In the latest example of the debilitating effects of Elite Liberal Lawyer Brain, Jed Rubenfeld has excreted an op-ed arguing that the federal courts should impose anti-vaxx bullshit on the federal government in the face of black letter law:
Federal courts considering the Biden administration’s vaccination mandates—including the Supreme Court at Friday’s oral argument—have focused on administrative-law issues. The decrees raise constitutional issues as well. But there’s a simpler reason the justices should stay these mandates: the rise of the Omicron variant.
It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target. Yet that’s exactly what’s happening here.
Both mandates—from the Health and Human Services Department for healthcare workers and the Occupational Safety and Health Administration for large employers in many other industries—were issued Nov. 5. At that time, the Delta variant represented almost all U.S. Covid-19 cases, and both agencies appropriately considered Delta at length and in detail, finding that the vaccines remained effective against it.
Those findings are now obsolete. As of Jan. 1, Omicron represented more than 95% of U.S. Covid cases, according to estimates from the Centers for Disease Control and Prevention. Because some of Omicron’s 50 mutations are known to evade antibody protection, because more than 30 of those mutations are to the spike protein used as an immunogen by the existing vaccines, and because there have been mass Omicron outbreaks in heavily vaccinated populations, scientists are highly uncertain the existing vaccines can stop it from spreading. As the CDC put it on Dec. 20, “we don’t yet know . . . how well available vaccines and medications work against it.”
I don’t think the data is clear on this — and note that for inexplicable reasons Rubenfeld assumes that any uncertainty must be decided against the government’s interest in protecting public health — but let’s assume arguendo that the vaccines do not significantly reduce the risk of infection qua infection from the Omicron variant. The op-ed doesn’t mention the authorizing language of the statute because it’s making a (very bad) policy argument rather than a legal one, but the OSHA is empowered to protect employees against “grave danger.” This is, quite literally, what the vaccines do against Omicron:
Washington state state on hospitalization rates by age and vaccination status.
Omicron is going to kill a lot of people in the United States, but that’s overwhelmingly because we have tons of vaccine refusers. https://t.co/Nkc9D0K4S3 pic.twitter.com/K9NkfIK3db— Matthew Yglesias (@mattyglesias) January 8, 2022
The op-ed doesn’t even consider this, treating all infections as the same even as hospitalizations and deaths remain as overwhelmingly concentrated among the unvaccinated as ever. In addition, the op-ed also implicitly assumes that Omicron will be the last major mutation of the virus, which is also completely without basis.
Law office epidemiology is even worse than law office history, and the fact that a majority of the Supreme Court is going to blunder forward based on facially asinine arguments like this is going to get people killed while also getting the law completely wrong.