Jay Sekulow Explains Vaccine Mandate Cases Before Supreme Court

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Friday was a critical day for American liberty. The Supreme Court heard oral arguments in two cases to determine whether or not a stay would be issued against President Joe Biden’s vaccine mandates. 

The high court heard arguments on the Biden COVID-19 vaccine and testing mandate for businesses with 100 or more employees, and also on the mandate requiring health care workers to be vaccinated. 

“The courts seem inclined to strike down the mandate, probably on the lack of authority ground, that OSHA, the agency, Occupational Safety and Health Administration, doesn't have the statutory authority to do what they did,” says Jay Sekulow, chief counsel of the American Center for Law and Justice.

The center filed a lawsuit on behalf of The Heritage Foundation in November challenging the 100-plus employees vaccine mandate. (The Daily Signal is the news outlet of The Heritage Foundation.)

Sekulow joins “The Daily Signal Podcast” to break down the arguments made before the high court on Friday, and explain how he thinks the justices might rule.

Also on today's show, we read your letters to the editor and share a good news about a bakery that came to the aid of stranded drivers during a snowstorm in Virginia.

Listen the podcast below or read the lightly edited transcript:

Virginia Allen: Friday was an incredibly important day for our nation. The Supreme Court heard oral arguments for two cases to determine whether or not a stay will be issued for President Joe Biden's vaccine mandate.

The high court heard arguments for the Biden vaccine and testing mandate for businesses with 100 employees or more, and also for the mandate that requires the vaccination of health care workers.

Here with me to break down these two cases and the arguments around them, heard before the Supreme Court on Friday, is Jay Sekulow, the chief counsel of the American Center for Law and Justice.

Over the past 25 or so years, Mr. Sekulow has argued in cases 12 times before the U.S. Supreme Court, so it is an honor to have him joining us today to break down these cases. Thank you so much for being here.

Jay Sekulow: Thanks for having me. I appreciate it.

Allen: I do want to give a brief disclaimer and just let our listeners know that the American Center for Law and Justice filed a lawsuit on behalf of The Heritage Foundation in November challenging this COVID-19 vaccine mandate, and The Daily Signal is the multimedia outlet of The Heritage Foundation.

But, before we kind of get into some of the nitty-gritty of what we saw on Friday, Jay, I want to ask you, what exactly is at stake here with these vaccine mandates and the challenges?

Sekulow: Well, you know, that's a really important question because what's not at stake is the importance of people taking precautions, including vaccines, if they're so inclined. I've been very pro-vaccine. I believe in them. I myself have been vaccinated, most of our staff has—not all of them, but most.

We don't ignore for a moment that the COVID pandemic is significant and has wrecked havoc. I've lost a brother to COVID, so this is very personal.

What I don't like is a government agency that does not have the authority to do this, to be implementing it. This is really something that's generally left to the states, and for a good reason. States can tailor the specific actions to the needs of the community. Here, you had a one-size-fits-all mandate that really put a very difficult situation in play.

That was, it mandates, it doesn't at actually require simply a vaccine. There's options. One of those options is, if you're not vaccinated, you get tested each week, and then you wear a mask in the workplace. The problem with that, of course, is no one can get tests right now, so the doctrine of legal impossibility comes into play.

But what we saw develop at the Supreme Court, I think, today with these arguments and the case that we represent, Heritage Foundation, we're honored to do it, is one of those cases at the Supreme Court. I mean, we are part of this case, so our briefs have been filed. The arguments that took place today impact our case directly. The decision will be our decision.

It's interesting because right now, the reports are that the courts seem inclined to strike down the mandate, probably on the lack of authority ground, that OSHA, the agency, Occupational Safety and Health Administration, doesn't have the statutory authority to do what they did.

Frankly, I would consider that a significant win. I don't think that arguing against the science or with the science is the way you win these cases. The court's going to defer to the scientists for that, not the court. But, the constitutional authority and statutory authority are real issues, and I think that's what it's going to come down on.

I'm cautiously optimistic. Obviously, we requested to stay initially and didn't get it. That was not a great sign, to be honest. …

I've done 20 cases that the Supreme Court argued about 14 or 15 now. … The oral arguments started rough, ended up better. The problem, of course, is … it's very difficult to predict by a Supreme Court oral argument, but the indications where there are at least some of the justices were requesting the wisdom of this kind of approach.

Allen: So, as it relates to the first case that we heard arguments for on Friday, which is the vaccine mandate for employers with 100 or more employees or weekly testing, there were kind of two entities that the Supreme Court heard from. One was a coalition of states led by Ohio, and the other was the National Federation of Independent Business.

The arguments Friday were for this day on the vaccine mandate. It's supposed to go into effect on Monday. So, explain for us what the key argument was made by the coalition of states and the National Federation of Independent Business against the vaccine mandate.

Sekulow: So, it's interesting that they did take the states' case because the states have a particular interest here, which is that this is really the sovereignty of the state. The state government usually designs these.

As to the National Independent Business Federation, the reason they took that was it kind of represented everybody else's interest. So, that's what they did for oral arguments, but everybody's brief, and there were nine sets of cases, everybody's briefs were read, everybody's case were submitted.

So, the mandate's supposed to go in place Monday. For instance, at our offices in the American Center for Law and Justice, we issued a memorandum last night on advice of our outside counsel, our human resources counsel, that we need you to begin the process of finding out who's vaccinated by submitting their vaccine card. Those people don't have to do anything else. If they're vaccinated, they don't have to do anything else. If they're not vaccinated, they have to get tested [and] also wear a mask.

Now, what's interesting is the law said that that mandate for the testing was supposed to take place on Monday. It'd be in effect Monday. Now, the solicitor general in the United States stands up at the Supreme Court podium today and says, “No, no, no. That's not going to be until February.”

The reason they did that was because nobody can get the tests, and the government has said that the tests are not readily available right now. They've acknowledged it. I think the president said, “Go to Google and see where you can find testing,” and Dr. [Anthony] Fauci has said that the tests are not readily available, that we've dropped the ball there.

The president also said, President Biden also, I rarely agree, but I'll agree with this statement, he said that … the COVID situation is not going to be solved by the federal government. The states will have to do that. He's right.

That's why this entire situation really comes down to, under the Constitution, separation between federal government and state government, 10th Amendment commerce clause. Can they actually regulate this in the first place? Then of course, like I said, the statutory questions of whether OSHA would be the right agency to implement this.

OSHA initially said they couldn't implement this. I actually don't think they can. So like I said, you could be very pro-vaccine, but realize that there is this situation where the federal government is doing an overreach here, and they're just not the agencies that can do this.

Allen: Were there any arguments made that in particular stuck out to you that you said, “Oh, yep. That's a really strong argument to be making here,” or that maybe you were a little bit surprised was being made?

Sekulow: Yeah, yeah. … Let me start with the surprise, and I don't like to challenge advocates that have been arguing, because I always say I use a boxing analogy. If you're the one in the ring, bobbing and weaving, it's very easy to criticize when you're outside looking in. I've been in that situation a lot over 40 years, so I know what it's like when you're inside the ring. So, I don't want to be critical of lawyers.

I would've made the case much simpler. I would've not gotten into all the science. I think that was a mistake. I don't think the court is going to make a science decision. They're going to make a constitutional decision.

What I would've said is that, I would've said exactly what I said, which is what the president said, it's a federal issue—not really. He said it's a state issue. He said the federal government's not going to be able to solve it.

Then, you had the practicality of the lack of testing. I thought what was helpful was that the federal government came up, the Solicitor General, and conceded that an administrative stay might be appropriate, at least for a short period of time. Well, that was a bit of a surprise, but she did that because they are changing the policies as we're litigating the case.

So, I think the biggest surprise was all of a sudden the impact of the application of the mandate date moves about a month by the solicitor general, who binds the agency. So, she did, and she said, “Oh, by the way, that's not until February 9th.”

So, everybody, we're all scratching our head, saying, “OK, so now we have to send out”—and this is the problem with the law—”Now we send out another memorandum to our employees around the country tonight and say, ‘Oh, by the way, if you haven't been vaccinated, now we don't think you have to be tested until February 9th, but you do have to wear a mask.'” So, it's changing.

Then, as we're talking today, between now and early next week, the [Centers for Disease Control and Prevention] is supposed to change the guidelines totally, again. So, it's a moving target. …

I think where it was effective, the justices picked up on that. What they did not pick up on was arguing the science and not arguing that this is a significant threat, because the reality is, and this is the truth, it is true that vaccinated individuals can carry the virus—especially this omicron variant—and can pass it on. But they don't. But the hospitalization rates for people vaccinated are infinitesimal compared to those that get it, the omicron virus, and end up in the hospital, which is like 98% unvaccinated people.

But that's not a workplace issue, which is what OSHA deals with. That is a general population issue that should be handled again by the states. The States pass the mandate. You send your children to school, they have to have vaccines. There's limited exemptions, so that's the way it works. But here it was a federal power grab, an overreach, and I think the court got to it. It just took an awful long time to get there.

Allen: I do want to clarify, we're having this conversation on Friday.

Sekulow: Right.

Allen: Of course, we might know the court's decision by Monday morning, but based on what we saw—

Sekulow: I actually think that—didn't mean to cut you off there—but we could actually see, it's possible, while you and I are talking right now on Friday afternoon, it is very possible that I could be picking up my phone in a minute and finding out a stay has been granted, because one of the things we pushed for was, this is going into effect Monday, at least parts of it are, and it's just not for employers. It's an impossible burden on employees, too. So, they could issue an administrative stay sooner. I didn't mean to cut you off, but that could happen as early as today.

Allen: No, I appreciate you pointing that out. As far as how the justices rule, I know it's tricky business to try and predict what the justices are going to do, but from what we saw on Friday, what do you think? Are there any wild cards in the mix among the justices?

Sekulow: … You gave a disclaimer at the beginning of the broadcast, let me give a disclaimer. The worst oral argument I experienced at the Supreme Court of the United States where it felt like I got beat up for 45 minutes, I won 9-0. The case that I thought, “This was the best oral argument I've ever had,” we lost 6-3. So, I mean, it's very hard. It's very hard to judge.

But in a case like this, with the magnitude of the case and the attention that it has … I would say I'm cautiously optimistic.

Would I be shocked if it went 5-4 or 6-3 in favor of the mandate being outside of statutory or constitutional authority? I would not be shocked. Would I be shocked if it was 5-4 against it, in favor of the mandate? I wouldn't be shocked either. It's really close to tell. I am cautiously optimistic.

It's interesting that the media is … putting out a scenario, and I think it's probably right, that the court was skeptic. By the end of the hour and a half of argument, the court was skeptical.

Allen: I do want to take a few minutes to talk about the difference between the two different cases that the Supreme Court heard on Friday, because we have the one that specifically affects businesses and then there's one that affects health care workers, and the arguments opposing this were really led by two states, Louisiana and Missouri. They argued against the mandate that would require health care workers to be vaccinated.

So, first and foremost, why are these cases separate? I mean, if the Supreme Court rules to put a stay on the mandate for businesses with 100 or more [employees], wouldn't that also apply to health care workers?

Sekulow: Yeah. So, it's because of Medicaid and Medicare, that's federal money going to these state facilities or hospital facilities, the federal government has a different authority that they're asserting to implement a mandate on health care workers that get federal funds.

Now, what's interesting there is, it's a completely different argument and the same media that's saying they think the case that we're involved in is going to go in our favor, they think the case involving the hospitals is not—I didn't challenge the hospital one, by the way, because that was more tailored, and there's arguments on both sides.

But here's the issue, the argument ended up being in that case that here the requirement, the mandate that came down was very specific to a type of employment—hospitals, medical facilities, where the risk is great, as we know.

So, it's a much more, at least the argument is, it's a much more tailored response for the mandate than it was in the, if you've got more than 100 employees, everybody has to do the same thing.

So, it's a different set of laws, a different set of rules, and a different approach, based on the federal funding between Medicare and Medicaid. These hospitals take Medicare and Medicaid, as most every hospital does. … I think that one may be held, I could be proven wrong, but I think that one has a better chance of surviving than the other.

And … there's a different vulnerability, too. I mean, you know, it was an interesting thing, like at the American Center for Law and Justice, the ACLJ, what we did was, as soon as this happened—because we took it very seriously, very quick. We had a number of people that get sick. As I said, I lost my brother to COVID. So, I took this very, very seriously.

We installed in our facilities around the country a very good, thorough filtration system that the NBA and the Major League Baseball adopted in their facilities, because it had good effect on abating some of this. And we've been able to avoid any—I mean, we've had people, obviously, that have had COVID, but we haven't had serious mass outbreaks. We've had cases here and there, but you don't know where the people are getting it from.

But we've been very cautious. We've done social distancing. There's times when we've gone to mask, when it wasn't required by the government.

When we opened in January of this last year, not this January, not the January we're in, but last year, after the December of last year, when COVID numbers were horrible, and this day last year, I think almost 4,000 Americans died from COVID, we came back and decided we were going to do testing. We didn't ask. The government didn't have to tell us to do it.

We decided that before we put our staff in our office in play and open up our offices and studios again, everything was being operated remote for eight months, pretty much, other than very limited for like things like this, where we'd have a minimal crew in.

We put in a testing implementation ourselves, and five people came back positive and we shut the offices for another two weeks. Tested again, and then was OK. We didn't have to have the government tell us to do it, but that's different than a hospital, I have to say.

So, it's a different set of rules at play. It's a different issue, but you know, I wouldn't be surprised if the court kind of splits it, goes against one, in favor of the other, would not be surprising at all.

Allen: Now, as you mentioned earlier, it did seem like at points, the justices were a little bit more focused on talking about the COVID-19 pandemic itself and the emergency of the situation and the sickness instead of maybe focusing a little bit more on the legality. What did you make of that?

Sekulow: Well, I think part of it was, I mean, again, I don't want to be critical of anybody, but I think part of it was that the lawyers were talking a little bit too much about numbers and cases and variants.

I think that got the court just into that, which I think was, and some of your colleagues at Heritage Foundation would agree with, and I agree with them, that it got a little bit too into that and because no one can deny that this is a very serious, unprecedented situation we're dealing with in the United States. I mean, it's around the globe, actually, but of course, here in the United States as well.

So, I think part of it was, leading off that way by the advocates making those statements in the beginning, it does that. They were trying to make this point that this variant, the omicron variant, is in fact transmittable by people that are vaccinated, like me. I mean, I could get it, and I can transmit it.

It leaves the gap though. What it doesn't answer—and this is the really interesting question legally and I think just philosophically, if you want to say that. It's true that I could get it. The chances of me having a serious case of it are infinitesimal, because I am vaccinated and boosted. My colleagues that aren't, if they got it and they had my health underlying conditions, could have a much more serious time or even fatality.

Now, that's true, and I believe that's where it is. However, what does that have to do with the workplace as the workplace? Because what they're worried about there is filling up the hospitals, which is a problem right now with people with COVID, so other things are being postponed. Those are all legitimate things. You just have to have the right vehicle and tools to deal with it.

You can't just say, “OSHA, do it, just a federal agency do it.” It's not even a federal—it's an agency of the federal government doing this. So, it's a very weak, statutory base to do it, and I think weak constitutionally. …

And I think getting into all that was a big, I don't like saying mistakes, but I would just say, I wouldn't have gone there. I would've started with the practicality of the situation, and I would've said, if anything, I was going to say about the situation is, “It's changing as we speak.”

I would've said, “Look, the CDC said before, at 9 o'clock this morning, the CDC said they're going to be revising guidelines. So … we're putting a mandate in place for guidelines that are being reviewed by the CDC, which it should be on a daily basis, to figure out what the best approaches are.”

So, this thing was drafted months ago and is being implemented. If it gets implemented Monday and it's only around for three more months after that, it's just a lot … going into a very short-sighted, I think, response.

Allen: So, then, what are the right questions—

Sekulow: Let me say one other thing.

Allen: Yeah, please.

Sekulow: This does not alleviate my concern that we take this virus very seriously. We really need to. Like I said, I lost a 52-year-old brother who was not vaccinated to COVID and it's serious because his wife and daughter are left and it's a tragic situation. I'm still processing all that from the summer.

But so, it's serious, but that doesn't mean that you just put the constitutional issues on the side and say, “Well, this is serious, so we're not going to apply the Constitution.” You have to apply the Constitution, especially when it's serious.

Allen: Did those constitutional questions come up adequately during arguments? Were the justices, even though they were asking questions about the virus itself and COVID, were they also asking the questions about the legal aspect? Was that avenue fully explored?

Sekulow: Yeah, eventually. It's interesting because the oral arguments now, and I experienced this when I did a couple last year, are different than they were when I argued in the 1980s, '90s, 2000, even 2010, those decades, it was different. We had 30 minutes, and then when that red light went on, it was over.

Now, the way chief justice does this, and he has the authority to do this, the arguments here today went almost four hours. I did one for President [Donald] Trump, a series of three cases we had and we were up for four hours between two lawyers. I mean, it's just, it's just the way it is now.

So, eventually—it's a great question you ask—eventually, they did get to the constitutional statutory issues and I actually think that's where the case is decided, one way or another. But there's four votes or at least three votes. Clearly, I think Justices [Stephen] Breyer, [Sonia] Sotomayor, and [Elena] Kagan clearly would think the mandate's fine. After that, I think we're guessing. Educated guessing, but guessing.

Allen: Sure, sure. So, if there is a stay issued, what happens next?

Sekulow: OK. So, let's say a stay is issued by the time people are viewing this, the stay's in place. So, what that means is, the mandate doesn't go into effect until there's a final disposition by the court.

Now, that could take a week. It could take a month. It could take three months. I mean, you just don't know. It could take two days. Bush v. Gore was decided in basically 48 hours. So, they could write opinions very quickly. I suspect they will here.

So, if there is a stay, it could be an administrative stay. That came up during the oral argument. Administrative stay just means we're not deciding the merits right this minute. Instead, what we're going to do is put a stay of the mandate in place, so people have time to get this thing working and to figure out what to do. That'll give people a little bit of a breather as they're implementing this.

Now, having said that, I think we have to realize … that's totally discretionary with the court, and then ultimately, I think we get a decision. But right now the law is that that mandate's effective, albeit the testing aspect of it has been moved to February 9th, according to the solicitor general.

Allen: So, given your personal expertise of arguing cases before the Supreme Court, is it constitutional? Does OSHA have the constitutional authority to implement a vaccine mandate?

Sekulow: I don't, certainly not this one. I don't believe that OSHA, the Occupational Safety and Health Administration, has the constitutional or statutory authority to do this. I also believe that it's really the states [that] could do this. States have done it.

I mean, private businesses, by the way, can do it. There are private businesses that … if you're not vaccinated, you don't work here, and they have the right to do that. That's not discrimination. The private business has the right to do that. There's usually a religious liberty or there's freedom exemption or a health exemption. Like we have somebody in our office, that if they've got a health issue, that's different.

But I am cautiously optimistic that this will work out. Having said that, if not, the mandate for people that object to the vaccine, I think the testing obligation is real and it's difficult, but they'll have to comply. …

People have asked me this all day today: “If the Supreme Court rules against our position, what happens?” I said, “Well, that's the law of the land and you've got to comply.” … I'm cautiously optimistic that's that's not going to happen. But you know, we, like I said, we'll know, we can know any moment.

Allen: Well, Mr. Sekulow, you have your own podcast and radio show called the “Sekulow Radio Show,” and I want to give our listeners an opportunity just to hear a little bit about that from you. You have been giving constant updates on this case and really informing your listeners what is at stake here. So, tell us a little bit about how we can be following your work as you continue to be reporting on this case.

Sekulow: Yeah. Well, I appreciate that. So, we've had a radio broadcast since 1997 that's on, oh, just about every, most conservative talk radio and Christian talk radio in the country. You can go to aclj.org and get all kinds of information. Of course, you can download. You can listen to it on podcast, wherever you get podcasts; Facebook, YouTube, Rumble, whatever social media, we broadcast a video version of it every day.

We had to do it remote today. I'm actually not in my office because we had at our facilities, we had 7 inches of snow, which in where I live, that shuts everything down. Now in Washington, it would only be for a couple of days, but here it's like a shutdown for a while. But we did it remote. But, at aclj.org, there's a lot of information. We've been doing this since 1987, so a long time.

We've got a great group. I know you're a region graduate. We have a great group of region graduates that are the emerging real leaders now of the next generation leadership of our organization, both here in the United States and around the globe.

So, a lot of issues here and it really has been an honor to represent—I've been a fan of The Heritage Foundation. We've worked together for many, many decades on legislation, all kinds of issues. But to represent Heritage in court, first time Heritage went to court on anything, and to have Heritage leadership select the ACLJ was an honor. We were honored to represent you-all, and it's just a historic moment for all of us. Hopefully, we'll get a good decision. I think I'm, like I said, I'm going to go into the weekend cautiously optimistic.

Allen: Yeah, absolutely. I think we all are.

Sekulow: Yeah.

Allen: I'm going to be following this closely, but Jay, thank you for your time.

Sekulow: Thank you.

Allen: Thank you for work on this critical issue. Like you say, this is a big moment in American history.

Sekulow: Yeah, it is. Yeah.

Allen: So, we really, we really appreciate your time. Thank you so much.

Sekulow: Thanks for having me.

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