• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce discuss DOJ’s lawsuit challenging Texas’s restrictive abortion law. They also break down President Biden’s latest COVID-19 vaccine mandates for federal workers and businesses.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Nat Weiner – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

Up Against The Mob, CAFE

ABORTION

U.S. Constitution Article VI, Clause 2 – Supremacy Clause

14th Amendment to the U.S. Constitution

Women’s Health Protection Act of 2021

Texas S.B. 8 – Texas Heartbeat Act

Whole Woman’s Health v. Judge Austin Reeve Jackson, U.S. Supreme Court, order & dissents, 9/1/21

Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, U.S. Supreme Court, opinion, 1992

Roe v. Wade, U.S. Supreme Court, opinion, 1973

Shelly v. Kraemer, U.S. Supreme Court, opinion, 1948

U.S. v. Texas, U.S. District Court Western District of Texas, complaint, 9/9/21

“Justice Department Sues Texas Over Senate Bill 8,” DOJ, 9/9/21

“Statement from Attorney General Merrick B. Garland Regarding Texas SB8,” DOJ, 9/6/21

“State Action,” Cornell Legal Information Institute

“Preemption,” Cornell Legal Information Institute

“Biden’s Politicization of the Justice Department, Abortion Episode,” National Review, 9/10/21

VACCINE MANDATES

Occupational Safety and Health Act of 1970

5 U.S. Code §3301 – Civil service; generally

5 U.S. Code §3302 – Competitive service; rules

5 U.S. Code §7301 – Presidential regulations

Jacobson v. Massachusetts, U.S. Supreme Court, opinion, 1970

“Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” Biden Administration, 9/9/21

“Path out of the Pandemic,” Biden Administration

“Biden’s Vaccine Mandate Leaves Businesses Relieved but Full of Questions,” NYT, 9/10/21

David Frum tweets, 9/12/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce?

Joyce Vance:

I’m well, Preet. It’s a beautiful cool day down in the south, surprisingly cool, but our neighbors in Houston are getting hit with another hurricane, so we’re thinking about them this morning.

Preet Bharara:

Is it named Hurricane Joyce?

Joyce Vance:

Thank God, no. And seriously on my list of things to do is to make sure that there is a Hurricane Preet next.

Preet Bharara:

Very mild.

Joyce Vance:

But it would be a nice gentle hurricane.

Preet Bharara:

That would fit.

Joyce Vance:

Absolutely like you always are.

Preet Bharara:

Before we get to the show, I want to remind folks that we have a new podcast from CAFE and the Vox Media Podcast Network, Up Against The Mob, everything you want to know about the Italian mafia, hosted by our friend and colleague, Elie Honig. The first episode is already up. Episode two is out tomorrow, Wednesday, September 15th. That’s Up Against The Mob and you can find it everywhere you listen to podcasts.

Joyce Vance:

I’m not sure how Elie got these folks to sit down and talk with him, but this is a great podcast. This is a don’t miss for me.

Preet Bharara:

So Joyce, for the last few weeks, we’ve been covering a couple of big issues that have a constitutional dimension. They have gone up to the Supreme Court and will go up to the Supreme Court again. I think it’s useful to take a step back. So one of those issues is the Texas Abortion Law that essentially says no abortions after six weeks and the DOJ, as we’ll discuss in a moment, filed an interesting lawsuit challenging that statute. And you also have the issue of whether or not Joe Biden can issue sweeping vaccine mandates to make sure that folks, in order to get certain privileges of employment and other things, must take the vaccine.

Preet Bharara:

And so there’s a lot of debate about these things, people. As you and I have discussed, they just yell mindlessly, “Freedom.” They talk about censorship, they talk about all sorts of things and I think that it’s important for our audience, particularly the ones who are not lawyers, to understand that there are a few questions they always need to ask themselves when they hear about a particular kind of action taken by some authority. And essentially, they need to ask themselves, “Who is doing the thing? What authority do they claim to be able to do the thing? And whom are they doing it to?”

Preet Bharara:

So is the authority the state government? Is it a state legislature? Is it a state court? Is it a governor? Is it a federal officer? Is it an act of Congress? Is it an act of the president? Is it your company? Is it your parents? Because all of these things matter. So for example, when people claim to be angry about being compelled to wear masks, it matters legally, whether it’s the governor telling you you must wear a mask or the president telling you you must wear a mask or United Airlines telling you you must wear a mask. And I think that’s where a lot of the confusion comes in because people are interchangeably saying that something is not allowable, period, just based on what the action is, as opposed to understanding limitations and powers of the person who is saying that you must do that thing. Is that a good place to start?

Joyce Vance:

I think it is. And I think it’s worth highlighting what you’re saying here. You’re saying that at a very basic level, instead of getting wrapped up in emotion and politics and tribalism, people need to step back and understand the law and think about the law. And that means, for instance, that for you and me, although sometimes we might support as policy matters, objectives of the administration, we might think that action that they’re taking isn’t on solid legal footing. In other words, understanding the law isn’t about just achieving your political objectives. It’s about something more. It’s about appreciating and valuing our form of government. So we can do not just what matters to us in this moment, but so that we can have a fully functioning system. I think that’s why these issues are so important to us, because we’re believers in democracy is as trite as maybe that sound.

Preet Bharara:

It’s not trite at all. I think it’s fundamental and I think that’s been lost. So there are two broad categories of actors, right there, are what’s called state actors, government actors and there are private actors. So United Airlines would be a private actor or Vox Media would be a private actor. And on the government side, with respect to state actors, there are further at least two subcategories of that. There’s the actual state, the state of New York, the state of Alabama, the state of Texas, and then there’s the federal government and their authorities vary because we have a federal system.

Preet Bharara:

And the example we often give is everyone understands, Joyce, that if you flew to New York and we got into an argument. If you punched me in the face in the middle of Fifth Avenue, even if I deserved it, that’s a crime, but a crime only prosecutable by the local prosecutor. If the US Attorney tried to prosecute you, it wouldn’t work, even though everyone understands it’s a crime. So it’s not quite the same thing as what I was talking about before with mask mandates, but it illustrates the same principle. Now, if you happen to punch me in the face at a VA Hospital or in a federal courthouse, then under the assimilated acts doctrine, you could prosecute that as a federal crime.

Preet Bharara:

So it gets very complicated, but when you’re getting into arguments with your neighbors or family members or colleagues at work, if you are about these issues, first ask yourself the question, “Who is purporting to do the thing and what is the basis of that authority?” So we’re going to talk about a lot of that today.

Joyce Vance:

So Preet, we have a question from @gwodesign and the question is this, “Glad that Attorney General Garland is stepping up. Would love to hear @joycewhitevance and @preetbharara discuss DOJ lawsuit against Texas on CAFE Insider.” I think we can make that happen.

Preet Bharara:

We can make that happen. We can indeed. I have an initial non-substantive reaction. So DOJ announced through Merrick Garland a lawsuit, which I didn’t really predict would happen this quickly. And I think there’s a lot of strength to the lawsuit. I think it’s not certain to prevail, but what I was struck by non-substantively is just how clear the lawsuit is, how clear the writing is. And in fact, so clear and simple and understandable that when I heard Merrick Garland giving his remarks and then I looked back and read the actual complaint, he was essentially reading from the complaint.

Preet Bharara:

Usually legal documents are technical and not so interesting to read and then people write remarks for the Attorney General of the US Attorney that are simpler and for public consumption. Here, the language was pretty similar, and in fact, the very first sentence of the lawsuit, which I think was among the first sentences that came out of Merrick Garland’s mouth was, “It is settled constitutional law that a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” quoting Planned Parenthood v. Casey and also citing to Roe v. Wade. So very clear what they’re doing here, the basis for the lawsuit is a little bit more complicated. And that’s why I’m going to punt that to you, Joyce.

Joyce Vance:

Thanks, Preet. So can I start by saying I was actually wrong about what happened here? When word first got out that DOJ would be filing a lawsuit, I immediately thought about a case that I had filed in 2011, a challenge to Alabama’s immigration law. There was a similar challenge in Arizona to Arizona’s immigration law. That bill was called the Papers Please Law. Alabama’s was actually an evolution. It was significantly worse than Arizona’s in a couple of ways, most notably that it made it very difficult for children, even American citizen children of undocumented people to attend public school and get the education that they were entitled to.

Joyce Vance:

So we filed a separate lawsuit, and bear with me for a second, I think this helps us understand the abortion case, our challenge in Alabama was on essentially preemption grounds and supremacy clause grounds. Those are also asserted in the abortion case and the allegation was the federal government had fully occupied the field of immigration. There were federal rules and federal laws. They were the supreme law of the land and they preempted the ability of the states to engage in that area. But even with that challenge that we made, we didn’t go after the entire immigration law. We picked out 10 pieces that we thought were the most blatantly unconstitutional and we challenged them.

Joyce Vance:

And I’ll also say that that was the result of a process of negotiation, primarily between my office and folks in the Solicitor General’s Office. We worked along with people in the Civil Division and the Civil Rights Division and we wanted to engage in a thoughtful charge that would protect the rights of people in Alabama from this overbroad unconstitutional law. But at the same time, we did not want to impose on the state’s legitimate prerogatives. So I had predicted that when DOJ filed a lawsuit, it would be a limited narrow challenge and that people shouldn’t be disappointed by that. And as you point out, Preet, I was completely wrong. This is a broad challenge.

Preet Bharara:

Well, you weren’t completely wrong. You weren’t completely wrong. Those are among the bases for the DOJ lawsuit, right?

Joyce Vance:

Well, that’s true. They are, but what DOJ does-

Preet Bharara:

You’re being very hard on yourself, Joyce. I’m trying to help you out.

Joyce Vance:

I’m being fairly hard on myself here mostly because I’m very impressed by the lawsuit that DOJ brought in this case and that’s the point I’m making. It’s not a limited challenge at some of the provisions of the Texas law. They didn’t just, for instance, subject to the private enforcement action. Instead, this is the relief that they seek. They seek three things and it’s very broad. They asked for a declaration that SB8 in its entirety is invalid. They asked for a preliminary and a permanent injunction against enforcement of SB8, and then in a provision that I really love, they asked that costs be awarded to the United States for having to undertake this litigation against Texas. But it’s that first piece that I’m emphasizing here, this notion that the entire statute is unconstitutional and should be thrown out.

Joyce Vance:

And as you say, Preet, they make three basic arguments here. DOJ has three reasons that the law is invalid. One is that federal law preempts the state’s ability to act, that federal government has occupied the field. Second, is that the supremacy clause of the 14th Amendment mean that the law of the land in this case is Roe and Casey which guarantee a woman’s right to an abortion prior to viability. And then finally, this novel argument that I really like, I think this might ultimately be the best argument of the three, that the state can’t interfere with the federal agency’s mandate. This is the intergovernmental immunities exception and the argument here is narrowly tailored.

Joyce Vance:

DOJ says that because federal agencies have a mandate to serve rape and incest victims in Texas in federal facilities, Texas can’t interfere with that. And by putting those federal employees at risk of being sued under Texas law, they have again violated the supremacy clause. So there are those three different bases to invalidate the law.

Preet Bharara:

Let’s linger on the third one for a moment because that’s the one that I didn’t anticipate because I’m not as smart as the current DOJ regime. And just to amplify what you said, so people understand, if you’re someone in a Bureau of Prisons facility, in a federal prison, correctional facility in Texas or you serve in the military at a Department of Defense facility and a bunch of other, there’s six agencies mentioned in total that operate CMS-

Joyce Vance:

Immigration.

Preet Bharara:

OPM, Office of Personnel Management, and within those agencies, as you said, there is a federal requirement to provide abortion services because that is the law of the land. And this law, the Texas law interferes with the ability of government personnel to do that because they will be subjected under SB8 to lawsuit. That’s a pretty strong argument. It doesn’t go to every single aspect of the law, although in other cases, they make arguments about other aspects of the law. Did you anticipate that argument?

Joyce Vance:

I did not anticipate that argument and I agree with you this. This was not a lawsuit that DOJ cobbled together overnight. This was the result of a long and thoughtful process.

Preet Bharara:

There’s one other thing that’s interesting. As we discussed last week at great length, a novelty, I think, a nefarious novelty, if we can use that term of the Texas antiabortion statute, is the way they enforce it, right? As we mentioned, they take all authority away from the government. You can’t have a DA look at it, you can’t have any other government official look at it. It’s purely private enforcement. It’s mercenaries who get a $10,000 plus bounty if they sue and prevail against someone who has induced an abortion or caused an abortion or aided and abetted the abortion in any way and that was done to avoid liability here because they’re not private actors.

Preet Bharara:

Remember this concept we were talking about at the beginning of the difference between a state actor and a private actor, it’s very complicated in certain circumstances like it does here. Because yes, on its face and the reason that the ploy and the gambit was used was you have private actors who are much more difficult to enjoin, to stop and even to identify if it’s a public at large. So what is the way that the federal government can stop this enforcement mechanism on its private citizens? It’s very difficult. So one thing the lawsuit does is make the argument, I don’t know enough about this area of law, but it looks very credible on its face, that in certain circumstances like here, the DOJ argues, private actors are basically the same as government actors.

Preet Bharara:

So DOJ argues in trying to undo this distinction between state and private actors is they say, “Awarding the monetary relief that SB8 authorizes constitutes state activity designed to violate the 14th Amendment rights of women in Texas.” And it goes on to say, based on a Supreme Court case that we can talk about further in a moment, “The Supreme Court has deemed individuals to be state actors where they exercise powers traditionally exclusively reserved to the state.” And the court then goes on to mention that obviously these individuals, the public at large, the mercenaries, the bounty hunters are given law enforcement authority.

Preet Bharara:

This is the kind of thing that on virtually every prior occasion, when you seek to enforce some interest of the state, it goes to the attorney general or it goes to the local district attorneys or some other government official. They are literally putting private citizens in the shoes of law enforcement officials, and they say that’s a textbook case, of treating these mercenaries, the bounty hunters, as state actors. Does it work?

Joyce Vance:

So there’s something here that I think has to be clarified which is the way the process that brought the abortion case, not the DOJ case, but the case that was brought by abortion providers, the whole women case. There’s an entanglement between the procedure that brought whole women’s health to the Supreme Court for the decision that we talked about last week, that decision that this state actor or rather this absence of state actors made it impossible for the courts to do anything, but the courts just had to throw up their hands and let the private vigilantes go to work because the state of Texas had outsmarted them.

Joyce Vance:

There was no record in the lower courts. We’ve talked and I think we’ll talk a little bit more about how the Fifth Circuit took the case away from the district judge. There was no briefing on the law. There was no conversation about what this really meant, whether it was, in essence, a device that amounted to state action conducted via private vigilantes. And so the Supreme Court on the shadow docket without much in the way of ruling and just about a paragraph says, “Not state action. We can’t do anything. SB8 has to go into effect.”

Joyce Vance:

And what we find out in the DOJ lawsuit is surprised, there’s actually a lot of law to the contrary, that the Supreme Court got away without considering precisely because there was no lower court proceeding, there was no record, there was no development of the law and the fact that might have led the court to a different conclusion. Frankly, I’m surprised that this argument, this dodge around official governmental action, has worked as well as it has because the case law is very clear. There’s a 1948 case, Shelley versus Kraemer. And let’s talk about the facts a little bit, it’s pretty interesting. What happened was private neighborhood put restrictive covenants in place that said that people who owned houses couldn’t sell their houses to both Black people and Mongolian people.

Joyce Vance:

And so somebody in this neighborhood sells their house to a Black family, the Shelleys, and another neighbor, the Kraemers, they sue and they tried to enforce this restrictive covenant that says, “Houses can’t be sold to Black people.” And it is 1948 and the Supreme Court says, “This restrictive covenant might fly between private parties, but the courts can’t enforce it.” And essentially, it creates this rubric that says that this is state action, that when these people are engaged in this sort of covenanting procedure, even though the restrictive covenants themselves don’t fall under constitutional protection, state enforcement of those covenants violates the Constitution.”

Joyce Vance:

Same thing in Texas, state enforcement of the private vigilante system would run afoul of the constitutional mechanisms. And that is old law and that is clear law and that is law that the Supreme Court apparently did not consider in the previous case brought by abortion providers and advocates. So that makes DOJ case a little bit stronger I think because DOJ comes in and says, “Someone has to be able to enforce this. And if it’s not the private parties, then it has to be us.”

Preet Bharara:

It’s a very important point, although I have a question that arises from it, this idea that you can engage in all sorts of discriminatory conduct via contract as was at the basis of Shelley v. Kraemer that you just talked about. But if you want to use the state court, well, then that involves state action and state actors can’t be involved in it. And as you say, it’s the same thing here. Now, a technical procedural question arises and it seems to be the issue and the hill on which many people are dying. And this is the way that it got through the Supreme Court by leaving it alone. And that is no one has yet done the thing, that SB8 allows, no one has yet filed suit against someone who caused an abortion, performed an abortion or aided and abetted the performance of an abortion. And until that happens, this is the argument Andrew McCarthy makes for example in the National Review online, as a matter of legal principle, there is nothing to do because no one has done anything.

Preet Bharara:

My hypothetical question to you is or I guess I have a real-life question and a hypothetical question. My real question is it’s been a few weeks now. Is it surprising at all to you that no one has taken advantage of this operative statute, and figured out a way to sue an abortion provider. And it may be that no one’s really doing it and that’s why there’s no one to sue, which leads me into my hypothetical question, which is, suppose it’s the case you pass this law and suppose it’s the case that as a technical legal matter, there’s no one to sue properly, there’s no one to enjoin because no one has brought a lawsuit.

Preet Bharara:

And so you enact SB8, you tell everyone, “We don’t actually want anybody to use it. We don’t actually want anybody to file a suit. We just want the chilling effect of the suit and we want abortion providers to stop and we want doctors to stop. And if people want to get an abortion, they have to go to Oklahoma.” So you maintain the statute, you prevent it from being enjoined because no one’s actually bringing suit, mission accomplished. What do you think?

Joyce Vance:

I think that’s dead on the money. And Mike Schmidt at The New York Times had some interesting reporting on the statute yesterday that I think confirms that that’s what went on here. This isn’t an incidental effect of the statute. It was actually designed to get past a preliminary injunction. What do I mean by that? Earlier fetal heartbeat statutes that were enforced by traditional state actors were enjoined before they could go into effect because they clearly violated Roe. With Texas, they evolved the thinking the entire goal of this statute was to survive a preliminary injunction proceeding, so that it could go into effect while the litigation was ongoing.

Joyce Vance:

And we see what happens when the Heartbeat Bill in Texas goes into effect. Abortion providers stop providing services because they are afraid of the penalties. The penalties would be crippling for them. And so women’s abortion rights are effectively denied. That’s sort of the evil genius of this statute, right? And I would not be at all surprised if there was an effort to prevent people from bringing private lawsuits because there are two ways to challenge a statute. One is to challenge it on its face as written and to say it’s unconstitutional. And that can be tough to do, although maybe not so much when you’re violating Roe. The easier way and in my experience to challenge a statute is as applied once it goes into effect and has constitutionally violative impacts, then it’s a little bit easier to challenge it. In Texas, they don’t want this statute to go into effect. It is strong as is. They are preventing abortion, right?

Preet Bharara:

Right. It’s enough. Right. It’s enough just to scare people into not getting abortions in the state and not performing abortions in the state, case closed.

Joyce Vance:

And so let’s go one step past that and say, “What does that mean?” This is your fundamental question, “Who’s doing the thing?” right? They have effectively violated a constitutional right, Roe, at least until the Supreme Court speaks next term. There has to be a way of redressing that constitutional violation and DOJ makes that argument explicitly in their complaint saying, “Someone has to be able to speak for women. Someone has to provide a remedy. It falls to us.”

Preet Bharara:

It’s further to what we were talking about last week. This whole scenario, the cynicism of the statute, the cleverness of the lawyering-

Joyce Vance:

And it’s overly clever, right? Let’s not give them that much credit. Let’s say overly clever.

Preet Bharara:

Clever by half as they say or too cute by half. What kind of ridiculous legal regime do we have if it is true, that the statute by everyone’s analysis, violates Roe and then no one can do anything about it, right? That’s why people, as I said last week, hate lawyers and hate the law and think the law is an ass a lot, and here, DOJ is basically making that point saying, “It has to be the case that there should be some redress when you have a clearly constitutionally defective statute. You can lawyer around it and create a massive gaping loophole that everyone knows is a loophole and everyone knows is gamesmanship because the law should be better than that.” And they found, I think, pretty solid ways of going after the statute. What do you think happens?

Joyce Vance:

In this lawsuit?

Preet Bharara:

Yeah, because you have decent arguments to make. The other thing I should point out to folks which is obvious, don’t just think about the person doing the thing, think about the person or persons who are adjudicating the thing and the individual identities and judicial philosophies of judges matter and that’s going to matter here, right?

Joyce Vance:

I think it will matter here. Something that concerns me about the way the court has handled this issue is that I’m concerned that there are two sets of rules. There’s one set of procedural rules that apply in abortion cases and one set of rules that apply in other cases. And I hope that that’s not the case, but frankly, seeing the preliminary injunction to SB8 get denied and letting this law go into effect, when courts typically enjoin laws where there are serious constitutional questions, at least until they can decide those questions, that really gives the appearance of different treatment. And as in most cases, if a court is really intent on a certain result, they can slice and dice the law in a way that lets them get there. And so let’s talk about one of the weaknesses in DOJ’s case. This is a preemption case, arguing that the federal government has fully occupied the abortion field. I’ll compare it again to immigration.

Joyce Vance:

In the immigration cases, when we made that preemption argument, we pointed to federal legislation that defined immigration policy and then talked about the 14th Amendment and the supremacy clause. And the notion was that the federal government had fully indicated its ability to set the national policy in this area and that you could understand why that was the case because it would be impossible for foreign countries to deal with a patchwork quilt of 50 states with 50 different immigration rulings, so that the federal government was legitimately exercising power that was not reserved to the states in this area.

Joyce Vance:

A little bit different with abortion and the argument that I would make if I was challenging DOJ litigation here, I would just say, “Look, there is no federal legislation here. In fact, Judy Chu, California congresswoman, has been proposing federal abortion legislation for, I think, the last 10 or 12 years for every session and Congress has never chosen to apt. So this isn’t like immigration. This is an area where the federal government hasn’t spoken. And abortion rulings are left to the states to make their own decisions. And I worry, quite frankly that a court that’s hostile to abortion rights might accept that argument. And when that argument is fully briefed and we have the opportunity to think through it, it may even be that DOJ is on the short end of the stick there.

Preet Bharara:

We shall see.

Joyce Vance:

So a few things to look for in abortion litigation as to what comes next, first off in the private parties case, the Fifth Circuit has announced that they will expedite proceedings. They’ve said that they’ll hear this case that they’ve stayed up until now the next time the court sits. By my read of the Fifth Circuit’s calendar, it looks like their next panel is on October 4, so we should expect something around then. In the federal lawsuit, next step will be for the state of Texas to file a response to DOJ his complaint, so more for us to talk about in a future episode.

Preet Bharara:

That is definitely so. So let’s get to the second big legal issue and remind everyone again, think about in connection with these kinds of legal issues, who’s doing the thing and to whom are they doing the thing and on what authority? So the Delta variant continues to rage in a lot of different places. Overall, it seems that there has been a reduction in hospitalizations and we’ll see a consequence, I think reduction in deaths, but it’s still too high. Conferences are being canceled. People are worried. We still don’t have authorization for children under the age of 12, so there’s a lot to be worried about.

Preet Bharara:

And we have gone from being the most vaccinated industrialized country in the world to the least vaccinated even though we had a big head start and we developed all these incredible vaccines. So we can’t get the economy going again. We can’t make the country safe again. We can’t open up fully until we do that. So Joe Biden issued a fairly sweeping executive order relating to vaccinations. Now remember, a president, a governor, a legislature, they can’t just walk out to a podium and say, “Everyone get vaccinated.” It depends on who the constituencies are. And so they’re essentially three categories of individuals that Joe Biden has directed the vaccination efforts towards.

Preet Bharara:

There’s federal employees, there’s healthcare workers and then he designated a category, and we can talk about whether it’s arbitrary or not, businesses that have over 100 people. And with respect to each category, there is a different directive based on the White House’s understanding and interpretation of prevailing legal authority. You can’t just go out and say the same thing for everyone and there are different kinds of legal challenges that will be posed with respect to each kind of constituency. And so maybe we should go through them. Does that make sense?

Joyce Vance:

It does make sense and I think that’s the right way of putting it. This isn’t just telling people what to do. This is using the law to essentially engage in public safety policy.

Preet Bharara:

Can we actually do one preliminary thing? There’s a lot of confusion over this word mandatory. Now, there’s an argument that if you tell someone, “You either get the vaccine or you don’t come to work,” that has the flavor of being mandatory. But there’s another meaning of mandatory which this is not and none of these directives have the following meaning of mandatory which is people are going to come to your home and forcibly vaccinate you whether or not you decide to work or get tested or anything else.

Preet Bharara:

So in a sense, it is not mandatory in that most extreme version of the meaning of the word and I think that’s important in the minds of some people and how they gauge the propriety of these directives. So look, if you want to go see Springsteen, you got to get vaccinated. Is that mandatory? No, it’s a choice you make. If you want to work in a hospital, you have to get vaccinated. And you don’t have to get vaccinated. That just means you can’t come work at a hospital. And they make the argument that is not mandatory in the most severe way, however, and I think there’s some …

Preet Bharara:

I wonder what you think if there’s value in making that distinction, but then if you look at Biden’s executive order itself, Section 2 literally is called Mandatory Coronavirus Disease 2019 Vaccination for Federal Employees. So it seems that the executive branch, namely the White House, is not making that distinction. They have no problem calling it mandatory. Does anything with respect to the debate over the meaning of mandatory matter at all?

Joyce Vance:

So because of the political context we live in, the whole cry freedom sort of argument, maybe they could have worded this differently, but the reality is folks who have dug in on the politicization of public health are so anti-vax at this point that I’m not sure it’s really possible to reach them and talk to them. And calling this mandatory is consistent, I think, with the understanding of what the administration hopes to accomplish which is to vaccinate large broad swaths of people across the country.

Preet Bharara:

I think there’s a lot of mishmash in the debate. So now, with respect to federal employees, prevailing law and authority upholds his ability to mandate vaccines for federal employees, right? Not really any colorable challenge there, right?

Joyce Vance:

I don’t think so. There are obviously the usual constitutional exceptions for people who have legitimate and that does mean legitimate religious exemptions or medical excuses under the Americans with Disabilities Act. Those are very limited exceptions and that makes this very easy to get past the legal challenges that will surely come but will fail.

Preet Bharara:

And then you have the category of healthcare workers. By the way, what has been disturbing to me is the number of healthcare workers at least anecdotally reported, nurses in one hospital I saw a report about, where they’re not taking the vaccine. And it goes against my general understanding of the healthcare workers being wise about this stuff because they’re people of science, really use aid science and the use of science in the treatment of disease and in the treatment of people, but I guess it’s not happening. You would hope and imagine that this far into the pandemic, you wouldn’t need to have any mandate for healthcare workers. And the fact that you do is on itself troubling and says something.

Preet Bharara:

So here, the Biden administration relies on a different kind of authority, namely the authority that invests in the centers for Medicare and Medicaid services to require vaccinations. That fair also?

Joyce Vance:

I think that is fair. The mandate will only apply to facilities that receive Medicare or Medicaid funding. That’s the majority of healthcare workers across the country. That’s the legitimate constitutional hook. I don’t think that there’s a problem with enforcement because it’s so narrowly tailored to facilities that receive federal funding where the government has an ability in a lot of different ways to enforce its rules and its regulations if you’re going to receive federal funding.

Preet Bharara:

Right, and interestingly if you had a facility that was a local island and forewent federal funding altogether, probably couldn’t use that rationale. It always has to be the case. It’s going back to the initial premise that we introduced in the show, there has to be some basis for the particular authority, and in this case, the federal authority, to have some federal nexus to the thing. The same analogous reason why if you punch me, I don’t know why keep going to this, maybe I feel like I deserve-

Joyce Vance:

Are you afraid that I’m going to come after you at some point?

Preet Bharara:

No, not yet.

Joyce Vance:

I’m pretty nice usually.

Preet Bharara:

No, you aren’t. There has to be some federal nexus. So now that all is well and good. You and I on the show, at least I on the show, a week or two ago, said we couldn’t really think of a basis for Biden as opposed to local authorities, individual states. At least, I couldn’t think of a basis on which Joe Biden could say, “General folks, even if there’s no connection to interstate commerce, even it’s not a healthcare provider, even if it’s not a federal employee, that some subset of those people, private actors in private enterprise would have to get vaccinated because I have not thought about OSHA.”

Preet Bharara:

And this is probably the most controversial and perhaps vulnerable to legal challenge, although maybe ultimately, it survives, the basis on which Joe Biden and the White House have said that businesses with over 100 employees have to come up with a system to vaccinate folks and/or test them. So unlike in the other categories, there’s a testing alternative which even makes the vaccine less mandatory in the harshest sense of the word. How’s that going to go? Can we tell people what OSHA is?

Joyce Vance:

Yeah, I guess we should talk about OSHA which is the Occupational Safety and Health Act of 1970, the enabling legislation.

Preet Bharara:

Richard Nixon.

Joyce Vance:

Richard Nixon, right?

Preet Bharara:

That liberal president.

Joyce Vance:

I heard an old tape of that very liberal president the other night talking so reasonably about the need to create an agency that would protect safety in the workplace.

Preet Bharara:

Is that how the Vances spend their evenings listening to old tapes of Nixon?

Joyce Vance:

Occasionally, we watch the news.

Preet Bharara:

What is going on in your house? Is that what the chickens drive you to?

Joyce Vance:

Not big Nixon fans in the Vance household and the chickens have no politics, so leave them out of this.

Preet Bharara:

No, I’m often listening to Ike at night.

Joyce Vance:

I thought listening to Nixon talk about OSHA. At first, I almost thought it was … I didn’t see it at first. I was listening. It almost sounded Reagan-esque, this notion that government should be limited, but sometimes we have to do things. OSHA, those are the people that make you wear hardhats at the construction site. This is some legit stuff designed to keep people safe in the workplace, particularly in cases where maybe your employer doesn’t have the greatest incentive to keep you safe. And so something of longstanding, but Preet, I think it’s important to say this, typically for OSHA to bring new safety provisions online, that’s long term. I think the average is six to seven years.

Joyce Vance:

What the Biden administration is talking about doing here is using an emergency provision which allows them to bring online new safety protections, pretty much as quickly as the agency can write up the justification and the regulations and that’s a six-month emergency sort of a provision. I think the Biden administration is gambling here saying that if they can force as many people as possible to vaccinate short term, they can cut Delta off at the knees. They can get the country back on the right path. And so even if there are legal challenges, I’m not sure that they care. It takes a while for those legal challenges to go into action and I’m aware that there’s an awkward comparison here to what goes on in the Texas abortion case, where we talk about opponents of abortion, wanting the law to stay in effect for as long as possible.

Joyce Vance:

Here, Biden, who I think is on a far firmer constitutional footing, wants to get people vaccinated now, even if it requires taking emergency action, which as you point out, hasn’t happened a lot. But it did happen back in June in terms of requiring employers to provide PPE and other accommodations to workers to help protect them from COVID. So there’s recent precedent for using emergency provisions here.

Preet Bharara:

But what’s also important I think for you and me is to try to assess the quality of arguments and the good faith basis of arguments as much as we can. And there’s some examples of people and not everyone’s going to be happy about this who have the right intentions who are supportive of the Biden action but not being particularly nuanced about it. So for example, we talked about a case called Jacobson v. Massachusetts from a very long time ago that makes very clear that a local state law, and in that case, it was requiring residents to be vaccinated against smallpox, that wasn’t a violation of the 14th Amendment. So it was fully constitutional.

Preet Bharara:

And I see a lot of people who were basically saying to folks who were against Biden on this point, “Look, we have a case. It says the vaccine requirements are fine, shut up, end of story, case closed.” I don’t think it’s as easy as that. Maybe the Biden formulation and strategy ultimately passes legal muster and I think it does, but it’s not so simple as saying, “Well, there’s this one case that said a Cambridge, Massachusetts law requiring vaccinations was okay.” That was a question of whether or not the state could mandate it and upheld that right. That does not mean, going back to again the initial premise of the show or the prelude to the show, who is the one doing the thing?

Preet Bharara:

A governor or a mayor in a state has particular police powers with which to do certain things like issue a vaccine mandate or a school district can require it. That’s been upheld many times as well for students before they can attend. And that case does not say that the head of the federal government can, as a general matter, tell everyone that they must get a vaccine which is why Biden isn’t saying that, which is why Biden is using the tool, the instrument of OSHA, a separate congressionally enacted statute to say, “This is the basis on which businesses with over 100 employees have to require vaccines or an alternative regime of testing if those people are going to be allowed to work.” So fair that the people who are simply citing to the Jacobson case don’t have it quite right?

Joyce Vance:

I agree. This is a lot more nuanced than Jacobson. This is about Congress delegating power to the executive branch and the executive branch using that power via the Department of Labor and the secretary, via OSHA and issuing an emergency order. And there’s a very narrow standard there, something that leapfrogs past Jacobson and will ultimately require the Biden administration to defend this measure in court by convincing a court that COVID presents a grave danger, which seems to be indisputable to me, but there are folks who want to dispute that and also by arguing that the vaccine is the right way to address that grave danger.

Joyce Vance:

So those are the two bases for a challenge that will come in court against this proposal. Interesting procedural detail, by the way, Preet, usually when you challenge a provision like this, you go to a district court to one judge and we’ve seen some forum shopping where people who want to challenge action by the administration will go to a judge who they think will be favorable to them. That happens on both sides of the political equation. Here though, that challenge has to be brought in a court of appeal. So you go straight to a three judge panel and one of the courts of appeals maybe a little bit less judged shopping there.

Preet Bharara:

I think that’s an interesting point because there’s a lot of gamesmanship that goes on in litigation. So separate from the Jacobson point, you just watch these debates. One of the reasons we do the show, we spend a lot of time talking with each other and unpacking things and I learned from the things that you say in the moment, Joyce, and we want everyone to be as thoughtful and rigorous in supporting their positions as they can be. And so I’ve also seen people who support the president’s move and there’s a lot to be supported in the president’s move. I support the president’s move, but you see an immediate knee-jerk reaction, which is, and sometimes a condescending one, saying, “Hey, there’s this law called OSHA. It’s about worker safety. It was passed under Nixon. Case closed, no further argument. Vaccines protect people in the workplace, period.” And it doesn’t end there.

Preet Bharara:

And then people on the other side say, and I think they’re disingenuous also, but they have a limited fair point and that is, “Yeah, we have OSHA, but no one has ever used OSHA as far as I can tell in this extreme way before. It’s generally about other kinds of worker safety, very particularized to industries, what kind of fire hazard you can have, extinguishers that must be on premises and things of that nature. And so wow, you guys are overextending OSHA. It’s never been used this way ever,” which is not a completely unfair point. I think it’s not a winning point, but it’s not a completely unfair point. Look, and the appropriate response to that is, “We have a once-in-100-year pandemic that has hurt the economy, that’s killed 650,000 people and going higher and higher. So that calls for sometimes aggressive use of a statute.”

Preet Bharara:

The argument that something is unprecedented, it should never be done, does not always hold water. The fact that you use a statute in a way that hasn’t been used before might be permissible and even warranted because the thing that you’re trying to defeat and to protect people from is in itself extreme and unprecedented.

Joyce Vance:

Well, I think that’s right because that’s the entire predication for having OSHA. OSHA is in the business of doing things that have never been done before, that are designed to meet challenges to public health and safety. And although that might be something limited and narrow like the hardhat or the fire extinguisher, the statute on its face is broad enough to permit some sort of broad action when there is a more traumatic challenge to safety of workers in the workplace. That appears to be what Biden is doing, but my last thought is why this is limited to employers with 100 or more people, that doesn’t seem to come from the statute, so why do you think that’s there?

Preet Bharara:

So I think that’s a great question and another basis on which people will challenge the action. It’s probably a combination of things. It’s political reality and an understanding of undue burden. Presumably on the other side of the coin, if it’s a real problem and you want everyone vaccinated, why would you limit it to companies over 100. And I think that’s a fair point. On the other hand, at various points during the pandemic, there have been, depending on the state or city that you’re in, restrictions on size of gathering. And some of that has always seemed arbitrary to me.

Preet Bharara:

And I think the thing that people are trying to get at the most in connection with the pandemic, and I’m not an epidemiologist or a contagious disease expert, is undo super spreading of the virus. And so if you have small groups who are gathering or you have small workplaces, even if there are people who test positive, the impact, I guess, I’m speculating here, the impact of that is not going to be as significant. And that if you get at the companies or you get at the gatherings that are large, 100 or over, then you’re really getting at the crux of the problem. But I think it does open itself up to criticism as to arbitrariness. I think that’s right.

Joyce Vance:

But to some extent, I think that the administration will be surprised by criticism. This seems to me to be pragmatic, not some sort of acknowledgement of legitimacy. You started out by making the point that the enforcement mechanism isn’t that people show up at your door and forcibly vaccinate you. The enforcement mechanism here is a fine that entities that don’t comply with the ruling will be fined, and if they persistently violate the requirement, they will be fined even more up to I think about $136,000 or $137,000. So this is a practical reflection of what we can accomplish. President Biden, this has nothing to do with the law, but he still seems to have this belief that Americans are capable of common sense and of acting together for the common good.

Joyce Vance:

How that plays in terms of litigation over this statute and the legality of it, I think that his sense there is what imbues this policy and that’s one of the reasons it’s limited in scope.

Preet Bharara:

I think there’s a prevailing thread of pragmatism going on here. I think they’ve made the determination, the administration has made the determination and they must have evidence to bear it out and we have some anecdotal evidence to bear it out that mandates work, whether you call them mandates or not and that there’s a small subset of the population, maybe 10-12% they might think, that really is going to carry through on its threat to quit their jobs or to leave school or whatever the case may be if they’re required to have vaccinations. But the vast majority of people are not in that boat and then they need some push.

Preet Bharara:

And a there’s a significant subset of people who are not willing to go to their graves over the issue of vaccination, but they’re just hesitant and it’s borne out by … So there’s a great thread on Twitter by David Frum, former guest on Stay Tuned a couple of times, pointing out example after example of airlines and other industries where vaccine mandates were put into effect and people aren’t quitting. Now we have the counterexample of those nurses at the hospital we talked about earlier, but in a lot of places, in a lot of settings and a lot of workplaces, this is the thing that’s going to get people over the hump.

Preet Bharara:

And whether it’s relating to travel or being able to work or being able to go to school or being able to go to football games, the more incentives you give people to understand that they’re going to be denied privileges if they don’t get vaccinated, the ones that are on the fence will get vaccinated and that will be good for everybody.

Joyce Vance:

That’s all the time we have today for Insider. We’ll be back next Tuesday. So send us your questions to letters@cafe.com.

Preet Bharara:

And we’ll do our best to answer them, Joyce, as always.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE Team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.