{"id":1198287,"date":"2022-01-07T20:49:29","date_gmt":"2022-01-08T01:49:29","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1198287"},"modified":"2022-01-07T20:49:32","modified_gmt":"2022-01-08T01:49:32","slug":"exclusive-kobach-supreme-court-justices-offer-clues-about-the-fate-of-the-osha-vaccine-mandate","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/exclusive-kobach-supreme-court-justices-offer-clues-about-the-fate-of-the-osha-vaccine-mandate\/","title":{"rendered":"Exclusive&#8211;Kobach: Supreme Court Justices Offer Clues About the Fate of the OSHA Vaccine Mandate"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">28<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fexclusive-kobach-supreme-court-justices-offer-clues-about-the-fate-of-the-osha-vaccine-mandate%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1198287&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2021\/12\/Supreme-Court-Justices-2021-640x335-1.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p class=\"subheading\">On Friday morning, the Supreme Court heard arguments concerning the legality of President Biden\u2019s use of an OSHA \u201cemergency temporary standard\u201d to force vaccinations (or weekly testing and constant mask wearing) on people working at companies with 100 or more employees. <span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n<p>More than two dozen suits were filed in the case, which was subsequently consolidated into a single, mammoth lawsuit in the Sixth Circuit of the U.S. Court of Appeals.<span class=\"Apple-converted-space\">&nbsp; <\/span>However, as soon as the Sixth Circuit lifted a stay on the OSHA standard that had been put in place by the Fifth Circuit, the groups challenging the OSHA standard sought an emergency stay in the Supreme Court.<span class=\"Apple-converted-space\">&nbsp; <\/span>The emergency stay would only be in place until the case was fully reviewed by the courts and a final decision was issued.<span class=\"Apple-converted-space\">&nbsp; <\/span>I am the lead attorney representing one group of those challengers\u2014North Dakota companies and employees.<\/p>\n<figure id=\"D-ROS-B1\" class=\"a8d\"><\/figure>\n<figure id=\"M-ROS-B1\" class=\"a8d\"><\/figure>\n<figure id=\"gmxrevmore\" class=\"H\"><\/figure>\n<p>Although it is difficult to draw firm conclusions from the questions and <a href=\"https:\/\/www.foxnews.com\/live-news\/supreme-court-hears-oral-arguments-on-biden-vaccine-mandates-live-updates\"><span>statements<\/span><\/a> made by the Justices during oral argument, several of the Justices revealed their thinking on the matter.<\/p>\n<p>The three progressive Justices showed their hands clearly:<span class=\"Apple-converted-space\">&nbsp; <\/span>all three are leaning strongly in OSHA\u2019s favor.<span class=\"Apple-converted-space\">&nbsp; <\/span>Justice Kagan seemed willing to let the OSHA mandate go into effect because of the danger presented by COVID.<span class=\"Apple-converted-space\">&nbsp; <\/span>Justice Sotomayor, too, suggested that \u201cdeaths at an unprecedented amount\u201d justified the OSHA rule.<span class=\"Apple-converted-space\">&nbsp; <\/span>She also suggested that a \u201cnational rule\u201d was needed to overrule the states that had banned vaccine requirements in the workplace.<span class=\"Apple-converted-space\">&nbsp; <\/span>Justice Breyer was even stronger in his expression of support for OSHA, focusing on the large number of new COVID cases emerging daily and calling it \u201cunbelievable\u201d to say that the OSHA vaccine mandate is not in the public interest. <span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n<p>The progressive Justices also argued that the sickness and death that the absence of a vaccine mandate might cause outweighed the possibility that 1-3 percent of employees might quit rather take the vaccine.<span class=\"Apple-converted-space\">&nbsp; <\/span>But the 1-3 percent estimate is OSHA\u2019s, and it is not remotely realistic.<span class=\"Apple-converted-space\">&nbsp; <\/span>One of the parties that I represent in this litigation, DTN Staffing\u2014a company that provides nurses to medical facilities in the northern Midwest\u2014estimates that 40-50 percent of its nurses will quit if they are forced to get the vaccine or test weekly.<\/p>\n<figure id=\"M-ROS-B2\" class=\"a8d\"><\/figure>\n<p>On the other side, the two most conservative Justices were clearly skeptical regarding the OSHA standard\u2019s legality.<span class=\"Apple-converted-space\">&nbsp; <\/span>Justice Thomas pointed to the fact that states and local government entities have the authority to enact COVID rules, so the absence of such authority in OSHA does not mean other government entities cannot act.<span class=\"Apple-converted-space\">&nbsp; <\/span>Justice Alito said that by using an OSHA standard, the Biden Administration was \u201ctrying to squeeze an elephant into a mousehole.\u201d<span class=\"Apple-converted-space\">&nbsp; <\/span>He also pointed out that \u201cprotecting the vaccinated was not the basis for this rule;\u201d instead OSHA justified it as a means of protecting the unvaccinated.<span class=\"Apple-converted-space\">&nbsp; <\/span>If that is the case, then the OSHA rule becomes hard to justify, when those workers have assessed those risks and are willing to bear them.<span class=\"Apple-converted-space\">&nbsp; <\/span>He emphasized that the OSHA regulation itself \u201cimposes a risk\u201d because of the potential adverse health consequences that many people suffer after receiving a COVID vaccination.<\/p>\n<p>Two of the Trump appointees seemed to be leaning against the rule.<span class=\"Apple-converted-space\">&nbsp; <\/span>Justice Gorsuch asked Biden\u2019s Solicitor General, \u201cWhy isn\u2019t this a major question that belongs in the states and in the halls of Congress?\u201d<span class=\"Apple-converted-space\">&nbsp; <\/span>He also pointed out that \u201ctraditionally OSHA has not regulated in this area,\u201d and that if OSHA could use emergency regulations to deal with COVID, then it could also use emergency regulations to address the flu.<span class=\"Apple-converted-space\">&nbsp; <\/span>And Justice Kavanaugh noted that Congress has passed laws addressing vaccines before, but not in this context, suggesting therefore that Congress did not intend for OSHA to have such authority.<\/p>\n<p>Justice Barrett was harder to read. She asked questions about the standard of review that the Court should be using and where to draw the line between OSHA normal standards, which are subject to public notice and comment, and emergency regulations like this one.<span class=\"Apple-converted-space\">&nbsp; <\/span>But she did not reveal her own thinking on the subject.<\/p>\n<p>Importantly, Chief Justice Roberts, often considered a swing vote on the Court, voiced significant skepticism about the rule.<span class=\"Apple-converted-space\">&nbsp; <\/span>He pressed Biden\u2019s Solicitor General, saying, \u201cI don\u2019t think you can say that [the OSHA statute] was specifically addressed to the problem.\u201d<span class=\"Apple-converted-space\">&nbsp; <\/span>He noted, \u201cThat was fifty years ago when Congress acted.<span class=\"Apple-converted-space\">&nbsp; <\/span>I don\u2019t think it had COVID in mind.\u201d He also stated that the matter was more appropriately left to Congress and the states to address, rather than \u201cagency by agency\u201d within the federal bureaucracy.<\/p>\n<p>Roberts\u2019s statements are an important clue about where the Court may go.<span class=\"Apple-converted-space\">&nbsp; <\/span>If he votes with the conservative Justices against the OSHA vaccine mandate, then it is more likely that Justices Gorsuch, Kavanaugh, and Barrett will follow.<\/p>\n<p>Hopefully that is what will happen.<span class=\"Apple-converted-space\">&nbsp; <\/span>If not, millions of Americans will be compelled to leave their jobs; and millions of others will succumb to government coercion and take a vaccine that they do not wish to take.<span class=\"Apple-converted-space\">&nbsp; <\/span>Our Constitution and federal statutes do not allow OSHA to put 84 million American workers into such a position.<\/p>\n<p><i>Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019.<span class=\"Apple-converted-space\">&nbsp; <\/span>Prior to that, he was a law professor at the University of Missouri\u2014Kansas City School of Law.<span class=\"Apple-converted-space\">&nbsp; <\/span>An expert in immigration law and policy, he was an informal adviser to President Trump.<span class=\"Apple-converted-space\">&nbsp; <\/span>He is currently General Counsel of the Alliance for Free Citizens and lead counsel representing the North Dakota businesses and employees in the case before the Supreme Court.<span class=\"Apple-converted-space\">&nbsp; <\/span>His website is <\/i><a href=\"http:\/\/www.kriskobach.com\"><span><i>www.kriskobach.com<\/i><\/span><\/a><i>.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/i><\/p>\n","protected":false},"excerpt":{"rendered":"<p>On Friday morning, the Supreme Court heard arguments concerning the legality of President Biden\u2019s use of an OSHA \u201cemergency temporary standard\u201d to force vaccinations (or weekly testing and constant mask &#8230;<\/p>\n","protected":false},"author":257,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1198287","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1198287","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/257"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1198287"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1198287\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1198287"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1198287"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1198287"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}