Thank you Justice Kagan

OSHA’s vaccine mandate

When I started this blog I thought I would be writing about my passion of conservative politics. During the years that have passed before I actually began writing regularly, I mellowed a bit and my passion for politics has tempered. I decided there will be less of the Democrat vs Republican or left vs right or even Progressive vs Conservative discussions I originally thought drove my passions. I’ve chosen to keep my posts reasonably close to retirement issues and general family life as a niche for this blog. But (you knew there was a but coming, didn’t you?) I have a fairly strong tendency to follow tangents and wander off the reservation.

The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Back to Justice Kagan. On Friday, January 7, 2022 in a rare special session, the Supreme Court heard arguments on two different cases regarding President Biden’s vaccine mandates. One case requires any health care organization receiving payment from Medicare or Medicaid to ensure all staff is vaccinated and the other case is OSHA’s mandate that all companies with 100 employees or more must require vaccination of employees or repeated weekly testing and continued masking for its employees.

The vaccine mandate for employees of large companies simply cannot be mandated by Osha. That issue should be left to the control of Congress, the companies or local control if the state constitutions allow. It is simply not a federal Executive Branch issue. Some companies might choose to require vaccinations or weekly testing at the employees expense. That could be justified by the company wanting to protect their workforce or their customers. A box store or restaurant chain might require their employees to vaccinate and/or mask. Then it is my choice to work there or not. In this economy smaller, local businesses will be glad to scoop up any employees who choose not to comply. The same enterprise might require masks or even vaccination cards for customers to enter. They are a private enterprise on private property and that is their right. Then I have the option as a customer to meet their requirements and enter or not. I am fully vaccinated, boosted, had Covid-19 before vaccinations were available, and received an infusion the of a monoclonal antibody because I was infected during a hospital stay. With all that, I have decided businesses have the option to require vaccine certification to enter and I will not provide it. Meaning I will take my business elsewhere. My medical history is my business and I will not share. I was taught well by the feminists of the 1970’s when they chanted “My body, My rules”. Me too.

I suppose that Medicare and Medicaid might be able to require vaccinations of employees of health care organizations who supply services for which they are paid by those agencies. The agencies place many other requirements on health care providers in order to get paid, so why not a vaccine mandate? Legally, it might be reasonable.  “The government is paying for the medical services so they have the right to dictate details of those services,” said Justice Kagan. A bit later Justice Kagan said “But would you rather an insurance company did the dictating?” Ah, here is the issue. To be direct, YES!; yes I would prefer to have an insurance company make the decision rather than a blanket federal edict. The insurance company is driven by economics and profit. And I chose that insurance company freely with my ability to spend my money for the coverage I wanted to purchase. The federal option is driven by one-size-fits-all decisions forced on conditions in Washington DC, New York City, rural Oklahoma or Middle of Nowhere Montana. The insurance company makes policy with the need to make a profit in mind, further controlled by the need to attract and keep paying customers. If they enforce unpopular conditions on the customers, those customers purchase their insurance elsewhere. If there is no elsewhere today and there are enough customers looking for a particular elsewhere, some enterprising company will see the unmet need and find a way to provide it. That is how the market works and I believe in the market.

So, why the thanks to Justice Kagan? Because she cleared up an internal struggle that has been silently chewing on my subconscious for a long time. There is a part of me that says an improvement in healthcare makes some sense, but I was uncomfortable with the concept of universal healthcare at the same time and I wasn’t sure why. I couldn’t formulate the argument, let alone the solution. Justice Kagan focused a spotlight on the issue. Yes, I would like better healthcare for many, many people. Better care for those who are less able than I; better care for the suddenly single parents and their kids; better care for those who are uninsured through no fault of their own, or who have chronic diseases and I certainly want better support for those who have experienced catastrophic illness causing health costs beyond what their insurance will  pay.

Now for the question before the Court. The Court is not deciding if vaccines are good for public health or even if the federal government has the power to mandate vaccines. If congress passes a law mandating vaccines, they will be mandated. But the Court is deciding whether or not the Executive branch can mandate, through OSHA, vaccines for employees of companies employing over 100. In my humble opinion that policy makes little sense. If it is upheld, what about employees of smaller companies, or even unemployed or retired persons? Will they magically be immune to Covid-19 or even be unable to spread it? The fact that congress has not acted within the political system does not justify circumventing that system. If a vaccine mandate is required, let’s have congress vote to require the mandate establishing under what conditions and for whom.

N.B. Hat tip to Clarissa of Clarissa’s Blog on WordPress for kick starting this thought process.

Published by barnberry

Well over aged 60 (well, OK, a lot more than that...) father of one outstanding young woman, unworthy husband of the most patient and talented woman in the world, retired small business owner, lover of all the wrong foods, political junkie and resident of NH. A conservative with a libertarian streak, and a thoughtful, impish, dedicated curmudgeon.

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