, Justice Stephen Breyer claimed there were “750 million new cases yesterday, or close to it, that is a lot.” (There are only 332.4 million Americans.) He also claimed that vaccines and masks would prevent 100 percent of the coronavirus infections.
[U.S. Solicitor General] Prelogar admitted that the Court had the power to use an “administrative stay,” whereupon Justice Breyer intervened:
So if we delay that one day — maybe I’m wrong, and please tell me if I am — but the numbers I read is when they issued this order, there were approximately 70-something-thousand new cases every day. And yesterday, there were close to 750,000. So if we delay it a day, if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn’t delay it, would not have. I mean, I don’t doubt the power of the Court to issue a stay, I am just saying, what are the consequences of that? And if I am wrong, you better tell me I’m wrong, because that it really did make a difference.”
Breyer is probably correct that it would make a “difference,” but not that it would prevent 750,000 new cases. The Centers for Disease Control and Prevention (CDC) notes that “since vaccines are not 100% effective at preventing infection, some people who are fully vaccinated will still get COVID-19.” It adds: “Getting vaccinated is the best way to slow the spread of COVID-19 and to prevent infection by Delta or other variants.” It notes that wearing masks in indoor public spaces offers “better” protection against the spread of coronavirus, but does not say that masks prevent all possible viral transmission.
Rates of infection were 474.81 per 100,000 population among the unvaccinated as of November 2021, and 99.70 per 100,000 among the vaccinated — nearly five times smaller, though not zero. The omicron variant is thought to be more infectious.
The most idiotic statements — showing a total misunderstanding and/ or disregard for the Constitution — were by Justice Sonia Sotomayor.
Supreme Court Justice Sonia Sotomayor compared human beings to machines when commenting in favor of President Joe Biden’s vaccine mandate for businesses with 100-plus employees on Friday.
“Why is a human being not like a machine if it’s spewing a virus, blood-borne viruses?” Sotomayor asked Scott Keller, the attorney for National Federation of Independent Business, during an expedited Supreme Court hearing regarding the Occupational Safety and Health Administration’s (OSHA) coronavirus vaccine mandate.
Certainly any sentient person even lightly familiar with the Constitution could point out to her the serious flaw in her thinking.
She also falsely asserted that there were 100,000 children in “serious condition” from COVID. (HHS says the number of confirmed pediatric hospitalizations with COVID in 3,342. Maybe Sonia needs to recalibrate her computer. Or maybe she’s so anxious to expand administrative powers she can’t be bothered to learn the facts.)
The second case, Biden v. Missouri, raised a somewhat different question — whether the Department of Health and Human Services (HHS) had the right to require vaccination of more than 10 million people employees in health care facilities that participate in Medicare and Medicaid programs. The lower court had enjoined this mandate and the U.S. Solicitor General argued that the mandate was needed to protect Medicare and Medicaid patients. Justice Elena Kagan’s view was that this was a reasonable measure by an agency with expertise in disease management, something Ohio’s Solicitor General contested
“OSHA typically identifies a workplace danger and then regulates it,” he said.
“But, here, the president decided to regulate a danger and then told OSHA to find a work-related basis for doing so,” and created “a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate.”
Missouri’s deputy attorney general Jesus Osete noted that in early 2020 as COVID cases soared “millions of health care workers heroically stayed at work. These same workers are now forced to choose between losing their jobs and complying with the government’s caving mandate.”
Louisiana solicitor general Elizabeth Murrill described the mandate as “an invasive, irrevocable, forced medical treatment” and “a bureaucratic power move that is unprecedented.”
Court watchers were uniformly critical of the Breyer, Kagan, and Sotomayor ramblings. Mark Wauck did a good job assembling the comments. My favorite is this exchange:
There were a number of instances in recent years that opened the eyes of ordinary folks to incompetence, bias and corruption in the judiciary (e.g. Sullivan, Michael Kwan or the 131 federal judges who didn’t declare financial conflicts). But today feels like a watershed moment.
It’s hard to convey the disrespect showed by Justices Sotomayor and Breyer today.
100 million Americans are affected by the Biden COVID mandates.
And these Justices showed up unprepared, inventing COVID numbers to support whatever legal conclusion they’ve already reached.
Some observers feel the HHS mandate on health care workers stands a better chance of remaining in place than the OSHA mandate, which would largely leave the matter in state hands. But the HHS directive is based on factually questionable claims since more fully vaccinated people have become infected with and are spreading the latest Omicron variant. Moreover, even were it soundly based, the agency skipped public comment, failed to consider narrow alternatives and didn’t examine the cost of the mandate — staff shortages and lower-quality care, something they would have done had they followed the normal Administrative Procedure Act.
And to those of us not born yesterday, if these sloppily crafted mandates stand, we can anticipate more and more government overreach responding to “emergencies” and justified by more and more administrative power grabs.
Even leaving vaccine mandates to the states, the downsides are evident. Washington State’s heavy snowfall has blocked every cross-state mountain pass and the State Department of Transportation estimates the roads will not be cleared until today (Sunday). A major factor compounding the difficulty of clearing this snow is that Governor Jay Inslee enforced a vaccine mandate that resulted in the firing of over 400 transportation employees, including more than 200 maintenance crew. Those who remain on the job are understandably quickly burning out on seven-day workweeks and long hours under arduous conditions. Is cutting off the two halves of the state worth enforcing this mandate? Is it, even as evidence mounts that the vaccines are of very limited efficacy in stopping the virus and its spread?
The Pelosi Psychodrama
Not far from the hallowed halls of the Supreme Court, Speaker Nancy Pelosi and her pals are trying yet again to make more of the January 6 riot than facts would warrant. She persuaded the cast of Hamilton to sing about democracy, inspiring the Wall Street Journal’s James Freemen to dub this “Capitol Riot: The Musical!”
Readers probably don’t recall a 2002 congressional effort to mark the first anniversary of 9/11 with a catchy musical number from a Broadway smash hit. And perhaps that says it all about the Democrats’ Thursday production to mark one year since the Capitol riot of 2021. Two decades ago, no one had to sell the idea that America had suffered a devastating attack. Today the political appetites of incumbent Democrats require pretending that last year’s riot was an insurrection.
Ricochet joins in satirizing the Pelosi psychodrama:
Just to show what somber and solemn remembrance was called for on this day, Nancy Pelosi invited the cast of Hamilton to perform show tunes on the floor of the House. Short of squirting each other with seltzer bottles and placing whoopie cushions on every chair in the House chamber, it is impossible to imagine a more fitting commemoration of this historic day.
From January 2017 when Washington, D.C. was torn apart by thugs upset at the Trump victory through more recent BLM riots, the congressional Democrats remained silent, as shops and cars were torched, passersby assaulted, and the wrongdoers let off the hook. You may have forgotten, but I have not. Neither has Powerline.
So out of whack are the Democrats that Vice-President Kamala Harris said the January 6 riot was worse than the 9/11 or Pearl Harbor attacks on the United States. And the Democrats’ semi-official historian Doug Brinkley compared it to 9/11, Pearl Harbor, and the Holocaust.
The satire site Babylon Bee suggests in that case that the 9/11 memorial be replaced with a statue of Pelosi’s podium to commemorate the January 6 riot. Not many are buying this nonsense, though. A recent survey indicates that the majority of us think that it was not an insurrection (something the government hasn’t even charged) but a three-hour riot that got out of hand. Perhaps if the Democrats had some winning policies, they could stop concentrating on Donald J. Trump, whose popular support today far surpasses that of the President, Vice-President and Nancy Pelosi. The Pelosi psychodrama, however, has one winner. Former vice-president Dick Cheney, who showed up to support his turncoat daughter Liz, suddenly ceased being war criminal “Darth Cheney” to the left and is now a hero to them.
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