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LIVE: Supreme Court Oral Arguments In Biden Vaccine Mandate Cases

LIVE: Supreme Court Oral Arguments In Biden Vaccine Mandate Cases

In each case, expect the non-federal government litigants to focus on whether the agencies involved had the power to impose the mandates, while the goverment will argue that PEOPLE ARE GONNA DIE if the mandates are not upheld.

The U.S. Supreme Court hears oral arguments this morning starting at 10 a.m. Eastern in two cases regarding Biden administration vaccine mandates. Audio of the argument is streamed live and a transcript will be available later.

The first case, which has received the most attention, involves OSHA’s large employer vaccinate or test mandate (dockets here and here), and the second case involves a CMS mandate for healthcare workers (dockets here and here). In the OSHA case various states and other are suing to stop the OSHA order, in the CMS case the Biden administration is suing to reinstate the mandate after it was thrown out by a lower court.

We previously covered the cases in these posts:

Amy Howe at ScotusBlog also has a preview of the issues in each case.

In each case, expect the non-government litigants to focus on whether the agencies involved had the power to impose the mandates, while the goverment will argue that PEOPLE ARE GONNA DIE if the mandates are not upheld.

Added: Transcripts

21A244  Nat. Fed’n of Indep. Bus. v. Dept. of Labor
21A240  Biden v. Missouri


21A244  Nat. Fed’n of Indep. Bus. v. Dept. of Labor
21A240  Biden v. Missouri

Some analysis:

Amy Howe at SCOTUSblog said the Court might block the vaccine mandate for workplaces, but keep it for health workers.

Ed Whelan:

A fantastic thread from Ilya Shapiro:

All the lies:


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Constitutionally nobody has that power, period. But the constitution is irrelevant nowadays as we are ruled by commies.

    Concise in reply to ernest1000. | January 7, 2022 at 12:02 pm

    Just curious, if the Court allows this (which seems horribly possible), what exactly are the limits of this new regulatory power over all things “health and safety”? I don’t think any aspect of an employee’s private life could escape their absolute power when they decide to regulate.

      fscarn in reply to Concise. | January 7, 2022 at 12:56 pm

      Wickard v. Filburn (1942) provides a frightening precedent. What economic activity doesn’t effect interstate commerce? What human activity doesn’t touch on health and safety?


      An LI report on Ted Cruz parroting Democrats’ January 6 talking points while addressing the Senate is conspicuous by it’s absence. Just sayin’

      This alone will sink Ted’s chance of a 2024 nomination.

      Tucker Carlson Interviews Ted Cruz on this issue:

        Dan Bongino is defending Cruz but I think he is dead wrong. I can’t believe his is that gullible. “No one is perfect! Heck, we all mistakes!” is an incredibly naive cover excuse. “Let’s not make perfection the enemy of the good”. Where have we heard that before? Now we are hearing it from Bongino? The most ardent spearhead trying to bring attention to what was really happening on 1/6? Of all people.

        Last week, Cruz was interviewed on Blaze where he more than hinted that he was seriously looking at running against Trump and DeSantis (seriously, he’s that politically unsophisticated?) in 2024. So yesterday, he answered a question about the 1/6 protests by not only confining his wording to comfortable nestle into the Dem “insurrection” narrative while drawing Trump into it, he also missed a major opportunity to defer to the true violent insurrection that was being staged by BLM at the White House where Trump had to be hustled into the basement.

        Carlson is right on by refusing to accept Cruz’ lame response about not choosing his words wisely. Cruz is very diligent at carefully choosing his words .He crafted his “ill-chosen” to pile on to Trump. He should have first explained what he SHOULD have said.

        I see this as a possible “planting of the flag” for his presidential campaign. Is he McConnell’s secret weapon to derail Trump? Is this the price he is willing to pay to become president? Given how clear the path to Trump and/or DeSantis going into 2024, he should be shaping his narrative to further THAT rather than choosing to become an obstacle that will only split the MAGA constituency.

        Cruz now needs to convince us that he is truly on our side. He was AWOL when Trump was president. He has never stepped up to address the voting irregularities that led to the stolen election. Now he needs to provide an apology just for starters. He didn’t just make an honest mistake. He just demonstrated that at best, he is tone-deaf.

          artichoke in reply to Pasadena Phil. | January 7, 2022 at 2:02 pm

          I’m surprised how tone-deaf Washington is about this. They think they can put up walls and we’ll still regard them with any affection? They thought there would be some public enthusiasm for the “January 6, a date that will live in infamy” narrative.

          There was none, zero. Even their “candlelight vigil” was a bust. They couldn’t get more than about 100 people to go to it.

          Cruz miscalculated. He can atone partially. He didn’t have to say there was a violent insurrection, and he did.

          Are people expecting a Trump / DeSantis ticket? I might actually prefer Cruz or DeSantis at the top of the ticket, and Cruz will have to be on notice now that we won’t trust him an inch so he has to show which side he’s on.
          But I’ll vote for whoever wins the primary, and I don’t want anyone going third party if they want a country left at the end of it.

          @Artichoke: No Republican will win in 2024 if step one is to derail Trump. If you don’t understand that, you need to think this through. Trump is THE big voting block. DeSantis is very popular among us. Cruz keeps demonstrating that he is a party of one who is only looking out for himself.

          He could have been Trump’s right-hand man in the Senate for four years. Didn’t happen. He could have stepped up on the vote audits but again, AWOL. He has had one opportunity after the other to help cement the MAGA movement but z-z-z-z-z-z-z.

          This year will be about using the MAGA passion to steamroll the Uniparty and pave the way for 2024. This means Trump is the ONLY GUY who can primary several entrenched McConnell squishes and replace them with MAGA candidates who are on OUR side. If we succeed at that, Trump may very well decide that his job is done and endorse DeSantis. That would be the ideal situation. I really doubt Trump even wants to president at his age.

          If he doesn’t run, he will NOT endorse Cruz. If Cruz decides to challenge Trump, Cruz loses. If Trump endorses DeSantis and Cruz decides to challenge DeSantis, Cruz loses. If DeSantis challenges Trump in 2024, DeSantis loses.

          Trump is THE ONLY GUY who won’t have to compromise himself begging the globalists for campaign money. Cruz compromised himself as soon as Trump stormed to the lead in 2016. He was here in California being introduced to “the money” at the California Club by Hugh Hewitt. Guess what they want? MAGA?

          So DeSantis CAN”T challenge Trump without creating a train wreck. He is NOT Ted Cruz. For him to spend another 4 years as governor of FL with Trump serving his second term would be the best way to go if 2022 turns into a mess. But then DeSantis would be a shoo-in in 2028 for 8 years! That would be like 16 years of Trump with new energy driving it for the last 8.

          Cruz will NEVER be president. He just doesn’t have the chops. He should settle for a SCOTUS appointment.

          The only thing I can’t figure it is who Trump’s VP should be. If the only way to keep DeSantis in line for 2028, it would have to be him. But I think keeping him where he is for 4 more years would likely be better. He will still be only 49 in 2028. Maybe there is someone out there willing to fill the VP slot knowing DeSantis is the guy in 2024. That is what we should be talking about. Cruz has taken himself out of consideration but being so tone-deaf. He at least needs to get away from Glenn Beck.

If they uphold this, then all government needs to do is define something as a vaccine and they can force you to take anything. What if they deem a woman in the armed services (active theater) getting pregnant as a workplace health risk and force her to take a “vaccine” against getting pregnant?

What an insane theater of the absurd this hearing is. Kagan doesn’t even think it’s a mandate. She even thinks a worker is just like a dangerously malfunctioning machine. And, everyone assumes that these “vaccines” somehow prevent someone from contracting or spreading the original virus, and all variants I guess. And, in addition to other things ignored, I guess natural immunity doesn’t exist., kind of like the statutory limits on the scope of regulatory authority. Oh and Scott Keller is a disaster.

    TargaGTS in reply to Concise. | January 7, 2022 at 10:50 am

    Sotomoyer either doesn’t read the NY Times or she’s too stupid to understand what it says. But, even that rag ceded a few weeks ago that the vaccines are wholly ineffective against preventing an Omicron infection.

      Concise in reply to TargaGTS. | January 7, 2022 at 11:01 am

      i wouldn’t be surprised if she couldn’t read. And here’s something else, notwithstanding mass media reports. people do suffer complications from getting the “shot(s).” So are all these workers who comply with the mandate non-mandate and develop complications going to have worker’s comp claims? And just as a minor point, no available US vaccines have been approved. They’re all under emergency use authorization, just saying.

      kak185ttx in reply to TargaGTS. | January 7, 2022 at 11:11 am

      She knows. Remember its about maintaining their power. They will ignore facts and spew lies to maintain their power.

    Sopater in reply to Concise. | January 7, 2022 at 5:59 pm

    It seems quite clear that many on the SCOTUS have been living under a rock the past couple of years.

ACB sounds like she desperately wants to split the baby on the OSHA mandate…which is disappointing but not surprising. This is not going to be a good decision for people hoping for a check on government overreach, I’m afraid.

    Concise in reply to TargaGTS. | January 7, 2022 at 11:07 am

    An immense disappointment. Not 1/100 of the intelligence, integrity and courage of Scalia, who as a new justice stood against the whole court in Morrison. And he’s recognized as right today.

Paul In Sweden | January 7, 2022 at 11:04 am

It is deceptive to state that hospitals are flooded with people that have covid. Being in the hospital from an auto accident, cancer or drive by shooting and incidentally being tested at the hospital for covid does not mean you are in the hospital because of covid. If you had not been shot, run over or been stricken with cancer not only would you not be in the hospital, you might never had known that you had covid at all.

Also people should remember that you are considered unvaccinated until two weeks after the last required covid vaccine which could be the 5th or 6th shot perhaps the twelfth shot. So if you die hours after you covid shot you are counted as an unvaccinated death.

    Just curious, but has Sweden adopted any of these vaccine mandates?

      Paul In Sweden in reply to TargaGTS. | January 7, 2022 at 11:31 am

      In November I met with my doctor and presented my objections and asked her to give me a valid reason to vaccinate against covid and she was unable to counter my risk benefit arguments. She was fine with that and said nobody is going to force you to take the covid vaccine. There are restrictions at large gatherings and thankfully the lifestyle that my wife and I share does not confront us with any of that. We have heard that the local arena where they have handball and other sporting events will be requiring proof of vaccination but I do not know how it will be implemented.

Sotomayor seems to be getting her “facts” from The View.

This is disappointing. OSHA is empowered to regulate workplace safety/health risks arising from a workplace. It isn’t empowered to do so over risks that are ubiquitous. Breyer comment about regulation of risk of fire is disingenuous. The specific mitigation required of a munitions plant v a tax preparation office are not the same. The States have police power to regulate fire safety in every workplace for general risk of fire which is analogous to the general risk of Covid transmission. Thomas objection to framing the question as OSHA rule or nothing is spot on.

    CommoChief in reply to CommoChief. | January 7, 2022 at 1:49 pm

    The inability or unwillingness to grasp basic command of the facts re current Covid wave by Sotameyor, Kagan and Breyer is flipping frightening. Those three collectively stated that:
    1. The vax prevents transmission and infection
    2. That 100K children are hospitalized for severe Covid cases right now
    3. That hospitals are currently overrun by Covid cases

    None of those are close to true, in fact the CDC and Fauchi state the opposite. The level of covid misinformation in our supposed elite undercuts any argument for trust the experts in any field. Now by all means listen to their recommendations and evaluate the data but for goodness sake do not rubber stamp their recommendations because we are fearful of making a mistake that deviates from the recommendation.

    JMark in reply to CommoChief. | January 7, 2022 at 2:10 pm

    “The specific mitigation required of a munitions plant v a tax preparation office are not the same”

    Exactly. I really wanted the lawyer to ask the Justices if they all had their steel-toe boots. Or if their clerks were all wearing hearing and eye protection. Was there an emergency wash station in the courtroom? Never mind the danger their flowing robes present.

Why a link to Washington Post and not to Robert Barnes or Rekieta ( though Rekieta is delaying the broadcast)?

1 in 200 unvaccinated subject to death? No way.

How about at it’s core this mandate non-mandate is friggin’ irrational? The thing mandated non mandated doesn’t prevent the individual from contracting or spreading the virus (I’ve even heard reports that the “omicron” variant, as slight as it is, affects the vaccinated more seriously) And, to repeat, the mandate non-mandate pretends natural immunity doesn’t exist. What are we witnessing here? The dawn of a new “health” police state?

Paul In Sweden | January 7, 2022 at 11:44 am

Elizabeth B. Prelogar Just said that the covid vaccine is the best way to prevent the transmission of covid. That is false. How can SCOTUS make a decision on this matter when all sides are spouting Covid Vaccine Propaganda.?

ThePrimordialOrderedPair | January 7, 2022 at 11:55 am

Pnce again, this whole argument is moot. The only shot that is “approved” by the FDA is the Pfizer Cominarty and that is not even available in America. All of the other shots are Emergency Use Authorization, only – i.e. experimental drugs – and cannot be forced on anyone for any reason. There is nothing to argue about.

Aside from that, neither the federal government (nor any state government) can force someone to take a shot of anything. But then … this court (and all others) allowed the various governments to run roughshod over any semblance of American liberty when they let healthy people be quarantined en masse – i.e. complete house arrests of all society.

America is broken beyond repair.

ThePrimordialOrderedPair | January 7, 2022 at 11:58 am

Of course, Benedict Roberts is going to call the shots “a tax” and determine that the federal government is free to force it on anyone and everyone because he claims that federal taxing power is unlimited and beyond any argument. Brilliant Constitutional scholar, that treasonous twerp is …

    Surprisingly. after listening to Roberts’ questions, I think he’s (a bit) more likely than Barrett is to sustain the plaintiff’s action. We’ll see.

      ThePrimordialOrderedPair in reply to TargaGTS. | January 7, 2022 at 12:15 pm

      i don’t doubt that he’s more likely than Amy Phoney Barrett to make a decent decision … but I’d lay money (and give big odds) that he’s going the way of “the mandate is a tax” and allowing the federal government to do whatever they want to anyone with any sort of experimental drugs that strike their fancies. The only thing I trust about Benedict Roberts is that he will come down on the side of tyrannical government, especially when it has anything to do with health issues or health care.

Did I miss something? Has a vaccine been formally approved by the FDA? I thought all these things were under experimental, emergency use authorization?

    Dathurtz in reply to Concise. | January 7, 2022 at 12:10 pm

    There is one “vaccine” approved by the FDA, but it isn’t available (or in production, as far as I know). There are a few under EUA.

    TargaGTS in reply to Concise. | January 7, 2022 at 12:17 pm

    I’m unsure about Moderna’s vaccine. Back in August, the Pfizer vaccine was approved for adults. Although – and I’m no expert on the normal process – I think the approval process it endured was different than most other drugs. Again, I could be wrong on that and would welcome a correction from someone familiar with the process.

    The Pfizer vaccine continues to be administered under EULA for children age 16 and older; that may be even a bit lower since last week, perhaps 11 and older?

      ThePrimordialOrderedPair in reply to TargaGTS. | January 7, 2022 at 12:25 pm

      Yes, Cominarty got more of a political approval from the FDA than anything resembling a medical approval … but, even so, Cominarty IS NOT available in America and no other shot is beyond the Emergency Use Authorization (i.e. experimental) phase.

      But the leftists like to pretend that Cominarty having gotten FDA “approval” automatically made every other anti-Wuhan shot “FDA approved” and able to be forced on anyone and everyone (as if any approved medication is allowed to be forced on anyone). And the FDA, themselves, took part in this charade, with their laughable recommendations about “mix and match” shots and boosters and after-dinner treats …

      ThePrimordialOrderedPair in reply to TargaGTS. | January 7, 2022 at 12:27 pm

      Not “the” Pfizer … but “a” Pfizer shot got FDA “approval”. Only Cominarty, which is different from the Pfizer shot that Americans have access to.

      alaskabob in reply to TargaGTS. | January 7, 2022 at 12:45 pm

      “Approved” is used but really just “permitted” under emergency power. This is essentially a world wide Phase III trial.

      artichoke in reply to TargaGTS. | January 7, 2022 at 2:13 pm

      I wish it were EULA not EUA. I’d do something to void my End User License and they’d have to suck all that garbage back out of me.

    Sopater in reply to Concise. | January 7, 2022 at 6:04 pm

    No, you haven’t missed anything. Everybody else has.

Vaccinated people are catching, spreading and dying from (not just with) Covid. France has now declared boosters every 4 months. This means repeated immune challenges from the vaccines for a virus spectrum that will always be around. We have abandoned any pretense of natural immunity for bioengineering forever. This is a perpetual trillion dollar payoff.
Huxley was wrong… this is a Grave New World.

Finicky Fat Guy | January 7, 2022 at 12:53 pm

I was disappointed that the plaintiffs didn’t argue that the vaccine is a 24/7, lifetime solution to a working hours problem. No other OSHA rule that I am aware of must be obeyed by workers outside of work. You can’t smoke at work but you can smoke at home or in your car. You have to wear a hard hat on a job site but not when doing the same work on or in your home. In this instance, to comply with this requirement though, you have to live with the vaccine and it’s effects for life. That seems like a point worth making.

Do we know when to expect a decision?

    Right, a vaccine isn’t something that you can just take off at the end of the work day. It’s a physical, irreversible, bodily change.

I’m disappointed that several of the judges don’t seem to be informed on the facts. So far, they said, erroneously, that: the vaccines prevent the virus; that 750 million cases were reported yesterday; that 100,000 child cases were in the hospitals on ventilators; and whole host of other wrong information.

If this passes, then the govt can literally force you to take anything under the guise of worker protection, and apparently without any approval required from Congress. I wonder if they would try to push a mandatory chip inserted into people in order to keep track of vaccines.

Are the Leftists on the Supreme Court there for any reason except to make their Leftist ruling and damn the laws?

Steven Brizel | January 9, 2022 at 10:15 am

CJ Robert’s comment re end r.unning around Congress was very telling and may prove the undoing of the mandate

Steven Brizel | January 9, 2022 at 10:17 am

The liberal justices view the Constitution as a high school civics lesson to surmounted so as to provide the Deep State with more powers to run our lives