CLAY: Let’s talk a little bit about the Supreme Court decision that came down while we were in the third hour of the program yesterday. So on the one hand, we got a big win, and that was what we were discussing as we were seeing the news come town, the 6-3 decision that the Biden administration vaccine mandate that impacted 84 million people — if you are one of the two-thirds of workers out there essentially that was employed by an employer with a hundred or more people, that vaccine mandate — is not constitutional.
Okay? So it was an unconstitutional overreach by OSHA. We could get into the nitty-gritty of the law. But that’s the big takeaway. The larger issue here — and this is where I’ve gotten — and we’re gonna get to — the other choice on medical workers here in a second, the other decision which did not, in my opinion, reflect well on Brett Kavanaugh or on Chief Justice Roberts.
We’ll get to that in a second, but the big issue here, Buck, is what the Supreme Court really did was provide a lot of protection. If you are fortunate enough to live in a red state and if your governor in that red state has said, “Hey, you can’t be fired for refusing the vaccine mandate,” then that state law would be in effect and you would have legal recourse, okay? So if you live in Florida, if you live in Texas — if you live in Tennessee, Georgia, any red state out there — most governors have tried to protect you.
They have tried to protect your right not to be fired if you choose not to comply with the vaccine mandate. So the company would be obligated to theoretically be bound by that state law in the red states. But, Buck, there are people who are in cities that have aggressive restrictions about the covid vaccine, for instance, where you are right now in New York City.
And I imagine, although I haven’t done a deep dive on this, there are some people in red states who live in blue cities who might have in some of those places a conflict between the city law and the state law in terms of which governs when it comes to vaccine mandates. So this is a big mess. My easiest answer to everybody out there — ’cause I got blown up, ’cause this is complicated with so many people asking questions about this — is, you need to consult with a labor and employment lawyer in your city or state to know for certain how this applies for you in light of the Supreme Court decision striking down the big mandate that would have impacted 84 million workers.
Now, Kavanaugh and Roberts both bailed when it came to the medical mandate. And so that was allowed to stand. That impacts around 10 million workers, is my understanding. And that was allowed to stand by a 5-4 basis, which I think it is a failure of testicular fortitude, to put it mildly, on behalf of both Roberts and Kavanaugh. They’re trying to split the baby here.
BUCK: Yes, and so while we were able to tell you about what felt like and is a big win for freedom from vaccination mandates for companies with over a hundred employees, as Clay points out, there are states where you’re still gonna have to get the shot — I’m in one of them, New York — and beyond that, the CMS, the federal mandate for health care workers means that we are at a time right now when we’ve lost — this is according to my friend Phil Kerpen over at The Examiner — 49,000 staffed hospital beds in the last 365 days, 16,000 staffed hospital beds lost in the last 30 days.
We have fired thousands of nurses and doctors across the country for refusing to get a shot that as we know does not actually meaningfully change the risk of getting and spreading the virus to other people, certainly not beyond a — perhaps a 60-day period of the initial inoculation. And then beyond that, Clay, they’re letting covid-positive doctors and nurses…
They’re demanding that they come back in to provide care to people because they’re so understaffed. So on the one hand there’s the reality of, “Okay, fine. Maybe.” By the way, I think this was wrongly decided, too, but you can see what happened here. They decided that when the federal government is giving money specifically to health care organizations, health care places — hospitals, essentially — and they can make the determination that there are these excessive, in my opinion, mandates in place. Justice Thomas. I read the decision this morning. Justice Thomas is like, “Yeah, but this isn’t about just when you’re in the hospital.” You’ve gotta have that shot with you, so to speak, when you go home at night.
CLAY: Which they acknowledge in the other opinion striking it down for 84 million.
BUCK: That’s right. So in this case, though, they decided all right. “Well, for health care workers, we’ll make this mandatory. We’ll do this.” Okay. Even if the federal government — let’s just say now — has the authority, now the push should be, “What the heck is the Biden regime doing right now?” We’re in the middle of the big surge, we need all the capacity we can get, and they’re going to dramatically harm capacity in some places while there are hospitals that are sending in covid-positive personnel? Think about how… What kind of madness that is?
CLAY: Well, it’s 100% right. From a functional perspective, it’s broken. This is also what I think’s gonna happen with the abortion cases in June, Buck. This is my prediction, that they are going to allow the Mississippi — for people out there who’ve been paying attention to it — 15-week limit. They’re gonna bump it back down from 23 or 24 weeks, whatever it is and shoot down what Texas did.
And so they are going to basically be in that middle area where people can say, “Oh, look, we won but we also lost,” and so it’s a middling result that to me feels very political in nature, and that’s what John Roberts has done as the chief justice of the Supreme Court. He’s tried to incrementally alter the trajectory of the court without rocking the boat enough that people really get upset at him.