☕️ Coffee & Covid ☙ Tuesday, November 30, 2021 ☙ ARBITRARY, AND CAPRICIOUS 🦠
I explain the terrific new Missouri court decision for you, since Corporate Media won't; Biden and Fauci appear to reverse course on Omicron fear-mongering; Jack Dorsey says 'buh bye'; and more...
More and more, November 2021 is starting to look like the month we turned the SS Pandemic around. News of a new major court decision — a Missouri stay of the CMS Mandate — swept over my electronics yesterday like a tsunami. Like previous decisions from smart judges, it includes some memorable quotes and makes some encouraging findings.
The Courts are starting to get it. This new decision includes some terrific language and findings. Today’s post includes a special explainer with all the details. Since the Corporate Media isn’t likely to explain how great the decision is, I’ll do it for you.
And a news roundup! Biden and Fauci appear to walk back Omicron panic; Jack Dorsey suddenly departs Twitter — effective immediately — in a “well-thought out” buh-bye; Kansas’ new exemption law kicks in, saving jobs; Waukesha hospitals struggle to treat victims of the Christmas Parade Massacre — and you’ll never guess why; and Florida keeps crushing Covid numbers.
🗞 *THE CMS MANDATE INJUNCTION* 🗞
Yesterday, the District Court in Missouri slapped an injunction on Biden’s CMS Mandate, which applies to healthcare workers. While the decision only technically applies in the ten (10) states that are plaintiffs in the case, hospitals in other states should be persuaded by the order, which wrecked the mandate. You’re going to love it.
There are three big themes in the decision. First, the court found that CMS has no authority whatsoever to manufacture such an invasive and draconian requirement without Congress’ explicit permission. The court also found that CMS didn’t follow the rules when it published the new guidance, rejecting CMS’ argument that it just didn’t have time to follow the rules because “emergency.” Finally — and most importantly — the Court found that the evidence shows the CMS Mandate is illogical — “arbitrary and capricious” — for reasons that you be encouraged to hear, and none of which will surprise C&C readers.
The court noted, as I have repeatedly said, CMS has NEVER EVER tried to mandate vaccines before, and the new policy would significantly alter the balance of power between the states and the federal government:
“The regulation at issue alters that balance because it requires vaccination, which CMS has never attempted to do, for millions of individuals who would otherwise be outside the reach of the federal government.”
Continuing the theme, the court noted that if CMS can do this mandate, it can do lots of other things it has never been allowed to do before, things previously always reserved to the states:
“Truly, the impact of this mandate reaches far beyond COVID. CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism, as discussed above.”
For months, I’ve been trying to cut through all the noise around the antique 1905 Jacobson case, arguing that it really stands for the idea that vaccine mandates are the province of state — not federal — law. That’s what convinced the circuit court in my vaccine mandate case, and this court got it:
“Even if forcing the administration of a specific vaccine into the otherwise unwilling, in an effort to protect the recipients of these programs could be a reasonable explanation to justify the extraordinary action—action that long has been the province of the states, see Jacobson v. Massachusetts (1905) —CMS has not shown that it is reasonable in this instance. Rather, it specifically notes that the vaccines’ effectiveness to prevent disease transmission by those vaccinated is not currently known.”
And — never mind CMS — the court even questioned whether CONGRESS could constitutionally impose a mandate even if it wanted to:
“Whether Congress itself could impose the vaccination requirement is a tough question, one that CMS would force to its crisis. But even if Congress has the power to mandate the vaccine and the authority to delegate such a mandate to CMS—topics on which the Court does not opine today—the lack of congressional intent for this monumental policy decision speaks volumes.”
For the record, I believe the answer to the question of whether Congress could constitutionally order a vaccine mandate is “hell no.”
Turning to the loony lack of logic behind the mandate, the court first noted that CMS admitted it has NO IDEA whether the injections actually work:
“Indeed, CMS states that the effectiveness of the vaccines to prevent disease transmission by those vaccinated is not currently known. CMS also admits that the continued efficacy of the vaccine is uncertain.”
You don’t say. In other words, CMS can’t say whether the vaccines work, or if they DO work, how long it will last. This led the court to draw the obvious conclusion that the CMS Mandate is completely, irreparably irrational:
“The Court cannot, in good faith, allow CMS to enact an unprecedented mandate that lacks a rational connection between the facts found and the choice made.”
Next, the court took apart CMS’s silly arguments that testing and PPE wouldn’t work to keep workers safe, even though hospitals have been doing that since day one, finding that CMS didn’t even CONSIDER testing as an option:
“CMS failed to consider or rejected obvious alternatives to a vaccine mandate without evidence. For example, CMS rejected daily or weekly testing—an option that even OSHA approved in its ETS—without citing any evidence for such a conclusion.”
And the Court noticed that CMS pretends like natural immunity doesn’t exist, or worse, is utterly incoherent about natural immunity:
“As another example, CMS rejected mandate alternatives in those with natural immunity by a previous coronavirus infection … [but] it plainly contradicts itself regarding the value of natural immunity. [CMS admitted that:] ‘about 100,000 a day have recovered from infection . . . These … persons … are no longer sources of future infections.’ Such contradictions are tell-tale signs of unlawful agency actions.”
So CMS denied natural infection worked but also said recovered people are no longer sources of future infections. Both can’t be true. Next, the court observed that since the mandate was too broad because it doesn’t really help younger folks that much and applies to workers who don’t even have contact with patients — it therefore seems like CMS is lying about its real motives:
“The broad scope of healthcare facilities covered by the mandate renders it arbitrary. … CMS acknowledges that the risk of COVID to those in the younger age group is markedly smaller … recognizing that risk of death from infection from an unvaccinated 75-to 84-year-old person is 320 times more likely than the risk for an 18- to 29-years old person … [and] the mandate applies to all facilities’ staff equally, regardless of patient contact. CMS provides no reasoned explanation for this overbroad approach, and it further belies its asserted interest in protecting patients from COVID.
Relying on the Mandate’s massive over-breadth, the court saw right through CMS’ stupid argument that all it wants to do is keep patients safe from Covid. In a footnote, the court explained, “This also belies CMS’s asserted interest in protecting patients from COVID, and instead, shows that the mandate’s overbreadth is to increase the national vaccination rate by any means necessary. “
Finally — and this might be my personal favorite part — the court noticed all the cherry-picking that these government officials have been engaged in:
“CMS looked only at evidence from interested parties in favor of the mandate, while completely ignoring evidence from interested parties in opposition. … [the] record shows CMS was unable to adequately balance these reliance interests because it placed a rock on one side of the scale and a feather on the other.
That’s been what officials have been doing right down the school boards, who cherry-picked local “experts” to tell the board whatever it wanted to hear. Anyway, because of the cherry-picking and the lack of any rational connections, the court concluded that the Mandate was completely irrational and therefore probably illegal:
“Plaintiffs likely can show the CMS mandate is arbitrary and capricious because the evidence does not show a rational connection to support implementing the vaccine mandate, the mandate’s broad scope, the unreasonable rejection of alternatives to vaccination, CMS’s inadequate explanation for its change in course, and its failure to consider or properly weigh reliance interests.”
This final finding is incredibly significant. The court is saying that the Mandate even fails rational basis review. “Rational basis” is the EASIEST standard for the government to meet. But when a law is “arbitrary and capricious,” it is not rational, and therefore fails even that minimal standard. In other words, it’s a dead duck. Quack, quack, aargh…
This finding about the lack of rational basis is a killer, and because it is based on factual findings, it will be extremely difficult for the Administration to overturn it on appeal. The appellate court must defer to the District Court on its factual findings, absent clear error. But the District Court carefully cited the evidence it relied on. And the evidence was almost all from admissions by CMS, and not the evidence provided by the states. Because of that, it will be almost impossible for an appellate court to overturn the District Court’s factual findings based on CMS’s own admissions.
How fast will this holding spreads beyond the original ten states? The rest of the states now have a complete roadmap to defeating the CMS Mandate. I think it will spread quickly. Stay tuned.
🗞 *THE C&C ARMY POST* 🗞
OPERATION MULTIPLIER: Thanks to everyone who joined the action yesterday, especially those who set aside some understandably queasy feelings about registering in ActBlue. It was a first for me. But I learned a few things. I think WinRed could learn some things from ActBlue, which has a little better interface — not that I have any plans of using it again anytime soon. Also, I respect the feelings of some conservative activist Kansans who were all over the comments yesterday — despite remaining silent about Governor Kelly on Saturday when I first broke the story.
Let’s be clear about Operation Multiplier. It’s not to re-elect anyone. Maybe we’ll have a future operation for that when we get closer to the elections. But right now we are YELLING AT LAWMAKERS. We are using our collective voice. DeSantis was an easy one; he’s the most admired Governor in the country. It didn’t take any special effort to multiply the US’ best governor.
Kelly’s multiplication was harder for some to stomach, but it was arguably even more important as a message than DeSantis’ — it was a message to republicans who are weak on liberty issues and to democrats who might be getting uncomfortable with where things are headed.
The message is: we’ll multiply whoever advances liberty interests. That’s what we want. That’s all we want. Yesterday’s Operation Multiplier message wasn’t to Kelly — it was to OTHER democrats and weak republicans. The message is: It’s not just politics to us. The message is: liberty isn’t a talking point, it’s an essential sine qua non.
I do love the energy of our liberty-minded brothers and sisters who see things in an “all or nothing” frame. But, as a pragmatist, I see this war as a war of inches. Or if you like football metaphors, I’m all for a good hail-mary pass from time to time, but the game is really won five yards at a time. We moved the ball down the field yesterday, and I’m proud and grateful for your trust in the strategy.
🗞*COVID NEWS AND COMMENTARY* 🗞
🔥 Biden and Fauci addressed the country in a presser about Omicron yesterday. It seem like there might be a change in tone. Biden allowed that the new variant is “a cause for concern,” but he said it was “not a cause for panic.” He emphasized that the administration won’t be seeking any new limits on business, widespread lockdowns, or other restrictions to stop the spread.
When Fauci appeared on interviews after yesterday’s press conference, he was asked if more U.S. restrictions were imminent. Fauci said, “I don’t think so at all.” How about that? Later, on CBS Mornings, he said, “Let’s not be talking about lockdowns.” I guess he got the message.
Biden and Fauci mostly used the opportunities to hawk injections for 80 million un-injected Americans, and to hawk boosters for everybody else. Which seems contradictory, because if the injections worked, you wouldn’t need boosting, but whatever.
This is a remarkable about-face from the two politicians’ tones from over the weekend. The poll numbers on Omicron hysteria must have been pretty horrible. Something has shifted.
🔥 The new tone is pretty contrary to the new Omicron narrative the media has been trying to gin up. On Saturday, for example, Reuters ran a story headlined, “EXPLAINER-How worried should we be about the Omicron variant?”
Not WHETHER we should be worried. HOW WORRIED. See how they do it? You didn’t even get an option to not be worried.
But between Saturday and Monday, something seems to have changed. I guess Omicron may not be the variant they’ve been searching for. Or maybe too many people said thanks, but no thanks.
🔥 Jack Dorsey, president and founder of Twitter, announced yesterday he’s out, effective immediately. He’ll stay on the board for a couple months, then it’s Adios, mi amigos. Dorsey sent a farewell letter to Twitter employees explaining his resignation was the result of super careful thought and introspection that apparently only took a few hours, since there was no previous indication he’d be going anywhere.
The social media giant’s new CEO will be its former chief technology officer, Parag Agrawal, who is acceptably woke. Promoting from within is another sign of a quick decision, even if inconclusive. Dorsey had been criticized over the pandemic for being too accommodating to “free speech” and for refusing to monetize Twitter with subscription fees. The only rational way to view the switch is, changes are coming to Twitter.
🔥 You can’t find much news about Kansas’ new injection exception law in the Corporate Media, for some reason. The Epoch Times has been covering it well, but apart from that you have to go to local Kansas media. CBS affiliate KSNT.com ran an article yesterday headlined, “Kansas’ vaccine exemption law brings new rules for employers, attorney general says.”
The article says the new law gives “workers a way out of President Joe Biden’s federal COVID-19 vaccine mandate[.]” Also, it is now “illegal in Kansas for any employer to ‘inquire’ or make discretionary determinations about the legitimacy of a workers’ religion when they ask for an exemption from the vaccine requirement.”
In a strong statement, Kansas’ Attorney General Derek Schmidt defended worker’s right to privacy over their personal religious beliefs:
“In Kansas, an employee’s religious faith may not be put on trial in order to obtain the waiver to which the employee is entitled by law. It is particularly distressing when a public-sector employer, an agent of the government, sits in judgment of the sincerity of an employee’s religious faith. Under the new law now in effect, that is not only distressing, it is also illegal.”
Yes! More like this, please.
🔥 The Federalist ran a story yesterday headlined “Hospital Struggles To Treat 18 Waukesha Parade Victims Because Of Vaccine Mandate.” Apparently the hospital is experiencing staffing shortages. For some reason.
The Federalist reported that a high-ranking official at Children’s Wisconsin said the hospital currently has hundreds of open positions and admitted much of the staffing shortage is because of the hospital’s injection mandate. The hospital began firing uninjected workers on November 16, according to its published policy.
But staffing was a problem well before November 16, starting after the hospital announced the injection policy. On October 14, Children’s had to close its short-staffed Delafield clinic until the end of the year. “This is because of the mandate,” one source told the Federalist. “People either quit because their exemptions were denied or didn’t even bother to apply. They just started looking for other jobs.”
A nurse who was working last Sunday night said the staffing shortage was so bad that even Children’s President and CEO Dr. Peggy Troy was working the Emergency Department floor.
Who could have seen this coming? Not experts. Experts said this would be SO GREAT. They said injection mandates would protect patients. Now injured patients can’t get timely treatment. Good thing we have experts, huh? I bet the Waukesha victims would love to thank the experts. Personally.
🔥 The Epoch Times reported Sunday that “Florida Reports Lowest Daily COVID-19 Cases per Capita in US.” According to the article, Sunshine State cases continue to plummet, dropping another 5% over the last two weeks. It contrasted Florida’s six (6) cases per 100,000 to Michigan, which weighs in at a hefty eighty-five (85) cases per 100,000 — about fourteen times higher than Florida. Maybe Michigan should try some of Florida’s techniques. You never know.
Today’s news is a great way to end November 2021 — the month the Narrative tipped all the way over. See you back here tomorrow, in December, for more.
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