As 2021 draws to a close, President Joe Biden has good reason to be frustrated. His legislative agenda is stymied in the Senate. His executive authority is under assault from Donald Trump’s judges. His administration was blindsided, again, by a spiraling COVID surge, this time with omicron. But there is one front on which Biden has a near-perfect score: judicial nominations. Over the past year, the White House has put forth slate after slate of diverse, well-qualified, progressive nominees—and the Senate has swiftly confirmed them. Biden’s breakneck pace, combined with his choice of nontraditional judges, has shattered too many records to count. No, the president has not loosened Donald Trump’s stranglehold on the Supreme Court. But his transformation of the lower courts will still have a profound impact on American law for decades to come.
***While the actions of all parties during the trial will be scrutinized over time, the acquittal of Rittenhouse on all charges, and the lauding of him as a hero, by right-wing elected leaders and others will embolden would-be vigilantes who intimidate protestors demanding racial justice to believe that they can escape accountability for their violence.”
Dana Milbank paints a grim picture. The systematic elimination of competitive Districts" - meaning one's decided by 5% or less - is far advanced, leaving perhaps as few as 23 genuinely competitive seats. And then there's the Senate.
Set for oral argument on January 7: Stay applications in vaccine mandate cases for health workers and employees of large companies.
21A240 Biden v. Missouri
21A241 Becerra v. Louisiana
21A244 NFIB v.DOL
21A247 Ohio v. DOL
In Biden v. Missouri the governmentseeks a stay of a District Court order blocking enforcement of a Medicare regulation imposing vaccination requirements on health workers. In Becerra and NFIB the government seeks to uphold the order of a Sixth Circuit panel allowing the OSHA vaccination Rule to take effect.
***“The big issue is whether the Supreme Court will show deference to the agency's determination that this is necessary and that it's an emergency,” Lawrence Gostin, a professor at Georgetown Law, said in a phone call.
During the last quarter of the 19th century and the beginning of the 20th century, Nathanael Greene Herreshoff designed some of the most complex, graceful, and ultimately successful racing and pleasure yachts in existence. Part of his genius was to also apply these same design skills to smaller and simpler craft such as the Fish class, the ubiquitous Buzzards Bay 121⁄2, and the object of my affection (and this discussion), the Biscayne Bay 14. Apparently, only about a dozen of these sailing skiffs (model 908) were ever produced by the Herreshoff Mfg. Co., all in the 1920s.
After retiring (for the first time) in 1998, I built a pair of Biscayne Bay 14s (BB14s): mine, named MR.BILL, and one for a friend. My habit of building two at a time came from my own apprenticeship in the 1970s with master craftsman Gary Kincaid. This approach spreads the costs, shares skills and space, and can offer you a willing companion for adventures after launching day. I recommend the concept of “building buddies.”
My decision to build a BB14 was based on its heritage, performance, low cost, and ease of transport. Another plus is the optional use of modern materials to create a strong hull that can be day-sailed directly from the back- yard to the water. The choice has proven to be a good one for me. During the past decade, MR. BILL has sailed waters ranging from the Gulf of Maine to Buzzards Bay.
Photo by Darin Carlucci
The Biscayne Bay 14, designed by N.G. Herreshoff, is a delightful, low-cost daysailer that transports easily and is a good performer. Jim Austin built his for exploring Muscongus Bay, Maine, with his wife, Darcy.
The plans for the BB14 as sold by WoodenBoat are complete and are backed up by an optional handbook taken from step-by-step construction articles, including lots of helpful photos. There is the choice to build the boat with a fixed keel, which would probably improve windward performance over the shallow keel/centerboard option that we chose. With the centerboard, MR. BILL nests snugly onto a small trailer for easy transport.
Although perfect as a singlehander, the BB14 often carries my wife as well as me over the waters of Maine’s Muscongus Bay, allowing us to explore the mouth of a small creek, run up on the beach for a picnic, or slide gracefully down the faces of ocean swells coming in past Monhegan. But don’t be fooled: this idyll comes at a price. The BB14s were designed for the warm, shallow waters of Florida, and there they will perform wonderfully. However, up in New England, you must pick your weather carefully and be prepared for a refreshing splash or two when beating to windward. I’ve added a V-shaped coaming forward of the mast to aid in deflecting the icy water before it reaches me or the cockpit. Since we chose the centerboard option, the next time I retire we could easily tow MR. BILL south to a place where the temperature more closely approximates our age.
Photo by Darin Carlucci
The Biscayne Bay 14 is a great design to build as plans indicate or to modify according to individual use.
Construction of the shallow keel with centerboard slot is challenging. The shape is well defined in the plans and a mold is not too difficult to build, but if you’ve never melted lead before, it could be a daunt- ing prospect and best left to a professional. For the rest of you pirates, there’s treasure in old chimney flashing, used tire weights, bits of plumbing—or an old, abandoned iron bathtub in which to melt all this material. The process of casting is well detailed in easily accessed articles and books (see WB No. 89).
The hollow mast is fun to build as described in the plans. I used carefully chosen and dried lumberyard spruce 2×4s, 2×6s, and 2×8s, as they make a strong, light-weight stick, which has never failed me in years of hard use. There are other spar-building techniques such as “bird’s mouth” (see WB No. 149) that can be used if you love more complex geometry.
...Third, the NPC Social Development Affairs Committee submitted a draft revision to the Women’s Rights and Interests Protection Law [妇女权益保障法], last substantively amended in 2005. While the exact contents of the draft revision are not yet known, it is expected to comprehensively update the Law. It will likely incorporate and refine the Civil Code’s anti–sexual harassment provisions and codify some of the objectives and measures laid down in the State Council’s Outline for the Development of Chinese Women (2021–2030), an all-encompassing policy document touching on issues such as women’s healthcare, education, employment, political participation, property rights, and marital rights. As the Law was original enacted by the NPC, it is possible that the revision will be submitted to next year’s NPC session for a final review.
I don't think we should drive Joe Manchin out of the Democratic Party (even if we could). For benighted reasons white West Virginians vote Republican. Joe Manchin's fortune comes from coal.
"If you are not fully vaccinated, you have good reason to be concerned. You're at a high risk of getting sick. And if you get sick, you're likely to spread it to others, including friends and family. And the unvaccinated have a significantly higher risk of ending up in a hospital or even dying."
On November 5, 2021, The Occupational Safety and Health Administration (OSHA) issued an emergency order to protect the health of employees by mitigating the spread of the historically unprecedented Covid-19 virus. The order requires that employees of companies with over 100 workers either be vaccinated or wear a protective face covering and take weekly tests but also provides employers various methods to choose the best policy implementing those requirements.
The day after the rule was issued, the U.S. Court of Appeals for the Fifth Circuit, of course, stayed the emergency order pending judicial review, and it renewed that decision in an opinion issued on November 12. After similar cases were filed around the country, they were all consolidated into one piece of litigation pursuant to several federal rules of civil procedure, and then by lottery the cases were assigned to the Sixth Circuit. Yesterday, a panel upheld the rule with two judges in the majority (Stranch & Gibbons) and one judge dissenting (Larsen). The Sixth Circuit, thankfully, dissolved the stay of the rule entered by the Fifth Circuit.
The main arguments in the litigation, and the ones that divided the majority and the dissent, were whether OSHA had the proper or lawful delegated authority to issue its emergency order and whether if so Congress could constitutionally give it that authority. At the outset, I concede that reasonable people can disagree over the pros and cons of our huge administrative state, whether Congress should be issuing broad delegations of power to the vast federal bureaucracy, and whether Congress wrongfully avoids responsibility for difficult political decisions by doing so.
On the other hand, given our large country and interconnected economy it is quite unreasonable to expect Congress to be able to legislate in detail with regard to climate change, new technologies, threats to interstate commerce, and, of course, once-a century pandemics. The appropriate balance is a hard one and where the sweet spot is between needed and proper delegations and improper abdications of authority is not easy to find.
But what should be easy is the question of what role unelected federal judges should play in sorting out the proper balance between and among the various issues and tensions described in the above paragraphs. Absent irrational or obviously unreasonable choices by Congress or federal agencies, judges should stand down. That deference was displayed by the Sixth Circuit majority and ignored by both Judge Larsen in dissent and the Fifth Circuit.
The United States court of Appeals for the Sixth Circuit now has jurisdiction of all challenger to the OSHA vaccinate or test Rule binding employers of more than 100. Today the divided panel issued an order granting the Department of Labor's Emergency Motion to lifttheFifth Circuit stay on the OSHA Emergency Temporary Standard. The majority rejected the dissent by Joan Larsen - a former Clerk to Antonin Scalia and Michigan law professor. It distinguished the recent decision in Alabama Association of Realtors which held that the plain language of the Public Health Act was insufficient support for the Department of Health and Human Services order extending a moratorium on home evictions.
The majority - in an opinion by Jane B. Stranch a former labor lawyer - held that the Occupational Safety and Health Act of 1970 provided sufficient support for the broad measure:
The COVID-19 pandemic has wreaked havoc
across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs
across the country, and threatening our economy. Throughout, American employees have been
trying to survive financially and hoping to find a way to return to their jobs. Despite access to
vaccines and better testing, however, the virus rages on, mutating into different variants, and
posing new risks. Recognizing that the “old normal” is not going to return, employers and
employees have sought new models for a workplace that will protect the safety and health of
employees who earn their living there. In need of guidance on how to protect their employees
from COVID-19 transmission while reopening business, employers turned to the Occupational
Safety and Health Administration (OSHA or the Agency), the federal agency tasked with
assuring a safe and healthful workplace.
WASHINGTON (CN) — In 1803 the Supreme Court made a landmark ruling establishing judicial review. Over 200 years later its chief justice asks what happens when the majority of the court is willing to throw away that basic principle.
Chief Justice John Roberts worried — not for the first time — about the court’s legitimacy when he wrote a partial dissent in the court’s ruling on a near abortion ban in Texas last week. Roberts said the purpose and effect of the law were to “nullify this Court’s rulings” and then cited Marbury v. Madison which established the court’s supremacy over state legislatures.
“Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery,’” Roberts wrote. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
The Texas law — Senate Bill 8 — uses a unique enforcement mechanism that delegates its enforcement to citizens instead of government officials. ...
PART I: THE TRUMP ADMINISTRATION WAS RESPONSIBLE FOR A SERIES
OF CRITICAL FAILURES THAT UNDERMINED THE NATION’S ABILITY TO
RESPOND EFFECTIVELY TO THE CORONAVIRUS PANDEMIC
A. The Trump Administration’s Persistent Political Interference in the
Pandemic Response Contributed to One of the Worst Failures of Leadership
in American History
Last year, the Select Subcommittee on the Coronavirus Crisis launched an investigation
into the Trump Administration’s political interference in the Centers for Disease Control and
Prevention’s (CDC) reports on the coronavirus amid allegations that political appointees were
attempting to undermine their scientific integrity for partisan purposes.34
During the 117th
Congress, the Select Subcommittee expanded its investigations of the Trump Administration’s
political interference in the pandemic response effort.
Update: On January 13, 2022 the Supreme Court in a per curiam opinion in Missouri v. Biden narrowly allowed the DHHS/Medicare vaccine mandate for health workers to stand. The Chief Justice John Roberts and Justice Brett Kavanaugh joined the three Democrat-appointed justices to uphold the rule. - gwc
We entered the pandemic era with the bland assurance that in Jacobson v. Massachusetts, 197 U.S. 11 (1905) the United States Supreme Court had readily upheld a modest fine against a man who had defied an unexceptional smallpox vaccine mandate. Little did we know that First Amendment law would be upended as churches begged to be excused from general requirements regarding congregant settings likely to present increased risk of transmission of a lethal virus.
Nor that two circuit courts the 5th and 8th would refuse to stay lower court orders blocking an Emergency Temporary Standard issued by OSHA - the agency charged with keeping workplaces safe. One Circuit - the 11th declined to block enforcement of the Rule. That virtually guarantees that the Supreme Court will agree to decide the issue. But if one were forum shopping that is the last place the Department of Labor would choose to go.
But in an encouraging sign Frank Easterbrook of the 7th Circuit - no bleeding heart liberal - today strongly upheld the vaccination mandate [No. 21-2326[ challenged by Indiana University students. The substantive due process challenge was easily disposed of given over a century of mandated vaccination- particularly since the IU mandate provides for religious or medical exceptions.
The United States Supreme Court may be swayed by the fact that under the ETS covered employees who remain unvaccinated must undergo weekly testing and wear face coverings at work.
Indeed, it is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients," - Solicitor General Elizabeth Prelogar .
By Marcia Coyle
The Biden administration is asking the U.S. Supreme Court to pause two federal court injunctions blocking its vaccine mandate for health care workers while the government pursues appeals.
In two emergencyapplications filed simultaneously Thursday evening, U.S. Solicitor General Elizabeth Prelogar told the justices that the vaccine requirement, which includes medical and religious exemptions, “falls squarely within the plain text of the secretary’s statutory authority and complies with all procedural requirements. Indeed, it is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients.”
District courts in Louisiana and Missouri imposed the injunctions in challenges to the vaccine requirement by two groups of states. The government’s emergency applications were filed with Justices Samuel Alito Jr. and Brett Kavanaugh, who handle emergency matters from the circuits in which Louisiana and Missouri are located. They can rule on the government’s requests or refer them to the full court for decision.
The U.S. District Court for the Eastern District of Missouri preliminarily enjoined enforcement of the rule in 10 states. The U.S. Court of Appeals for the Eighth Circuit denied the government’s motion for a stay pending appeal.
In the other case brought by a group of 14 states, the U.S. District Court for the Western District of Louisiana blocked the vaccine rule in the 40 states not covered by the Missouri injunction. The Fifth Circuit narrowed that injunction to apply only within the 14 states but also denied a stay on the ground that the merits presented a “close call” under circuit precedent, according to Prelogar.
Those 14 states include Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Oklahoma, Ohio, South Carolina, Utah, and West Virginia.
Prelogar wrote that Congress authorized the secretary of Health and Human services to condition health care facilities’ participation in Medicare and Medicaid on their compliance with “requirements [that] the Secretary finds necessary in the interest of the health and safety” of patients.
“For decades, the secretary has exercised that authority to require participating healthcare providers to establish active programs for the ‘prevention’ and ‘control’ of ‘infectious diseases’ within their facilities,” she wrote.
In November, the secretary amended those regulations to address the COVID-19 pandemic. A Florida district court was the first district court to address the rule and refused to block it. The Eleventh Circuit then denied an injunction pending appeal, ruling that the vaccine rule fell with the department’s “express statutory authority to require facilities voluntarily participating in the Medicare or Medicaid programs to meet health and safety standards to protect patients.”
Prelogar noted that in a fourth challenge to the vaccination rule, the Northern District of Texas on Wednesday night imposed a preliminary injunction against application of the rule to Medicare and Medicaid facilities in Texas.
The many challenges to the Department of Labor's vaccine or test mandate for large (over 100) employee companies were transferred to the 6th Circuit Court of Appeals by lottery. When the Republican-dominated 6th Circuit's # was pulled from the bin it was a stroke of luck for the opponents of the measure. In BST Holdings v. OSHA the Fifth Circuit rejected the Department of Labor's Emergency Temporary Standard and granted businesses' motion for a stay of the ETS. All the litigation challenging the ETS is now before the sixth circuit. Twenty seven Republican state Attorneys General sought en banc review by all twenty eight judges of the court - both Senior and full time. That motion was denied. A panel of three will be chosen. - GWC
A federal appeals court in Cincinnati will allow a three-judge panel hear the legal challenge to the Biden administration’s contentious Covid-19 shot-or-test rule, leaving open the possibility that a Democratic appointee-dominated tribunal rules on that emergency regulation.
The U.S. Court of Appeals for the Sixth Circuit on Wednesday rejected petitions seeking initial review of the measure by the court’s full complement of active-status judges, which is composed of 11 Republican appointees and five selected by Democratic presidents. Twenty-seven states with Republican attorneys general, the Republican National Committee, and other challengers sought full court review.
The three-judge panel will be drawn from the Sixth Circuit’s roster of 28 active- and senior-status judges, which includes 20 jurists nominated by GOP presidents.
The partisan composition of the panel likely will be an important factor in whether the shot-or-test measure survives judicial review, given the political differences in views on the severity of the pandemic, the importance of vaccine mandates, and the proper scope of administrative agency power, legal observers said.
The Occupational Safety and Health Administration finalized its shot-or-test rule last month, which it said it was issuing under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule—requiring employers to mandate that their workers get vaccinated against Covid-19 or tested regularly—applies to employers with at least 100 workers.
The emergency measure has been on hold since the Fifth Circuit froze it with a Nov. 6 stay order. The Sixth Circuit, which got control of the consolidated case challenging the regulation after winning a multi-circuit lottery, is considering a government request to lift the stay.
Even Split
Appeals courts typically reserve full “en banc” review for giving decisions from three-judge panels a second look, especially if they were decided by the application of binding circuit precedent. Only en banc circuit courts can overturn their own precedents.
But the Sixth Circuit broke from this tradition in April, when it agreed to initial en banc review of a Tennessee abortion-related law.
The requests to consider the OSHA emergency rule en banc failed to win support from a majority of the appeals court’s active judges. They split evenly, with eight judges on either side of the issue, according to Chief Judge Jeffrey Sutton’s dissenting opinion.
***The only hope for thwarting that tendency is to concentrate our efforts on formulating, organizing around, and agitating for an ensemble of policies that reinvigorate the notion of government in the public good, which has been a casualty of more than four decades of bipartisan neoliberalism. The “pessimistic nostalgia” that Trumpists and other authoritarians propagate and mobilize around is most consequentially the result of decades of bipartisan failure to provide concrete remedies that address the steadily intensifying economic inequality and insecurity that have driven so much of the working class to the wall. We need to provide an alternative vision that proceeds unabashedly from the question: What would be the thrust and content of public policy if the country were governed by and for the working-class majority?**
