A Supremely Questionable Supreme Court Ruling

 On Jan. 13, 2022, the Supreme Court issued its ruling on the COVID-19 Vaccine Mandate case. This ruling is historic and may turn out to be fatal error on the part of the Court in the future and as viewed and assessed by history. As a ruling it was quite bifurcated. The ruling recognized the federal government’s right to establishing a vaccine mandate and simultaneously the federal government’s over-reach on establishing a vaccine mandate.

A cursory reading of the introductory paragraph should certainly cause you to think, either the person writing this is an idiot or the Justices on the Supreme Court are. As the potential recipient of the ‘idiot’ judgement, I want to point out that there is no requirement that either of those attributions is required to be true, nor is it necessary that the idiot condition might not be true for both parties. Given the uncertainty of whom the appellation may apply to, it is appropriate to consider if what we have here is a “Who’s the Idiot” equivalent of the Schrodinger’s Cat concept. Just as determining whether the cat is alive or dead requires that one look, determining who’s an idiot may also require that we look. So, let’s open the box on SCOTUS’ vaccine mandate decision, decisions, or quagmire of reasoning.

The reasoning on the healthcare workers mandate grants that the federal government has the authority to impose a mandate based on the federal government providing Medicare and Medicaid funding to healthcare entities. Federal funding in concert with other rationales for protecting the public’s interest in the necessary functioning of the nation’s healthcare system and personnel seems odd contortion of criteria. I suppose that the Justices may have recognized that just citing the authority based upon the use of federal funding alone would be fraught with unintended consequences. However, while I may think it is possible the Justices considered the funding basis alone to be too risky for them; I do not actually think it is likely that they have foreseen nor thought about the implications which come from it. Time will tell is any smart lawyer or advocacy group can see the potential here.

Now onto the other side of Supreme Court’s decision coin, the Vaccine Mandate for large businesses. SCOTUS reasoned that the federal government through OSHA did not have the authority to establish a vaccine mandate for large businesses’ employees. The reasoning here was different. Here the federal government was ‘over-reaching’ based upon some of the Justices’ interpretations of how they viewed what was important, or true, or applicable. This is probably true in general and I suspect applied in the healthcare workers case as well, but that isn’t something the Court wants you think about how they reach their judgements. The Court seeks to have their ruling ‘based’ upon the Constitution, legal precedents, and the intentions of what legislators had in mind when they passed legislation. In other words, on many things that are not firm and immutable concepts like those of the Laws of Physics or other scientific knowledge.

The majority decided that OSHA’s establishing legislation did not include (or more accurately intend) for that federal agency to have. Of course, this is opinion and interpretation; because there is no way to ‘know’ what the intentions of the politicians who created and authorized OSHA intended. It is not explicitly written into the legislation because such enumeration of ‘authority’ is not just impractical and impossible, it is definitely beyond the abilities of politicians, their staffs and advisors. There is no way to define the scope of authority for conditions which may arise in the future that are not contemplated or even comprehended by those creating the text of legislation.

Another argument used in the majority opinion was that the authority for such mandates ought to reside with the states and local authorities. This is a good example of how the Justices’ can use a sound principle, even precedents from some prior decisions, to attain a decision which is legally defensible but not logically sound and which could be easily overturned based upon other legally defensible and authoritatively established precedents. This may be an instance of a jurisprudence equivalent to the Heisenberg Uncertainty principle, where Justices cannot know what is Constitutional and what is intended by the law simultaneously (though in the legal context there is no requirement that Justices be able to know either one). Consider that the federal government provides funding directly and indirectly to many of the businesses which are protesting the mandate. Is the ‘funding’ condition not applicable to some degree here? Does the federal government ‘fund’ the military? So, how doesn’t that criteria apply to the military question of a mandate?

The Court also argued that if the legislature wanted OSHA to have this authority, then they would have explicitly given it to them, either in the original establishment of the authority (this is the interpretation issue) or the legislature would ‘act’ to establish that authority when needed. The naivety of these perspective is quite damning for the Justices, particularly those in the majority. Having to await upon elected officials to ‘act’ promptly, correctly, and in the nation’s interests is an unreasonable and unrealistic expectation for this branch of our government. It may be a utopian vision of what Congress ought to do, but it is not a valid basis upon which to risk the public’s health nor the national interests.

The authority of the states to establish mandates related to COVID seems to be well supported by SCOTUS’s logic and there were cases that the Court upheld would thus support that governmental authority exists. However, the Court ignored the reality of the question and the situation where there is a conflict over authority and which authority and who prevails in given situations. The majority also seems to base their decision upon an ‘either-or’ criteria that there can only be one authorized authority. The classic state versus federal line. But there is no definitive requirement that a government authority must exist only in one or the other. Both have the power to tax. Both have the power to establish laws related to the same legal issue, right or situations on many fronts. Usually the federal laws cannot be countered by a state law, but we are all aware of various federal laws that states have and continue to find ways of adapting via state laws without overtly claiming to ‘overturn’ or ignore the federal laws.

What the recent COVID Mandate rulings demonstrate is that there are many paths that the Supreme Court can take in reaching its decision. Whether the decision is sound, well-reasoned, and consistent with the Constitution, established law, precedents, legislative intent, and national interests and America values is not a given. The Justices are just as likely to apply personal perspectives and even political ideological principles as those on either side of an issue.

The Court also ignored the most salient aspect of this case, which authority is using the most appropriate and relevant knowledge, expertise, and judgement on what is in the nation’s best or essential interests. The Court can say that that is not factor that they can consider, but that is a judgement that they are making and perhaps not founded in or upon the law

Is It Right or Wrong? Societal Choices: #1 Vaccines

 

We all live in some societal construct that we influence and that influences us. In many cases people don’t think about how the rules and norms of their social environment(s) are accepted as ‘just the way things are’ rather than question if the rules or the norms are sufficiently beneficial to their society’s interests. More often than not, our individual behaviors and choices do not have significant, or notable, impacts upon the society. Generally, what clothing styles, fashions, or brands that people choose are of little societal concern or import, except perhaps in terms of their unnoticed implications like economic factors (capitalism, consumerism, profits, …). But “more often than not” is a conditional that has an implicit “sometimes it is” counterpart. Does your personal choice about what sports team you support really matter all that much, compared to your personal choice about what, if any, political party/ideology you align with or what religious belief-system you follow?

I am not implying there are no consequences to who you choose as your favorite sports team, but the effect on your society overall is not likely to have a substantive relevance. Conversely, the political entity or religious group that you choose to identify with, follow, or promote is fundamentally part of the societal context that affects many aspects of how that society operates both in terms of beneficial and malfunctioning ways. America is just as much a product of the societal views that permeate our population as other nations’ societal factors and choices influence theirs. This leads to a ‘frame of reference’ problem in determining what is good or bad, right or wrong, acceptable or unacceptable, and prudent or unwise; if we look at the choice from a different perspective.

America’s dilemma, dichotomy, and differences of opinions regarding COVID vaccines is an example of where a society’s members’ choices have consequences far beyond the individual. The choices of individuals have implications to the health of their own families, not just from transmission but in other areas that effect their lives. On the public-health front, an infected individual can spread COVID to their neighbors, communities, co-workers, fellow commuters, other customers of businesses they visit, and healthcare workers with whom they interact. Transmissions in these areas can lead to illnesses, hospitalizations, and deaths beyond the individual or their family. But the ripples in a society don’t stop there. There are economic ripples. We have all seen the disruptions to businesses and public entities which resulted from the COVID pandemic. To curtail infections businesses were forced to alter their operations or even close. Employees lost incomes and in some cases jobs. Hospitals were forced to focus on COVID patients to an extent that prevented patients with other illnesses to postpone their treatments, some at a risk to their lives.

In another area, the individuals’ choice regarding vaccination has a political dimension to it. There is a clear and definitive difference between an individual’s choice to vaccinate or not according to their political alignment. For Republicans, approximately 60% are vaccinated, while for Democrats 86% are vaccinated. This notable difference has predictable consequences to each of these self-selected demographic groups. Those consequences play out as each COVID variant’s infection wave washes across the nation. The unvaccinated showing up as the majority of the infected who are hospitalized, and as the dominant portion of patients dying from COVID and has been reported on regularly. This is where the unasked question(s) become relevant. Is it wrong to look at COVID in contexts which set aside the traditional medical perspective expected in America? Note: I am less sure how prevalent this view is elsewhere in the world.

If you are unsure or unclear about what the traditional medical perspective is, I must admit that I also struggle to define it even as I suggest that most Americans share a generally common sense of it. This leads to the following fleeting attempt to define this medical perspective view. So, here is my rather futile and limited definition of America’s traditional medical perspective.

In the US, we believe, we expect that we are entitled to the ‘best’ medical care available. Well, within your affordability class. The general principle is that the healthcare system provides good, competent, and appropriate care to the public. This principle is of course constrained by many factors, not the least of which is affordability and availability. Under this perspective, the goal is to keep you alive, to enable you to return to work or your home, and to keep you healthy enough to be less of a burden on society. This perspective operates within a healthcare industry that is a complex and amorphous conglomerate formed from public, private, and other social entity-types. Our healthcare view is that the healthcare industry and the nation (that includes the public) will work diligently to protect the individuals in need of healthcare and the nation from the ravages of threats to our individual and collective health.

Given that healthcare perspective, we expect the nation to work to protect everyone’s health. It is that perspective and that goal which I am suggesting that we set aside and not apply to what is or isn’t the right, proper, or appropriate way in which the nation should respond to the COVID pandemic issues. This will be a hard perspective to set aside because some will see it as a violation of their professional code/ethics (like healthcare workers). Some will see this as a violation of their religious beliefs. Others may consider it a violation of their oath of office to serve the nation’s interests (I will note here that I don’t have much faith or confidence in politicians actually caring about what the ethical or moral principles are that they apply to their actions or decisions). But despite the difficulties that some may face, we can at least try to examine questions and options that are not considered because the traditional medical perspective preemptively dismisses the questions from even being conceived of, let alone considered as better policies and strategies than the ones that are naively seen as adhering to the mythical belief that America’s aspirational healthcare perspective would advocate.

Let’s try the COVID vaccine issue. If we ignored the ‘goal’ of preventing people from dying unnecessarily from a COVID infection, or even from being hospitalized unnecessarily, would it be right or wrong to make decisions and policies about COVID infections or about being vaccinated versus unvaccinated? Other ways to ask this question are:

A.      Do I have a right to be protected from you?

B.      Can a business treat vaccinated individuals differently than unvaccinated?

C.      Are public policies (even mandates) appropriate for reasons besides people dying or requiring hospitalization? [Remember, we don’t care if you die or not.]

D.      What factors might be ok to use in deciding if a given state or community can be treated differently than others because of the consequences obtained?

These are just a few of the ways that one could look at the issue of being vaccinated or being unvaccinated.

The first two questions actually have been addressed before but are still fought over and of course have their own degrees of complexity. You do have a right to be protected from me and vice versa. Not even the most conservative Supreme Court Justice would argue that an individual (or individuals) who have a highly contagious disease with a high mortality rate warrants a society or ‘the government’ from imposing restricts, requirements, and mandates. With COVID the issue is thus what is a ‘mortality’ rate which is unacceptable? Remember, it’s not a question of the healthcare goal we aspire to. We have set that aside. There is a point where your or my risk threat if infected is unacceptable to others, and it’s their right to not die that is relevant. Your or my death is not relevant, since we have the disease, and it is too late to act to prevent our being infected.

Can businesses treat their vaccinated customers or workers or unvaccinated customer or workers differently? Yes, they can. Can the government impose requirements on public entities? Yes, it can. Like question A, the rationale and criteria for both would be seen differently depending upon the severity of the risks and the consequences. For example, differential treatments must directly relate to the biology of the disease not to an unrelated factor which could be used to some nefarious intent. This of course makes it not just possible but likely that there will be different sides taken on any given policy or requirement. Of course, if the mortality rate of the disease was anywhere over 33%, such opposition would quickly die out.

Regarding Question C, the answer here ought to be rather obvious but let’s suppose there are some who do not see it. The risk to the nation’s economy and thus to all aspects of society would not just warrant governmental actions including vaccine mandates but would be required under the Constitution. An existential threat to the public and thus the nation would fall within the responsibilities of all governmental entities. Even the Supreme Court, assuming any are still alive under such conditions, would be hard pressed to find any precedent which contravened such actions by our elected executives. This principle has even been demonstrated under the COVID pandemic by both Republican and Democratic Presidents, governors, mayors, and federal and state agencies. And these actions were for a disease which has only killed less than 1 million Americans. Now, remember we are putting aside any consideration of wanting to protect people’s lives as it colors our decisions. The problem here is that the deaths and illnesses are the threats to the proper functioning of the society, economy and nation.

Question D is a very different question. It opens the door to a much broader range of factors and considerations that could be made. Is it acceptable to establish or allow policies which advantage one group over another or even at the expense of another? Is it right or proper to designate some workers as essential and not provide any proactive considerations for protecting their health? Can we require someone to work and not require those whom they work with to be vaccinated? This situation can devolve into some very convoluted considerations. If someone decides not to be vaccinated and they are an ‘essential’ worker would that not imply it is ok to expose them to others whether those others are vaccinated or not. How about the governors of individual states that set public policies which prohibit restrictions on unvaccinated individuals in areas like schools, public events, even businesses? If those policies resulted in more hospitalizations and deaths in some communities than others, or in one politically aligned segment of the population than another would that be acceptable? What if the group of individuals who are negatively affected by those policies are members of the governor’s own political party? Yes, the governor would have to be pretty stupid in this latter case; but then we are talking about politicians. How do we properly consider whether the equivalent results benefit or disadvantage such groups depending upon a factor like whether the governor’s politics / party aligns with the affected group(s) or not? This same issue can be turned around by asking: Is it acceptable for a President allow a governor’s policies to stand if the consequences are less detrimental to his supporters than to those of the other party? Consider, if the other party is losing voters at 10, 15, or 20 times the rate that your party is then there is a predictable benefit in letting the policies remain unchanged or unchallenged.

The disputes and contention over vaccination policies and mandates and even that of masks can appear to be quite different questions if you look at the questions through different lens. The assessment of the impact on what is or is not a good public policy may depend upon how competently the issue is examined. It’s easy to take a political stance, or some ideological perspective; but the more appropriate way to assess policies and requirements may be to recognize that the most visible dimension of the issue isn’t the most important. Keeping people alive, healthy, and safe from a disease may be obvious as a desired goal; but perhaps understanding the consequences beyond the obvious are even more substantive and important than the attention-getting gesture used to distract your attention.

Vaccinations are important because they create different outcomes. How you use that information and what strategies you select to take advantage of that knowledge to achieve can be the most important aspect of what you do. To make the right selection thus implicitly involves asking whether the policy that the aspirational goal produces the best outcomes given the reality of the problem that is actually operating on the ground the battle is being fought upon. If you can set policies which serve both the aspirational goal and simultaneously achieve what is better for the nation overall, it may be the case that you have to find the solution paths that thread both needles.