America's Talking - Episode 28: Navy SEALs secure legal win ahead of Supreme Court vaccine arguments

Episode Date: January 7, 2022

Supreme Court oral arguments today. Poll: Majority supports blocking Biden’s private sector vaccine mandate. Dems threaten ousting filibuster, but moderates hold the line. Biden disapproval rating reaches new high. December sees significant job growth, but millions of Americans are calling it quits. Navy SEALs secure legal win ahead of Supreme Court vaccine arguments. Support this podcast: https://podcasters.spotify.com/pod/show/america-in-focus/support Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

Welcome to America and Focus, powered by thecentersquare.com. I'm Cole McNeely. Coming up, we'll take a quick look at one of the top stories from the center square.com. And later, executive editor of the center square, Dan McAulb, and DC reporter Casey Harper, will take a deeper dive into some of the top stories of the week. Coming up right after this on America and Focus, powered by thecenter square.com. Hi, this is Chris Krug, publisher of the Center Square. Our team produces the nationally read and recognized news stories at thecenter.com, the country's fastest growing, non-profit, nonpartisan, state-focused news and information site. We deliver essential information with a taxpayer sensibility through reporting that's easy to understand and easy to share with your friends and family. We know that you need information that allows you to understand what the governor and your local legislators are doing. Get the news that you need to know at the thecenter square.com. That's thecenter square.com. The center square.com. The center square.com.

President Joe Biden is kicking off his second year in office with his highest disapproval rating to date. A new CNBC change research poll found 56% of voters disapprove of Biden's job as president. The worst disapproval rating the president has seen since taking office. The economy in COVID-19 are major factors in voter sentiments with 60% disapproving of Biden's job in the president. economy and 55% disapproving of his work on COVID-19. Biden had previously seen poor economic numbers but better approval numbers on his handling of the pandemic. To read more about these stories and many others, visit thecenter square.com. Now for a closer look, it's Dan McAleap, it's Dan McAilb and Casey Harper. Thank you, Cole, and welcome back to America in Focus, powered by

the Center Square. I'm Dan McAilip, executive editor of the Center Square Newswire Service. joining me again today is k c harper the center square's washington bc bureau chief casey we're recording this on friday january 7th it is the first american focus podcast of 2022 happy new year casey happy new year dan how's it going it's going going well i hope 2022 is better for all of us than 2021 was we've still got uh COVID 19 imagine that in our third year of the pandemic. Of course, the Omicron variant is reaping its ugly head across the country, but... Yeah, aren't we? We're on three years to flatten the curve. Is that right? That's right. The good news is Omicron is not as serious as other variants of the virus. It's while

people are getting it in droves, including many on the Center Square staff, it doesn't, the symptoms aren't near as severe as other variants. So that is one good thing. But Casey, as I said, we're recording this on Friday, January 7th, and about an hour, an hour from when we're recording this, the U.S. Supreme Court is going to hear arguments on challenges to two of President Biden's vaccine mandates, including the OSHA mandate on private sector businesses with 100 or more employees. This is a big day. Very big day. We don't expect a ruling today from the Supreme Court.

Right, right. Might get some indication based on their questioning of both the federal government and the plaintiff's attorneys who brought the cases multiple dozens of cases challenging the president's authority to issue these vaccine mandates. We hope to get some indication anyway. Well, first, why don't just tell us about what the Supreme Court is going to hear, What are the arguments on both sides? Give us a little background.

Sure, yeah. And I would just echo what you said first, that even though there's not going to be a very likely not going to be any kind of ruling today, you do get a good indication of where people are leaning, where the justices are leaning based on what kind of questions they ask, how tough the questions they ask are. And that's important also because, you know, these rulings from the Supreme Court are not always a yes or no, good or bad. they're often nuanced, they're often limited. They sometimes will address half the question and not the other part of the question. And so, you know, it's very possible they could say, well, it needs to do this or it needs to be sent back here.

So it could be a more complex nuanced answer rather than just the mandates are good or the mandates are bad. And so you kind of get a sense of where the justices are leaning and all that. But this is kind of a good old fashion, the role of federal government Supreme Court case. Essentially, you know, as cases rose of COVID, the Biden administration has implemented several new federal vaccine mandates. Now, Biden has taken a lot of criticism for that because he explicitly said he didn't want to do that. He wouldn't do that. Jen Saki, White House Press Secretary said in the middle of last year that the White House wouldn't do that. And, you know, Democratic House Speaker Nancy Pelosi said that they didn't have the authority to do that.

And here we are doing it. So, you know, they've taken some pushback for some of their previous comments. And there's not just one big, bad federal mandate. So, of course, there is a, the Department of Defense has a mandate for U.S. service members. so they have to be vaccinated, although there's a legal challenge to that as well that we probably will talk about a little bit later. There was a mandate for health care workers that Biden instituted. There is a mandate for employers or for large businesses. So any employer who has at least 100 workers under one of Biden's mandates is required to ensure that they're vaccinated or face like very, very large fines per day.

day if they refuse. I mean, the kind of fines that could put you out of business if you stand up to it. So, you know, there's a swirl of mandates. There's simultaneously been a swirl of lawsuits from states. And so there's not even one coordinated effort or one single challenger to buy mandates. There's several different coalitions of groups and states that have challenged these mandates at different levels. And they've been working their way to the court system. And now they're, you know, they're before the Supreme Court. And I do think we can expect maybe an expedited ruling because these mandate, another round of mandates is set to go on to affect this month, but which I really, I don't know, you know,

no one has the crystal ball to know which way the justices are going to go. Right. And my understanding is today the Supreme Court is going to hear arguments in two of those vaccine mandates. One, the biggest one is the one that would affect. I think it's upwards of 80 million American workers who work for companies, as you said, that have 100 or more employees. That's one of one. The other one is the health care one.

Anyone who works for a company that gets Medicaid or Medicare dollars. So those are two of the arguments that are going to be presented today. But the Supreme Court's decisions on these two mandates likely are going to carry over, I would think, to all of the other mandates. One that you didn't mention is the one on federal contractors. anyone who has a contract with the federal government, they're required to have their workers vaccinated. Another lawsuit that was filed this week in relation to that one was remote workers.

Not everyone who has a contract with the federal government has to be, you know, it's not necessarily a construction job where you have to be hands-on. There's plenty of behind-the-scenes stuff and remote workers who never set foot in an office building who work from their homes. They're challenging that mandate too. But let's focus strictly on this private sector mandate on businesses with 100 more workers. That's set to go into effect February 9th. Of course, corporations, companies that fall under this mandate, they only have a few weeks to implement it. So I would hope that the Supreme Court understands the urgency of this and does issue a decision, an expedite a decision. So these companies can decide

whether or not they need to move forward and get their workers mandated or the other part of that is if their workers won't get mandated vaccinated, they need to submit to weekly testing and show a negative test in order to show up for work. That's a huge undertaking for human resources departments across the country, etc. or whatever. So, I, I would think the Supreme Court, and as you said, the Supreme Court doesn't always just rule on everything that's involved in a case. They might send a case back to an appeals, to an appellate court or to a district court and ask for further arguments there. So who knows, but with that February 9th date looming, don't you think that they understand that they need to make some sort of a decision soon? Yeah, I think they do.

What we could see, this is what I think is most likely. I mean, again, who really knows, but is they could issue a preliminary injunction. And so they could say, hey, this mandate can't go into effect until we make our decision. And so it kind of just pauses the whole thing. The courts to do this pretty often when there's a deadline. They'll just say issue an injunction that says the deadline is delayed until we issue our ruling. And so I wouldn't be surprised if we saw that come out pretty quick. then because the court often likes to, you know,

err on the side of having more time. So it may be that they do this injunction and don't actually issue a real ruling for a while. I still think they'll do a quicker ruling. You know, we won't have to wait until Mayor Jude. But this is a pretty controversial issue. It has huge precedent. The pandemic, you know, pandemic rights are kind of a, I think one of the leading controversial issues in the court hasn't really weighed in on them.

it's a lot of new territory, the idea of individual rights versus the collective health. And so it's a good question. I think the injunction is a very likely next step. Granted, this is a complex topic. Certainly there, you know, the Biden administration and governors across the state have declared public health emergencies because of the pandemic. But doesn't this really come down to the core issue is, does the existence, does the existence, branch of the federal government, essentially President Joe Biden, have the constitutional

authority to issue such a mandate that's so personal that involves individuals' health care decisions. Does the one person, the executive branch of government, have the authority without congressional approval to issue such a mandate? And of course, we have already known the, the, U.S. Senate last month in a vote rejected this private sector mandate with a couple of Democrats joining Republicans in rejecting it. So really the constitutional question is how much power during a pandemic, during a public health emergency does the executive branch have? Yeah, that is the question. And throughout history, there's always been this question of during, you know, times of quote-unquote emergency, how much does the power of the executive expand? It's kind of the nature of executive

leaders to try to greatly expand their power in times of emergency, but that's what our Constitution is for to hold that abey. I think there's actually a poll on that bill that I think we'll get to here in a moment, but we'll go for it. Yeah, let's jump. Yeah, I'll go for. I just wanted to add that it's what's interesting is I think that it's very possible that the Biden administration knows that this is unconstitutional and thinks it was still worth doing knowing that it will be overturned because in the interim between this getting between their announcement and this getting to the Supreme Court, probably millions of people have been vaccinated.

Concerned about their jobs. Right. Exactly. On the fence about getting it, but decided to get it worried that they might lose their jobs because of the president's mandate. Right. What makes me think that is they, you know, because they, They were so clearly saying, or last year, that it wasn't constitutional.

And they did the same thing with the eviction moratorium, which is they basically knew that it wasn't going to stand up to a legal argument, but they issued it anyway, knowing that it would get overturned. And so it's kind of a new interesting tactic from the Biden administration to do things they know will get overturned by the court, but still wanting the political and maybe just tangible benefits in their mind of doing it. But so that's another layer to this. You might ask yourself, why would they do this? But this poll that, you know, we wrote up this week, it took, took into consideration this very bill in the Senate that you explained, Dan. And they basically surveyed Americans and found that 51.1% of voters support the bill to stop Biden's vaccine mandate for large businesses. About 40% don't support it. And the rest, there's always that.

at, you know, 8% who are unsure or don't know what's going on. So, but yeah, a majority supporting the effort to block Biden's mandates. It's a really big deal. It's obviously a big deal for those senators. It's a big deal for Biden who is, you know, if Biden did something like this as majority disapproval and then the Supreme Court overturns it, it looks like this story is the number one trending national story on our site right now. You know, there's a lot of interest in this.

And then, of course, the all important independent voters, 62% or 63% of surveyed independent voters who had an opinion on the question said that they support the effort to block the mandates as well. So going into 2022 in election year, these mandates are going to be a defining issue. And at least for now, the looks like voters are not impressed with the mandates. Right. And so Biden has suffered a number of losses. in courts already, but ultimately it's going to be the U.S. Supreme Court that decides the fate of all of these mandates, including, and especially today, this private sector mandate, one of the arguments against this mandate is the slippery slope argument, right? If the U.S. Supreme Court says the president has these broad powers during a public health emergency such as COVID, to, to,

essentially order individual Americans to get a vaccine or to lose participation in large parts of society, then what else, what other powers does the executive branch, does the president have? What could be next when it comes to individual liberties, individuals' personal freedoms? So yet to say this is an historic case and the decision is a major news story is really sort of underplaying the story because of how significant it is. Yeah, I mean, I think we've seen moments like this in history where the Constitution has been tested, where the bounds of individual freedom have been kind of examined, and it is a tough question. It's not a simple question either, obviously people's lives, you know, people are afraid.

There's a lot of people concerned about their lives, but the health of their loved ones. So I think this is It's reminiscent of different major cases that we've seen throughout history But I think you're absolutely right that there's this slippery slope There is the precedent And if the executive can require Vaccination And then redefine what vaccination means

I think that's the other slippery slope This is this idea of fully vaccinated In additional boosters become part of the definition of fully vaccinated. Can, you know, can you, then can you do a mask mandate and make that a federal award? Just at what point does it stop? What point does, what is fully vaccinated really mean? And who gets to define that? And do the goalposts keep moving about what fully vaccinated means? Right now, the CDC is saying the fully vaccinated means the two shots and a booster, right? And like three months from now is

another booster going to be required, and then three months after that, or whatever the time frame is, six months, you know, whatever. So is the executive branch essentially going to be able to dictate how many shots individual Americans receive over time? So just a huge case. And of course, Casey's going to be covering it today. Look for our coverage later today and throughout the weekend at the center, squargot.com. Sticking along the same, same topic, but a different vaccine mandate. You mentioned earlier that one of the vaccine mandates requires all members of the U.S. military and including state national guardsmen to be vaccinated against COVID to keep their jobs. Well, the Navy SEALs, a number of Navy SEALs filed

to cheat against that mandate, and they want a lower court ruling earlier this week. Tell us about that. Yeah, I mean, we discussed earlier in the podcast how the Department of Defense issued a vaccine mandate. And those basically service members who refuse it are facing discharge. Now, last year, or late in December, I guess Congress passed a measure that forbid the military from issuing dishonorable discharges, which are really tough on those who receive them. They can't get benefits. It's hard often for them to get jobs. You can't own a firearm. Dishonorable Discharge is a really serious, serious thing. So this would just be, they could be discharged, but not a dishonorable discharge.

But still, you know, a lot of, you know, service members have tried to build a career in the military, and especially Navy SEALs. I mean, it's very difficult to become a Navy SEAL. It takes a lot of years of training. Those are kind of more the career guys who have spent a lot of years trying to get to where they are. And there's dozens of them now who are facing. discharge from being Navy SEALs because they refuse to get the vaccine. And there's not very many Navy SEALs.

I mean, there's not like tens of thousands of Navy SEALs. So there's only, you know, we're in the hundreds. And. Well, it's an exclusive group. I mean, the training. To become a Navy SEAL, my understanding is that just the training process takes years and the physical and mental. It's very expensive for the government to train them too. Yes.

Yeah. So I'm sorry. Go ahead. No, you're fine. It's very expensive for the government to train them. Like you said, it takes a long time. And so you may see, oh, only a few dozen, but a few dozen Navy SEALs is actually a lot when you think about it.

These are the elite of the elite when it comes to our military members. It was Navy SEALs, remember, that went in and led the operation that got Osama bin Laden. Exactly. So these are definitely the top 1% of our military members. Yeah, they're kind of like, you know, like we, we are the Navy SEALs of journalism, Dan, like the top 1%. So can you imagine how hard it would be to replace us? Like, that is what this is like, what we're talking about here. But I don't know how to take that, Casey, but I think I'm going to let it slide.

Okay, you know, hey, I called you a Navy SEAL. I thought that's good. So they, but they did get a win. So they've been going through the court battle, used to the courts, like everyone else. And their specific question is not before the Supreme Court. court, but the Supreme Court could issue something broad enough to be impactful to them. And so all these Navy SEALs have, they applied for religious exemptions, and they were all denied. And their argument is that they say that they weren't even fairly considered.

They basically all got, you know, blanket denials. You know, religious exemptions are supposed to be taken on a case-by-case basis, evaluated on their merits, an individual level. but they basically, they're saying that they got almost like a form letter denial. They all got the same exact answer, which they say is evidence that the Navy didn't even take their request seriously and had no intention of ever even considering it in the way that they should. And so this federal judge issued an injunction, preliminary injunction, like the ones we were talking about earlier, that said the Navy can't take any action. against them until the case is decided.

And even a lot of the things, you know, I read through the court ruling, and a lot of things he was saying seemed to indicate that he's leaning in favor of the Navy SEALs. You know, he's saying that the real, you know, there's always with these religious freedom cases, there's the balance between what is the harm to the organization that is imposing this restriction. And he seemed to indicate that the harm on the Navy for, for not, for these, a few guys not given, vaccine is actually not significant enough, probably to outweigh their right to abstain from the vaccine. So it's an interesting case. Navy SEALs are obviously very important to our national security. They occupy a place in the American imagination, so they're a very interesting place for

this battleground to happen, especially if we're talking about the poll numbers, which are going against Biden right now on this issue. If you're kicking Navy SEALs out, because they won't get the vaccine is kind of politically not where you want this to go if you're the Biden administration, right? And let me just to clarify one thing. One of the religious exemptions that individuals who are opposed to taking this vaccine cite is that fetal cell line, cells taken from aborted fetuses, were used in the testing during research and development of these vaccines. and individuals who are, you know, were religiously opposed to abortions and that kind of thing, say they don't want, because of that, their religion forbids them from participating in it.

And that's one of the things, one of the exemptions that Navy Seals and others have used to explain why they are not going to get vaccinated. But in the case of the military, the military has. just, as you said, blanketly rejected all of these requests for these exemptions. Yeah, and it's important, you know, listening to this theme of, I can just hear someone listening thing saying, well, that doesn't bother me, the testing, and while the mandate doesn't bother me, so why do we care if the Supreme Court overturns Biden's mandates? But, you know, to the Biden supporting listeners or those who support the mandates, you

have to, you know, the Constitution has to protect the rights of others, even when you don't agree, because you can imagine a scenario where, you know, let's say Trump was still in office, and he's trying to enforce some kind of executive mandates on people around COVID. You can imagine that a lot of the people who may be supported would actually be against it now, and maybe the mandate would be different. But, you know, whether you, if you oppose Biden, you want the Constitution to protect you from Biden. and if you oppose Trump, you want the Constitution to be intact to protect you from future Trumps that you don't like. And so you can't throw all the rights out the window when your party is in power because eventually your party is not going to be in power anymore.

And the guys who don't have the same interests as you are going to need to be limited. And so even if you don't agree with this religious exemption or you think that Biden's doing the right thing, you want to keep the constitutional protections in check because one day you'll be. the minority again and you'll need them to protect you. That's a good segue then into our next story, Casey. Democrats who run Congress, who have a majority in the House. They have a 50-50 split, of course, in the U.S. Senate, but with Vice President Kamala Harris tie-breaking boat, she's a Democrat.

Democrats control both chambers. And one of the things that's been floated in recent weeks is that Democratic leadership wants to oust the filibuster, which allows a minority party to block certain legislation because you need more than a simple majority of votes. Tell us a little about what's going on with the filibuster. Yeah, you're right. This is a great segue. Democrats are intent on passing the bill back better, which is kind of floundered a bit

amidst the opposition of Senator Manchin, Joe Manchin of West Virginia and Kirsten, of Arizona who have balked at supporting it. But they also want to pass new voting rights legislation, which in light of January 6th, you know, there is getting no momentum about elections and the fairness. And there's also a lot of kind of racial equity talk around this voting rights legislation. But just to give a quick synopsis, the voting rights legislation would essentially give the federal government broad power over state elections. It would be a far-reaching bill that would give federal power to, determine whether state election laws could basically be in effect or not.

It would give four states to get a rubber stamp from the federal government on their state election laws. So it's pretty controversial bill for obvious reasons. And one specific thing that's controversial is in the bill is it would forbid states from requiring photo IDs for people who want to get an absentee ballot. Right, right. And then any kind of left-leaning election law you can imagine would become the new standard nationwide because these states would have to get approval. And the approval is coming out of D.C. is going to have a certain mind about these things.

But so Democrats have this agenda. They want to get through. But they're having trouble. And so Schumer did something very interesting. You know, I can read part of his quote. But he said, if Republicans continue to block our efforts, the Senate will debate. that consider changes to Senate rules on a before January 17th Martin Luther King, Jr. Day to protect the foundation of our democracy, free and fair elections.

So you can see he's using this language of race around Martin Luther King Jr. and fat-free and fair elections. So this is kind of the messaging they're using. It's a little ironic to get rid of to, you know, change the democratic process for passing legislation. you know from for a legislators that were legislators that were elected you know through democratic elections but basically the filibuster you know allows

it just requires that the Democrats that you need a bigger majority in the Senate to get things done and so far we've been able to not nuke what's called nuke the filibuster get rid of it totally but Schumer is threatening to do it now he'll need support of all Democrats to do that though. And so far,

Manchin has said that he will not support it, which again, he's holding up kind of the Democratic plan. And he's just saying that if we're going to do that, we're going to need Republicans on board. He said that I've heard him say in different interviews, that he doesn't want to do anything to further divide the country. That Democrats say,

you know, they passed two very large bills last year. It's a very divided time, and he doesn't want to contribute to that. Right. And, and of course, you know, ending the filibuster this is not necessarily a new

conversation but of course the Democrats hold power now if they were to vote to end the filibuster so they could push through, build back better, they could push through their voting act giving the federal government broad

powers to dictate how states should run elections including preventing states from putting photo ID laws in place for things like absentee ballots. While the Democrats, are in power now. We've got a midterm election in November where it's still months and months away, so who knows. But there's a lot of analysts saying it looks like Republicans are going to retake control of the House.

The Senate is more up in the air or whatever. But eventually Republicans are going to retake control. So if the Democrats end the filibuster now, who's to prevent the Republicans from ending the filibuster in the future? and you're just going to be a role reversal of the current situation. Right. And it's the same thing of, you know, you have to protect the rights of the minority because one day you'll be the minority. So if you're really glad that the Senate didn't, you know, build a, this could build a wall on day one of Trump's administration or that, you know, he didn't shut down every abortion clinic in the country on day one. And that's because the rules of the Senate and the different balance of powers prevented that kind of thing,

prevented the more aggressive partisan action or at least delays it. And the same is going to be true. You know, there's going to be a Republican majority in the Senate again, maybe, you know, this year and maybe two years from now. And all the Democrats who are considered, it's just very short-sighted. And I think it'll lead to a lot of back-and-forth swinging because as soon as Republicans are a rack of power, they can just overturn everything easily. And the founders designed that, you know, the legislature to be purposely, be deliberative, to be slow, to have to take a long time for legislation to be passed,

because you don't want to hurriedly pass the law. I mean, I think, you know, it was impulsely said not too long ago, but we have to pass the bill to see what's in it. And I don't think Americans like that. They don't want it to be that way. But when you, if you get a system where you have two years, where you don't you barely need a majority to get things passed. It's just going to be a mad dash to shove through everything you can

before your majority is gone in two years. It doesn't seem like it's good for the country. It's better to have to work across the aisle, even though as much as people hate the painful process of congressional debate, negotiation and politics, you know, it was able to happen on the infrastructure bill. They got, you know, a bipartisan agreement on the, the infrastructure bill, and they got it across the finish line. It took a long time. It was,

it took longer than people wanted it to take, but it happened. And so I think that's actually a very timely example of that this system does work, even if it could be a little excruciating at times. Well, thank you, Casey. We'll be following this story and more at the center square.com. We have run out of time this week. I look forward to seeing, in particular, reporting on today's U.S. Supreme Court arguments over the Biden's vaccine mandates. This has been the America in Focus podcast. We'll talk to you next week.