The Highwire with Del Bigtree - ICAN LAWYER BREAKS DOWN SCOTUS VACCINE CASE

Episode Date: January 20, 2022

Just moments after the Supreme Court ruled against Biden’s vaccine mandate for large employers, ICAN Attorney, Aaron Siri, Esq., joins Del to critique important moments from this monumental hearing.#AaronSiri #Sotomayor #SCOTUS #SDUSDBecome a supporter of this podcast: https://www.spreaker.com/podcast/the-highwire-with-del-bigtree--3620606/support.

While we're sitting here, Supreme Court has just made its decision. I suppose in some ways I was kind of hoping we could sort of talk about it and maybe it would happen a little bit later. So the punchline at the end of this has already been delivered. They've now ruled they have ruled to stop the mandate on employers with 100 employees. And they have ruled essentially that the healthcare workers are going to have to follow through with the vaccine mandate. We have been obviously talking about how this vaccine is collapsing. all around them, but let's go through the case a little bit. In order to get into that, first of all, there was a potential that you could have been arguing

before the Supreme Court when it came to this, you know, 100 employees, right? There was a chance. You were in a lottery. We might have had the opportunity to watch errands here in front of the Supreme Court. Why is that? Oh, that would have been wonderful. Yeah. But, well, ICAN has supported one of the lawsuits challenging the OSHA mandate,

which we, where we brought on behalf of a car dealership that has 100, over 100 employees. Okay. And all the competitor car dealerships don't. And so we are, that case was also one of the cases filed in the U.S. Supreme Court, seeking a stay of the OSHA mandate on companies with over 100 employees. the U.S. Supreme Court decided to choose two of the cases that were filed for the lawyers from those cases to argue the case that we had wasn't one of those cases. So essentially there was two other lawyers, Attorney General involved there, that were basically arguing for all the cases, which means they were arguing your case for a guy that, as I think is as good at this. I mean, what was it like, first of all, just to have to listen to someone else arguing your case for you?

Well, they effectively argued the cases that would decide all of the cases on this issue. I thought they, on the legal arguments of separation of powers, which is what really underpins that case, which is that the federal agency, OSHA, doesn't have the congressional authority to implement this mandate. I thought they did a good job. Yeah. And they, you know, they made, I thought they did a very effective job with the judges. There were obviously a lot of very vaccine-specific points that were made by Sotomayorkegon and Breyer. Yeah.

And the, you know, those points, even though they didn't necessarily go to the heart of the legal question per se, I thought that it would have been nice to have those addressed, just at least a swatted away. and then the legal arguments made. Well, so that would be my next question. Because, you know, we, you know, we brought your services on board for the informed consent action network. It was one of the major ways I thought the only way we're going to get to the truth. We've got to start suing the government since we can't go after the vaccine makers, all the

protections by the 1986 vaccine and compensation program. So is there any advantage or, you know, in the fact that you have fronted cases now for us where you've won against the National Institute of Health, you won against the FDA, CDC, Health and Human Services. By winning those cases, were you able to acquire some arrows to put in the quiver that went into our case that maybe weren't, you know, available to those other lawyers that I think mean well, but just don't have that background in sort of the government interactions and the truth about vaccines and the science? Yeah. Look, if you want a will drawn up, you go to an attorney that does that over and over

again. And, you know, similarly here, you know, when you do, there's certainly a value. that we bring, I think, that we have an institutional knowledge at the firm with regards to vaccines that is uncommon amongst other firms. So... But I go as far as say unprecedented? I don't, I'm not... At least for a firm that doesn't represent pharma. Okay.

All right. You know, I'm not aware of any other firm that has a vaccine practice as large as ours. So, so that might be... That might certainly be accurate. it. And so, yes, there's, you know, there's, there's a, obviously for the work we do for I can, we spend every day looking at, you know, all the pronouncements that come out of federal health authorities. We're looking constant looking at the data because it relates to many of the suits we bring. And we're very knowledgeable, obviously, about the various areas of

law that impact vaccines. With that said, in the case that we brought against social I do think that we added, we added value in bringing forth some points that relate to vaccines that were very additive, not necessarily strictly legal, though they do have implications to legal arguments, but they have a legal component, but they also have what I call an equities component. The judges on the court that were talking about deaths and, you know, talking about the doom that would follow if this mandate were stayed, the point of that was really to convince the conservative judges on the bench, the other six judges. They were trying to peel off two of them by saying, look, if you stop this, people are going to die, people are going to get hard. Like, you're bad. Right. And that stuff can be important.

Right. Look, in this case, the Fifth Circuit stayed it, but the Sixth Circuit then overturned it, meaning there's certainly obviously some jurists. out there judges who don't see this as a black and white OSHA doesn't have the authority decision. Well, what could help tip those judges one way or another? Sometimes judges also want to feel like they're doing the right thing. Right. That can be really important. And so with those three judges, I think we're doing,

not only were they obviously doing a little grandstanding for the cameras and for the nightly news, but I think they were actually making some attempt to influence the other conservative judges on that bench. and so when they were making those statements there was value I think in addressing those factual points about spread or deaths from COVID or COVID vaccine and then making the legal point right we you know

knowing that those are the type of points we made so going all the back to your question yes we in our papers in the Sixth Circuit and then to use from court made arguments that I think looked ahead to those equity points. We made these points. COVID-19 vaccines do not prevent infection or transmission. After millions of people were vaccinating, the CDC director, Dr. Walenski,

acknowledged that the COVID-19 vaccines do not prevent transmission. I mean, that's a really huge point there, right? Yes, and we had five, you know, we had five pages of, in that opening brief to the U.S. Supreme Court, explaining that not only the CDC director say that they, don't prevent transmission. We went through the studies done by the CDC itself in Massachusetts and the one they participated in Wisconsin, which showed it doesn't prevent transmission. In fact, you had relatively equal numbers of folks in the vaccinated in the unvaccinated group getting

infected and having similar viral load in their nasofaring. Right. We put that squarely before the court. We also pointed out, we also addressed the argument about reduction in deaths. The whole argument they make about vaccines is, well, if we all vaccinate, then what will happen is the death rate would go down. There's a chart we got right here. So this is in our reply brief up in the Supreme Court. And this is all data directly from the CDC. And what it shows is we didn't return to the numbers of weekly deaths we saw in 2019. That's what was promised.

Right. Everybody vaccinates, deaths are going to go down to the rates they were in 2019. We're going to go back to normal. And who are the folks who are mostly dying were the elderly. During the weeks that are depicted on this chart that's on the screen over there, it was during that period, you already had amongst those who were 65 and older, probably close to a 90, 80, 90% vaccination rate. Yeah.

Meaning those who are considered most vulnerable were mostly fully vaccinated. And you can see on the last row of that chart, you could see the rate of folks that were fully vaccinated in 2000, excuse me in 2021. Yeah. And you could see that starting in week 30, you've got about 60% fully vaccinated, going up to 70% by week 43.

But compare the deaths. This is total deaths in 2021 to 2019. You could see we have not. We were not returning to normal. In fact, not only were the number of deaths not returning to the rate in 2019, they actually were often exceeding the rate, the number of deaths in 2020.

why is this number so important? Because this is all deaths. Right. You can argue about whether or not a COVID deaths is with or from COVID, right? Right. Was it from COVID? Was it with COVID? And the same thing.

When folks die after COVID vaccine, people will say, well, is it from the vaccine or is it not from the vaccine? Right. You can quibble out all this points, but there's one number you typically can't quibble with. And that's just the total number of deaths. Right. All cause mortality. It's pretty binary.

You either dead or you're not. Right. So those numbers that we just looked at on the screen, those are the total deaths in the whole country in each of those weeks, according to the CDC. If the vaccine worked to reduce death, wouldn't we see at least getting back close to what the deaths were in 2019? Right.

Or how about at least below 2020 when we were told we're at the height of the pandemic? Yeah. Well, and now we are seeing other headlines that are, even striking. This is probably more modern, but now we're seeing 40% increase in deaths amongst 18 to 64. This is a very, very alarming and shocking discovery that we talked about last week. I'm not going to get deep into it, but this is the current climate, which is probably even more, it's a more modern statement from even what went into your briefs. But the point being, you put some science into our briefs where others were just going to stick with the argument, which is it's just

sort of jurisdiction, you know, police powers, things like that. Let's get into some of the the comments that were made because I want to get your point. Now, from the beginning, really, the argument ends up being, you know, who are we trying to protect? Who is OSHA protected? We're going to decide, we're going to try and figure out if OSHA has the power, federal government's using OSHA to bring this power. What is it they're trying to achieve? Well, I thought it was interesting because they didn't say, well, if someone's unvaccinated on the job, they could get the vaccinated sick, right? I mean, it's that whole old argument, right? If vaccines work, what is your problem with the unvaccinated? You're protected, right?

Well, they couldn't defend themselves in that argument, so they didn't. Instead, it seems to me this case is just about unvaccinated, being protected against unvaccinated. All right, take a, this is what happened in the courtroom. One of the risks that OSHA was guarding against here was the risk that unvaccinated workers pose to other workers because they are so much more likely to transmit this deadly disease to them. To other, to vaccinated workers? Yes, the grave danger finding was based on unvaccinated workers. The grave danger finding is limited to.

to unvaccinated workers who are far as likely to contract it from their co-workers as well. That's not a concern for us, is it? We can't sustain this on that ground, that this is helpful to the vaccinated workers because the unvaccinated workers present a risk to them. Oh, to be clear, they present a risk to other unvaccinated workers who might be older, who might have other morbidities. All of whom have balanced the risks differently, maybe very foolishly, but they want to balance the risks presented to their health.

in a different way. And OSHA says, no, you can't do that. And that applies when you're on the job and also when you're not on the job and for the rest of your life because you have to take these vaccines unless the testing option is valuable. I mean, I would say mostly listening to it, I thought the defense attorney did a very good job of arguing board. She was very eloquent, very clear. I personally had wished we had some of that clarity on our side. Obviously, for those, you know, employers with 100 employees, it was good enough. But here she seems to make a tragic error, which she almost slips up. Am I to understand that their argument was really the only thing OSHA's attempting to do is to protect unvaccinated from unvaccinated? That's exactly right.

Because the standard that applied here is that OSHA had to say that there was a grave danger to implement the standard that was at issue in this particular stage of the case. Right. And so they said there was an grave danger to unvaccinated people, but they said there's no grave danger to any unvaccinated people, excuse me, any vaccinated people of any age. And that's where there's a discussion there. So yeah. In fact, that gets into more detail. This Clarence Thomas ends up getting sort of getting a little bit deeper into it, discussing effectiveness a little bit. And, you know, the varying ranges of this concept of grave danger comes up. So let's take look at this. There's been some talk suggestion,

or at least it seems to be implied that the vaccinations are efficacious in preventing some degree of infection to others. Could you talk about that, particularly, as I remember in the filings, that the 18 to, that the younger workers, the 20-year-olds who are unvaccinated are actually safe. safer than the older workers who are vaccinated. So there are obviously some differences. Would you just talk about how efficacious the vaccine is in the workplace? So first, I want to be very clear. We are strong promoters of vaccination because they do stop serious illness. In terms of stopping infection and transmission, at least with the current variant, it appears,

as numbers suggest, to be far less effective. And then in terms of the comparison you were asking about, I think it's hard to define what's a grave danger in the abstract. What we can at least mandate or at least demand from the agency is internal consistency. And if you look at their own data, the CDC data from the last week of October, unvaccinated individuals 18 to 29 were as likely to die as vaccinated 50 to 64-year-olds, and the five times less likely to die is vaccinated 65 enough. Hospitalization was between 18 and 49.

That's not even just the young, was about as likely as vaccinated 65 enough. If you look at the Griffin study that they cite at 61,418 of the Federal Register, unvaccinated and vaccinated, both had low risks of death in ICU. Now, unfortunately, for those, you know, listening, there was no video of this. This is how we all got it. We've just got to this audio recording what took place. But I'm a little bit confused there. This discussion of grave danger, why is the attorney for the plaintiffs basically comparing unvaccinated

young people to vaccinated older people and saying that the same. What is that what is he trying to achieve with that argument? What he's saying is this he's really pulling the pants down on OSHA's claim of grave danger for the unvaccinated young people and here's why. What he's saying is OSHA concedes that there's no grave danger to older vaccinated people but older vaccinated people are dying, are affected at numerous times the rate, there's younger, unvaccinated people. So what he's saying, what Benjamin Flower is saying, is if there's no grave danger to older people who are vaccinated for whom the virus is far more dangerous,

then how can you possibly claim OSHA that there's a grave danger to younger unvaccinated people for whom the virus is far less dangerous? Right. What this really draws out is that what OSHA was doing was really ideological. This all feeds into this almost belief. It's truly it's a belief about how vaccines work. And it's hard for people to accept, I think, even for some of the judges, to accept that a vaccine can maybe, for example, reduce symptoms. But it doesn't, in fact, stop infection transmission.

I think we could see that playing out with some of the comments made about we have more cases now. Well, but you got over 70% of the people vaccinated. Well, let's get into this belief system a little bit because I think Justice Kagan in many ways. And, you know, I get it. They're human beings. They have their opinions. They have their biases. But we all think of the Supreme Court as being a space where the, you know, the bias is set aside so we can just get to the facts. Yet clearly Kagan goes on a bit of a grandstanding moment here talking about the benefits of the vaccine. So I'm indulnti was lost to anybody where she was planning on voting before she ever came into the halls of justice. Take a look at this.

We all know what the best policy is. I mean, by this point, two years later, we know that the best way to prevent spread is for people to get vaccinated. And to prevent dangerous illness and death is for people to get vaccinated. That is by far the best. The second best is to wear masks. So this is a policy that basically says, We are still confronting thousands of people dying every time we look around. And so we're going to put into place the policy that we know works best,

which is to strongly incentivize vaccination and to insist that unvaccinated people will wear masks and test. I mean, that's just like, why isn't that necessary? What else should be done? It's obviously the policy that's geared to preventing most sickness and death, and the agency has done everything but stand on its head to show quite clearly that no other policy will prevent sickness and death to anywhere like the degree this one will. Justice Kagan, first of all, states could have policies like this. private businesses could have policies like this. I mean, here, and this is one of the frustrating things for me, I want to ask you, because she just opened up the conversation of science.

Like, I understand that the court doesn't want to deal with the science, which is what makes your job very difficult. You know, the first thing the judge will say is, I'm not a doctor. If the CDC says something, I trust what the CDC says. But she's making statements that don't even align with the CDC, and at the end of that, you know, the plaintiff's attorney doesn't say, say, actually, if you're going to quote CDC data, there's this great case we have in our files here, filed by Aaron Siri that talks about transmission. It was all there. He didn't go there.

It's not his wheelhouse. Had you been there, this is the moment you sort of stepped. I'm glad you brought up the science because let's get into the details of the science for a moment. Instead, he goes back to policies saying, my point is not about the science. It's really about the states should have this power, not the federal government. I found that frustrating. Was that frustrating for you? I mean, I would have liked to have seen the equities addressed. He did a good job. I mean, he did a great job in addressing the legal component. But I would have liked to have seen just one sentence to say respectfully, Your Honor,

the CDC's own director said this vaccine doesn't prevent transmission. But, you know, and then move on to legal argument. Okay. And, you know, and if there was even more bandwidth, here's another argument we made in our papers very forcefully, is we said, look, we accept the vaccine does reduce. symptoms. Right. So the product reduces symptoms, but it doesn't prevent transmission. Who's more likely to be spreading it? Right. Is it the people who are transmitting, infected and transmitting that have less symptoms and don't know to stay

home and are still going to work? Or is it the people who have more symptoms notice stay home are more likely to stay home and are transmitting it? Yeah. Right. I mean, and the proof's kind of in the pudding. Cases are going up. Right. Not down. And that's the point again. Once against the science door was opened up, this is Justice Breyer talking about the public interest. Can you ask us, or is that what you're doing now to say it's in the public interest in this situation to stop this vaccination rule with nearly a million people? Let me not exaggerate.

Nearly three quarters of a million people. New cases every day. I mean, to me, I would find that unbelievable. Justice Breyer, we are asking for a stay before enforcing. takes up in fact Monday. And the reason for that is this is an unprecedented agency. I know you have all good arguments that it isn't good. They have arguments that it is good. Okay, I'm asking you a different question. And the question is, how can it conceivably be in the public interest with three quarters of a million people yesterday? Goodness knows how many today. I don't want to repeat myself.

But you have the hospitalization figures growing by factors of 10, 10 times what it was. You have hospitalization at the record, near the record. I mean, I know how I'm not a lawyer. I know what I would want to jump in and stay there. We've got skyrocketing rates of hospitalizations, he's saying. He's getting the science once again. And again, the plaintiff is just going back to, well, I just want to talk about who should be, you know, I want to stay. But isn't he pointing out the obvious, which is this vaccine is a failure?

We're vaccinating more than we ever have in the history of mankind, and the numbers are through the roof. Right. You have to require suspending reason to some degree to say we've vaccinated fully now well over 70% and see the numbers are skyrocketing. So we just have to keep doing more of that. I think it feeds directly into what the CDC director said. This vaccine doesn't prevent transmission. That would be consistent with seeing rising cancer. cases, right, not stopping transmission.

Right. Those two points are consistent. Look, the one nice thing is this, is that I think the judges made some of these comments that went, first of all, outside the record, which is not typically what... The record being this wasn't, you know, what does that mean? Meaning there's, you know, when you appeal, there's usually a record, you know, these are the facts and this is the body of information that will be before the court. So putting aside that they went outside the record to kind of make these gratuitous.

you know, statements. The one good thing is that even though the rebuttal to those points didn't happen in the courtroom, they happened all over the media. That's right. And they happen swiftly and quickly. And so whatever impact those comments might have had on the conservative judges, I'm assuming, to the extent that, you know, they're not able to avert their eyes and ears. Right. From the cascading media avalanche that came after some of those comments, you know, they got to see the responses, many of which, you know, were provided, like we pointed out in our papers. So one of the major arguments, it seems, is just like who has jurisdiction here? And the plaintiff, there's an interesting exchange with Sotomayor who compares people to machinery that throws sparks.

They're throwing, you know, a virus or blood-borne pathogen. I thought that was really interesting things. So what's the difference between this and telling employers, where sparks are flying in the workplace, your workers have to wear a mask. When sparks are flying in the workplace, that's presumably because there's a machine that's unique to that workplace. That is the-

Why is the human being not like a machine if it's spewing a virus, blood-borne viruses? Are you questioning Congress's power or desire that OSHA do this? It already in 1991 told OSHA to issue regulations with respect to HEP C and B. Justice Sotomayor, I think that exactly proves our point that Congress knows how to enact a statute

when it wants to give O'SHA. It didn't enact a statute. O'Sha proposed regulations. It didn't act fast enough, and Congress told it to act faster. So it wasn't Congress who proposed it. It wasn't Congress who devised it. Congress gave OSHA the responsibility to do these things, and Congress was saying, get to it. And what Congress said in there was not, you now have statutory authority to regulate all communicable diseases. It was bloodborne pathogens and even that rule did not mandate vaccines or widespread testing. I'm a little bit confused here. I mean, I get her point that if someone's spewing, it's just like sparks hitting and you're trying to protect, you know, the person across from them.

But this conversation really gets into the constant, you know, using the Congress to mandate upon OSHA or does the OSHA have its own ability to do something? What's at the heart of this? What are they really arguing about right here for people that aren't seeing the nuance? What is her argument compared to his? Well, she's trying to address two different things. One was the grave danger point, right? She says human beings are like machines with sparks flaming. They're going to shed the virus. But of course, so can have vaccinated.

Right. So says the CDC director. Would have been a good point to make there. So says their studies. Right. So says the data, right? Right. And unlike machines, people have rights.

case and point, one of the things we put in our reply brief was the data from Canada, because the CDC hasn't released this data for December yet, showing that the vaccinated actually have a higher case rate than the unvaccinated, meaning there are more cases among the vaccinated right now in Ontario, Canada, according to the official data that they're releasing than amongst unvaccinated. Does that mean that we now throw all the vaccinated out of their jobs? Right. kick them out of school, throw them out of the military, exclude them from restaurants?

Of course not. Of course not, because rights are rights, and we shouldn't take them away from anybody. But so that's the first thing that's going on there. It goes to the grave danger point. The second thing that's going on there, and this is underpinning most of the argument, is does OSHA have the authority, the congressional authority to implement this rule? And that has two components to it. One is a textual interpretation of the statute that Congress passed to give OSHA the authority, right?

Right. And then the other is just this, what they call the, let me keep it simple. The other is whether or not this is a question that is of such importance that it needs to be decided by Congress effectively. Okay. That it has such an impact in economic and broader impact in American society. It's not something that should be decided. by a regulatory agency, but rather by the elected officials, you know, in the Senate and the House.

That would be my argument. I mean, I can't stand the fact that people making these like, OSHA, I don't vote for OSHA. I vote for my senator. I vote for my congressman or woman. So if they're making decisions, I can vote them in or out. It's really hard if you start having regulatory agencies making these decisions.

It really makes it hard for us to have power as citizens over these decisions being made, which is that, I mean, I guess, I grew up a progressive liberal. Is that kind of a conservative liberal? conservative perspective now that sort of I want the rights in the hands of the people smaller government state versus federal I mean that's sort of where they're pushing towards the conservative judges right this should be a state's issue because then in a congressional the Congress should be making this

decision not a regulatory agency that we have no control over we need to be able to vote in the people that are making these decisions and out I wouldn't call it a conservative or a liberal issue frankly I would just call it a constant the most one of the most fundamental structures that underpin this entire country, which is that we have three branches of government. We have Congress, right, the legislative branch, and they're the ones that's supposed to make the laws. And we have the executive branch to implement them.

We have the judiciary that then deals with disputes and so forth. But it is the legislative branch, the elected officials that are supposed to be passing the laws that really impact us. You know, the executive can have what's known as interstitial rulemaking. They can fill in the blanks to laws. But they shouldn't essentially be engaging in making decisions that have wide reaching implications for all Americans. This one clearly does. And obviously, you know, as you pointed earlier, I'm heartened to repeat what you said earlier,

which is that the U.S. Supreme Court, six out of the nine judges agreed. and have issued a stay as of just a few hours, and not even an hour or two ago, staying the rule. One of the funny parts I thought, because everyone in the world that decides to even venture into the space of vaccines, like the potential of the vaccine could injure,

has to do so carefully. And, you know, there's a lot of people that dance around this. There's, you know, there's athletes, obviously dance around it. There's movie stars. But to hear Supreme Court, The one place I thought, here's a group that gets to sit there and just state whatever they think, to listen to a Supreme Court judge dance the way this one had to do to simply bring up that rare possibility

someone might get injured. I'm not saying, I'm not saying. I mean, take a look at this, folks. This is hysterical. I don't want to be misunderstood in making this point because I'm not saying the vaccines are unsafe. The FDA has approved them. It's found that they're safe. It's said that the benefits greatly outweigh the risks.

I'm not contesting that in any way. I don't want to be misunderstood. I'm sure I will be misunderstood. I just want to emphasize I'm not making that point. But is it not the case that these vaccines and every other vaccine of which I'm aware and many other medications have benefits and they also have risks and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences? Is that not true of these?

vaccines and if that is is that true that can be true but of course there is far far greater risk from being but there are there is there orders of magnitude right there is some risk do you dispute that there can be a very minimal risk with respect to some individuals but but again I would emphasize that I think that there would you know basis to think that these FDA approved and authorized vaccines are not safe and effective they are the same making that point I tried to make it as clear as I could I'm not making that point, I'm not making that point, I'm not making that point, there is a risk, right?

Has any other, has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk on the employee, so that if you have to wear a hard hat on the job, wearing a hard hat has some adverse health consequences? Can you think of anything else that's like this? I can't think of anything else that's precisely like this, but I think that to suggest that OSHA is precluded from using the most common routine, safe, effective, proven strategy to fight an infectious disease at work would be a departure from how this statute should be understood. I mean, it's hysterical, right? I'm not making that point. I'm not making that point. I'm not making that point. But the point he is making is an important one, even if it's a minimal risk, there's a potential. someone could die by this mandate, has OSHA ever mandated any other, you know, process inside of a workplace that is going to clearly put somebody at risk? Someone's going to have that antithelactic

reaction, which is why you're sitting there watching me for 15 minutes after this. Somebody's going to have myocarditis, which the CDC admits, and someone's going to have blood clots, thrombocytopin, things that have all been admitted now, you know, whether or not they're getting their numbers right, it's going to happen to somebody. So is there any other place that this is, I mean, it's a really good question. And why don't, why is this, why is it so hard to have this conversation in a courtroom? Do you find that this is a place that they just don't want to go or usually go? I don't think it's limited to courtrooms. I think it's, you know, I think it's hard to have the conversation that a vaccine could injure folks in many forums. And to your point earlier,

it's unfortunate that even when it comes to courts where they're supposed to be impartial, they're supposed to be blind, right? Start from that. Even a sitting U.S. Supreme Court justice is got to be concerned about being misconstrued on this point. Yes, vaccines can injure people, period. It happens. That is something the CDC even provides for. It's not something that is debatable. What's typically debated is the rate, how often it happens. But that it happens is not a point that anybody, even in federal health authorities, would actually debate. You know, I'd also point out that one of the things that we put in our papers, and I'm not aware of this in any other papers filed the court, was we made this precise point about how folks can be injured by the vaccine.

And we had a whole section discussing how there's immunity to liability that Pfizer and all the pharmaceutical companies have to any individual companies have to any. injuries caused by these products. They're getting tens of billions of dollars. If that's not sufficient revenue to pay for the injuries, these products might cause, that should be concerning. That should be concerning to anybody who's looking at this. And I think that to actually answer your question more directly and maybe broadly too,

why can't we have this discussion? And I think it's, I think this is a big piece of it. When it comes to drugs, any drug, we all can accept that it injures some people. The medical authorities can accept. Doctors will readily tell you. The FDA will readily tell you. They don't have any issue with saying, oh, yeah, this drug can hurt some people.

But they don't seem to have the ability to do that with vaccines. And what's the difference? Here's the difference, I would say. differences is that our federal health authorities, our federal government doesn't go out and promote drugs, but it promotes vaccines. It doesn't go out and mandate drugs, but it mandates this. So what is it done? It has staked its own reputation.

It has staked the FDA's reputation as well as the leaders of those agencies on this product. If there's an issue with the product, who does it reflect badly on? does it just reflect badly on the company? Mm-mm. It looks badly on the federal government. They're still people. They still have institutional. You ever heard the FDA admit they're wrong?

You ever heard governments admit they're wrong? They rarely do. And that creates a pernicious problem. When the federal government is involved with protecting the pharmaceutical companies saying, no, this product can't sue them for harm, gives them money, is out there promoting the product and mandating the product. And look, even here, who's in this court? federal who's think about it that's the u.s solicitor general right doing what defending mandating this

product right it's all inverted usually the government should be there to protect consumers right who are harmed right from the companies that make the product vaccines is the only product i'm aware of where it's inverted and it but it also doesn't this is explains why the FDA which is essentially what is defend being defended here right in the decision to mandate I mean, I know it's OSHA, but it's a regulatory agency. This is why the regulatory agencies are fighting you when you're saying, I want to see the data. The scientists of the world want to see Pfizer's data so we can do an assessment. Our regulatory agencies are literally attempting to block us as she's attempting to block this conversation,

saying, no, there's no such thing as injury. We won't go there because it brings down, you know, our confidence in the government. And this conflict of interest is why it is so dangerous for them to be doing the science, for them to be in charge of the science because they're implicated. This is a conflict of interest of the greatest kind. We can't get good science done because the regulatory agencies are blocking because if that science was done and that science proved that vaccines do injure at a higher rate than your average person can accept, then we lose faith in this program,

we lose space in our government, and this entire thing comes crashing down. So people are like, what is the motivation for Tony Fauci to lie? What is the motivation for Francis Collins? This is it, right? This is it right here. That confidence in what they've stated over the last, you know, how many decades, you've got to go out and get your vaccine. You can't go to school and you get the vaccine. If it proves that vaccine was injuring children and they admit it, we're in real trouble, right?

You lose confidence in not only the health care problem, but the government in the United States of America. It's definitely one of the big issues. And, you know, typically when there's a government agency that's responsible for promoting something like the Department of Transportation is responsible for promoting. promoting modes of transportation like air travel and so forth, Congress intuitively recognized, wait, that's, if we also make the Department of Transportation responsible for safety, that's a conflict. You know, the very same actors in industry that they're dealing with to say,

go out, make more planes, fly those planes. You're also going to then make them go, wait a second, and attack the very people you're telling to, it creates a conflict. So they created the NTSB, similarly with the Department of Energy. Right. Department of Energy promotes nuclear power. So they created a separate, completely independent agency to do what?

To actually assure safety in nuclear power plants. They recognize that when it comes to vaccines. No separation. Promotional body is the same one doing the safety trials. Exactly. Overseeing safety. Not only is it the same agency, the Department of Health Human Services, is responsible for promoting the vaccines.

They're also responsible for safety. But it's even, frankly, more pernicious. Because as you know, not only is the Secretary of the Department of Health Human Services responsible for promoting them, they are also the respondent in the vaccine injury compensation program. They are literally, literally defend any claim of vaccine injury in the federal government's program where if you're injured by most vaccines, you'd have to bring a claim. That is an incredible conflict. If the federal governments do any study that shows a vaccine causes some injury. What do lawyers like me and the other, you know, the small body lawyers

due vaccine injury claim? About 100 attorneys due vaccine injury claims. I'm going to use that as evidence against the federal government in cases against the federal government to get damages for a vaccine injury. I mean, it's a system that shouldn't be. The government should not be in the business of mandating or promoting any product, vaccines or otherwise. They should be in the business of, if anything, of protecting consumers from harm. from the powerful, the companies, not defending the companies against the consumer. It's crazy, frankly. I'm sure everyone is wishing that you were there to make this argument for the Supreme Court.

I know I was. But the basis of the argument that really was made and the plaintiff's point that I think was really obviously leading towards what would be considered the conservative judges was the fact that if you mandate this, people are going to quit. If they quit, you were going to ruin these businesses. The Supreme Court is now about to actively make a decision that could ruin businesses, hurt our economy, something that I'm not sure Supreme Court justices like to be involved with. This is what that moment sounded like.

Even OSHA has said that 1 to 3% of employees will quit. That is significant. Our declarations, appendix 308, 316. Counsel, yes, that may be true. But we are now having deaths at an unprecedented amount. there are costs and deaths and other things countervailing to the fact that there might be one to three percent of workers who leave. Well, and here, vaccines have been made available. I also think there's a textual clue within the OSHA.

I mean, you know, obviously you want to jump in with the all-cause mortality there. Right. Right. I mean, just say, what are you talking about? Like, the deaths are going up. I mean, we're going the wrong direction. If vaccines were good at stopping this. But that's the point I want to make, though, is. The art was the basic argument though was this employees will quit.

They'll have a financial hit. Our case with the, uh, the auto dealership is it's unfair. He's going to, he's going to have employees walk out and won't be able to do his job. And the smaller competitors that don't have 100 employees, they're going to get to keep all of their,

but his staff, if I leave him, go to them to work there because they won't be vaccinated. How can that be fair? And why is the Supreme Court going to find itself in the middle of deciding people's livelihoods? Right. The lawyers for the plaintiffs, which I want to just say, they did a great job arguing the law. Great job. And I think the media did a great job afterwards making sure all those other equity points were dealt with.

And the proof's in the pudding. We got the win today. But yes, it's an economic point that the plaintiff's attorney was making. and as in the case that we brought, the dealership is the only one in that region with over 100 employees. There's about a dozen others. The employees that don't want to get vaccinated or in the alternative have to pay for themselves to get tested and wear a mask like a scarlet letter on their face,

they're going to leave to competitors, absolutely, and they're going to lose in a really, as we put in our papers, and was attested to by the plaintiff in that case, extremely tight labor market where he already where the the the plaintiff in our case already didn't have enough staff as it was to deal with um the ongoing business operation why did this work here but it didn't seem to work for health care workers i mean it seems like health care workers are going to leave that that goes beyond a financial problem as we've just reported earlier you have staffing shortages like crazy but is it because there wasn't large employment and then the

health care workers have nowhere to go right if it's all health care workers, you're not leaving for the place across the street that has under 50 employees where you can not wear the mask. They got nowhere to go. Is that maybe why Supreme Court felt comfortable, you know, saying, yeah, in the case of these employment groups, it's unfair, but for the health care workers. Yeah. So as you know, those decisions came out about 30 minutes before I was shoved in this chair. Yeah. So I haven't read the CMS decision yet. Okay. So I'm not exactly sure it says it. And, you know, we haven't brought a case. We don't have a case. We don't have a case against CMS, though. I understand that you've expressed interest in us potentially bringing one so that we can jump into that freight.

Because that case is not over. This is just about the temporary stay. And all that, that's the truth about all of these, right? These are not, this is just should they stay the implementation of this mandate by OSHA, you know, requested by President Biden in case of the employers, yes, we're going to stay. We're going to wait until this case is all finished to decide. and in the case of health, it's going to move on. You're going to have to be vaccinated.

So people will be fired. And so in the end, like if down the road, a better argument is made for health care workers and it proves like, you know what? Yeah, the mandate was unconstitutional, whatever it is. All those people that get fired, I suppose, could ask for their jobs back. But we're going to be in a really weird space there. Yeah, well, I think so, yes, this is just about a temporary stay in both OSHA case and the CMS case

during the pendency of the lawsuit because the lawsuits are going to keep going. There isn't a final adjudication yet. There will be. But the decisions that the Supreme Court just gave in both of those, I do need to read the CMS one, but in Ocean in particular, it did go to what

was considered the likelihood of success, which party is likely to succeed. And the Supreme Court in the Ocean decision gave its reasoning of why it's likely to succeed when a court gives you that kind of decision, the case is usually often, especially in the commercial litigation context, that's usually the end of the case. The judge is giving you a, basically, this is how I'm probably, almost certainly

going to rule at the end of the case. That does appear to be the case with the OSHA decision. I want to read the CMS to make sure that that seems to be the case there too. So yes, it's still possible to have a different outcome, but it's often a very high hurdle to overcome once you have this kind of appellate decision. I'll make a bigger point, and it's this. I think that it's important in the CMS case to challenge it, just as an OSHA, for the following reason, is that, you know, the mandates on vaccines really, as I've expressed in the past, and I'm very open about, I think that all vaccine mandates impinge upon the right to liberty on the Constitution. I don't think any of them should withstand constitutional scrutiny.

With that said, at the least the federal government should not be involved in the business of mandating vaccines. Bad enough, they're in the business of promoting them, giving Pfizer billions of dollars, protecting them from liability. At the least, they should be out of the business of mandates. And at least leave that to the states so that there can be states where those who can make those decisions like Florida and Arizona, Texas and other states. that have chosen to fall on the side of liberty and not on the side of these draconian measures. So I think that's important to challenge all of the federal mandates, including the CMS one.

You know, it's interesting, Justice Sotomayor, who was very outspoken in this case, stating her opinions about what this vaccine can do, apparently. But shockingly, she is one of the few that's ever really written about the vaccine injury compensation program, saying she thought that it was probably going to cause problems that you're giving liability protection to an industry that should be doing safety studies. So when she was outspoken, it's almost like two different people. Like she's forgotten the underpinnings of something you mentioned that didn't come up in this case,

but this is an industry that's protective of liability. You're trusting the safety here from an industry that only makes money, has zero risk and a government that seems to be protecting them. Here's one of the statements she's, you know, said about, workplace contact where again she's really she was really jumping and swimming in the science here which none of you have addressed that part of the ETS is to say something that should be self-evident to the world but is not which is if you're sick you can't come into work the workplace can't let you in to the workplace and you shouldn't go on unmasked tell me what's irrational about rules of that nature when it is the workplace that puts you

you into contact with people that will put you at risk. I don't know that we've argued that the requirement is irrational, and indeed there may be main states subject to their own state laws that could impose themselves or private businesses. So we're not making it. So if it's within the police power to protect the health and welfare of workers, you seem to be saying the states can do it, but you're saying the federal government can't, Even though it's facing the same crisis in interstate commerce that states are facing within their own borders.

I am not sure I understand the distinction why the states would have the power, but the federal government wouldn't. The federal government had no police power. Oh, it does have power with respect to protecting the health and safety of workers. we have accept the constitutionality of OSHA. Yes, I think you'd be asking if they had a police power to protect public health. No, they have a police power to protect workers. I would not call it a police power.

I think their commonwealth power allows them to address health. Sorry, their question. It allowed them to address health in the context of the workplace. Exactly. This is a very uncomfortable position. I mean, as a lawyer, I mean, first of all, you don't, it's rare in a moment to argue before the Supreme Court's huge deal in your career when a justice basically tells you the federal government has police powers. It sounds to me like he's saying, um, in all due respect, no, they don't. Can I ask you? I mean, in this moment, does the federal government have police powers? The police powers are reserved for the states.

and so he's carefully trying to not offend Justice Sotomayor, I'm sure the people have to say 10th Amendment, man, what's wrong with it? This is a Supreme Court justice that seems to think the federal government has that power. I mean, she's, you know, the 10th Amendment, the power is not delegated to the United States by the Constitution nor prohibited by it to the states

or reserved to the states, respectively, or to the people. You know, the Justice Sotomayor is not she's smart. Yeah. She's not dumb. She knows. I, you know, the best I can gander is that she was a bit in a

a bit worked up. She was in a moment of being worked up. She's got this you know, based on some of other comments, this very deep-held belief about this product and how important it is to get this product into the arms of every worker in this country. I mean, going so far as to say

it's, you know, what she goes, what's irrational about trying to stop the spread by vaccinating? Well, I would respectfully say what's irrational about that is that the CDC director said it doesn't stop transmission. So if it doesn't stop transmission and all it does is reduce symptoms, it does appear to be irrational to require vaccinated folks to, you know, to comport with this but unvaccinated folks to not. That's what appears to be irrational. Is there ever a moment? Because in that moment, I can imagine you making an argument. Is there ever a moment for a lawyer that you're sitting there looking at the judge thinking,

I can win this battle right now with this judge, but it will humiliate this judge, and that will work against me. Therefore, maybe I shouldn't win this argument right here this way? Well, I would say in that context, yes, there are instances in which there's, I think that there's a uncertainty of where the judge is going to, rule that that is certainly important. But, you know, in this appellate context where there are nine judges, and what Justice Sotomayor is, I think, in part doing, she's talking to the other six judges who are conserved on the bench. She's trying through pulling heartstrings, through a motive through these

various equity arguments, as I would call it, to peel off two of them. That's what she needed. She needed to peel two of them off. You know, I think that that, and so I think that her, if you weren't certain before that hearing halfway through, anybody listened to that, should be pretty certain how she was ruling. Right. Right. I think in that moment,

I think the response shouldn't be about thinking about changing her mind. Right. The response should have been to soften what she was trying to do vis-a-vis the conservative judges. That's where the response, I think, should have been geared.

And I think to that point, I mean, that's what Benjamin Flowers was doing. I think he brought it back you know, he didn't address the scientific components, but he brought it back to the heartland of his legal argument that he clearly understood the coverage judges would be most comfortable latching onto. Obviously, he did the job in a way that delivered a victory for this moment. Absolutely.

Absolutely. Has occurred. People in these large companies are not going to be forced to be vaccinated, at least not based on an OSHA mandate. So I want to thank you for sort of taking this through this. I think probably the most shocking thing, though, that did happen. And it is, as you said, it did seem that Justice Sotomayor was unreasonably passionate about an issue for what I think of a Supreme Court. At least what I grew up thinking is this is these people that don't let their emotions get in the way.

And in this case, either her emotions got in the way or, you know, something blinded her to the ability to actually do a decent investigation. because clearly she made mistakes that have been called out, but I was shocked when I heard some of the statements she made because they were so incredibly inaccurate. And when we think about the Supreme Court that is literally the pinnacle of fact-based decision-making in this country and leads the world, you would kind of hope a Supreme Court justice, if they're going to speak facts, they know full well those are going to be in every newspaper in the world.

you would hope they get it right. This was a shocking moment, and I think it's going to be a historic moment for this Supreme Court and specifically Justice Sotomayor. Listen to what she said. We have hospitals that are almost at full capacity with people is severely ill on ventilators.

We have over 100,000 children, which we've never had before in serious condition, and many on ventilators. I mean, 100,000 children on ventilators. whole thing, we've been looking at the fact. This is a nothing burger for children, but we didn't have to fact check it. Here's some of the fact checking that took place. This was New York Post Supreme Court's liberal just slammed over a vaccine mandate statements. Fact check Sonnyor make,

this is even CNN. Remember, this is her, these are her people. Fact check. Sonomior makes false claim about COVID-19's impact on children. CDC director correct Sonomaio claim that 100,000 kids in serious condition with COVID-19. That is just simply. not the case. You even have the director saying that CDC director, Rochelle Walenski on Sunday corrected claims made by Supreme Court Justice Sonia Sotomayor who said Friday that we have over 100,000 children, which we've never had before in serious condition and many on ventilators. Wolensky explained on a segment of Fox News Sunday that though pediatric hospitalizations

have been rising, numbers are still about 15-fold less than for older age groups as of January 8th, about 5,000, huge difference between 5,000 and 100,000 children, U.S. children were hospitalized and confirmed. And as we saw earlier, Hockel saying half of those probably came in for other reasons and aren't even there for COVID or believed to be coronavirus positive. And according to Wollinsky, most of them were unvaccinated and or had underlying conditions. So, the Meyer made the misleading claim during oral arguments over challenges the vaccine mandates imposed by the administration, by the administration. I mean, this is shocking. I mean, it really is shocking. Did we find the document?

that I thought she might have looked at and misunderstood. Here it is. Here's what I think she actually made a mistake. She must have glanced at this and not read it. Hospitalization surged for unvaccinated American children. Look at how if you were not taking your time, you could misconstrue this. Since mid-December, with a highly contagious Omicron variant spreading furiously around the country, the hospitalization rate in these youngest children has surged to more than four in 100,000 children.

up from 2.5 per 100,000 children. The rate among children ages 5 to 17 is about 1 per 100,000, according to the CDC data, which is drawn from over 250 hospitals in 14 states. I'm not saying, I'm not in her head, but I have a feeling she saw some form of that. It's surging in children, attempting to make it look like this big deal. She saw the 100,000 rolled with that

and really probably didn't, as they say, read the fine print. Were you as shocked? It's surprising. I mean, you know, she's, the justices in the Eastern Court are surrounded by an army of some of the, you know, the brightest from the premier law schools in this country. Yeah. And they've got endless number of folks who could research for them. And I don't know, I don't know where she came out with that number. And I don't know, you know, but it is surprising. And it's unfortunate. And part of it, I think, unfortunately, is that certainly within one of the political camps in this country, there's a strong sense to protect minorities. And there's almost an intuitive sense, apparently, in that regard. And we should. We should protect minorities of all stripes, to be sure.

But for whatever reason, when it comes to those who choose not to vaccinate, who in many ways are a form of minority, they chose not to modify their immune system. system with a pharmaceutical product for which you can't sue for any injuries. There doesn't seem to be any understanding, compassion. And in fact, unfortunately, it seems to be the opposite. There seems to be this ethos among some that you can do anything to them. You could throw them out of school. You could fire them from their jobs, as is talking about in this case. You can make them more scarlet letters of a mask, even though the vaccinated can also transmit.

throw them out of the military. You can talk about them in probably the worst terms. You can talk about people on TV amongst the media and politicians. I mean, and I think unfortunately that kind of, that breeds a sense of otherness amongst those that don't vaccinate in certain camps in which leads to potentially what you're seeing there, which is potentially, which is no recognition of rights for those who choose not to vaccinate. In fact, it's almost the opposite.

There's almost a sense that we should be punitive. You heard the Premier, the Prime Minister of France talk about what he wanted to do to the unvaccinated. And that's really unfortunate. I mean, I can't think of any other group in this country that you can treat the way that you treat folks who, the way that folks who aren't vaccinated are treated in this country. And the saddest part about it is that often those who choose not to vaccinate, as you know, you've been around this country on tours and met endless families. It's usually not, especially when it comes to child of vaccines,

it's not that parents often choose to not vaccinate. They choose to stop vaccinating. Sometimes there's complication like any drug. It does have adverse effects on some. And so those who choose not to, they have to not only suffer the adverse effects of the product, they have to suffer the insult of the treatment they get there after. and the lack of any empathy.

And maybe that fit into part of what you saw going on in the Supreme Court the other day. Right. So lastly, just to sum all of this up, one of the conversations from the very beginning, I've always said, we've got to get in there, we've got to undo Jacobson versus Massachusetts. There's 1905, is it ruling? Yes, it is. Essentially that said the government can force vaccinate you. I actually didn't say that.

I'm saying you have to pay a fine. $5 penalty. $5 penalty. Jacobson lost, bought up to the Supreme Court. How much would it be? About $1507. About $157 in our money. I'd be happy to pay that fine if that's all it was to get out of,

if I'm a health care worker right now, you know what, I'll pay the fine, I'm not taking the vaccine, take it out of my salary, take the $157. That's what was decided. But it's been used as this sort of sword to wield mandates to bring about, you know what I mean, to really sort of force this, this, pressure upon this minority of people that choose to not, you know, manipulate their immune system

in order to walk on this planet. Does this, is this over? Is this the end of it? Have we seen the Supreme Court has ruled? Does this conversation end here with, you know, if these end up, this is just a stay, but if it closes out here, are we through this conversation? Is the federal government not able to mandate because of this OSHA ruling or is it still, is there still more work to be done in the future? The decision that's going to eventually, this interim stay and then the eventual final adjudication in this

case is not going to impact the decision in Jacobson. Because Jacobson wasn't about the federal government's authority to mandate a vaccine. It was about the state's authority to require a vaccine. In that case, as we pointed out, subject to $150-something-dollar in today's dollar penalty.

So Jacobson's really not at issue in this case. What's at issue in this case is whether OSHA has the congressional authority or otherwise there's authority on the federal level to require the type of mandate that's currently OSHA is currently trying to enforce on companies, which is separate and apart from Jacobson, though I would like to hope that there are many in the various branches of government right now in one of the political parties that is beginning to understand the perniciousness of mandating an injection into a body, whether it's a vaccine or otherwise. And I'm hoping that that that understanding continues to

carry forward as we go into 2022, as we just talked about a bit earlier, if we can keep the federal government out of the business of mandating and leave at least that to the states, we can't have states where there will be a recognition that this is a liberty right to be able to say no to something injecting your body because, I mean, think about it. If the governing can coerce what's injected into your body, and what liberty rights do you really have? Right. Aaron, I want you to thank you for flying in here, you know,

taking us through this. It's a historic moment. You're doing such incredible work. So I want to thank you. I know you got a lot of work. We've got a lot of the plate to get there. It certainly isn't over. So you're back to it.

Keep up the great work. Thank you, Del.