BUCK: Breaking news, friends: The Supreme Court has blocked the Biden administration vaccine rule for large businesses. The stay is in place, but it is allowing the mandate for some health care workers. Again, this is a big victory — at least in the short term — for those who felt the OSHA mandate of over a hundred employees and you have to get the shot or get tested is unconstitutional, excessive, way beyond the scope of what OSHA is supposed to be able to do by statutory authority as an administrative agency.
And, Clay, this is a big one. And what this tells you is, at least as of right now… Now, it’s not ruling on the merits, right? So, we’ll get into this in a second. It’s not saying that it is clearly unconstitutional, right? But it is saying that for right now, unless I’m missing something — we’re getting this — this just broke in about the last three minutes we’re seeing this, folks. It seems that right now the stay is in place, and that is where we are, Clay. This is what you predicted, I predicted. It’s what we wanted. It’s also not over. What do you think are the immediate implications?
CLAY: It’s funny ’cause we just had Senator Josh Hawley on, if you were listening, and I said, “Hey, you know, trying to analyze based on the questions what do you anticipate occurring?” and again, this just came down a few minutes ago so I haven’t had time to read the actual Supreme Court opinion. But by a 6-3 majority opinion — that is the six “conservative,” in quotation marks, justices — have all said that the federal government cannot put in place the mandate as it pertains to 84 million people out there under OSHA.
They did, however, allow it for workers at federally funded health care facilities to take effect. That was the two-part discussion they were having. But this is basically exactly what I expected to happen on the big vaccine mandate for Joe Biden. I believed it was unconstitutional. Based on the questions as we talked about on Friday, Buck, it was quite clear that Breyer, Sotomayor, and Kagan not only had a very — I would say — inaccurate view of the basic facts of covid in the country, but based on the way that they provided questions, it was clear that weren’t going to support Biden’s ability to do this under the OSHA regulatory state.
I believe that that was significant. Again, I haven’t had time to read the opinion. You’ll be able to see it shortly; I can see that it’s up now for everybody to be able to read at SupremeCourt.gov. We talked about this earlier in the week that we thought that there was a decent chance this ruling may come down on Thursday. They did not put it out at 10 a.m. Eastern which we thought they might earlier today, but again, it just came down in the last couple of minutes. I think it’s a monster win for civil liberties.
BUCK: It’s a stay, though. It’s not over, everybody, right?
CLAY: Yeah.
BUCK: So they’re still going to rule on the merits eventually. As I read this right now, it says, “Many states, businesses…” I’m looking at the opinion right now. “National Federation of Independent Business v. OSHA,” and it says, “The Fifth Circuit initially entered a stay. When the cases were consolidated before the Sixth Circuit that court lifted the stay and allowed OSHA’s rules to take effect.
“Applicants now seek emergency relief from this court arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their politicians and stay the rule.” Now, I think everyone, Clay, based on the way this goes down, based on the reality what the judges… The stay is effectively going to be, most likely, the same rundown as the final decision.
CLAY: Yes.
BUCK: It’s technically not final in that sense, but it is a huge win. For people in a felt that this was unconstitutional and overreach ’cause, by the way, think about where we’re gonna be in June area actually look at this. Oh, there’s gonna be more pressure and urgency then? I don’t think so.
CLAY: No, it’s a monster win, and you talk about a double body blow to Joe Biden? You’re talking about in the space of the time that we’ve been on the air today, Buck, you had a senator from his own party, Kyrsten Sinema, take to the floor and specifically reject Biden’s demand from Tuesday that the filibuster rules be changed in the Senate.
And then while he’s having a press conference at the Capitol Hill discussing the luncheon that he went to with the Senate Democrats, the Supreme Court drops this result which effectively — to your point, effectively — is a repudiation of the executive branch’s power under OSHA to be able to mandate this vaccine requirement. So for many people out there listening…
People who are listening to us and they’re saying, “Okay, what does this mean?” It means if you are employed — as two-thirds of people are — at an employer with a hundred or more employees and your place of work has been saying, “You have to get this vaccine because of Joe Biden’s OSHA mandate,” that does not apply. So your employer can still try and make requirements as it pertains to the vaccine, but they cannot cite it as justified based on Joe Biden.
BUCK: That will be interesting to see as well how some of the states respond, because part of the argument here, the oral arguments — and it seemed as though Sotomayor didn’t understand this difference, to be totally honest with you, between the plenary powers of states/police powers of states versus what the federal government has. You may still have states…
I’m thinking about this, of course, ’cause I’m in New York. Enjoy your freedom, Mr. Travis. Tennessee is gonna be a different situation. But in New York, they still have in place the New York State demands and mandates that this will not in any way relieve people from, which is why state-level protection is so important. By the way, you have in states like Florida and Texas — I don’t know, do they have this in Tennessee too? — you are not allowed to mandate as a condition of employment the vaccine.
CLAY: Yes. That’s right.
BUCK: So some states and some governors decided that they were actually gonna protect people from that tyranny inside their own state at the state level, and that, I think, should be something that we remember here, too, because it’s not over, right? None of this is over, but this is a big win, is the headline, against the unconstitutional OSHA mandate from Biden.
CLAY: And that’s a good point by you ’cause it’s very confusing for lots of people out there. The Supreme Court has been far more likely to allow local and statewide regulations as it pertains to covid. And, in fact, if you go back and look at historical precedent, a lot of people were saying on the left wing, “Well, there’s no way the court can strike down Joe Biden’s OSHA mandate, because some hundred years ago or so they allowed in Jacobson a local requirement of a vaccine to be upheld.”
What the Supreme Court is saying — and has said with a pretty clear voice, even as you point out that Sonia Sotomayor may not understand the difference — is, cities and states have local power to make decisions for their constituents. But the federal government cannot come in and put in place this ruling, certainly not under OSHA. And if you heard Josh Hawley, he actually made a good point.
We don’t have that issue at play right now, but could they do it through legislature? He didn’t think that would be constitutional, either, but certainly you can’t do it through the executive branch. This is also I think why it’s significant that 52 Senators voted against Biden’s vaccine mandate if you remember, Buck, including a couple of senators who were Democrats that turned their back on Biden there. I do think that was still significant as well, because it demonstrated the legislative branch did not agree with the executive branch.
Of course they would never want to do that but the answer to that would be they would have the authority, right? It’s about health. It’s about safety. They can make you do whatever they want. That was rejected here. Of course, it went down along the lines we thought it would — which justices were in favor, which justices were opposed — so it is very unlikely now that you’re gonna be able to get at the federal level.
It also I think adds into the conversation here, Clay, and when we talk about the unconstitutionality of these Biden mandates and we talk about overreach and tyranny, we’re not exaggerating ’cause we’re trying to get people’s attention. We’re not just saying it ’cause we don’t like Biden. It’s the truth. That is what is happening here. What they are doing is violence to the Constitution. They are undermining the rule of law. They are overreaching and acting like tyrants. This is a huge blow for freedom and against tyranny today so everyone should get a little bit extra pep in their step. What do you say?
CLAY: I think also, maybe we can give a little bit of a nod to Donald Trump, because if Hillary Clinton had got to make these three Supreme Court appointments, guess what they would have said? Biden would have had the power to institute a federal vaccine mandate. I think if Hillary Clinton had gotten three Supreme Court nominees on the court instead of Donald Trump, I think this thing would have been upheld.
CLAY: Monster. I’m pretty pumped, Buck. I was afraid. When we did our analysis on Friday, I was so disappointed by how bad the questions were. I thought it would go 6-3. That’s what I said on Friday, based on the questions, but I was a little bit nervous about it. So I’m super excited that we had the Supreme Court willing to stand up for freedom.
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