The Daily Signal - Why This Lawsuit Over Vaccine Mandate Has ‘Good Chance’ of Reaching Supreme Court

Starting point is 00:00:06 This is the Daily Signal podcast for Wednesday, November 17th. I'm Doug Blair. And I'm Virginia Allen. Americans across the country are standing up and fighting back against the Biden administration's vaccine mandate. The news outlet, The Daily Wire, is suing the Biden administration, arguing that the order is unconstitutional. The Christian Legal Aid Organization Alliance Defending Freedom is representing the Daily Wire in the fight to stop the vaccine mandate. Alliance Defending Freedom, Senior Counsel, and Vice President of Legal Strategy, Ryan Bangert, joins the show today to discuss the suit and how likely it is the case will ultimately end in the Supreme Court. But before we get to Virginia's conversation with Ryan, let's hit the top news stories of the day. Secretary of Homeland Security Alejandro Mayorkas appeared before the Senate Judiciary Committee on Tuesday

Starting point is 00:01:10 to answer questions surrounding the ongoing immigration crisis at the southern border, as well as screening for Afghan refugees. Senator Ted Cruz, Republican from Texas, grilled the Secretary on the historically high levels of illegal immigrants entering the country under the Biden administration's watch. Here's Cruz via the Hill. Secretary Mourkees, you testified several times

Starting point is 00:01:35 that our immigration system is, quote, fundamentally broken. True or false, under President Trump, we saw the lowest rate of illegal immigration in 45 years. I don't know if it's within 45 years, but we certainly saw in 2020 a low level of illegal immigration. 2019. Okay. True or false, Secretary Marcos, this year under Joe Biden, we've seen the highest rate of illegal immigration in 61 years. Again, I don't know the number of years, but it's certainly a historic high, Senator.

Starting point is 00:02:08 So you're right, it's broken, but you broke it. Senator John Kennedy, Republican from Louisiana, pressed Majorcas on the release of illegal migrants into the interior. Here's Kennedy via Forbes. Your department has released thousands of people into this country illegally who have criminal records, haven't you? Senator, individuals who are apprehended at the border are subject to a number of different paths. They can be expelled under Title 42 of the U.S. code under the CDC's public health. authority. They can be placed into expedited. Mr. Secretary, I've got limited time, and I understand the procedure. I know, but I'm just trying to get you to answer my questions. Your administration,

Starting point is 00:02:54 the Biden administration, has released into our country people coming across the border, thousands of them who have criminal records. Isn't that the case? Senator Mike Lee, Republican from Utah, expressed his outrage that Majorcas didn't defend border agents from debunked claims that they whipped illegal Haitian migrants at the border, instead choosing to condemn them for evoking systemic racism. Here's Lee via Fox News. What about the issue with your Border Patrol agents recently being accused by some folks in the media of whipping illegal immigrants when in fact they were not? Why on earth did you not defend them? I mean, has no one in your entire department ever become aware of how one uses split reins when riding a horse? Oh, Senator, let me say two things.

Starting point is 00:03:51 Number one, I put 100% into my work, and I'm incredibly proud to do so. That's number one. Number two, I stand with the men and women of our department through and through, and I will not prejudge facts before. Did you defend them when they were? were being attacked for whipping people, which they were not? Senator, what I said quite clearly is that the independent investigation will determine the facts and those facts will drive the outcome.

Starting point is 00:04:21 Nothing less and nothing more. Your response and your failure to defend them then and now is nothing short of morale crushing. If you want to maintain or obtain operational control of the border, which you do not now have, this is not a way to get there. Florida governor, Ron DeSantis, is taking aim at the Biden administration and the D.C. ruling class. During a Heritage Foundation event in Florida last week, the governor said both elite Republicans and Democrats in Washington are guilty of leading our nation down a troubling path. Biden really represents potentially the culmination of, or I mean, hopefully the coup de grace of, this entrenched political class that is really ruined a lot about our country over the last generation. And it's not limited to just Democrats,

Starting point is 00:05:10 okay? There's a uniparty in Washington, D.C. And they look out for themselves more than the rest of the American people. DeSantis told the audience of about 800 conservatives that the country's ruling class has led to major issues across the nation, including with our immigration system. They're globalists. They think they're citizens of the world. They don't think there's anything distinctive. Our ruling class doesn't think anything distinctive about American citizenship. That's why they would consider paying reparations to people that came across our border illegally, because they think people have a right to come regardless of the laws and constitution of the United States. The Wall Street Journal reports that the Biden administration has been considering

Starting point is 00:05:56 making payments to illegal immigrants for as much as $450,000. DeSantis also addressed. Biden's failings in Afghanistan and the fight against the COVID-19 vaccine mandate. DeSanta said he believes Biden's presidency is causing more and more people to look and recognize the failures of leftist governance. Californians are paying more at the gas pump than ever. Across the state, the average cost per gallon hit $4.68, a new record high. Per the Los Angeles Times, some experts are pointing to higher crude oil costs and, demand as factors in the ballooning cost of fuel.

Starting point is 00:06:37 Spokesman for the American Automobile Association of Southern California, Doug Schoop, sent in a statement to the Los Angeles Times, we had really, really low demand during the pandemic, and then it just ramped up rapidly as more and more people became vaccinated. The desire to get out there and travel really picked up quickly. The spiking prices have led the government to weigh drastic options to ease fuel costs for the average consumer. Per the Hill, Senate Majority Leader Chuck Schumer, Democrat from New York, urged President Biden on Sunday to release quantities of the nation's emergency petroleum reserves to try and bring down gas prices heading into the holidays.

Starting point is 00:07:15 Energy Secretary Jennifer Granholm confirmed that the White House was weighing releasing the reserves as a possibility. Now stay tuned for my conversation with Alliance Defending Freedom, Senior Council, and Vice President of Legal Strategy Ryan Bangert, as we discuss the Daily Wire. lawsuit against the Biden administration's vaccine mandate. The Heritage Foundation has a new website to combat critical race theory. CRT, as it's known, makes race the centerpiece of all aspects of American life. It categorizes individuals into groups of oppressors and victims. The idea is infiltrating everything from our politics and education to the workplace and even our military.

Starting point is 00:07:57 Heritage has pulled together the resources that you need to identify CRT in your community and the ways to fight it. We also have a legislation tracker so you can see what's happening in your state. Visit heritage.org slash CRT to learn more. So as many of you all know, the Biden administration has issued a mandate requiring all businesses with 100 employees or more. It's requiring them to have their employees be vaccinated or tested weekly. And more than half of U.S. states, they have actually already filed lawsuits against this mandate. And there are a number of businesses that are doing the exact same thing that are

Starting point is 00:08:42 taking a stand and that are pushing back. And one of those is the Daily Wire. Christian Legal Aid Organization Alliance Defending Freedom is representing the Daily Wire in their case against this vaccine mandate. And joining us today is Alliance Defending Freedom, Senior Counsel and Vice President of Legal Strategy, Ryan Bangert. Ryan, welcome back. to the Daily Signal podcast. Virginia, thank you so much for having us on. Well, we are excited to talk about this lawsuit and break down what exactly this mandate is and why the Daily Wire is deciding to take legal action against it. So Ryan, back in September, President Biden announced that he was going to issue a vaccine mandate. And then on November 4th, the Occupational Safety and Health Administration,

Starting point is 00:09:31 they issued the details of that mandate. So why, did Ben Shapiro and his organization, The Daily Wire, why are they deciding to fight this vaccine mandate? Well, Virginia, you pointed out something very interesting right there. This was an announcement made by President Biden back in September, and OSHA finally got around issuing an emergency temporary standard in November. So apparently the emergency wasn't emergent enough to warrant them taking immediate action. But so we are representing the Daily Wire, and they're challenging this mandate because it's an example of tremendous government overreach, and not just government overreach, but overreach by the federal government in particular. As all of us conservatives know, the federal government is a government of limited enumerated powers. It does not have the police power. It does not have unlimited, uncapped power to govern our daily lives. It can only exercise power that's found in the U.S. Constitution.

Starting point is 00:10:42 And nowhere in the Constitution, at least not that I've seen, not that Ben Shapiro's seen, not the name of the E. Wire's seen, is there authority to force every American to undergo medical treatment with a vaccine that's relatively new and novel to treat a novel? to treat a novel coronavirus. That is not something that is found anywhere in the text of the Constitution nor in any reasonable interpretation thereof. So this is primarily the case about federal government overreach. So, Ryan, what exactly is in this lawsuit? What is the Daily Wire asking the courts to do? We're asking the court to stay the mandate and enjoin it, basically put a stop to it in the simplest way possible. And in part, to understand what we're asking for, it's helpful to know what exactly does this emergency temporary standard require. Well, it requires that all private employers with 100 or more employees demand and mandate that their employees get vaccinated.

Starting point is 00:11:43 That's the simplest way to put it. There's an exception if the employer institutes a policy that allows for testing and masking of unvaccinated employees, testing every single week, Well, they can do that too. But without question, no matter which side of the fence you're on, mandatory vaccination or the testing and masking plus vaccination, you've got to gather records. You have to ensure that you have a roster of employees and their vaccination status on hand. And you have to comply with these deadlines within 30 days.

Starting point is 00:12:18 Some of them are actually 60 days out, but most of the 30 days out, which means next month, or you could be subject to $14,000 fines. per violation, that's a substantial penalty. And if you do it intentionally, the fine can go up to $140,000. That's even for businesses with 100 employees, that's a mid-sized business. That can be crippling, especially when you're dealing with inflation, when you're dealing with the economic situation you're dealing with right now. That's a pretty big ask for a medium-sized business right now. Yeah, and we know that that affects so many businesses all across the country, literally millions of workers. So many workers are facing that choice of, okay, do I get the vaccine or risk losing

Starting point is 00:13:02 my job? So when it comes to how this lawsuit is written, let's say you all, you have success, you win your case. What happens at the Daily Wire versus the rest of America? If the court rules in the Daily Wire's favor, does that just mean that the Daily Wire isn't forced to require their employees to be vaccinated, or does that mean that positive ruling applies to all Americans and is broader? I would argue that would apply to all Americans, because we're fighting for all Americans. And I'd only be clear about one thing. We're not objecting to the vaccine as a vaccine. Why are Jeremy Boring? Our clients have been very clear that the vaccine is a, you know, a breakthrough, a medical breakthrough, and somewhat of a marvel of modern.

Starting point is 00:13:55 in medicine. Many of the Daily Wire employees have been vaccinated. They believe, however, that it is a personal choice. It's a personal decision, one that the federal government has no role dictating to Americans. And so this is not a matter of opposing a vaccine, being anti-vax. This is really a question of what is the role of the federal government. And so I would argue if we do get a stay, if we do get an injunction, that would apply to everyone because I don't see any way. that they can be limited to just one employer. In fact, as you may have already seen, the Fifth Circuit Court of Appeals down in New Orleans issued a stay on Friday of last week, halting implementation of the mandate. Now, the Fifth Circuit didn't specifically say whether it's nationwide in effect,

Starting point is 00:14:43 but reading the order, I think it is. And I think many people who have considered it carefully also believe that it has nationwide effect. Yeah, well, I'm glad you brought that up, because I was actually going to ask you that very question of, you know, from the Fifth Circuit's ruling, they've put a pause. They actually said that the vaccine mandate is fatally flawed. So does that mean that we're now in a pause moment across the country that we won't see, we won't see things move forward with implementation of this requirement until, until the courts essentially decide, is this constitutional, can we implement it? And I guess maybe there's still a little bit of a question mark there of does this extend to all businesses across America? Well, I think it does,

Starting point is 00:15:34 but you also raise an important point. That is, what happens next? Well, the game's afoot. This is a very interesting and unusual process that we've been thrust into with the emergency temporary standard because the rules governing the challenges to ETS. They call them ETSs. The rules governing challenges are very specific and very arcane. And one of the rules that applies to ETS challenges is within 10 days after a challenge being filed, the challenges have to be filed not in the trial courts, but in the appellate courts, the circuit courts. So all these challenges are being brought all across the country in federal circuit courts. We filed the Daily Wires challenge in the Sixth Circuit, which is in Cincinnati. There's also a challenge pending in Texas. Texas brought a challenge

Starting point is 00:16:18 in the Fifth Circuit, New Orleans. We're involved in cases in the Eighth Circuit in St. Louis and the 11th Circuit in Atlanta. Well, the unions filed challenges in circuits that tend more liberal, but tend more progressive. So you saw union, you've seen union lawsuits in the second and the fourth and the ninth. And they're arguing the ETS doesn't go far enough. They're saying it should be even more restrictive. Now, I think they filed those lawsuits because they wanted to put those circuits into what's called the lottery process. And that's where we're headed. In fact, just today, the judicial panel of multi-district litigation,

Starting point is 00:16:54 which is a panel of judges that handle multi-district litigation, same type of litigation filed in multiple different courts, they're going to hold a drawing, a raffle, basically. They're going to literally pick a circuit court out of a drum, and that circuit court will become the court where all these challenges will be consolidated. And no one knows right now which court will be. that's going to be. If it's the Fifth Circuit, I think we all know exactly what they think about, the ETS, but let's say it's the D.C. Circuit or the Ninth Circuit. Well, we don't know. And if it's one of those circuits, we expect the federal government to immediately file a motion asking that panel to dissolve the Fifth Circuit's order. So there are a number of different plays left to be

Starting point is 00:17:41 had in this fight. So the stay is just the beginning. We have to keep, we have to keep, we have to keep the pressure on. We have to continue because this is nowhere near finished. And what are the chances that this rises all the way to the Supreme Court? I know that Ben Shapiro at the Daily Wire says he's willing to take this all the way to the Supreme Court. Do you think that would happen? I think there's a good chance. It's always hazardous for a lawyer to say, I think there's a good chance. My case will go to the Supreme Court, given the odds. But this one's different. I think this one has a very good chance of going to the Supreme Court because of the stakes, because it's a case involving the federal government, we now have

Starting point is 00:18:23 a number of state attorneys general who have filed challenges to the ETS. So this has really become an issue of national importance. And questions like this oftentimes are resolved by the U.S. Supreme Court. So this is a case where I would hazard a guess that the Supreme Court is very likely to be the final word in this challenge. And how quickly do you think that would have? happen because, of course, you know, it can take years for a case to work its way up through the courts and even years for the Supreme Court to hear the arguments and then make their ruling. Would this be a situation where the case would be fast-tracked due to the time-sensitive nature of the vaccine mandate? I think there's a very good chance that that could happen. I also think there's a good

Starting point is 00:19:08 chance that motions practice may take this case to the Supreme Court on what was been called the shadow docket, I think you could see it pop up there at the Supreme Court very quickly, potentially before the January implementation deadline for full implementation. So I would not be surprised at all if we saw something that quick happen. And again, always hazardous to predict that, but in cases like this where you're testing the limits of federal power and 84 million Americans are potentially affected, I think that you do have a real possibility of the Supreme Court taking fast action here. Ryan, let's take a minute and talk about that million dollar question, which is, is the vaccine

Starting point is 00:19:53 mandate constitutional? Obviously, you have people on both sides claiming different things. What's your response to that? Is this mandate constitutional? I would argue that it's not. Now, obviously, you have good arguments on both sides in some cases, but one thing is for sure. And I want to kind of walk through very quickly what the legal arguments are against the mandates. I think that's a helpful exercise. Well, the first question is, does the Constitution

Starting point is 00:20:23 empower the federal government to compel individual businesses to force their employees to get vaccinated? I think the answer is no. I think we have some guidance from the U.S. Supreme Court in the Savalius, the NFIB versus Sevalius case, which dealt with the Affordable Care Act and the requirement that individuals purchase insurance. The court was very skeptical that Congress could compel participation in commerce in that case. It was also very skeptical that Congress could compel individuals to eat their broccoli. This looks a little bit like forcing individuals to eat their broccoli. Go get your vaccination. That's a, obviously that's, you can debate that all day long. I think that the Commerce Clause doesn't quite stretch this far. But even if it does, even if it does,

Starting point is 00:21:10 And the Fifth Circuit didn't address that question in its stay opinion. It raised the question, and it said, we really doubt it. But even if the Commerce Clause does stretch that far, we don't think, in this particular instance, OSHA's correctly exercised its power to take this step. If you look at what they did, this is not a normal rulemaking. This is not something that went out for notice and comment to the public. It's an emergency temporary standard. And the bar is high. It has to be a grave danger.

Starting point is 00:21:38 that's being addressed by the ETS. It has to be a workplace danger, and the steps taken have to be necessary to address that danger. And the Fifth Circuit was not convinced and not persuaded that those high bars, those high standards were met here for a variety of reasons. So then what is the likely outcome? What is, in all likelihood, going to happen next? and where does this path ultimately lead us as there's so many private businesses and states that are challenging this vaccine mandate? You're right.

Starting point is 00:22:17 And the answer to that question is we'll wait and see. It's going to be a roller coaster ride from here forward. Certainly we know where the Fifth Circuit stands on the issue. If the Fifth Circuit's name is drawn out of the drum, I think we have a pretty good indication what's going to happen next. I think the stay is going to remain in place, and we will proceed to a permanent injunction hearing. If a different circuit name is drawn out of the hat, then the next question that has to be answered is, will the stay remain in place, or will it be vacated?

Starting point is 00:22:49 That's something, we will know that once we figure out which circuit we have, and the federal government's reaction to that, do they immediately file a motion to dissolve it? If they do, and that stay is dissolved, you could very well see action at the U.S. Supreme Court fairly quickly on the so-called shadow docket. So those are some potential paths this could take going forward, but everything really turns right now on which circuit's name is drawn out of that hat today at the lottery process. Okay. Interesting. And for the individual listening who works at a business, an organization, who's affected by this mandate and, you know, they're thinking they themselves might not be comfortable getting the vaccine. They haven't gotten

Starting point is 00:23:37 the vaccine. And they're asking that question of, is there going to be resolution before January 3rd? Am I am I going to be kept from having to get a vaccine that I don't want to receive? What is your encouragement to them? Do you think that they're in a good position? What would you say to that that individual? Well, you had a lot of people fighting for you. And I know it's a difficult place to be. I've talked to many of those individuals. And I think it's just a, it's a, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, it's, people of good faith in this position where they're having to choose between in many cases, following the dictates of their conscience or losing their job. That is a, a, you know, a,

Starting point is 00:24:29 almost unthinkable place for American citizens to be placed by their federal government. And I really regret that we have come to that place, which is why we filed this lawsuit. Because in many ways, the federal government has no authority, it has no power to put its citizens in that predicament. It should not have that power. But I would say to that person, you know, hang in there. there are a lot of there's a lot of road left to travel in this and we'll see where it goes. But it's my sincere hope that we can, through our collective efforts, generate an answer for that person before they're really put to the test. Is there anything that American citizens can be doing?

Starting point is 00:25:16 Is there any action that they can take to be pushing back on this mandate? Well, I'll tell you, I can so impressed with all of our clients who have stepped forward to the daily wire, our seminaries, who we've also brought a lawsuit on behalf of Southern Baptist Theological Seminary, some schools in Florida, the Catholic school and the Dakotas have all stepped forward to challenge this thing. But for individual citizens, insist on your rights. You do have, at least right now, under this ETS, you have a right. to a religious exemption. You have a right to an accommodation if you have a health condition that requires that you not receive this vaccine. So you do have rights right now. And so insist on if you have those legitimate objections, put your employers through the basis. Because you can insist on them. And for those that do want to file religious exemptions, are there any resources that you would point them towards for how they can do that, for how they should craft those statements. Certainly. They can visit our website. We do have some materials there that assist with

Starting point is 00:26:26 that. But I would certainly tell the people who are considering claiming a religious exemption that your employer really needs to honor your good faith explanation of what your beliefs are. They really shouldn't be digging behind them excessively. And we have seen in some cases employers doing that. I don't think that's correct or proper. So I think that really insists that your employer accept your good faith religious belief at face value. Answer their questions. If they have questions, answer them. They would never counsel them or not to answer the questions that employers are putting forward. But don't back down to be cowed because this is something that you have a right to. Ryan Bangor, Senior Counsel at Alliance Defending Freedom, Ryan, thank you so much for your insights on this.

Starting point is 00:27:20 This is a case that all Americans are watching. We're going to be watching the Daily Wires case and all the cases that Alliance Defending Freedom is fighting in the courts. And we will see where this leads, but thank you for what you all are doing. Thank you, Virginia. We really appreciate it. And that'll do it for today's episode. Thanks so much for listening to The Daily Signal podcast. can find the Daily Signal podcast on Google Play, Apple Podcasts, Spotify, and IHeartRadio. Please be sure to leave us a review and a five-star rating on Apple Podcasts and encourage others to

Starting point is 00:27:52 subscribe. Thanks again for listening and we'll be back with you all tomorrow. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Virginia Allen and Kate Trinko, sound designed by Lauren Evans, Mark Geinney, and John Pop. For more information, please visit DailySignal.com. com.

The Daily Signal - Why This Lawsuit Over Vaccine Mandate Has ‘Good Chance’ of Reaching Supreme Court

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