Patterico's Pontifications

1/7/2022

Vaccine Mandate Arguments in the Supreme Court — Plus, Leftists Find Misplaced Irony that One of the Lawyers Has COVID

Filed under: General — Patterico @ 8:28 am



As I write this, the Supreme Court is hearing arguments on President Biden’s mandate. Me, I’m guessing the mandate is going down — and that it will not go into effect on Monday. But we’ll see.

Meanwhile, the hyperpartisan left finds it just hilarballs that one of the lawyers arguing against the mandate has COVID:

So funny, right? Except . . . not really. Here’s a fact Mark Joseph Stern forgot to mention: the lawyer is vaccinated and boosted:

“Ben [Ohio Solicitor General Benjamin Flowers] who is vaccinated and boosted, tested positive for COVID-19 after Christmas. His symptoms were exceptionally mild and he has since fully recovered,” said a statement from the Ohio attorney general’s office. “The Court required a PCR test yesterday which detected the virus so for that reason he is arguing remotely.”

Since he is vaccinated and boosted, I fail to see the irony. This strikes me as a cheap shot.

There are many non-frivolous arguments challenging the legality of the mandate. The fact that a vaccinated and boosted lawyer making those arguments contracted COVID means nothing, unless one’s goal is mindless hyperpartisan mockery.

If I wanted to draw a stupid partisan lesson from SG Flowers’s contraction of COVID, I could just as easily argue that vaccines are not terribly effective against spread (the justification for the mandate), because even boosted people get COVID. (I don’t happen to agree with this argument either, because I believe that the vaccines do help prevent spread, albeit imperfectly, by inhibiting replication and reducing viral load, which notably inhibits serious illness but also has some marginal effect on reducing spread.)

As someone on Twitter pointed out, it’s Mark Joseph Stern. So why expect anything but mindless hyperpartisan mockery.

65 Responses to “Vaccine Mandate Arguments in the Supreme Court — Plus, Leftists Find Misplaced Irony that One of the Lawyers Has COVID”

  1. It does show vaccine does not equal panacea and in a way illustrates that mandates are not going to stop the virus.
    Its not a pandemic, its endemic. Treat it like what it is.

    steveg (e81d76)

  2. Patterico, are stupid cheap shots out of character for Steyn?

    Time123 (9f42ee)

  3. The global mandate on business is a big stretch, even if you accept that OSHA can issue emergency orders under presidential prodding. The rule-making authority they cite deals with toxic substances, not viruses or other infectious agents; they are bending that language pretty far to get to a vaccine mandate. And then there are issues with the president ordering OSHA to issue regulations, and the scope of the order.

    The Medicare/Medicaid order seems to be on far firmer ground.

    Kevin M (ab1c11)

  4. *Stern

    Time123 (9f42ee)

  5. I’m slightly misusing endemic because I don’t think the coronavirus-19 and its variants will ever be eradicated. Variants will constantly be in the process of emerging and colonizing in areas of weakness like nursing homes, drug addict populations, elderly.

    I think it will be like the flu where variants rise out of a region or regions every winter, spread around the globe because of humans tools of mobility, doing lots of damage some years or very little in others.

    steveg (e81d76)

  6. Sidney Poitier (1927-2022)

    To Sir, with love.

    Demosthenes (fdc41a)

  7. Comments seen on the court hearing:

    “We are doomed.
    Justice kagan thinks 100,000 kids are in serious condition and on ventilators. What…..the…..??????”

    “This is just absolutely astonishing. “100,000 children in serious condition,” per Sotomayor. Where do these people obtain their misinformation? The current national pediatric COVID census per HHS is 3,342. Many/most incidental.“

    Obudman (84ff09)

  8. Goodbye, Mr. Tibbs.

    Rip Murdock (9ff85d)

  9. The Coronavirus vaccine is going to be like a flu shot.
    If you feel like you should get one, do so. It may work or it may not depending on the formulation and the emerging variant(s).
    There is no national flu shot mandate and going forward there should not be a national Covid shot mandate.

    steveg (e81d76)

  10. Since he is vaccinated and boosted, I fail to see the irony. This strikes me as a cheap shot.

    I note that the vaxcists new tactic is to argue, “Well, the fact that he was fully vaxed and boosted goes to show why we need to force everyone in the else in the country to get vaccinated under penalty of law.” So no matter what, they are going to claim that mandatory vaccines are necessary.

    JVW (ee64e4)


  11. “We are doomed.
    Justice kagan thinks 100,000 kids are in serious condition and on ventilators. What…..the…..??????”

    For those of you lawyers: if you were arguing the Ohio case would you correct Justices Kagan and Sotomayor on their incorrect understanding of the numbers, or would you just assume that they will be corrected once they start deliberating among themselves? What is proper Court etiquette here? I would imagine that embarrassing Justice Sotomayor wouldn’t be advisable, but it’s not as if she is going to rule against government vaccination mandates anyway.

    JVW (ee64e4)

  12. Certainly a cheap shot.

    But this isn’t about a vaccine mandate. This about government power. Liberals want it. And will deploy any and all cheap shots to get it.

    Because if they can force you to take a shot or lose your job our your freedoms, they can force you to do just about anything.

    I remember when Rachel Maddow said if you get your two shots, you can’t get or spread COVID. And she is one of those Science Liberals. Oops.

    Hoi Polloi (998b37)

  13. Hick lawyers, always suing for the wrong thing. Here’s the injunction they should be asking for, I even copied it out for them:

    “To whom it may concern or annoy:

    “Be it knowed this day and date that the United States of America, according to our laws and the rights of humanity, does here and hereby announce to all and sundry, that henceforth, or maybe as of tomorrow, there will not be tolerated within our sacred precincts anything of the virus nature. Be it further knowed that the United States of America does not hanker for anything of like nature and will not tolerate same. This aforementioned country is aiming to play safe, and no questions asked.

    “Signed by John Roberts, Chief Justice, and wrote out by Scott S. Harris, Clerk of the Court. Amen.”

    nk (1d9030)

  14. If the general vaccination rule is allowed, the very next time a president to make “everybody” do something, it will be cited as precedent. Gone will be the emergency and pandemic adjectives and it will just be “something government normally does.

    Kevin M (ab1c11)

  15. @13: You left out the bit about our precious bodily fluids.

    Kevin M (ab1c11)

  16. I think that tweet is completely in line with the arguments coming from the Sotomayor-Kagan axis about how badly we need to DO SOMETHING, and that this is “something.”

    Kevin M (ab1c11)

  17. I’m thinking that the Medicare order will be supported 9-0, the other struck down 6-3.

    Kevin M (ab1c11)

  18. The virus is moving faster than the lawyers and the medical bureaucrats. Like the fire in Rome, while they’re still tuning their fiddles. But it gives them something to do, I suppose.

    nk (1d9030)

  19. Anyone seeing the actual misinformation that Sotomayor, Kagan and Breyer are portraying as fact? Will social media suspend anyone passing these lies as truth?

    NJRob (eb56c3)

  20. R.I.P. Sidney Poitier, 94

    Class act.

    They called him, ‘Mister Tibbs.’

    DCSCA (f4c5e5)

  21. Or will social media just suspend those who are actually calling out the leftist lies by banishing those words to the ether?

    NJRob (eb56c3)

  22. Where do you think they got their numbers, NJRob?

    Kevin M (ab1c11)

  23. Mandates be damned; if only our government would focus on finding the source of the outbreak, hold them accountable, and get the test kits and the damn pills out to mitigate this mess. After as month of holidays the Nancy’s House of Representatives is only in session 9 days in January- and Ol’Joe says he needs more time off to think. It’s all just unacceptable.

    DCSCA (f4c5e5)

  24. R.I.P. Sidney Poitier

    Icy (6abb50)

  25. I take back every unkind thing I said about South Dakota Governor Kristi Noem. She had this thing pegged right, right from the start. And a better head of hair, too.

    nk (1d9030)

  26. Or will social media just suspend those who are actually calling out the leftist lies by banishing those words to the ether?

    NJRob (eb56c3) — 1/7/2022 @ 10:44 am

    This. This is what free speech now means.

    frosty (f27e97)

  27. @25 desantis had it pegged right too

    DeSantis Got ‘False’ Fact-Check For Predicting Unboosted Would Be Treated As Unvaccinated

    the fact check:

    “Florida Governor Ron DeSantis attacked the Biden administration’s new Covid-19 vaccination regulations by lying about the possibility that Covid-19 boosters will be used to force people out of their jobs.“

    BWAHAHAHA

    JF (e1156d)

  28. Where do you think they got their numbers, NJRob?

    Kevin M (ab1c11) — 1/7/2022 @ 10:46 am

    Out of their rectum or from a leftist propaganda site that made them up out of whole cloth.

    NJRob (eb56c3)

  29. My thinking on this is heavily weighted towards the knowledge that this decision isn’t limited to *this mandate* but sets the precedent for future situations.

    It isn’t hard for me to imagine the potential for a virus with the infectiousness of SARS-COV-2 and the fatality rate of MERS. Any rule put forward for *this* mandate also covers an equivalent mandate for such a virus.

    Back in the oughts, when liberals objected to infringement of civil liberties during the war on terror, conservatives often responded by noting that the constitution isn’t a suicide pact.

    But apparently, when it comes to protecting the public from infectious disease, it *is* a suicide pact.

    aphrael (4c4719)

  30. Back in the oughts, when liberals objected to infringement of civil liberties during the war on terror, conservatives often responded by noting that the constitution isn’t a suicide pact.

    But apparently, when it comes to protecting the public from infectious disease, it *is* a suicide pact.

    Point taken, but during the GWOT (nobody uses that acronym — Global War on Terror — any longer, do they?) very few people indeed had their liberties infringed upon in any significant way. Yes, we all had to (and still have to) be inconvenienced at airport security, but the degree to which the government actually listened in to phone calls or monitored suspicious activity at mosques was very strongly and rightfully limited. With the vaccine mandate, we’re talking about requiring everybody in the country to knuckle-under to a questionable government order. I just don’t think that’s analogous to the infringement on our civil liberties after the September 11 attacks.

    I still believe that private businesses have the right to make various requirements of their employees, vendors, and customers, just as they are solely accountable for any consequences of those requirements. I can even tolerate my city government saying that you have to be vaccinated to use the public library (for one example), since I have a degree of confidence that we can vote in new rules if a majority of us disagree. But I shudder at the idea that the federal government might take on this responsibility and mandate it nationwide. That’s a bridge too far for me.

    JVW (ee64e4)

  31. Was what we now call a “flu shot” ever referenced or marketed as a flu vaccine (back when DCSCAs friends nearly bought it)? That word alone being grafted on to what clearly is more of a preventative therapeutic is 60 percent of the problem.

    urbanleftbehind (c2e573)

  32. Yes, of course it was, since it IS a vaccine. That it doesn’t cover all the myriad virus that are called influenza doesn’t change that. Similarly, the HPV vaccine, the pneumonia vaccine, etc.

    Kevin M (ab1c11)

  33. aphrael has a bit of a point as the TSA is a government intrusion where the former airline security personnel were private. And at the time there were people who suggested there were ways that the private operations could be continued without creating a new federal bureaucracy. Such as indemnify the airlines against the 1-in-a-billion mistake and mandate a large enough minimum wage (e.g. $25/hr in 2002) for the security folk that would attract better people.

    It was not actually necessary to ignore the 4th Amendment at airports.

    Kevin M (ab1c11)

  34. It isn’t hard for me to imagine the potential for a virus with the infectiousness of SARS-COV-2 and the fatality rate of MERS. Any rule put forward for *this* mandate also covers an equivalent mandate for such a virus.

    Gee, but I’d rather have some future horror litigated on its own basis rather than borrowing the trouble here today. In the case you suggest 1) you would not have to order businesses to do this, and 2) a lot more government intrusion would happen (and be welcomed) at the onset.

    Something like that and you’d ground all airplanes and maybe block roads to prevent cross-contamination. Not that anyone would be leaving their basement.

    Kevin M (ab1c11)

  35. Speaking of irony cancun ted cruz (turd-texas) says the rioters were violent terrorists on Wednesday then realizes trumpsters are insurrectionist who’s votes he need to run for president on thursday tells tucker carlson rioters were peaceful protesters! Even tucker couldn’t swallow this dog vomit and called him a liar! Opportunism has its limits even for lying ted.

    asset (91c6a4)

  36. I think the biggest mistake by Kagan today is this one:
    Kagan: “We know the best way to prevent spread is for people to get vaccinated.”

    CDC says via HotAir: “the CDC makes it very clear in its conclusions about Omicron that the vaccinated do become vectors for community transmission. “CDC expects that anyone with Omicron infection can spread the virus to others,” they declare to anyone who bothers to look, “even if they are vaccinated or don’t have symptoms,” emphasis mine. The CDC likewise notes that vaccinated people who get a symptomatic Delta infection are contagious to others, and suspect that they are also contagious when asymptomatic too. So no, vaccinations do not stop community transmission of either of the variants circulating in the US, especially not Omicron, which is 95% of all detected cases now.”

    https://hotair.com/ed-morrissey/2022/01/07/todays-deep-question-will-twitter-suspend-sotomayor-for-covid-misinformation-n439995

    steveg (e81d76)

  37. One of the things that used to make the USA work was individual responsibility.
    Its too much responsibility to tell a person they need to get vaccinated for everyone else. Its much easier and more truthful to say the vaccination is for you. If you get sick with COVID it ups your chances of living even with existing health conditions. That is motivation enough for most people and it doesn’t involve the lie that without the vaccine you will be killing people, because even with the vaccine onboard, and turbocharged you can transmit COVID.
    Individuals who don’t want to roll the dice on getting a fatal episode of COVID should vaccinate. If they cannot vaccinate they should take every other precaution because vaccinated and unvaccinated alike can give them a fatal transmission.

    As a nation we’ve had a fine bit of fun blaming the GOP redstate trumpbillies for spreading the virus, when now we are told that the virus will transmit regardless to vaccination status.
    Save your own life. Get vaccinated. Or don’t and take your chances.

    steveg (e81d76)

  38. when liberals objected to infringement of civil liberties during the war on terror, conservatives often responded by noting that the constitution isn’t a suicide pact.

    aphrael (4c4719) — 1/7/2022 @ 11:40 am

    By this definition I’m not a conservative. One of the many reasons I reject the label.

    But I never got the sense that liberals really objected that much either. As soon as it went from GB -> BO most of that complaining went away even though Gitmo, drone strikes, unauthorized surveillance, etc, didn’t.

    A similar thing happened with the transformation of big pharma on the left. Those tens of thousands that marched against GMOs lined right up for the mRNA vaccine and are more than happy to bully anyone else that doesn’t.

    frosty (f27e97)

  39. Breaking: Omicron may have peaked in New York, but they are still not ready to say for a fact that it has.

    Covid-19 is reaching herd immunity even faster than was thought a week ago,

    Sammy Finkelman (c49738)

  40. Justice Damuel Alito used the hiding an elephant in a mousehole analogy during his questioning.

    Sammy Finkelman (c49738)

  41. Sammy,

    with how fast I’ve seen this recent variant spread and go through the local population, I’d expect this all to be over in a month.

    NJRob (eb56c3)

  42. #39
    Thank you mass transit

    steveg (e81d76)

  43. Out of the rectum and second hand. Ick

    steveg (e81d76)

  44. NJRob (eb56c3) — 1/7/2022 @ 12:53 pm

    It went through South Africa in something like six weeks. I haven’t seen the latest from the UK. Your estimate doesn’t seem off since it takes a bit longer for the variants to work through the US.

    frosty (f27e97)

  45. when now we are told that the virus will transmit regardless to vaccination status.
    Save your own life. Get vaccinated. Or don’t and take your chances.

    The data shows that vaccinated people are far less likely to contract the virus.
    This may change based on Omicron, but at this point in time the bolded part isn’t accurate.
    https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status

    Time123 (9f42ee)

  46. Sammy, I hope you’re correct about heard immunity.

    Time123 (9f42ee)

  47. This government couldn’t protect their own Capitol so who the hell believes it can mandate effective ‘protections’ chasing a mutating virus.

    Find the source, assign blame, demand restitution, sign the frigging test contracts and get the damned pills out. The fish rots from the head down; the endless degree of disgraceful incompetence on display from this ’45-years-of-government-experience-bum’ and his ancient cohorts in Congressional leadership simply fuels defiant populism across the land.

    DCSCA (f4c5e5)

  48. Biden had 44 years of experience (1973-2017) where nothing he thought mattered.

    Sammy Finkelman (c49738)

  49. Its too much responsibility to tell a person they need to get vaccinated for everyone else. Its much easier and more truthful to say the vaccination is for you. If you get sick with COVID it ups your chances of living even with existing health conditions.

    Except this allows people to think that if they are healthy, and they get it, it’s no big deal. Heck, they can probably still go into work at the old folks’ home. amiright?

    Maybe we need to bring back the draft to get that idea of community responsibility across again.

    Kevin M (ab1c11)

  50. Sammy, I hope you’re correct about heard immunity.

    If he is, watch Biden claim credit.

    Kevin M (ab1c11)

  51. A politician claim credit for something that happened during their term even if they didn’t cause it? Unpossible.

    But I don’t get too worked up about it. We blame them when bad things happen even if they can’t do much about it.

    Time123 (9f42ee)

  52. OT- NASA to Host Coverage, Briefing for Webb Telescope’s Final Unfolding

    https://www.nasa.gov/press-release/nasa-to-host-coverage-briefing-for-webb-telescope-s-final-unfolding

    You know, this $10 billion telescope is among the most significant advances in human history, yet our so-called ‘news channels’ barely mention it at all. The astonishing web of intricate complexities necessary to successfully deploy Webb- overcoming the hundreds of possible single-point failures- is a triumph of organization, planning, splendid engineering, competent testing as well as the mind and hand of Man.

    It’s non-political and positive news, too. Something we sorely need in these times. Back in the day, through the turbulent and wretchedly miserable 1960s, human efforts in space were the only truly positive news conveyed– it was a good, positive story; a golden thread woven through a dark decade-long tapestry. Our media at the time latched on to that. But not today. I’m tired of bad news; of poor reporting by drunken news readers, blowhard opiniators and dumb-assed politicians trying to score points. Turning to the mind candy of the Kardashians or a plethora of games shows won’t cut it, either. It’s time we started looking up again and celebrating our accomplishments. Once upon a time, that’s the way it was– and the way it should be again.

    DCSCA (f4c5e5)

  53. Kevin M,

    How often do you have the right to inject someone with something that may/may not work as you intend to make others feel safe?

    More infections daily than at any point previously shows how effective the vaccine is.

    NJRob (25a29c)

  54. @52. Webb would be a big story if it found something in space that only the government could protect us from with something only a large corporation could provide.

    frosty (f27e97)

  55. @53, as does the fact that all a huge % of the deaths and hospitalizations come from non-vaccinated people.

    Time123 (9f42ee)

  56. #45
    Thanks for the correction

    steveg (e81d76)

  57. Kevin M
    Not sure my job is to get that deep into what people think.
    I am sure that everyone in the old folks home as a patient should be vaccinated and turbocharged, but again, that is their choice or the choice of the person that controls their health care directive.
    You can require workers to get vaccinated and boostered, but they can still carry and transmit the virus, so its back onto the individual person or their health care directive designate to get it done. A virus of this type is extraordinarily hard to keep from breaking through… look at it this way triple vaccinated and still can still transmit.

    Time 123 updated me earlier but I’d like to respond that the viral load transmitted from a vaccinated person may be lighter, but it isn’t always about the weight of the viral load, it is about how the person individually responds to the viral load they get… a small viral load in a weak unvaccinated person can grow and rip

    steveg (e81d76)

  58. Even money that the Omicron was manmade as a live virus vaccine that confers immunity by contagion (with unfortunately more severe “side effects”) because The Powers decided that it was time to move on, but nobody will ever admit it.

    nk (1d9030)

  59. Was what we now call a “flu shot” ever referenced or marketed as a flu vaccine (back when DCSCAs friends nearly bought it)? That word alone being grafted on to what clearly is more of a preventative therapeutic is 60 percent of the problem.

    urbanleftbehind (c2e573) — 1/7/2022 @ 11:55 am

    Yeah, it was–I’ve read military base newspapers from the early 50s that talked about it in those terms.

    Factory Working Orphan (2775f0)

  60. “Sotomayor: “How are human beings different from a machine?”

    Hard to find a better one-sentence distillation of our crisis.”
    Dr Aaron Kheriaty

    Obudman (84ff09)

  61. Webb would be a big story if it found something in space that only the government could protect us from with something only a large corporation could provide.

    frosty (f27e97) — 1/7/2022 @ 2:16 pm

    Well-stated. Pithy and on point.

    It reminds me of this quote from H.L. Mencken:

    The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins, most of them imaginary.

    norcal (d4ed1d)

  62. steveg (e81d76) — 1/7/2022 @ 5:45 pm

    With respect to omicron we’ve got data that

    1) it is less lethal than previous variants
    2) the vaccine is less effective against it

    frosty (f27e97)

  63. Sammy, I hope you’re correct about heard immunity. </o?

    Kevin M (ab1c11) — 1/7/2022 @ 1:35 pm

    If he is, watch Biden claim credit.

    Maybw only for defeating, Covid without explaining why (or if he does, he’ll attribute it tomore people getting vaccinated.)

    They’re struggling, on YV, (as reported by NBC News) not to say that Covid cases are going to headed down.

    Anything to avoid saying the end is approaching or at least the spike will soon be over. The explanations they offer for South Africa and the United Kingdom can;t be combined. In South Africa the population is younger, and it’s summer. In the UK, it’s winter and a higher percentage is vaccinated than in the USA. Dr Rochelle W says the United States is a much bigger country than the UK so maybe the same thing won’t happen here.

    What we are seeing is: More positive cases, at an enormous rate; hospitalization not exceeding the peak; deaths slightly, but only very slightly, higher; hospitals short staffed because of staff testing positive, getting or threatening to reach a point where people in ICU might not live in some cases where they otherwise would; people coming into the hos[ital for other reasons testing positive for Covid, and toddlers (4 and under, but really younger) being hospitalized at a higher rate than they were before. Most people in medical trouble are not vaccinated and unvaccinated people are getting priority for scarce medical treatment. (the monoclonal antibodies that work, and the pills.)

    The pills are also going to the people who have the patience and the savvy to hunt them down. A Pharmacy in Texas that had them (the 19th one somebody tried) might have mistakenly told people it would cost them $500 and was picky about what prescriptions they would accept..

    Sammy Finkelman (c49738)

  64. 58. nk (1d9030) — 1/7/2022 @ 5:49 pm

    Even money that the Omicron was manmade as a live virus vaccine that confers immunity by contagion (with unfortunately more severe “side effects”) because The Powers decided that it was time to move on, but nobody will ever admit it.

    No, it was God. People don’t know how to thank God and for what. No human being would know enough to know how to do it. Or even know to put Covid under selection pressure.

    I heard this theory that it was man-made from someone whose doctor had this idea, and thought every variant had been created in a lab, because of the large number of mutations although it’s only Omicron that really has a lot of them. Maybe that doctor thought Omicron was also worse.

    There are no intermediate variants. But we know how these multiple mutation variants happen, except peer review slows down publication. Other theories tossed out to stop publication are that there was an outbreak somewhere where somehow none of the intermediate variations

    And they probably know who was Patient for Omicron. This person had to have HIV and was treated for months with anti-virals and during the course of his illness he was also infected with thw coronavirus cold virus 229E, which could probably only last long in a person with a compromised immune system.

    Maybe there was a whole clinic in Botswana where Covid was mutating, and being passed back and forth repeatedly between the same patients because Omicron is more than more contagious itself. It survives longer in the air because its spike protein is more positively charged than even Delta which in turn was more positively charged than previous versions. This keeps it away from the surface of an aerosol because it is protected by negatively charge mucins (long sugar-like proteins from a lung’s lining) and also surfactants may have an effect. Incidentally, most aerosols contain no Covid, but there are a lot of them, and even the biggest probably contains only one viral particle, or maybe two can’t survive in the same aerosol or droplet.

    Craziest anti-vaccine theory I heard (Friday night) Taking the vaccine will you in two years. IN two years, obviously, because if they said right away, people would see it’s not so. Two years because it’ll scare people more than saying it’s like asbestos which didn’t kill people within two years/

    Sammy Finkelman (c49738)


Powered by WordPress.

Page loaded in: 0.1801 secs.