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Well what else are they going to do? Let people not have their lives dictated by the belief of a shrinking, shrieking minority of people?
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Dec 14, 2021 15:17
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Evil Fluffy posted:IIRC, that judge is insane even by 5th circuit standards, which means he's probably going to be nominated to the SCOTUS by DeSantis when Stevens dies in several years. Ho and Rao - Rao especially - write opinions like they're auditions for SCOTUS yeah. Rao's insane impeachment poo poo was the most transparent I've seen.
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Dec 14, 2021 15:30
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Evil Fluffy posted:IIRC, that judge is insane even by 5th circuit standards, which means he's probably going to be nominated to the SCOTUS by DeSantis when Stevens dies in several years. Stevens? You mean Breyer?
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Dec 14, 2021 15:38
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Mr. Nice! posted:Stevens? You mean Breyer? No, he meant Stevens. When Stevens dies, Mitch (in control of the senate) will say that they need to replace him and for the first time ever, Mitch will nominate and have the senate consent to his judicial nominee. The Democrats will twiddle their thumbs in angst.
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Dec 14, 2021 15:41
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Justice Stevens hasn’t been on the bench in 11 years and hasn’t been alive for 2.
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Dec 14, 2021 15:50
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Mr. Nice! posted:Justice Stevens hasn’t been on the bench in 11 years and hasn’t been alive for 2. poo poo, Mitch is behind… I honestly thought he was still alive.
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Dec 14, 2021 16:00
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Mitch: “It is long past time we filled Justice Stevens’ seat in the manner intended by the founders, by expanding the court…”
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Dec 14, 2021 16:44
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Dissents are basically opinion columns, Scalia and Thomas loved doing that.
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Dec 14, 2021 16:57
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Mr. Nice! posted:Stevens? You mean Breyer? Yeah I was thinking Stephen Breyer and IDK why I wrote Stevens.
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Dec 14, 2021 17:07
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Stevens was a million times better than Breyer
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Dec 14, 2021 18:28
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Seeing a lot of commentary saying that the vaccine mandate appears doomed. Just wondering what the thread consensus is.
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Jan 7, 2022 22:26
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No good will come out of this court.
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Jan 7, 2022 22:35
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AKA Pseudonym posted:Seeing a lot of commentary saying that the vaccine mandate appears doomed. Just wondering what the thread consensus is. Depends on how many republican voters are dying to the virus due to being defiantly unvaccinated.
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Jan 8, 2022 00:25
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AKA Pseudonym posted:Seeing a lot of commentary saying that the vaccine mandate appears doomed. Just wondering what the thread consensus is. Anyway, abortion is illegal now."
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Jan 8, 2022 00:47
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Welp, guess it's time for some more $10K civil bounties.
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Jan 8, 2022 01:17
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It'll be the nondelegation doctrine. The righties on the Court have been eager to revive that since Biden took office. Roberts complemented to job the SG did. Kiss of death.
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Jan 8, 2022 03:15
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ilkhan posted:Separate but [un]equal is very much alive in democrat circles already. hey i was curious what you meant by this
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Jan 8, 2022 06:04
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Sarcastr0 posted:It'll be the nondelegation doctrine. The righties on the Court have been eager to revive that since Biden took office. I just appreciate how they're turning the constitution into a literal mass suicide pact. Can't just overturn delegation in some random business decision, no, has to be a plague with a million dead.
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Jan 8, 2022 11:20
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AKA Pseudonym posted:Seeing a lot of commentary saying that the vaccine mandate appears doomed. Just wondering what the thread consensus is. The SCOTUS is 100% lovely enough to say "state level mandates are fine but not federal mandates. What do you mean the Constitution says the federal government is responsible for the general welfare of the country?" Cease to Hope posted:hey i was curious what you meant by this Saying they are a bad faith poster would be kind and generous. Ignore the right wing talking points robot and move on.
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Jan 8, 2022 14:55
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AKA Pseudonym posted:Seeing a lot of commentary saying that the vaccine mandate appears doomed. Just wondering what the thread consensus is. Gorsuch thinks hundreds of thousands of people die every year from the flu. Thomas said he "heard" that older vaccinated people die at higher rates than younger unvaccinated people.
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Jan 8, 2022 16:30
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Older vaccinated people do have a higher death rate than younger unvaccinated people and tens of thousands of Americans die of the flu each year (well, not the last two years) and hundreds of thousands are hospitalized. It’s just that he first fact is completely irrelevant to mandates (what matters is how much how much protection you are personally offered and aggregate public health outcomes, not whether someone else is at extremely high risk), and the second is a failure of public health wrt flu, not a reason to neuter all public health responses. loving death cultists.
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Jan 8, 2022 17:21
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Vaccinated senior citizens have a lower death rate than unvaccinated 30-49 year olds. Tens of thousands is not hundreds of thousands.
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Jan 8, 2022 17:34
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If anything we should have vaccine mandates for the flu and more, but that's not really feasible while we also allow people to not be able to pay for health care
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Jan 8, 2022 17:34
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Groovelord Neato posted:Vaccinated senior citizens have a lower death rate than unvaccinated 30-49 year olds. Tens of thousands is not hundreds of thousands. We’ll sure, but not 20 year olds (and especially not if you throw in some comorbidities). Massively heterogenous death rates are part of the reason why mandates are so important, and why they need to be expanded to boosters - young people are at lower personal risk which makes them have less personal stake in vaccination while simultaneously being at high risk for transmission. High community transmission threatens vaccinated high-risk individuals. They’re better protected than they would have been without vaccination, but the best protection is much lower community transmission (like any transmissible disease). You can find an age range where the “fact” is true so it’s important to realize that the implication they’re trying to draw from it is backwards bullshit regardless. As you say, Thomas’ fact is wrong by a factor of 2-3, but seasonal influenza is a terrible public health burden that America gives much less of a poo poo about it should. That burden means that we should have flu vaccine mandates, better mitigation, paid sick leave and employee protections, etc, not that it should be used as a yardstick for acceptable disease burdens. Stickman fucked around with this message at 17:48 on Jan 8, 2022 |
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Jan 8, 2022 17:46
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Jan 8, 2022 17:46
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The SCOTUS knows that federal mandates for immunization are 100% within the Federal government's authority, especially when the Feds are footing the bill for it, but what is allowed and what is wanted by people who are the results of decades of judicial capture is two very different things.haveblue posted:If anything we should have vaccine mandates for the flu and more, but that's not really feasible while we also allow people to not be able to pay for health care Sure it is. Just pray that the GOP never realizes this or they'll use it to bring back indentured servitude and drop what little pretense still exists.
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Jan 8, 2022 18:34
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Evil Fluffy posted:The SCOTUS knows that federal mandates for immunization are 100% within the Federal government's authority, especially when the Feds are footing the bill for it, but what is allowed and what is wanted by people who are the results of decades of judicial capture is two very different things. You know when you stop and think about it America had to exist the way it does for you to have been born the way you were (free  ). That means America took on debt for you. That means you need to work off your share of the national debt. And wouldn't you know it, we have this field over here...SCOTUS and the Republican WH in <10 years, probably.
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Jan 9, 2022 17:25
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Dameius posted:You know when you stop and think about it America had to exist the way it does for you to have been born the way you were (free i get this is a joke but i think you missed the mark on this one
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Jan 9, 2022 17:38
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 Opinion! Technical retirement opinion about National Guard technicians and that’s it.BABCOCK v. KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY. TLDR: Retirement payments made to a “dual-status military technician” are not “based wholly on service as a member of uniformed service” and therefore reduce Social Security payouts, because they are based on employment not subject to Social Security taxes. Holding / Majority Opinion (Barrett) The Social Security Act generally reduces the benefits of retirees who receive payments from separate pensions based on employment not subject to Social Security taxes. The reduction is not triggered, though, by payments “based wholly on service as a member of a uniformed service.” We must decide whether this exception applies to civil-service pension payments based on employment as a “dual-status military technician”—a federal civilian employee who provides technical or administrative assistance to the National Guard. We hold that it does not. Retirees receive Social Security benefits according to a statutory formula based on average past earnings…But the formula originally did not count earnings from jobs exempt from Social Security taxes, so it calculated artificially low earnings for retirees who spent part of their careers in those jobs. As a result, those retirees received an artificially high percentage of their calculated earnings in Social Security benefits—plus, in many cases, payments from separate pensions to boot. Congress responded to this “windfall” by modifying the formula to reduce benefits when a retiree receives such a separate pension payment. But it exempted several categories of pension payments, including “a payment based wholly on service as a member of a uniformed service.” The upshot is that pensions based on uniformed service do not trigger a reduction in Social Security benefits. This case concerns the application of the windfall elimination provision to a unique position in federal employment: the “military technician (dual status).”...On one hand, the dual-status technician is a “civilian employee” engaged in “organizing, administering, instructing,” “training,” or “maintenance and repair of supplies” to assist the National Guard. On the other, the technician “is required as a condition of that employment to maintain membership in the [National Guard]” and must wear a uniform while working. This dual role means that technicians perform work in two separate capacities that yield different forms of compensation. First, they work full time as technicians in a civilian capacity. For this work, they receive civil-service pay and, if hired before 1984, Civil Service Retirement System pension payments from the Office of Personnel Management. Second, they participate as National Guard members in part-time drills, training, and (sometimes) active-duty deployment. For this work, they receive military pay and pension payments from a different arm of the Federal Government, the Defense Finance and Accounting Service. [Plaintiff is one of those people and applied for benefits] The [Social Security Administration] granted his application but determined that his civil-service pension payments, which he received for his work as a civilian technician, triggered the windfall elimination provision. So the agency applied the modified formula to reduce his Social Security benefits by about $100 per month. [He appealed, then sued, makes it to the Supreme Court] The dispute is narrow: All agree that Babcock’s separate military pension for his National Guard service does not trigger the windfall elimination provision. And all agree that Civil Service Retirement System pensions generally do trigger that provision. The only question is whether Babcock’s civil-service pension for technician work avoids triggering the provision’s reduction in benefits because it falls within the exception for “a payment based wholly on service as a member of a uniformed service.” The answer depends on whether Babcock’s technician work was service “as” a member of the National Guard. … It was not. In context, “as” is most naturally read to mean “[i]n the role, capacity, or function of.” And the role, capacity, or function in which a technician serves is that of a civilian, not a member of the National Guard. The statute defining the technician job makes that point broadly and repeatedly: “For purposes of this section and any other provision of law,” a technician “is” a “civilian employee,” “assigned to a civilian position” and “authorized and accounted for as” a “civilian.” This statute’s plain meaning “becomes even more apparent when viewed in” the broader statutory context. While working in a civilian capacity, technicians are not subject to the Uniform Code of Military Justice. They possess characteristically civilian rights to seek redress for employment discrimination and to earn workers’ compensation, disability benefits, and compensatory time off for overtime work. And, as particularly significant in the context of retirement benefits, technicians hired before 1984 are members of the “civil service” entitled to pensions under Title 5 of the U. S. Code, which governs the pay and benefits of civil servants. These provisions demonstrate that Congress consistently distinguished technician employment from National Guard service. … Determining whether Babcock’s technician employment was service “as” a member of the National Guard does not turn on factors like whether he wore his uniform to work. It turns on how Congress classified the job—and as already discussed, Congress classified dual-status technicians as “civilian.” Babcock dismisses that distinction as one drawn for purposes of “administrative bookkeeping,” but bookkeeping matters when it comes to pay and benefits. Babcock’s civil-service pension payments fall outside the Social Security Act’s uniformed-services exception because they are based on service in his civilian capacity. We therefore affirm the judgment of the Court of Appeals. It is so ordered. Lineup: Barrett, joined by everyone but Gorsuch. Dissent by Gorsuch. Dissent (Gorsuch) Dual-status military technicians hold “a unique position in federal employment.” Not only do they sometimes serve on active duty, as the petitioner did. By statute, they spend the rest of their time working for the Guard—on matters ranging from training others to administration to equipment maintenance. At all times, they must “maintain membership” in the National Guard and wear a Guard uniform while on the job. The authority to discharge or discipline these individuals, too, rests with the Adjutant General. Given these features of their employment, I would hold that dual-status technicians “serv[e] as” members of the National Guard in all the work they perform for this country day in and day out. I appreciate the analogy to police officers moonlighting as private security guards. But to my mind dual-status technicians are more like part-time police officers employed in their outside hours by the same police department to train recruits, administer the precinct office, and repair squad cars—all on the condition that they wear their police uniforms and maintain their status as officers. I suspect most reasonable officers in that situation would consider the totality of their work to constitute “service as . . . member[s]” of the police force. So too here I expect most Guardsmen who serve as “dual-status technicians”—who come to work every day for the Guard, in a Guard uniform, and subject to Guard discipline—would consider all of their work to represent “service as . . . member[s]” of the National Guard. I would honor that reasonable understanding and would not curtail servicemembers’ Social Security benefits based primarily on implications extracted from other, separate “bookkeeping” statutes. https://www.supremecourt.gov/opinions/21pdf/20-480_b97c.pdf
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Jan 13, 2022 20:10
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RIP to OSHA, can't mandate vaccines because Covid is not an "occupational" hazard -- you can contract it anywhere! Here's the opinion if you want to wade through the tortured reasoning: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf. Thomas, Alito, Barrett, and Gorsuch would have struck down the vaccine requirement for healthcare workers as well. Smiling Knight fucked around with this message at 20:42 on Jan 13, 2022 |
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Jan 13, 2022 20:38
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Smiling Knight posted:RIP to OSHA, can't mandate vaccines because Covid is not an "occupational" hazard -- you can contract it anywhere! Here's the opinion if you want to wade through the tortured reasoning: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf. quote:The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” Response Brief I guess OSHA isn't allowed to regulate air quality within workplaces because you are exposed to air pollution outside the workplace as well. I also like the tacit acknowledgment in this paragraph that people who work in schools or at sporting events or at anywhere that people gather don't count as workers who can be protected by OSHA rules.
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Jan 13, 2022 20:43
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What a loving joke lol
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Jan 13, 2022 20:45
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vyelkin posted:I guess OSHA isn't allowed to regulate air quality within workplaces because you are exposed to air pollution outside the workplace as well.
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Jan 13, 2022 20:47
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The thing is that the conservative justices even lead AG arguments that pushed the idea that states can do this even though the federal government cannot. It means that any state wide vaccine mandate would be okay. States like NY, CA and maybe IL could do that but no one else would (and even those 3 may not). However, they totally are going to gut OHSA the first chance they get.
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Jan 13, 2022 20:56
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vyelkin posted:I guess OSHA isn't allowed to regulate air quality within workplaces because you are exposed to air pollution outside the workplace as well. Am I missing something, or could this total nonsense justification also be used to eliminate 99.9% of OHSA rules because they're pretty much all about things that could also be "hazards of daily life"? Wet floors, things falling on people, tractors rolling over, grease fires, whatever. Roadie fucked around with this message at 21:37 on Jan 13, 2022 |
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Jan 13, 2022 21:32
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Roadie posted:Am I missing something, or could this total nonsense justification also be used to eliminate 99.9% of OHSA rules because they're pretty much all about things that could also be "hazards of daily life"? Wet floors, things falling on people, tractors rolling over, fire extinguishers, whatever. You're not missing anything. The ultimate goal is to eliminate the ability of Congress to pass a law stating that a particular department can enact legally binding regulations on a particular field (like OSHA and workplaces). Everything that is regulations set by a department today would have to become a full bill passed by congress and signed by the president. From their perspective, this has two advantages. First, Congress doesn't have as much time or expertise as the administrative state, so the amount of regulation would vastly decrease. Second, Congress is so dysfunctional it can't agree to pour water on the country while it's on fire, so the amount of regulation would decrease to zero
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Jan 13, 2022 21:42
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Roadie posted:Am I missing something, or could this total nonsense justification also be used to eliminate 99.9% of OHSA rules because they're pretty much all about things that could also be "hazards of daily life"? Wet floors, things falling on people, tractors rolling over, grease fires, whatever. Ah, but you see, these are scenarios indirectly caused by your employer by allowing access to slippery chemicals, heavy equipment, flammable objects, and other things that are required for the job to be regulated in a safe manner. That's irrelevant here, because your job didn't provide the air you breathe. God did! 
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Jan 13, 2022 22:01
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The ruling about national Guard retirement for federal technicians is going to upset a lot of people that I know. It's one of those technically correct rulings that ignores the fact that if you're a full-time technician in the national Guard you have to be in the military and wear the uniform and called by your rank so it's only quasi civilian.
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Jan 13, 2022 22:12
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haveblue posted:You're not missing anything. The ultimate goal is to eliminate the ability of Congress to pass a law stating that a particular department can enact legally binding regulations on a particular field (like OSHA and workplaces). Everything that is regulations set by a department today would have to become a full bill passed by congress and signed by the president. From their perspective, this has two advantages. First, Congress doesn't have as much time or expertise as the administrative state, so the amount of regulation would vastly decrease. Second, Congress is so dysfunctional it can't agree to pour water on the country while it's on fire, so the amount of regulation would decrease to zero It'd be really handy to have a POTUS who was actually a leader because maybe we'd actually see the court punished for its abuses and illegitimacy. Instead we get Biden now and someone in 2024 who will be worse than Trump and not nearly as stupid as him because Biden or Harris running in 2024 will get annihilated.
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Jan 14, 2022 00:19
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Opinion! COVID! This is the one (health care in facilities receiving Medicare/Medicaid funds) where the mandate survives. OSHA to come later. BIDEN v. MISSOURI. TLDR: The HHS requirements that anyone receiving Medicare and Medicaid funds vaccinate their employees can go into effect.. Holding / Majority Opinion (Per Curiam) The Secretary of Health and Human Services administers the Medicare and Medicaid programs, which provide health insurance for millions of elderly, disabled, and low-income Americans. In November 2021, the Secretary announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. Two District Courts enjoined enforcement of the rule, and the Government now asks us to stay those injunctions. Agreeing that it is entitled to such relief, we grant the applications. The Medicare program provides health insurance to individuals 65 and older, as well as those with specified disabilities. The Medicaid program does the same for those with low incomes. Both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.” One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety…To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” Relying on these authorities, the Secretary has established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds. Such conditions have long included a requirement that certain providers maintain and enforce an “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.” [That includes a covid vaccination now, hence this lawsuit; the plaintiffs received preliminary injunctions, which the Government wants to stay; a stay means the covid vaccination rules go into effect pending the rest of the lawsuit.] First, we agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him. Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. He accordingly concluded that a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic. The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. … When asked at oral argument whether the Secretary could, using the very same statutory authorities at issue here, require hospital employees to wear gloves, sterilize instruments, wash their hands in a certain way and at certain intervals, and the like, Missouri answered yes: “[T]he Secretary certainly has authority to implement all kinds of infection control measures at these facilities.” Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does. And his response is not a surprising one. Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella. … We also disagree with respondents’ remaining contentions in support of the injunctions entered below. First, the interim rule is not arbitrary and capricious. Given the rulemaking record, it cannot be maintained that the Secretary failed to “examine the relevant data and articulate a satisfactory explanation for” his decisions to (1) impose the vaccine mandate instead of a testing mandate; (2) require vaccination of employees with “natural immunity” from prior COVID–19 illness; and (3) depart from the agency’s prior approach of merely encouraging vaccination. Nor is it the case that the Secretary “entirely failed to consider” that the rule might cause staffing shortages, including in rural areas. As to the additional flaws the District Courts found in the Secretary’s analysis, particularly concerning the nature of the data relied upon, the role of courts in reviewing arbitrary and capricious challenges is to “simply ensur[e] that the agency has acted within a zone of reasonableness.” Other statutory objections to the rule fare no better. First, JUSTICE ALITO takes issue with the Secretary’s finding of good cause to delay notice and comment. But the Secretary’s finding that accelerated promulgation of the rule in advance of the winter flu season would significantly reduce COVID–19 infections, hospitalizations, and deaths, constitutes the “something specific,” required to forgo notice and comment. And we cannot say that in this instance the two months the agency took to prepare a 73-page rule constitutes “delay” inconsistent with the Secretary’s finding of good cause. Second, we agree with the Secretary that he was not required to “consult with appropriate State agencies,” in advance of issuing the interim rule. Consistent with the existence of the good cause exception, which was properly invoked here, consultation during the deferred notice-and-comment period is permissible. We similarly concur with the Secretary that he need not prepare a regulatory impact analysis discussing a rule’s effect on small rural hospitals when he acts through an interim final rule; that requirement applies only where the Secretary proceeds on the basis of a “notice of proposed rulemaking,” followed by a “final version of [the] rule.” Lastly, the rule does not run afoul of the directive in §1395 that federal officials may not “exercise any supervision or control over the . . . manner in which medical services are provided, or over the selection [or] tenure . . . of any officer or employee of ” any facility. That reading of section 1395 would mean that nearly every condition of participation the Secretary has long insisted upon is unlawful. The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have. Because the latter principle governs in these cases, the applications for a stay presented to JUSTICE ALITO and JUSTICE KAVANAUGH and by them referred to the Court are granted. Lineup: Per Curiam. Dissent by Thomas, joined by Alito, Gorsuch, and Barrett. Dissent by Alito, joined by Thomas, Gorsuch, and Barrett. Dissent (Thomas) Two months ago, the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS), issued an omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID–19 vaccine. Covered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements. As a result, the Government has effectively mandated vaccination for 10 million healthcare workers. Two District Courts preliminarily enjoined enforcement of the omnibus rule, and the Government now requests an emergency stay of those injunctions pending appeal. Because the Government has not made a strong showing that it has statutory authority to issue the rule, I too would deny a stay. To obtain a stay, the Government must show that there is (1) a reasonable probability that we would grant certiorari; (2) a fair prospect that we would reverse the judgments below; and (3) a likelihood that irreparable harm will result from denying a stay. Because there is no real dispute that this case merits our review, our decision turns primarily on whether the Government can make a “strong showing” that it is likely to succeed on the merits. In my view, the Government has not made such a showing here. The Government begins by invoking two statutory provisions that generally grant CMS authority to promulgate rules to implement Medicare and Medicaid. The first authorizes CMS to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions.” The second authorizes CMS to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs” under the Medicare Act. … Rules carrying out the “administration” of Medicare and Medicaid are those that serve “the practical management and direction” of those programs. Such rules are “necessary” to “administration” if they bear “an actual and discernible nexus” to the programs’ practical management. Here, the omnibus rule compels millions of healthcare workers to undergo an unwanted medical procedure that “cannot be removed at the end of the shift,”To the extent the rule has any connection to the management of Medicare and Medicaid, it is at most a “tangential” one. At oral argument, the Government largely conceded that §1302(a) and §1395hh(a)(1) alone do not authorize the omnibus rule. Instead, it fell back on a constellation of statutory provisions that each concern one of the 15 types of medical facilities that the rule covers. Several of those provisions contain language indicating that CMS may regulate those facilities in the interest of “health and safety.” ... The Government has not made a strong showing that this agglomeration of statutes authorizes any such rule. To start, 5 of the 15 facility-specific statutes do not authorize CMS to impose “health and safety” regulations at all. … Next, the Government identifies eight definitional provisions describing, for example, what makes a hospital a “hospital.” These define covered facilities as those that comply with a variety of conditions, including “such other requirements as the Secretary finds necessary in the interest of . . . health and safety.” … The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate. We presume that Congress does not hide “fundamental details of a regulatory scheme in vague or ancillary provisions.” Yet here, the Government proposes to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures….Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one. See 22 U. S. C. §2504(e) (authorizing mandate for “such immunization . . . as necessary and appropriate” for Peace Corps volunteers). … Here, in §1395x(e), none of the myriad subsections preceding the “health and safety” subsection suggests that the Government can order hospitals to require virtually all hospital personnel to be vaccinated. Rather, these subsections show that HHS’ residual authority embraces only administrative requirements like those that precede it—including “provid[ing] 24-hour nursing service,” “maintain[ing] clinical records on all patients,” or having “bylaws in effect.” A requirement that all healthcare workers be vaccinated is plainly different in kind. The same reasoning applies to almost all of the Government’s proposed facility-specific statutes. … Only one facility-specific provision is arguably different. It regulates long-term care facilities and mandates an “infection control program” among its “health and safety” provisions. But that infection-control provision focuses on sanitizing the facilities’ “environment,” not its personnel. In any event, even if this statutory language justified a vaccine mandate in long-term care facilities, it could not sustain the omnibus rule. … Finally, our precedents confirm that the Government has failed to make a strong showing on the merits. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” The omnibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not. Dissent (Alito) I join JUSTICE THOMAS’s dissent because I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vaccinated on pain of being fired. The support for the argument that the Federal Government possesses such authority is so obscure that the main argument now pressed by the Government—that the authority is conferred by a hodgepodge of scattered provisions—was not prominently set out by the Government until its reply brief in this Court. Before concluding that the Federal Government possesses this authority, we should demand stronger statutory proof than has been mustered to date. But even if the Federal Government has the authority to require the vaccination of healthcare workers, it did not have the authority to impose that requirement in the way it did. … Except in rare cases, an agency must provide public notice of proposed rules; the public must be given the opportunity to comment on those proposals; and if the agency issues the rule, it must address concerns raised during the notice-and-comment process.The rule may then be challenged in court, and the court may declare the rule unlawful if these procedures have not been followed. In these cases, the relevant agency did none of those things, and the Court rewards this extraordinary departure from ordinary principles of administrative procedure. … Because of the importance of notice-and-comment rulemaking, an agency must show “good cause” if it wishes to skip that process. Although this Court has never precisely defined what an agency must do to demonstrate good cause, federal courts have consistently held that exceptions to notice-and-comment must be “‘narrowly construed and only reluctantly countenanced.’” … Although CMS argues that an emergency justifies swift action, both District Courts below held that CMS fatally undercut that justification with its own repeated delays. The vaccines that CMS now claims are vital had been widely available 10 months before CMS’s mandate, and millions of healthcare workers had already been vaccinated before the agency took action. … In concluding that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against compliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting principle for why, after an unexplained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment. Therefore, I respectfully dissent. https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
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Jan 14, 2022 00:26
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