The weekend of November 12-14 has seen some dramatic activity regarding COVID vaccines, and the vaccine mandate. The Court of Appeals for the Fifth Judicial Circuit reaffirmed and extended their stay of the “OSHA Rule.” This refers to the new vaccine mandate to take effect on the first Monday of the New Year. The Court now has ordered OSHA not to enforce or prepare to enforce their Rule until further notice. Meanwhile, Anthony S. Fauci, M.D., now admits that the vaccine does nothing to stop the spread of coronavirus. He also cites a danger to those who took the jab – but he might be mistaken, or lying, about the nature of the danger.
The OSHA vaccine mandate – how it was to work and what did OSHA hope to accomplish
Under the vaccine mandate, or OSHA Rule, private employers must hold their workforces to the Hobson’s choice of:
- Taking the vaccine, or
- Wearing a mask and submitting to weekly testing for coronavirus at the employee’s expense.
If an employee will do neither, the employer must fire him or her.
Ostensibly, OSHA hopes to cut the chain of transmission of Severe Acute Respiratory Syndrome Coronavirus No. 2 (SARS-CoV-2). Actually OSHA is “just obeying orders,” same as the Nazi defendants claimed to be doing at Nuremberg. The orders ostensibly come from the President – but the President is in no condition to write, much less give, orders. He takes orders from an elite who put him into the office he holds. This elite is either the Chinese Communist Party or the World Economic Forum (of “Great Reset” fame). So what OSHA really hopes to accomplish, CNAV can only guess. But the guess includes a worst case scenario of mass murder. Dr. Mark Yeadon, a former Vice-President at Pfizer Pharmaceuticals, gives the best outline of the worst-case scenario.
All of which to reaffirm a point CNAV has made many times before. Do not. We repeat. Do not. Take. The jab. Under. Any. Circumstances. CNAV considers the vaccine dangerous and countereffective even if you allow that the goal is to “end the pandemic.” And CNAV doubts that goal, since too many promoters of a vaccine mandate have called for the record for depopulation – by hook or by crook.
The Fifth Judicial Circuit’s ruling
On Friday 5 November, the Court of Appeals for the Fifth Judicial Circuit stayed the vaccine mandate. The Court then asked for further briefs.
Almost at once a brazen Biden administration told employers to ignore the stay and assume that the Administration would prevail. (After which, Gov. Ron DeSantis, R-Fla., announced his intention to nullify OSHA’s authority in his State. This we have from contributor Darrell L. Castle.)
Then on Friday 12 November, the Court handed down a ruling extending the stay. Furthermore, they commanded that OSHA take no further steps to enforce its vaccine mandate until further notice.
By now the Court has consolidated at least twenty-six separate challenges to the OSHA Rule. (CNAV counts all petitioners having the name Trosclair as a surname or in a company name as making one challenge. This includes BST Holdings, which Brandon S. Trosclair owns.)
In its ruling, the Court expressed profound irritation with the Biden Administration and chief of staff Ron Klain for this brazen tweet:
Consider it, the Court did. On page 7 of the ruling, readers will find Footnote 13, which reads:
On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.” See, e.g., Pet’rs Burnett Specialists, Choice Staffing, LLC, and Staff Force Inc.’s Reply Brief at 4 (emphasis added).
The Court’s frosty reply to such brass
That seems to have frosted the Court. For they specifically held:
The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. Cf. Ala. Ass’n of Realtors, 141 S. Ct. at 2488–90. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.
In fact, Judge Stuart Kyle Duncan went further:
OHSA invokes no statute expressly authorizing the rule. Instead, OSHA issued it under an emergency provision addressing workplace “substances,” “agents,” or “hazards” that it has used only ten times in the last 50 years and never to mandate vaccines. 86 Fed. Reg. at 61,403; see 29 U.S.C. § 655(c)(1).
Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. See NFIB v. Sebelius, 567 U.S. 519, 549–61 (2012). Whether OSHA can do so does not.
Translation of the Court’s opinion of the vaccine mandate
The ruling by the Fifth Circuit Court runs to twenty-two pages. The short-version translation of the Court’s judicial-ese in those pages is: Whiskey Tango Alpha Foxtrot!
In the long version: the Court held that neither OSHA nor the Labor Department have a case for a vaccine mandate. This is as close to a ruling on the merits as an indefinite injunction gets.
To begin with, OSHA, as recently as June 2021, said they saw no need for a vaccine mandate, by Emergency Temporary Standard or otherwise. And Emergency Temporary Standards have a very checkered history. OSHA has issued such ETSs only ten times in its fifty-five year history. Six of them came under court challenge, and of those six, only one survived.
So what “gave”? President Biden’s appalling showing in the polls, that’s what “gave.” He, or rather his handlers, felt the need to “do something.” So he ordered OSHA to “do something.”
They took two months (to 5 November 2021) to draft their new Rule. Furthermore, that Rule itself contained a two-month delay (to 4 January 2022). So the Court reasonably asked: where’s the emergency? If COVID-19 was as case-lethal as the President implied, OSHA would have acted immediately! Indeed the world has contended with SARS-CoV-2 for two years. Do you see any coroner’s vans rolling down the street, rooftop bullhorns blaring,
Bring out your dead!
Of course not.
How dare the Administration presume to work around the law and Constitution?
So then what?
After the President voiced his displeasure with the country’s vaccination rate in September,12 the Administration pored over the U.S. Code in search of authority, or a “work-around,”13 for imposing a national vaccine mandate.
Again: Whiskey Tango Alpha Foxtrot!
No danger even remotely justifying the OSHA Rule
The Court, not even ready to grant the premise, held that OSHA did not satisfy its own premise.
Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS must:
(1) address “substances or agents determined to be toxic or physically harmful”—or “new hazards”—in the workplace;
(2) show that workers are exposed to such “substances,” “agents,” or “new hazards” in the workplace;
(3) show that said exposure places workers in “grave danger”; and
(4) be “necessary” to alleviate employees’ exposure to gravely dangerous hazards in the workplace.
As we have noted in the past, the precision of this standard makes it a difficult one to meet. See Fla. Peach Growers, 489 F.2d at 130 (observing that OSHA’s ETS authority “requires determination of danger from exposure to harmful substances, not just a danger of exposure; and, not exposure to just a danger, but to a grave danger; and, not the necessity of just a temporary standard, but that an emergency temporary] standard is necessary”).
Bottom line, OSHA did not meet this standard for promulgating a vaccine mandate as an ETS.
SARS-CoV-2 is airborne. How then could OSHA possibly regulate it as a toxic workplace agent? The court also held – and CNAV holds this crucial – that SARS-CoV-2
is not life-threatening to a vast majority of employees.
Not life-threatening, and how to fortify your body against it
Write. That. Down. In order to be “life-threatening to a vast majority of employees,” COVID-19 would have to be majority case-lethal. Which it most emphatically is not, in any demographic, much less a demographic of people going to work. It is not even single-digit case-lethal.
Furthermore, CNAV can and does recommend a regimen of manual and nasal hygiene, and vitamin, mineral, and other dietary supplementation, that can and will fortify you against any virus, SARS-CoV-2 included.
Wash your hands with hot soapy water, for twenty seconds at a time, after:
- Seeing to your bodily needs,
- Touching bodily fluids, no matter whose, and
- Touching anything wet that is not yours.
And if you “just can’t get to a washbasin,” carry a hand sanitizer that has at least 60 percent ethanol. The best hand sanitizers have aloe vera, which will protect your skin.
Flush your nose at least daily with a buffered saline solution. CNAV hesitates to make product endorsements, but will do so here. Xlear® (xylitol-saline solution/Xlear, Inc.) is one commercially available solution. But CNAV can recommend a simpler recipe. Dissolve 1 teaspoon of baking soda and ½ teaspoon of salt in 1 gallon of distilled water. Fill a nasal aspirator or a fingertip sprayer. Apply to each nostril at least once a day, but especially:
- After washing the face,
- Before going out into the public and upon your return home, and:
- Before you enter a place of health care, and as you leave it.
Vitamin D deficiency – the most common and most easily addressable problem
Take vitamin D, at least 2000 International Units (amounting to 50 micrograms) by mouth twice a day with meals. If you are heavyset or have a large frame, double that. If you are not a Caucasian or have tanned a little too much, take more. See this site for full details and recommendations for body type, skin color, and age.
Take zinc sulfate or other zinc salts, enough to provide 50 mg elemental zinc by mouth per day. Zinc (and selenium) are known antiviral minerals.
Take quercetin, typically as 500 mg of the most commonly available mixtures, twice a day with meals. Quercetin is not only an excellent zinc ionophore (a substance that carries zinc into the cell where it will do some good), but has good antiviral properties on its own. Best of all, it is without significant side effect. Which makes it a good prophylactic (something you take to guard against infection). Hydroxychloroquine and ivermectin are good therapeutics (something you take to get over something) but do have side effects.
Get out into the sun!
And above all, get out into the sun whenever you can. COVID-19 will how become seasonal, like influenza. The reason for the seasonal variation is twofold:
- Ultraviolet light kills viruses on environmental surfaces, and
- Ultraviolet light stimulates your skin to make vitamin D.
That’s how you ward off SARS-CoV-2. In addition to which, if you do catch it, try doubling your vitamin D allowance yet again until symptoms resolve. And definitely take any zinc preparation you can buy. The time-honored Zicam® preparations (zinc gluconate and zinc acetate) will do nicely.
The vaccine mandate is not necessary
Next question: is the vaccine mandate necessary? Answer: no. Different occupations have different exposures, and different workers have different susceptibilities. The OSHA rule takes none of this into account. Nor does it even cover everyone. If you employ 98 or fewer people, you need not bother. What’s so magic about 98 or 99 workers? Enforcement practicality, that’s what. And that’s all.
The Court even addressed the precedent of Jacobon v. Massachusetts. In 1905, the Massachusetts General Court (what they call their legislature) passed a smallpox vaccine mandate law. The U.S. Supreme Court ruled that a valid exercise of State police power. Federal police power is at issue here, and federal police power does not supersede State police power. So Jacobson is no longer a case on point. (It would be on point in any State wishing to improse a vaccine mandate of its own. But recently a Pennsylvania court stopped such a mandate in that State.)
Judge Duncan, of course, pointed out the obvious: the vaccine mandate vastly exceeds OSHA’s statutory authority. Now what the Court did not consider – and CNAV believes it should have, and that some court will have to consider in future – is whether Congress may properly vest legislative and judicial powers in an executive agency. CNAV pours contempt on that very notion as unconstitutional on its face. The Fifth Circuit Court does not quite go that far. But they do say that OSHA overstepped its bounds in this case.
The vaccine doesn’t even work as advertised!
Yesterday Anthony S. Fauci, M.D., head of the National Institute for Allergy and Infectious Disease, admitted on national television that the vaccines do not work as advertised.
He had to admit that the artificial active acquired immunity from these so-called vaccines is already waning. So he had to concede that those who took the jab were in danger. But his description of the danger raises its own problems. Again, he speaks of the danger of infection, as if COVID-19 were double-digit case-lethal (Repeat: it isn’t.) Not one word does he speak about the dangers from clotting disorders, myocarditis and pericarditis, and other harms.
Dr. Fauci therefore stands in violation of the Oath of Hippocrates, which says in relevant part:
I will give no deadly preparation to anyone, even if asked, nor suggest such a course.
Gavin Newsom might have found that out, to his detriment and embarrassment, though he is now trying to cover that up. But let’s not forget the Vaccine Honor Roll, beginning with BBC Presenter Lisa Shaw. Who, in seeking to be a virtue signaler for the vaccine, became instead a martyr against it.
Immediate harms from the vaccine mandate
The Court wisely and properly holds that this Rule violates individual liberty. The liberty to refuse medical treatment is at least as important as is the protection of the writ of habeas corpus. As Darrell L. Castle observed, we are not in Nazi Germany. Nor are we in an iatrocracy – a society where doctor’s orders (Greek iatros a physician) carry the force of law.
But the OSHA Rule properly belongs to both kinds of tyranny. And the Court knows it.
Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees. The Mandate places an immediate and irreversible imprint on all covered employers in America, and “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.” See Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and in the judgment)).
The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.
No skin off OSHA’s nose – legitimate, that is
The Court turned next to any harm OSHA might suffer. And found that OSHA would suffer only institutional embarrassment, which it brings on itself. It can have no legitimate interest in promulgatin an unconstitutional vaccine mandate.
The vaccine mandate is contrary to the public interest
And last, the Court took away OSHA’s last defense: that they were acting in the public interest. The public interest, said the Court, requires doing away with a source of “economic uncertainty” and “workplace strife.” That “strife” is twofold, as it can arise between:
- Employer (or manager, supervisor, foreman, or other leader) and employee, and
- Two employees, one of whom thinks everyone should get the jab and another refuses.
Debate on various social media, from Facebook to Twitter to Quora, has turned extremely acrimonious. Some users have threatened others with murder, or simply wished COVID case-lethality on other users. If “pro-vax” workers bring these attitudes to work, “anti-vax” workers might feel that they do live in Nazi Germany. Or Soviet Russia. Both regimes relied on networks of informants, paid and unpaid, for enforcement of laws of this kind. The bully always relies on the snitch for information he then uses to enforce his reign of terror. This applies equally to workplaces as to schoolyards. The Court’s use of the phrase workplace strife ought to give everyone pause.
As CNAV quoted earlier, the Court slapped OSHA in the face in its last paragraphs. How dared they, the Court asked, presume to make health policy, utterly beyond their purview.
In future, the Supreme Court and Courts of Appeals must reexamine the authority of quasi-legislative and quasi-judicial executive agencies. When they do, they will likely cite this case often.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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