☕️ Coffee & Covid ☙ Thursday, December 16, 2021 ☙ EN BANC 🦠

A new study explores jab risks; lots of legal developments yesterday as the mandate cases work through appeals; Governor DeSantis announces Stop W.O.K.E.; and a mini update on Florida.

Happy Thursday, C&C. Only 9 more online-shopping days till Christmas! Our roundup today includes: a new study concludes risk of heart inflammation is higher from the jab than the virus if you’re under 40; lots of legal updates as the enjoined mandate landscape shifted some yesterday as the cases start to move through the appellate process; Governor DeSantis announces a new bill designed to stop obnoxious CRT instruction and training in the state; and a quick update on Florida’s hospitalizations as the winter tide comes in.

🗞*COVID NEWS AND COMMENTARY* 🗞

🔥 According to a new Oxford University study, the risk of jab-induced myocarditis is HIGHER in people under 40 than the risk of myocarditis from Covid. The researchers found 15 excess cases per 1 million people who got a second dose of Moderna compared to 10 extra cases of myocarditis after testing positive for Covid.

Polysyllabically-named infectious disease expert Euzebiusz Jamrozik, who works at Oxford, tweeted “Time to abandon the belief that COVID-19 myocarditis risk is always higher than mRNA vaccine myocarditis risk. For some individuals, myocarditis risks of the vaccine(s) are higher than those of the disease,” right before his Twitter account was erased and he was given his pink slip by two armed Oxford security guards.

Haha, just kidding about Jamrozik being canceled. So far.

The study, published in the journal Nature, is titled “Risks of myocarditis, pericarditis, and cardiac arrhythmias associated with COVID-19 vaccination or SARS-CoV-2 infection.”

The Epoch Times, in a report on the study, said that Moderna and Pfizer “didn’t respond to requests for comment.” So.

🔥 The Fifth Circuit giveth and the Fifth Circuit taketh away. In an appeal from the Louisiana district court’s decision to enjoin the CMS Mandate nationwide, the Appellate Court partially granted Biden’s appeal to overturn the decision — but only as to states other than the 14 who were plaintiffs. The idea was that the Louisiana court went too far in enjoining the mandate in states that didn’t even participate in the lawsuit.

In making its decision, the Fifth Circuit cited “principles of judicial restraint” and a comment by Justice Gorsuch that the Supreme Court benefits from having competing (conflicting) decisions from the different circuits, because the issues are better fleshed out or something. It is a conservative principle, and in the past, conservatives have bristled whenever a district court in a remote jurisdiction like Hawaii enjoined a new law nationwide.

🔥 On Monday, the Eighth Circuit denied Biden’s appeal to overturn a different 10-state injunction of the CMS Mandate. That makes 24 states that have retained the injunction on the CMS Mandate.

🔥 Meanwhile, the Sixth Circuit denied Biden’s request for the FULL appellate court to hear the consolidated challenges to OSHA, a form of hearing referred to as “en banc.” One judge, writing in a concurrence to the short order denying the request, explained:

“This case shows the folly of initial hearing en banc. The massive docket and profusion of briefs, as in an especially complex matter before a district court, require focused consideration by a devoted panel.”

In a spirited dissent, the Chief Judge wrote that he preferred to go ahead and hear the case en banc, because it is so obvious that the OSHA Mandate won’t survive. Let’s just get it over with, in effect. It’s a nice, short summary of the best arguments, of which there are many. You’ve already heard some of the arguments. But one standout was when he noted how the workplace mandate fails to protect any category of workers who actually need protection:

“[T]his set of preconditions does not apply (1) when the key population group at risk from COVID-19—the elderly—in the main no longer works, (2) when members of the working-age population at risk—the unvaccinated—have chosen for themselves to accept the risk and any risk is not grave for most individuals in the group, and (3) when the remaining group—the vaccinated—does not face a grave risk by the Secretary’s own admission, even if they work with unvaccinated individuals.“

He also took issue with the government’s hand-waving around there being an “emergency:”

“The Secretary does not invoke this power based on a sudden revelation that the virus presents a serious health risk. How could he? He relies on something else—the increased availability of vaccines. That development, however, does not heighten health risks; it alleviates them—and it’s hardly a new development anyway.”

Finally, I found this comment to be particularly uplifting:

“Shortcuts in furthering preferred policies, even urgent policies, rarely end well, and they always undermine, sometimes permanently, American vertical and horizontal separation of powers, the true mettle of the U.S. Constitution, the true long-term guardian of liberty.”

👩‍⚖️ Yesterday, the Eleventh Circuit, which sits over Florida, Georgia, and Alabama, upheld Judge Casey Rodgers’ denial of Florida’s request for an injunction against the CMS Mandate in a two-to-one decision. The 2-judge majority found that emergencies justify broad government powers, and uncritically accepted the government’s assertions without evidence that injecting unwilling healthcare workers will save people from the virus, somehow.

In a strong dissent, Judge Lagoa summarized the voluminous evidence provided by Florida in support of the injunction and noted that the majority had failed to discuss any of it. Judge Lagoa analyzed the mandate in detail and found it exceeds CMS’ authority. The judge also noted that “because CMS admits it does not have data demonstrating the vaccine is effective in preventing transmission, the mandate cannot be justified on this basis. “

Well, yes.

Judge Lagoa also rejected the government’s argument that it just doesn’t know how long natural immunity lasts — who knows? — saying “as to longevity of protection, the agency concedes that the data regarding the vaccines is equally uncertain … These contradictions are strong indications that the agency’s decision was arbitrary and capricious.“

In other words, what’s good for the goose is good for the gander.

It is not clear yet how CMS, which suspended its mandate after the Louisiana decision, will respond to the various developments yesterday. Its option would be to enforce the mandate in some states but not in others. Uneven enforcement may or may not be something CMS wants to do.

Florida, for its part, now has to decide whether to appeal the new unfavorable ruling to the full panel of the Eleventh Circuit, or go straight to the Supreme Court. It’s not a clear call. I think, on balance, I’d favor asking for “en banc” review, given the significance of the decision. Judge Lagoa’s well-reasoned decision may be more persuasive than the majority’s rubber-stamp decision to the full panel of appellate court judges.

🦸‍♂️ Governor DeSantis announced a new bill yesterday, the “Stop Wrongs to Our Kids and Employees Act” — otherwise called “Stop W.O.K.E.” It is a package of amendments that would prohibit Critical Race Theory from being taught in K-12 schools and stop all schools and universities from hiring CRT consultants.

The proposed act would also shield employees of private companies from “a hostile work environment” due to obnoxious CRT training.

The best part? The Act would create a private right of action for parents and employees to sue schools and employers for violations, giving them a right to recover their attorney’s fees if they win. In other words, lawyers will be more willing to take these cases even when parents can’t afford to pay.

📊 *COVID IN FLORIDA AND ALACHUA COUNTY* 📊

Just a quick mid-week update since we don’t have a new Covid weekly report yet. But we have some data on creeping hospitalizations, as Florida moves into its expected winter Covid wave.

Fox-35 Orlando reported that Florida hospital inpatients and intensive-care unit patients increased slightly in HHS data released Tuesday. As of two days ago, there were 1,411 Covid inpatients, up slightly from 1,403 on Monday and from 1,359 on December 7. Meanwhile, the data showed 278 ICU patients, up a little from 266 on Monday.

So far, the numbers are tracking last year’s performance, except maybe a little milder than what we saw in 2020. We’ll see.

Have a terrific Thursday and I’ll see you back here tomorrow for more.

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