A few quick thoughts about the Biden administration's recent legal argument in the Fifth Circuit (link below), in defense of the OSHA vaccine mandate.
In short, it's...unconvincing. Time for a thread. 🧵
politico.com/f/?id=0000017d…
In short, it's...unconvincing. Time for a thread. 🧵
politico.com/f/?id=0000017d…
Statutorily, OSHA can issue an "emergency temporary standard" if it determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful."
The key words here are "employees" (i.e., plural) and "grave danger."
The key words here are "employees" (i.e., plural) and "grave danger."
The use of "employees" indicates Congress had in mind the sort of ubiquitous workplace hazards that affect, well, everyone. Think of asbestos, lead in water pipes, that sort of thing.
The point is the statute does not say, "some high-risk employees." It simply says "employees."
The point is the statute does not say, "some high-risk employees." It simply says "employees."
But we know COVID does not equally affect all "employees." First, mitigating the risk of getting COVID and mitigating the effects of COVID even if getting it is the entire point of the vax. Second, we know COVID disproportionately affects the elderly, the immunocompromised, etc.
It defies both basic logic and basic reading comprehension to pretend that all workplace "employees," in the abstract, are equally affected by the risk of catching COVID as they are by asbestos or lead in water pipes. That is nonsense.
The Biden administration tries to get around this, in part, by ignoring that basic linguistic point and instead focusing on the "grave danger" COVID allegedly poses to unvaccinated workers, specifically.
This is also problematic.
This is also problematic.
It is problematic for the very simple reason that we can *conservatively* estimate the national survival rate for COVID to be 98-99%.
(It is orders of magnitude higher for those who are vaccinated.) cnn.com/2021/07/31/hea…
(It is orders of magnitude higher for those who are vaccinated.) cnn.com/2021/07/31/hea…
But even holding aside the vaxxed and focusing simply on the unvaxxed, as the Biden administration purports to do, implementing a sweeping policy of this nature to address an alleged "grave danger" with a 98-99% survival rate simply does not pass the laugh test.
The overarching idea here is to unilaterally implement a national policy, affecting all large-employer "employees," to mitigate what is truly a "grave danger" for a fractionally tiny proportion of the populace.
To make a crass torts law analogy, it's treating everyone as an "eggshell skull" plaintiff. It's massively over-inclusive. law.cornell.edu/wex/eggshell_s…
Most people for whom COVID truly is a "grave danger"—i.e., the elderly, the immunocompromised, etc.—have the self-awareness to know that it is a danger to them. They take prudent and reasonable risk-mitigation measures, accordingly—as they should.
We can analogize to a peanut allergy (mixed data, but roughly 1-2% of U.S. population), which can also be deadly. Those with peanut allergies also take prudent risk-mitigation measures: They avoid peanuts, they carry EpiPens, etc.
Should OSHA ban all peanuts from the workplace?
Should OSHA ban all peanuts from the workplace?
In summary, the Fifth Circuit's staying of the OSHA mandate was correct. And the Biden administration's legal logic here should unnerve us all.
Quick addendum.
In my @theammind piece from September, I speculated as to what is really going on here: COVID hysteria as anti-“deplorable” political and legal warfare. americanmind.org/features/the-s…
In my @theammind piece from September, I speculated as to what is really going on here: COVID hysteria as anti-“deplorable” political and legal warfare. americanmind.org/features/the-s…
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