Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA’s Vaccine Mandate for Private Employers

November 8, 2021 By Jacob Sullum Leave a Comment

The U.S. Court of Appeals for the 5th Circuit yesterday stayed the Biden administration’s brand-new COVID-19 vaccine mandate for private employers, which took effect on Friday, when it was published in the Federal Register. The appeals court said the arguments made by the petitioners—a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems—”give cause to believe there are grave statutory and constitutional issues with the Mandate.”

The vaccine rule, which was announced in early September but was not unveiled until last Thursday, gives businesses with 100 or more employees two options: They can adopt a “mandatory vaccination policy” with limited exceptions, or they can require unvaccinated employees to wear face masks and undergo weekly COVID-19 testing. The White House described the mandate as part of a broader effort to boost the nationwide vaccination rate. The aim, it said, is to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”

But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily state responsibilities. The administration therefore presented the vaccine mandate as an “emergency temporary standard” (ETS) issued by the Occupational Safety and Health Administration (OSHA), which is charged specifically with protecting employees from workplace hazards. As the 5th Circuit indicated, that legal strategy leaves the mandate open to challenge on both statutory and constitutional grounds.

The plaintiffs in BST Holdings v. OSHA, who are represented by the Chicago-based Liberty Justice Center and Louisiana’s Pelican Institute for Public Policy, argue that the ETS exceeds the agency’s authority under the Occupational Safety and Health Act. Even if it didn’t, they say, empowering OSHA to issue such a sweeping order would exceed the federal government’s power to regulate interstate commerce and violate the nondelegation doctrine, which constrains lawmaking by executive agencies.

Click here to read the full article at Reason.com

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Giving Thanks for Freedom

November 23, 2017 By Orange County Register Editorial Leave a Comment

ThanksgivingToday most Americans will gather for a celebration that has become an American tradition that is very much worthy of extension.

Most of us experience more blessings than tribulation, especially in this country, and it is appropriate to give thanks for them (indeed, many traditions exhort us to give thanks for hard times as well), whether to God — as did the Pilgrims at Plimouth Plantation back in 1621 — or to whatever entity seems appropriate.

It’s interesting to remember, though, that however pleasant are the customs that have grown up around Thanksgiving, they bear little resemblance to what probably happened back in 1621.

Americans today typically gather considerable portions of their families together, eat turkey with all the trimmings, then, loaded with tryptophans, settle back to watch football or catch up on family news, and fall blissfully asleep. Some go for “gentle” Thanksgivings that don’t involve “murdering” turkeys. Some may go to church. Most spend at least a few moments thinking about the people and events for which they have reason to be thankful.

Food is important here, but the chief benefit is the gathering together.

Our modern customs were pioneered by one Sara Josepha Hale, editor of the popular Godey’s Lady’s Book in the 1850s. She filled her magazine with recipes and sometimes fanciful tales of the Pilgrims, and she convinced President Lincoln, in 1863, to declare Thanksgiving a national holiday.

The Massachusetts settlers almost certainly didn’t eat turkey or potatoes of any kind. They had cranberries but no sugar. Pumpkin pies were unlikely in the absence of butter and flour. But two accounts remain of a three-day gathering, attended by 52 settlers and some 90 Wampanoag Indians. It is unclear, but unlikely, if it became an annual celebration until many years later.

Beyond mere survival, there wasn’t much to be thankful for in 1621. Beyond the birds shot by a hunting party, food was hardly plentiful. And thereby hangs a cautionary tale about social organization.

When they first arrived in Massachusetts, the Pilgrims operated on a “from each according to his ability, to each according to his needs” basis. According to Gov. William Bradford’s later account, “all profits and benefits that are got by trade, working, fishing, or any other means” were placed in a common stock, from which each member of the colony could draw whatever he or she required. Not surprisingly, some colonists preferred to be layabouts.

After the scant harvest of 1622, wrote Bradford, “they began to think how they might raise as much corn as they could, to obtain a better crop.”

The remedy was to give each household a parcel of land and the freedom to raise as much as they wanted, keep what they needed, and trade it away as they saw fit.

Once that system was established, “any want or famine hath not been amongst them since this day.”

Whether you want to think on the shortcomings of a primitive form of socialism, give thanks for the blessings of your life or simply enjoy time with friends and family, we wish you and yours a cheerful and prosperous Thanksgiving.

Editor’s note: This editorial first appeared in the Orange County Register Nov. 23, 2006.

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Independence Day about natural rights, not privileges bestowed by politicians

July 4, 2017 By Orange County Register Editorial Board 3 Comments

Photo courtesy Fabi Fliervoet, flickr

Photo courtesy Fabi Fliervoet, flickr

On July Fourth, Americans celebrate the ideals of the Declaration of Independence — life, liberty and the pursuit of happiness. But these three principles aside, we often forget the underlying, truly radical ideas the Declaration is built upon.

The Fourth of July isn’t just about feel-good words and ideas that politicians invoke to gain the “consent of the governed.” Independence Day is about the freedom and duty of citizens to assert our natural rights — rights that are ours because we are human beings, not privileges bestowed upon us by the authorities.

It’s easy to forget that radical notion, that governments derive “their just powers from the consent of the governed.” The Declaration also warned that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government.”

The Declaration was a call to revolution against a regime that repeatedly violated these core rights. Modern politicians and, perhaps, even most Americans are confused about the concept of rights. They believe that “positive” rights — such as the “right” to health care or education — are of the same kind as those “negative” rights — essentially, the right to be left alone — defended by the American founders.

For instance, the right to free speech is the classic negative right that the founders sought to uphold. We, as Americans, have a right to air our grievances and criticize our government. While we can huff and puff endlessly about unchecked government power, not unless we air our grievances in the public sphere can we expect any satisfactory resolution or redress. We fail as citizens when we passively allow government to abridge our rights, restrict our freedom or inhibit our pursuit of happiness.

In our euphoric celebrations, we may forget that the Fourth isn’t about guaranteeing our happiness. The government’s purpose, rather, is to ensure that we have the opportunity and ability to pursue whatever form of happiness we choose, as long as we do not violate another citizen’s rights.

Nor is the Fourth about assuring equality. To the founders, freedom — not equality — was the crux of independence. The idea of equality was peripheral and only received a six-word blurb in the Declaration: “that all men are created equal.” By equal, the founders meant that we are equal before the law, not equal in our talents and material blessings.

Nineteenth-century French political philosopher Alexis de Tocqueville posed freedom and equality in opposition to one another, predicting that Americans’ love for equality would ultimately undermine and eclipse their freedom. That, unfortunately, was among Tocqueville’s many prescient observations.

Similarly, the Fourth isn’t about the triumph of democracy. To the founders, democratic government could be just as damaging as monarchies to individual rights. Just because we elect our leaders doesn’t make them less likely to trample on our natural rights. Freedom is best protected through limits on governments, the rule of law and the separation of powers.

Ponder that as the barbecues blaze, and the fireworks fill the air.

This editorial originally appeared in the Orange County Register on July 4, 2008.

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New smoking age to take effect in California

June 9, 2016 By Alicia Chang Leave a Comment

As reported by the Associated Press:

Andrew Rodriguez was 15 years old when he smoked his first cigarette. He knows how addictive smoking can be and hopes a new California law raising the smoking age will discourage young people from taking up the habit.

“I think it’s better,” said the 21-year-old chef-in-training from Los Angeles. “I just hope they don’t raise the drinking age.”

Beginning Thursday, smokers have to be at least 21 to buy tobacco products in California. The nation’s most populous state joins Hawaii and more than 100 municipalities in raising the legal smoking age from 18 to 21. Anyone who sells or gives tobacco to people under 21 could be found guilty of a misdemeanor crime.

Huthyfa Ali, a convenience store clerk near downtown Los Angeles, doesn’t expect the new rule to affect business since he doesn’t serve many teenage customers. Ali applauded the effort to deter minors from using tobacco products, but noted that determined youngsters tend to find a way around the law.

“Sometimes they send other people to buy for them. Maybe some people will be too scared to ask” under the new law, he said.

The push to raise the minimum smoking age in California stalled for months over …

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A Pattern for Revolt is better than a revolting pattern

May 13, 2016 By Gary Galles Leave a Comment

2016 has already given Americans a truly unique presidential campaign, with more almost assuredly to come. Many have claimed to be revolted by it, for reasons ranging from obvious absence of decorum to apparent policy dementia. Sadly, though, attention soon leaves why we should be revolted, and what might hold out the promise of real improvement, to the latest political dirt and horse-race questions.

Pattern of RevoltA very instructive means to turn back toward such more impactful questions is easily available, however. It can be found in Leonard Read’s 1948 Pattern for Revolt. In striking contrast to what we are now witnessing, in which, except for occasional boilerplate obeisance to freedom, no one now proposes anything remotely near it, it offers examples of campaign statements that a true lover of liberty might offer, following Thoreau’s advice to “Let every man make known what kind of government would command his respect…[as] one step toward attaining it.”

Pattern for Revolt has been described as “strong meat, probably too strong for stomachs that have long fed on government pap and can’t imagine how they can get along without it.” Yet while it would be panned by panderers who love power far better than liberty, it is well worth reading for anyone “who loves liberty better than power.”

The all-authoritarian state marches on…not only unhampered and unchecked, but aided and abetted by an ever-increasing number of gravy-trained citizens.

The people [have] no choice except between power-seeking personalities and groups, each offering a superior administration of government-as-master. Such a choice…is no choice at all.

Party leaders…are asking today “What must we say and do to win votes?”…a truly liberal party…would have been asking “How can we liberate the individual from the tyranny of the State?”

The mere changing of parties or personalities is not important. The transfer of power…is important only if the ascending party has principles which it is important to substitute for the principles of the party in power.

Not only will [an] office-seeker resort to expediency to attain office, but…A man who seeks and secures public office…will try to make it a bigger and more powerful office. Government should not be so expanded…Men in government, therefore, should be those who aim at making government as unnecessary as possible. Contraction, not expansion, should be the aim.

Freedom is an assertion of man’s God-given free will, a resurrection of man from deadening arbitrary authority…The principles which brought America to the greatest heights of freedom yet known on earth are easily forgotten…[but] what will our collectivistic opponents be able to do in extending their authority over the people if the people subscribe to the principle of liberty?

Our assignment is to cultivate an understanding of freedom—in ourselves and in others.

In every field where arbitrary authority is imposed we shall inquire how it may be removed and replaced by a reliance on the initiative and enterprise of individual citizens. We must give to the art of self-government its American renaissance… We need patriots who will stand against wrong even though they cannot see the time when right will triumph.

As liberals and individualists…we do not want to be led…we do not want to “lead” by force…The only way to guard freedom is to remove, to destroy, unwarranted restrictions and coercion.

There was [once] a general acceptance of the idea that governments should have only limited powers and functions…Today, however…Opponents of freedom… have pre-empted the language of freedom so extensively that we how attempt to speak on behalf of freedom now find it difficult to convey our meaning.

Our plunderstorm economy is a matter of common knowledge…The first reason is a deep-rooted conviction on the part of millions that they have, by reason of their existence on this earth, a right to share in the property of others. The idea that this is a wholly immoral notion has never occurred to most of them.

The result is this group-thirst for political plunder…there is no cure at all except to re-establish in the minds of people the normal boundaries of personal right. The present situation calls for an understanding of where personal rights end and infringement on the rights of others begins.

In the hope of plundering more from others than others succeed in plundering from us, we have voted away the inestimable benefits for which government and law were originally instituted.

We founded our government…on the premise that the individual citizen has certain inalienable rights and that government and law should protect those rights …While it is perfectly obvious that we should restore government and law to their proper functions, limit them as we originally intended they should be limited, it is equally obvious that this is not impossible until false ideas are removed…As long as people entertain these false ideas about rights and property, so long will they seek their fulfillment though government and the law…The choice is only one of going on with the filthy business or getting out of it entirely.

In a variety of ways this nation has legalized plunder…we seek prosperity by the fruitless process of picking each others’ pockets.

Coercion is my first objection…No man has ever lived who has been big enough or competent enough to apply it, justly and wisely, to any responsible adult person, arbitrarily…Tyranny is only arbitrary coercion carried to its logical consequence.

Using governmental coercion to protect your goods from a thief is proper. Using it to protect a thief in the taking of your goods is improper. It makes no difference whether the thief be a thug or a legally recognized pressure group, using the democratic process.

Given freedom of opportunity, protection from fraud, violence and predation and a dependence for our welfare on our own initiative, we can and will look out for ourselves better than will any other person or any government agency.

[Government’s] failure…was their guarantee to meet “human needs” and their inability to meet the ever-growing demands and impossible responsibilities to which they thus exposed themselves.

The real reasons for most of the…recent distress inhere in the suppressions of liberty, in the sabotaging, wittingly or unwittingly, of the free competitive economy, which alone produces general prosperity. Re-establishing a free economy is the only road to progress…Free enterprise can be re-established only by the repeal of those laws, rules and regulations which impede it. I stand for their destruction.

I am a spokesman for the philosophy of government which is an American heritage… Nowhere else have men so successfully escaped from arbitrary authority…This American philosophy of government is premised on our countrymen being free men. This is what our birth as human beings gives us a right to be; that is what we ought to be; it is the object to which our Constitution commits us—all of us.

I do not desire to reorganize the lives of other people under the pretext of doing them good…It is now time to turn your hopes from this place on the Potomac as a source of livelihood. It is the most unproductive spot in these United States…May your federal government no longer be condemned for what it plunders from some. And may it never have applause because of the loot it bestows on others.

In a day-and–night contrast with our modern political cacophony of promises to violate moral principles and other people’s property on an indescribable scale, Leonard Read recognized that “Nothing is in our nation’s capital except that which is taken from individuals.” His Pattern for Revolt, though written long ago, offers both a bracing reminder of what has been lost and motivation to reclaim it. It merits attention from anyone who, “If given the opportunity…would revolt against all of those political devices and ideas incidental to government in the role of master.”

Gary M. Galles is a professor of economics at Pepperdine University and research fellow with the Independent Institute. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).

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