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From the Supreme to the Ridiculous, and Back to Maine.

From the Supreme to the Ridiculous, and Back to Maine.

Posted by Edmund R. Folsom

January 15, 2022

“[I]f this Court were to abide by [constitutional demands] only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.”

Justice Neil Gorsuch, concurring, National Federation of Independent Businesses v. Department of Labor.

Hello to anyone who has arrived here at my recent invitation to come if I were to become disappeared from Facebook.  Well, today is the day this heretic against the COVID-19 cognitive distortion juggernaut was disappeared from Facebook.  Again, welcome.

First, today I will attempt to answer the musical question, “What’s it all about, Alfie?”, in regards to the U.S. Supreme Court’s recent rulings on the Biden Administration’s federal vaccination mandates.  Both cases were about the likelihood that administrative agencies have the power to enact and enforce the nationwide, one-size-fits-all mandates in question.  In Biden v. Missouri, the Secretary of Health and Human Services enacted a rule requiring that all employees of healthcare facilities that receive Medicare or Medicaid funds must be fully vaccinated in order to work there. The Secretary purports to act under authority granted by Congress to administer Medicare and Medicaid. In National Federation of Independent Business v. Department of Labor, the Secretary of Labor purports to act under powers granted by Congress to run the Occupational Safety and Health Administration (OSHA).

In Biden v. Missouri, U.S. District Courts in Missouri and Louisiana had issued stays on the vaccine mandates during pending litigation. They did that, finding that the Secretary of HHS likely does not possess the power to issue the mandate.  A 5-4 majority of the U.S. Supreme Court reversed the lower courts, interpreting the controlling statutes to likely grant the HHS Secretary the power to impose the mandate as a rule necessary to protect patient health and safety at facilities receiving Medicare and Medicaid funds.  The Supreme Court removed the stays, allowing the mandate to be enforced.

In National Federation of Independent Business v. Department of Labor, a 6-3 majority of the Supreme Court found that the Secretary of Labor likely lacks the authority to impose a nationwide vaccine mandate on all employers with more than 100 employees as part of the power to dictate workplace safety rules under the OSHA statutes. The affected businesses requested a stay of enforcement during litigation. The Supreme Court found that the equities justify granting the stay.

Both cases were all about whether enforcement of the mandates should be stayed while the underlying litigation proceeds through the courts.  That question hinges on the likelihood that the courts will ultimately determine the agencies possess the power to do what they have done.  Administrative agencies only have the powers granted to them by the Legislative branch.  If they act beyond those powers, they act unconstitutionally, even if they act at the command of the President of the United States, the head of the Executive branch.

The President does not have the power under our constitutional scheme to order an administrative agency to take action within the realm of power held exclusively by the Legislative branch – the power to make laws.  The president does not have the power to order rules to be made or enforced by a rogue administrative agency acting outside powers in fact delegated to that agency by Congress.

If the administrative agency lacks the power to act, the Supreme Court has the power to step in to prevent the action.  On the other hand, if the administrative agency has the power to act, there’s nothing the Supreme Court can do about actions the agency takes within that power, even if some of the consequences of the actions are absurd.

For instance, In Biden v. Missouri, the Supreme Court found that the Secretary of HHS likely has the power to enact the vaccination mandate as a rule necessary to protect patient health and safety in facilities receiving Medicare and Medicaid funds.  The mandate has resulted and will continue to result in the dismissal of employees who refuse to become vaccinated.  This exacerbates the current shortage of healthcare workers. The shortage of healthcare workers has caused healthcare facilities in a number of states, including Maine, to allow vaccinated workers with an active COVID-19 infection to continue working in healthcare facilities. There is nothing in the Secretary of HHS’s safety-based rule that prevents this.

Are patients placed more at risk of contracting COVID-19 by an unvaccinated healthcare worker who does not have a COVID-19 infection or by a vaccinated healthcare worker with an active COVID-19 infection?  Patients are clearly more endangered by the latter. And yet, the Biden Administration’s vaccine mandate bars uninfected vaccinated people from working in healthcare facilities that receive Medicare or Medicaid. But the Administration’s mandate does nothing to prevent facilities from covering their worker shortages using actively infected vaccinated workers. If administrative rules are imposed within powers granted by Congress to an administrative agency, the rules can be every bit this foolish, and the Supreme Court has no power to stop them – and it didn’t.

But the Court did stop the Labor Secretary’s OSHA-based vaccine mandate. And as Justice Gorsuch pointed out in the above quote, if the declaration of an emergency can get an agency and its President-master around Constitutional separation of powers protections, we can expect a never-ending series of emergency declarations.  This, in accord with the despot’s prayer: “My will be done, on earth as it is in ego.”

The Current COVID-19 Situation in Maine — Infected Vaccinated Healthcare Workers, Case Numbers and Breakthrough Cases.

Maine is one of those places that has imposed its own vaccine mandate on healthcare workers.  Maine is experiencing a severe shortage of healthcare workers and has responded by allowing some vaccinated but actively infected healthcare workers to continue working. Brilliant!

Are you old enough to remember a few weeks ago when the press was laser focused on the number of new daily COVID-19 cases? Remember when they were telling us the cases were higher in counties with lower vaccination rates and that the unvaccinated were driving a “pandemic of the unvaccinated,” endangering all the vaccinated people, as if COVID-19 would otherwise be eradicated by vaccines the way polio and smallpox were eradicated?

Suddenly, overnight, in the parlance of the times, the press “pivoted.”  Now the press is telling us not to bother looking at new case numbers. They say the numbers aren’t particularly current, and infections don’t matter anyway.  What really matters are hospitalizations and deaths.  I suspect the big, instant pivot was caused by the case trend shredding their “pandemic of the unvaccinated” dogma.

Below is the current ranking of Maine counties, high to low, by 7-day daily new case average per 100,000 population, along with each county’s current eligible-population vaccination percentage and rank, trailed by its population and its total number of newly recorded cases over the past 7 days (Saturday, 1/8 through Friday, 1/14):

  1. Franklin, 145.7/100k, 62.84% (#15) (30,100 pop., 308 cases)
  2. Knox, 107.39/100k, 80.64% (#3) (39,772 pop., 299 cases)
  3. York, 102.16/100k, 73.88% (#6) (207,641 pop., 1,458 cases)
  4. Cumberland, 97.86/100k, 87.01% (#1) (295,003 pop., 2,021 cases)
  5. Lincoln, 91.56/100k, 80.78% (#2) (34,634 pop., 222 cases)
  6. Oxford, 89.94/100k, 64.69% (#13) (59,975 pop., 365 cases)
  7. Androscoggin, 73.75/100k, 68.8% (#10) (108,277 pop., 556 cases)
  8. Waldo, 71.58/100k, 69.66% (#8) (39,715 pop., 199 cases)
  9. Aroostook, 64.33/100k, 69.71% (#7) (67,055 pop., 302 cases)
  10. Sagadahoc, 64.14/100k, 79.27% (#4) (35,856 pop., 161 cases)
  11. Kennebec, 56.53/100k, 69.66% (#8) (122,302 pop., 484 cases)
  12. Penobscot, 53.51/100k, 68.74% (#11) (152,148 pop., 570 cases)
  13. Hancock, 52.22/100k, 75.15% (#5) (54,987 pop., 201 cases)
  14. Somerset, 50.65/100k, 61.77% (#16) (50,484 pop., 179 cases)
  15. Washington, 37.78/100k, 67.17% (#12) (31,379 pop., 83 cases)
  16. Piscataquis, 34.89/100k, 63.29% (#14) (16,785 pop., 41 cases)

Look at all those top-vaccinated counties in the top half of counties with the highest 7-day new case averages, including the top 3 most vaccinated:  Cumberland, Lincoln and Knox.  Look at all those low vaccination counties in the bottom half for 7-day new case averages. No wonder the juggernaut is suddenly telling everyone to ignore cases.

Breakthrough cases were up only slightly as a percentage of all new cases this past week. The Maine CDC’s breakthrough numbers show breakthroughs made up 53.5% of all new recorded cases – 4,160 of 7,771 – up from 52.8% — 2,576 of 4,875 – in the previous Friday’s report (12/31).  Maine’s vaccination dashboard shows the “final dose” vaccination rate for the State’s overall population (including people ineligible for vaccination) is 70.28%. Again, the breakthrough case rate is 53.5%.  That’s a spread of only 16.78 percentage points.  What will the effectiveness of the vaccines be against COVID-19 infections (setting aside that the vaccines are more effective against severe illness and death than against infection) if the breakthrough case rate comes to match the population’s vaccination rate at some point?  I’m sure we’ll be told it means, “Pandemic of the unvaccinated.”