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Yo_Mama_Been_Loggin

(107,063 posts)
Mon Jan 10, 2022, 02:51 AM Jan 2022

How conservative justices' anti-regulatory fervor could hamper the covid fight

By Ruth Marcus
Deputy editorial page editor

During the course of the pandemic, it has become a bureaucratic badge of honor to argue that authorities are taking a “whole of government” approach to tackling the virus. In one of the more jarring moments in Friday’s oral arguments about the Biden administration’s efforts to mitigate covid-19, Chief Justice John G. Roberts Jr. seemed to be arguing that trying to use all the statutory tools available to it somehow undermined the government’s legal argument.

“You said just a short while ago that … covid presented a grave danger to people in the workplace,” Roberts told Biden Solicitor General Elizabeth B. Prelogar, who was arguing in favor of the Occupational Safety and Health Administration’s vaccine or testing mandate. “In a few minutes, we’ll hear an argument … and it will be that it presents a grave danger in Medicare and Medicaid facilities.

“Not here, but in the lower courts, the federal contractor mandate, the argument is going to be that it is a grave danger to federal contractors. … It seems to me that it’s that the government is trying to work across the waterfront and that it’s going agency by agency.”

This is supposed to be a bad thing? I thought conservatives cared about statutory language and whether the text of the law authorized the action at issue. The chief justice is the most reasonable of the court’s conservatives, but his logic here seems upside down: The government gets marked down for trying too hard.

Prelogar pushed back at Roberts. “What we’re trying to do here and what OSHA did was rely on its express statutory authority to provide protection to America’s workforce from grave dangers like this one,” she said. “So I take the point and don’t dispute that covid-19 is a danger in many contexts and falls within the jurisdiction of other agencies as well, but I think to suggest that because this disease is so prevalent, because it presents such a widespread harm, somehow OSHA has less power to do anything about it …”

At which point Roberts interrupted and showed his real hand: There’s just too much darned regulating going on here. “It sounds like the sort of thing that states will be responding to or should be and that Congress should be responding to,” he said.

Earth to chief justice. States are responding — some responsibly, too many others in precisely the wrong way, preventing employers from taking steps to protect their workers. And covid doesn’t stop at state borders; it is a national problem, amenable to national solutions under the constitutional power to regulate interstate commerce, among other authorities.

https://www.washingtonpost.com/opinions/2022/01/09/conservative-supreme-court-justices-could-harm-covid-fight/

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How conservative justices' anti-regulatory fervor could hamper the covid fight (Original Post) Yo_Mama_Been_Loggin Jan 2022 OP
The decision they're after: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. elleng Jan 2022 #1
Problem with the OSHA requirement YP_Yooper Jan 2022 #2

elleng

(130,126 posts)
1. The decision they're after: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Mon Jan 10, 2022, 03:05 AM
Jan 2022

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers.[1] The decision articulated a doctrine now known as "Chevron deference".[2] The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: "whether the agency's answer is based on a permissible construction [emphasis added] of the statute", so long as Congress has not spoken directly to the precise issue at question.

The decision involved a lawsuit challenging the U.S. government's interpretation of the word "source" in an environmental statute. . .

Chevron is one of the most important decisions in U.S. administrative law, and has been cited in thousands of cases since being issued in 1984. . .

Holding

The Court, in an opinion by Justice John Paul Stevens, upheld the EPA's interpretation. A two-part analysis was born from the Chevron decision (called the "Chevron two-step test&quot , where a reviewing court determines:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

—?Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-43 (1984).

 

YP_Yooper

(291 posts)
2. Problem with the OSHA requirement
Mon Jan 10, 2022, 12:26 PM
Jan 2022

is that simply requiring a vacc does not prevent infection and the spread in the workplace (which is why they claim the rule is needed). Once a true, immunizing vacc is brought to market, it has more merit.

If anything, demonstrating immunity is a far more acceptable rule than requiring a vacc with Omicron. In addition to antibody presence from a vacc, there are many studies that show a far better and long lasting immunity from recovery than from the vacc (or as Fauci said, "superimmunity) , so that's good news with how mild and widespread Omicron is.

Substantial immune memory is generated after COVID-19, involving all four major types of immune memory. About 95% of subjects retained immune memory at ~6 months after infection. Circulating antibody titers were not predictive of T cell memory. Thus, simple serological tests for SARS-CoV-2 antibodies do not reflect the richness and durability of immune memory to SARS-CoV-2. This work expands our understanding of immune memory in humans. These results have implications for protective immunity against SARS-CoV-2 and recurrent COVID-19.

[link:https://www.science.org/doi/10.1126/science.abf4063|
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