Supreme Court AXES 'Vax Or Test' Policy, UPHOLDS Hospital Vax Mandate | The Kyle Kulinski Show

 

So the Supreme Court a few days ago made a ruling on biden's vaccine mandate case. The reason I put mandate in quotes is because it's a vaccine or test policy which is not a mandate. Um but they did actually weigh in on the merits of a vaccine mandate as well in the case. So, uh the ruling is completely incoherent. Now, I will say I predicted the Supreme Court will either uphold the vaccine mandate or uh they'll say, look, it can't stand as it is, but Congress would need to pass a more specific law with this policy in place in order for it to be constitutional. So, I was wrong in the prediction that they're gonna let it stand. In fact, I was dead wrong in that prediction, but it appears like I was correct with the notion that Congress can decide whether or not to pass this on their own. So, but I'm gonna explain why even that's sort of on shaky ground right now because um they're kind of weaselly in their decision and they make a bunch of terrible arguments. And now I'm of the belief that even if Congress passed a specific law, by the way, which they won't. But if Congress passed a specific law that said vaccinate or test, um I think they'd still find a way to slap it down based on a lot of the wording of the decision. So, um they decided the Supreme Court ruled a hard vaccine mandate for hospitals is constitutional. So the federal government is effectively allowed to say um listen, if you work at a hospital, you have to get vaccinated, no excuses. And they say that's just fine. You can keep that in place now. They say that on sort of a technicality, they say, because the federal government is threatening to withhold certain funds from hospitals if they don't do it, that therefore, basically the federal government has the leverage to say, you have to get vaccinated. No excuses. And that would be constitutional, that would be allowed. So on the one hand, they are, they're giving a thumbs up to a hard vaccine mandate in certain fields. In this instance, it's hospitals, I'm sure if it came to nursing homes or something like that, any high risk field or at least any high risk field where there are some nominal government funds that go to the field, they say that's perfectly constitutional, that's perfectly legal. Um, and there really is no recourse for somebody who says, I don't want to get vaccinated. So it appears like even there's no ideological exemption. Like, hey, I just did my own research and I don't think that this is for me. Uh, there's no religious exemption. It appears like, so this is as hard a vaccine mandate as you can get. And they say, totally constitutional. Now, they say the policy that is implemented through OSHA and the president ordered this vaccine or test policy for businesses with 100 employees or more. They say that is actually unconstitutional and we're not going to allow it. So let me go ahead and read you the their main argument. Their main argument here, this is the crux of the Supreme Court's point in smacking down the vaccinate or test policy. OSHA empowers the secretary to set workplace safety standards, but not broad public health measures. Although Covid 19 is a risk that occurs in many workplaces. It is not an occupational hazard in most. So, do you understand what that argument is saying? That argument is saying? Um, Yeah, you can catch COVID-19 at work, but it is not specifically an occupational hazard. It's also a non occupational hazard that you can get when you're not at work. Therefore, since it's not specifically just an occupational hazard, the federal government cannot uh, do this policy or they at least cannot do this policy without Congress very specifically giving them the, you know, the ability to do this policy. Congress, we need to pass it first. Um, is the implication. Now, again, I'm not sure they actually believe that. In fact, I think if Congress passed a law with specific wording, they might even slap that down, which means we're just implementing um, a philosophy here from the federalist society, which says that the government needs to remain incredibly impotent when regulating businesses. So, um, I went back and took a look at the wording in OSHA. So in other words, what Congress already passed and the powers delegated to OSHA to determine whether or not. I think the Supreme Court is really doing a plain faced reading of what OSHA allows and doesn't allow and holy cow did I. I didn't expect for it to be this clear the wording to be this clear. So OSHA issues rules that provide medical criteria, quote medical criteria which will assure insofar as practicable that no employee will suffer diminished health or life expectancy as a result of his work. Let me repeat that. OSHA issues rules. This is what OSHA is already allowed to do under current law. OSHA issues rules that provide quote medical criteria which will assure insofar as practicable that no employee will suffer diminished health or life expectancy as a result of his work. I think the most plain face reading of the authority that already exists under OSHA is that of course they have the authority to implement a vaccinate or test policy. They might even have the ability. I mean, a plain face reading of this might even be a hard vaccine mandate is allowed under current OSHA rules. If they can tell you know somebody who works in construction, you are mandated by law under OSHA to wear a hard hat when you're at work. This is the same idea being implemented. Now. The Supreme Court might turn around and say, hey look, yeah, brick might drop on your head while you're at work and that's why you have to wear a hard hat, but you know what? There could be a freak accident where you're walking on the sidewalk and something falls from a large apartment building and hit you on the head and then you die. So since this is just an occupational hazard, but a hazard for the general population as well. Therefore we're not going to allow the rule on hard hats. I mean that's functionally the argument that the Supreme Court is making here. That's the argument that they made with covid since you can get it outside of work. Is it really an occupational hazard per se? And by the way, there are, you know, tens of thousands if not hundreds of thousands of people who have caught covid when they're at work, who ended up dying as a result of it. So look, I think it's fair to say you might even be able to constitutionally do a hard vaccine mandate under OSHA without any further powers delegated by Congress to OSHA. Now, me personally, my preferred policy is not a hard vaccine mandate. I actually agree with biden on this. I think vaccinate or test is the best policy because you both give people their individual rights and freedom, freedom to even make the wrong choice while also protecting the collective and looking out for the community and as leftists, we need to marry those two values which sometimes can be at odds. And that's the best way to do that in my opinion. But the Supreme Court is saying, no, no, you can't do that. You certainly can't do that with uh how OSHA is currently written and implemented. And so what you get now is this incoherent mish mash of different policies. So let me explain if you're keeping track of what the vaccine rules are, so far a local government, so, like a city government or or, you know, a government that's even smaller than that, some tiny town government, um, perhaps even a state government, they have the authority to implement a hard vaccine mandate where they can say, get the vaccine. No excuses. I don't want to hear about any any response about your own medical history and why it's not good for you. I don't wanna hear about an ideological exemption. I don't want to hear about a religious exemption. Uh, a small government, a local government can say get vaccinated. No excuses. If you don't get vaccinated, we can find you This is like a hard vaccine mandate. That's constitutional under our current law, there was a 1905 Supreme Court decision which has not been overturned, which states that is perfectly constitutional for the government to force you to get that vaccine. That's still law in the United States of America today. So that's allowed a hard vaccine, candidate at the local level is allowed hard vaccine mandate for hospitals or high risk fields that's allowed, but it's not allowed for the federal government through OSHA to say vaccinate or test at a workplace. There's no consistency. There, there's no logic there. Look, call it what it is all the time. You hear about judicial activism, right wingers accuse left wingers of doing judicial activism. So, you know, the left picks judges that legislate from the bench that make up their own rules of governing, and that's not the point of the judiciary. The point of the judiciary is to interpret and implement the existing laws and determine what's constitutional. It's not constitutional. It's called judicial review. Well, this is without a doubt judicial activism on the right. This is legislating from the bench on the right. And as I said, there's no consistency, there's no logic, there's no through line. You can do a hard vaccine mandate as a city, you can do a hard vaccine mandate in high risk fields like hospitals, you can't even do a soft vaccine mandate under currently delegated powers that are clear through OSHA. You can't do a vaccinated test policy through OSHA. And so, look, this is this is what happens when you have a Supreme Court that's super politicized and now very right wing is you're gonna get decisions like this. And every time we talk about the current era of the Supreme Court were in, I think it's fair to categorize this as a new Lochner era for those of you who don't know the Lochner era. Um was an era of the Supreme Court, this is before, you know, the new deal era where basically we had this legal philosophy in place that said um you almost need to have a separation between government and business place. You know how there's a wall of separation between church and state. There was, the argument was almost, we need a wall of separation between government and business. And they interpreted this thing which they totally made up called the right to contract in the constitution, which means that some employees going to work for an employer if you make a contract where you're getting paid less than minimum wage, less than a living wage and there are no labor laws and labor protections, there's no child labor protections, there's no overtime rules. If that employer tells the employee, look, you're gonna work for the starvation wage and You're gonna, I'm gonna work into the bone, you're gonna work 70 hours a week or whatever the case is. When a state in this instance, I think it was new york state tried to come up with rules and regulations as to uh you know, workplace safety and basic labor standards. So they tried to say, hey you have to pay at least this much, you have to have paid more for overtime, You have to have a hard cap on the number of hours that these employees could work. The Supreme Court said the state government cannot interfere in the right to contract of the employer and the employee. So hey, they came to that decision because they're both free adults And therefore, who the hell is the state to be an independent 3rd party to interject in that contract and say, Hey, you need to make this a little more fair to the worker. That was the Lochner era during the la carrera. Things like child labor laws reviewed as government overreach. It was a deeply ideological and judicial activist position on the right and that's what we had in this country for a very long time. It was basically ah judicial enforced, lazy fair, unfettered capitalism bordering on anarcho capitalism. And then eventually that was overturned with the new deal era. But we've seen ever since, um the Reagan era and onwards, we've seen a gradual rollback of the new deal and of the regulatory state. And so now, you know, it culminates in this, OSHA very clearly on a plain face reading of the language that's already been passed into law does have the ability to do something like a vaccinated test policy during a raging pandemic that we're in our second year of. But Supreme Court says no. Now they would deny up and down decision because this is our ideological position. It absolutely is. It absolutely is