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As owners of small businesses attempt to recover from the pandemic, vaccine mandates from the Biden administration threaten to ruin them, Job Creators Network CEO Alfredo Ortiz says.
Small businesses around the country are attempting to bounce back from the devastating effects of the pandemic. But vaccine mandates imposed by the Biden administration, critics say, threaten to crater the progress made by small companies just as they’re starting to get back on their feet.
Alfredo Ortiz is president and CEO of Job Creators Network, an organization representing small businesses that is suing the Biden administration over its vaccine mandates.
“[Small businesses] were the ones that really particularly got hit hard,” Ortiz says. “[W]hen we all look back now, it looks like big businesses just continue to get bigger, but our small businesses just really suffered.”
“Whether it was mandate regulations in terms of the masks, whether it was seating arrangements, capacity, I mean, you name it. They were just getting hit hard left and right,” he says.
Ortiz joins “The Daily Signal Podcast” to talk about that lawsuit and the impact of government policies on small businesses.
We also cover these stories:
- Attorney General Merrick Garland orders investigations into criminal conduct at school board meetings.
- Prominent Republicans, including Sen. Josh Hawley from Missouri and Florida Gov. Ron DeSantis, criticize the Department of Justice’s investigation.
- Facebook whistleblower Frances Haugen testifies before a Senate subcommittee on how the company is putting its profits before users.
Listen to the podcast below or read the lightly edited transcript.
Doug Blair: Our guest today is Alfredo Ortiz, president and CEO at Job Creators Network, a nonpartisan organization that advocates for pro-small business policies. Alfredo, thank you so much for joining us today.
Alfredo Ortiz: Thank you for having me.
Blair: Of course. So, the Job Creators Network recently announced that they are going to be suing the Biden administration over proposed vaccine mandates that are going to be imposed on businesses with 100 employees or more. Could you go into a little more detail about the lawsuit and what caused you to file it?
Ortiz: Sure. Well, first of all, again, thank you for having me. I think one of the things, when you think about … small businesses, especially under the COVID regime and what was happening or the Biden administration, they have really had a real tough go at it. They were the ones that really particularly got hit hard.
I think, when we all look back now, it looks like big businesses just continue to get bigger, but our small businesses just really suffered—whether it was mandate regulations in terms of the mask, whether it was seating arrangements, capacity, I mean, you name it. They were just getting hit hard left and right.
So, one of the things, once this mandate came out, we were like, this is absolute government overreach. First of all, we just don’t believe that [the Occupational Safety and Health Administration] has the regulatory authority to do that, first and foremost. We believe actually Congress would, if they could pass a law for it, which, again, I don’t think would happen because they won’t ever get the 60 votes that they need to get it done.
But when you looked at the impact it was going to have on small businesses—again, already suffering from labor shortages, for example, inflation costs—this was going to be an additional hit for them, because all those companies that have employees over 100, guess what? A lot of those are in really pretty successful states right now.
In many cases, for example, one of our stops that we’re doing, because we’re doing a national bus tour, was in Missouri, for example. And this company had 160 people, it is a steel production company. And they said, “Look, we have a 2% unemployment rate here.”
You know how easy it would be for these guys who don’t want the vaccine—which by the way, was about 40% of their workforce, don’t want to do it and would refuse to do it. They said they’ll just go find another person to employ them, which would be very easy for them to do. And we’re going to lose our skilled workforce. This is a major impact to them. And so, we just really firmly believe that that kind government overreach was just ridiculous.
And let me be really clear, we’re not anti-vaxxers. We actually encourage Americans to get the vaccine. We do think it’s a good thing. I personally am vaccinated, several of my staff are vaccinated, but several aren’t. We encourage it, but we’re not going to force them to do it or threaten them with the idea of firing them.
The idea of also incurring a fee for the employers if they don’t actually comply is another, we just believe, ridiculous aspect of this.
Overall though, we also believe that the Biden administration is just being deceitful and dishonest with the American public, because they talk about [how] this mandate is for our largest employers of this country. Well, I’m sorry, but when I hear “largest employers,” I’m thinking Delta, Coca-Cola, IBM, you name it. I’m not thinking Joe’s Manufacturing, Midwest, that has 125 people as some of our largest employers in this country.
So, I think they’re trying to position it so that it sounds like it’s really hitting the large companies, but when the SBA itself, the Small Business Administration, has a definition of 500 or less as a small business, when you’re hitting 100 or more, guess what? The majority of those people you actually are going to be hitting are small businesses.
Blair: Right. It sounds like a lot of people consider the small business to be mom and pop shops, but 101 employees definitely would be considered a small business. And it is slightly over that line.
You went into a little bit of detail about some of the consequences that this vaccine mandate might impose on small businesses, like a mom and pop shop or Joe’s Manufacturing in the Midwest. But is this affecting these small businesses probably more than a larger business? Or what are some of the consequences that affect smaller businesses, as opposed to the larger ones?
Ortiz: Yeah. Well, obviously, because of the way it looks like it’s being written out, or will be written out, it’s 100 or more. Right? A lot of businesses have about 50 or less, roughly, of the small businesses. But we’re still talking, probably, a good 30% to 40% of the small businesses that would actually fall in that category.
So when you think about it, we’re still talking millions and millions of small businesses that employ tens of millions of people and forcing them with that kind of mandate, again, we just don’t believe makes sense. And really, the mandate in terms of the heftiness of that regulation on them versus a large company, it’s very, very lopsided.
Look, just go back to the Dodd-Frank years and what happened there under all that banking regulation. Right? I mean, what ended up happening? The big banks didn’t get smaller or go out of business, they got bigger.
And what happened to our smallest community banks that served all the local communities? Over 2,000 community banks across the country, many in minority population areas, went out of business.
Because look, they can’t afford that kind of regulation, because if they hire one or two lawyers to comply, the same as a large company, as a percentage of their cost of doing business, that’s a heck of a lot more for a small business than it is for a large business.
So, again, we just believe this is yet another indication of just how clueless the Biden administration is when it comes to small businesses and how they honestly just don’t really care. I mean, we’ve gone through every single policy that the Biden administration has put forth so far. We can’t find one that actually is intended to help small businesses.
Now, I got challenged a little bit on that. Somebody goes, “Oh, wait a minute. The Paycheck Protection Program renewal.” I’m like, OK, it’s the renewal of a program that came out from the Trump administration.
So this isn’t a Biden administration initiative and quite frankly, all that work and all the votes and everything was already being done before Biden took office. And so this was really just kind of a carryover from the Trump administration.
So we really can’t find a single policy that is there to, and intended to, help small business.
Blair: That’s just so crazy. Now, one of the things that I’m very curious about is, in the course of this lawsuit, in the course of your bus tours, you must have spoken with some small business owners that would have fears and concerns about what this vaccine mandate could mean for their business. Could you share with our listeners some of the things they’re saying?
Ortiz: Well, again, pinning it back in on the labor shortage idea, that’s where their biggest concern is. That a lot of these areas, unemployment rates are really low. And this is a job-seekers market. Even when you think of the unemployment, when you have two jobs available for every unemployed person, this is a really pretty healthy market, from a job perspective.
So that’s one of their big against fears, is they are just going to have people that go looking for a company that has less than 100 employees, that isn’t forced to do this mandate, and they’re going to lose their skilled workforce. And so that’s a big, big part of that.
And of course, the compliance cost is another aspect of it, but when you combine it with everything else … they’re feeling the crushing arm of government on their businesses. And so it really is now becoming the collective kind of death by 1,000 cuts, which was really what was happening under the Obama administration, which they complained about.
Remember, there was a period under the Obama administration where more businesses were closing than were actually opening. I called it negative entrepreneurialism, basically. But that’s what was happening, right?
So I wouldn’t be surprised if you start seeing more people get out of their businesses, start selling their businesses, just saying, “We just can’t take this kind of regulation. We’re really concerned about the tax.” We’ll have a chance to talk about that, but the new taxes are going to be hitting these small businesses in terms of recalling some of what happened under the Tax Cuts and Jobs Act. That’s another big concern of theirs, and of ours, as well.
Blair: I’m also curious if you were able to speak with them maybe about some of the mask mandates and social distancing mandates. I recall, near the beginning of the pandemic, a lot of restaurants were unable to survive due to the pretty onerous restrictions inserted on requirements between spacing between tables and [personal protective equipment]. Did they in any way, shape, or form indicate that that was still an issue? How did those [mandates] affect those small businesses?
Ortiz: I would probably say, initially, that was a big issue for a lot of companies. The amazing thing about small business owners and entrepreneurs is they tend to figure things out and they try to do, not workarounds, but they try to just figure out how to make things work. And I think in that particular case, they have found ways of making it work. It has impacted, especially restaurants, for example.
Now that … a lot of these mask mandates have freed up and a lot of the regulations have freed up, [it’s] not as big of an issue, of course, but it definitely was at the beginning. I mean, I think the numbers that I’m seeing still for New York City, for example, though, restaurants closed by the end of the year in the city itself, I’m seeing the number to be as high as 65% of the actual restaurants—
Ortiz: … in New York City will close by year-end because they just couldn’t survive.
Ortiz: Right? When you have fixed overheads—and this is, again, what folks didn’t understand—when you have fixed overheads, if you give people 20% capacity allowances, it doesn’t even make sense to stay open. Right? So they had, literally, no true way of getting cash flow in.
The Paycheck Protection Program was a huge, huge benefit for a lot of these companies. As you know, there was the Restaurant Revitalization Fund that was out there. But then for some reason, somebody decided that it was great just to isolate it to black business owners, black restaurant owners, which makes no sense whatsoever. I mean, they are hurt just as equally as whites, as Asians, as Hispanics. We needed to have that open to any small business owner.
And that’s the one thing, if I can also say, I mean, our advocacy work isn’t just focused on Republican small business owners, for example, or conservative small business owners.
If you’re Republican, independent, Democrat, black, yellow, white, green, blue, I don’t really care, we’re going to advocate for you, because really, we need that advocacy work for our small businesses across the country. They’re really the life of our communities. They’re the heartbeat of our communities and collectively, the heartbeat of our country. And so without small businesses, we don’t have a country.
Blair: Right. You mentioned a little bit, at the beginning, that small businesses were starting to recover from these COVID restrictions. And then, things like we were discussing before the show started, the idea that we’re going to charge $70,000, $700,000 in a new fine scheme to mandate COVID vaccines. Did we find that these economic issues that were being caused by COVID were more COVID-related or did we find that they were actually more government mandate-related?
Ortiz: Well, I mean, you just have to compare the red states versus the blue states, probably, to answer that question. The same COVID existed across the country. It wasn’t like there were two different types of COVIDs, one in blue states, one in the red states. Red state governors seemed to have figured out how to be able to balance public health with the health of their economy, versus the blue states.
I still believe the numbers look like unemployment rates are double in blue states as they are in the red states, that’s because they were able to balance. Obviously, famously, we know what Florida’s done [and] Georgia, Texas in terms of finding that right balance of public health and, again, the health of their businesses. You can’t have one without the other.
If all of our small businesses, for example, die because of government regulations, well, guess what? Then people are out of work.
And let’s take a look at mental health now in this country, caused by a lot of that. Suicide rates are at the highest levels they’ve probably ever been. Prescriptions for anti-anxiety and depression medicines are at the highest levels. I mean, now we’ve got a mental health crisis caused by a lot of [those] government mandates.
So, a lot of those issues were COVID, but I think that they were also man-made in the sense that they came because of government overreach and government overregulation. Again, I think the Democrats, in particular, love crises and they like capitalizing on a crisis. And I think we saw that happen.
Blair: The famous phrase “Never let a good crisis go waste” comes to mind.
In terms of other crises and other things that are affecting our economic health as Americans, I wanted to talk to you a little bit about inflation. It’s been in the news quite a bit recently that inflation is at levels that are relatively unprecedented throughout our history. Could you go into a little detail about maybe what some of the root causes of this current inflation crisis are?
Ortiz: Sure, sure. Well, I mean, obviously, a lot of it was caused, you know, coming from COVID, supply chain issues are a real, real issue. Some of it caused because of trade imbalances between China and stuff like that. But I think a lot of it is also because of the labor shortage caused by some of the unemployment benefits and the extra unemployment benefits that are put out there.
Truckers, for example, they’re in record demand, you can’t find truckers right now, which means that the trucks are sitting there. And if trucks are sitting there, guess what’s not moving? Goods and services. Right? Or goods, in particular, they’re still sitting at the ports. So this is a major issue for a lot of these small businesses and just businesses in general, from an economy standpoint.
But the Biden inflation that we’re experiencing here is real. We called it out very early on. We called it Jimmy Carter 2.0 because a lot of the things that were under the Carter administration are really starting to come again full circle under the Biden administration. So we’re very concerned about that.
And it’s funny because, if you just think of two months ago, three months ago, you had Jerome Powell saying, “This is just a transitory inflation.” … Guess what he just said yesterday? “Well, maybe it’s going to be here a little bit longer.” Well, no crap. I mean, when you’re spending $9, $10, $11 trillion on the economy, dumping money and printing money that the government doesn’t have, I think we’re going to be at a $32 trillion debt—I mean, it’s just ridiculous, right?
Ortiz: And so, when you spend that kind of money, there’s no doubt that you’re going to have inflation. I actually believe inflation may hit as high as 9% to 10% by year-end.
Blair: Oh my. Well, let’s hope not.
Blair: But as economically not super-advanced as I am, I do know one thing: I think the common knowledge is that when you are in a period of heavy inflation, you shouldn’t just spend money recklessly, which appears to be what the current congressional Democratic plan for a $3.5 trillion spending package would be. I’m just curious, what is in this package that could just boost the price tag to that point?
Ortiz: Yeah. Well, first, let me back up too and say this: The Democrats, no surprise, chose [Treasury Secretary Janet] Yellen for a reason … because she was a firm believer in this idea of modern monetary theory, which is basically, you don’t have to worry about debt and deficits. You can go ahead and spend on social programs, and you don’t have to really worry about debt and deficits.
And this is really the mentality, a lot of it led by the progressives on the left, [Rep. Alexandria Ocasio-Cortez], for example, being one of those. But, it’s that embracing of that philosophy, from an economic theory that’s completely flawed, first of all. Of course, you’re going to have inflation. You’re already seeing the 10-year Treasury yields are already over 1.5 points already, and they will continue to rise because, again, inflation is going to keep on going.
But when you look at the spending bill now that’s on the table, which is not only $3.5 trillion—I mean, let’s be very clear about that. They have accounting gimmicks that are making that, the $3.5 trillion.
They have things that are sunsetting at the seven-year mark, for example, social programs. I mean, I’m sorry, list to me, tell me one social program in this country that was passed that seven years later is just going to be recalled. It’s not going to happen, right? These are programs that would be put there forever, social spending programs, like free community college, pre-K tuition paid for. I mean, you’re never going to pull those back. So the price tag is really something more like $5.5 trillion.
But again, when you look at this, very little of that bill is spent on anything related to infrastructure, building our country back. I mean, these are truly what I call “the Christmas tree list of the socialists.” Climate change being a big one of them that is driving that price tag.
And again, thank goodness there’s at least one adult, maybe two adults, in the room—[Sen. Joe] Manchin, of course, being one of them, but then [Sen.] Kyrsten Sinema, out in Arizona—that are acting as adults and saying, “This is going to hurt our country. It’s not going to help it. And we don’t really need this right now.”
I mean, that’s the biggest problem, is, we don’t need it. They’re just taking the opportunity, while they control all the purse strings, to get it done. Not because of a need, but it’s because of something they’ve always wanted to get done.
Blair: Right. Now, the common refrain amongst the radical left here is that you just tax the rich, of course, to pay for these programs. I mean, that doesn’t work, right?
Ortiz: No, of course not. I mean, you could tax 100%, the top 1% at 100%, and it’s a fraction of what’s needed. And those are, supposedly, the rich.
[President Joe] Biden said, “Don’t worry, we’re not going to tax anybody under $400,000.” Well, we know that’s not going to be true either, because all taxes roll downhill, first and foremost.
And you saw the White House press secretary say that, “We are very upset with this idea that corporations are saying that they’re just going to pass these taxes onto Americans. We think that’s just not right.” Well, that is the way the economy actually works. And if they actually ran a business at any point in time, you actually realize that you’re not running it as a Goodwill business, right? It’s a for-profit business.
And only the government thinks that way, right? Because only the government doesn’t have to worry about their spending. I ran two small businesses. Guess what? If I was paying out more than I was paying in, I’m out of business, period.
It’s not an issue of not being a good citizen. It’s just an issue of basic economics, dollars and cents. And unfortunately, these guys don’t understand that. So, this idea of taxing the rich, it’s just the most ridiculous thing. It’s really taxing success.
Again, I mentioned, I had two small businesses myself, and I have to tell you, I don’t think I would have taken the chance on it if I thought I was going to be capped on my success.
If you think about it, if you’re willing to put everything on the line for an idea that you have, which is, first of all, the beauty of this country is that you can do that. But, if you’re willing to mortgage your house, you’re taking lines of credit out, you’re taking cash advances on your credit card, because you have an idea and you believe in it, and you believe in yourself, and you want to pursue it, shouldn’t you have unlimited upside … if you’re willing to do that, something that not many people are willing to do? Right?
But if you didn’t have those entrepreneurs—I mean, last time I checked, Microsoft started off as a small business. Apple started off as a small business. Right? Any large business out there starts off as a small business. So if we don’t allow people to have that idea that they can have unlimited success if they believe in themselves and believe in our country, and that this country will help them succeed, no one’s going to take the chance anymore and we’re not going to have an America that we believe in anymore.
Blair: Absolutely. Well, Alfredo, we are running a little bit low on time, but I wanted to get your perspective on one last question. It seems like we’ve discussed that there is economic turmoil in the United States right now, that American’s economic health is not where it needs to be. What are some policies that we could maybe put on the table to get things back on track?
Ortiz: Well, helping small businesses would be one of the best things you can do. We know that just pre-COVID, two-thirds of new job growth was in the hands of small business. So we know how important small businesses are. So policies that will really help small businesses, I think, will be a big, big step in the right direction.
Really understand that you do have to worry about debt and deficits, I think, is a really, really important step. And look, in this particular case, Republicans probably, may be just as guilty, maybe not quite as guilty, but are also guilty in part of this process of spending more than we can make. I’ve always said, why not have kind of zero-base budgeting and make that part of an amendment where we actually really have to worry about that and really have to think through all the spending that we have?
I’m sure you do this—you’ve got a checkbook, I’ve got a checkbook. I don’t write checks more than what I have in my checking account. Right? I mean … it’s that simple. And you can only take out so much credit before you can’t pay for it.
So, I think that’s another just smart thing to do for our country and as for policy. And then, social programs are great. There are people that need help. But I think, when you look at the laundry list of things that the Democrats are putting out right now, we should really go through, and think through, which one of those are really, really necessary.
Right now, we have probably one of the most polarized political systems I’ve seen in my lifetime. And it sure would be nice if we can get to the point where we can sit down at a table and, as a collective body, think through what’s really in the best interest of this country to move it forward. Unfortunately, people are just so polarized right now that it’s hard to do that.
Those are my quick thoughts.
Blair: That’s good. Well, I don’t want to let people go before they know a little bit more about you. So if they want to learn more about what you guys are doing, the lawsuit, some of your policies that might help small businesses, where should they go?
Ortiz: Pretty easy: jobcreatorsnetwork.com. And if they’re interested in what we’re doing, it’s even easier, it’s joinjcn.com. I think folks will love what we’re doing, whether you’re a small business owner, whether you’re an employee of a small business owner, or you just like supporting small businesses, we encourage people to do that. We’ve got a growing, growing membership base, and it seems to be with every day that the Biden administration does something kind of dumb, which seems to be every day, our base keeps growing. So we’re excited about that. And we would love for more and more people to listen to this message.
Blair: Awesome. Well, I’m very glad to have you on the show and I’m glad that you guys are doing well.
Ortiz: Great. Thank you.
Blair: That was Alfredo Ortiz, president and CEO at Job Creators Network, a nonpartisan organization that advocates for pro-small business policies. Alfredo, thanks again for joining us on the show.
Ortiz: Great. Thank you so much.
Judge allows New York health care workers to seek religious exemptions to COVID-19 vaccine
The ruling only grants short-term relief as the lawsuit makes it through the court system.
New York health care workers can continue seeking religious exemptions to the state’s COVID-19 vaccine mandate, following a federal judge’s ruling Tuesday.
According to The Hill, Judge David Hurd issued a temporary injunction barring New York from enforcing its vaccine mandate that prohibits religious exemptions for health care workers.
Hurd previously issued a preliminary restraining order against the state after 17 medical professionals sued New York, claiming the mandate violated their constitutional rights.
The recent ruling only grants short-term relief as the lawsuit makes it through the court system.
According to the Associated Press, Hurd’s decision also prevents the state from revoking previously granted religious exemptions.
In the ruling, Hurd alluded to the potential success of the lawsuit, saying the vaccine mandate “conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers.”
Despite the court’s ruling, New York Gov. Kathy Hochul plans on challenging the judge’s decision, and remains confident that this type of vaccine mandate is necessary for people working in health care.
“My responsibility as governor is to protect the people of this state, and requiring health care workers to get vaccinated accomplishes that,” Hochul said in a statement. “I stand behind this mandate, and I will fight this decision in court to keep New Yorkers safe.”
Currently, about 64% of the entire state of New York is vaccinated against COVID-19.
COVID-19 vaccine mandate challenges falter as judges shrug at natural immunity evidence
Judge ignores “battle of the experts,” finds that mandate opponents must prove rule “is not rationally related to a legitimate government interest.”
Legal challenges to COVID-19 vaccine mandates on the basis of natural immunity are faltering, even as more research shows the comparable durability of the protection that natural antibodies afford against infection.
U.S. District Judge Paul Maloney denied a preliminary injunction Friday against Michigan State University’s mandate, citing an order last month that left in place the University of California’s mandate as litigation proceeds.
The course of litigation seems to be substantiating a warning by University of Notre Dame Law Professor Gerard Bradley, a vocal critic of mandates, that judges would be “very wary” of lawsuits that are “very heavily dependent upon medical facts and statistics.”
Religious challenges are faring better. A federal judge Tuesday blocked New York Gov. Kathy Hochul from removing religious exemptions from a vaccine mandate for healthcare workers originally imposed by her predecessor, the disgraced Andrew Cuomo.
Illinois Gov. J.B. Pritzker is also seeking to “clarify” a state law that bans discrimination by public or private institutions based on a person’s “conscientious refusal to receive” healthcare services.
Pritzker’s spokesperson told ABC 7 the Health Care Right of Conscience Act is at risk of being “misinterpreted by fringe elements.” The Fraternal Order of Police said it’s considering invoking the law against Chicago Mayor Lori Lightfoot’s COVID vaccine mandate for city employees.
As noted by the New Civil Liberties Alliance (NCLA), which is representing MSU employee Jeanna Morris, Judge Maloney previously issued an injunction against a vaccine mandate that violated the religious beliefs of student athletes, who “had no immunity whatsoever.”
The public interest law firm didn’t answer a query from Just the News on whether it plans to revisit its litigation strategy in the wake of these setbacks. Its first natural immunity challenge prompted George Mason University to issue a medical exemption to law professor Todd Zywicki, but the vaccine mandate remains in force.
The latest study to verify the protective power of natural immunity was published this week in the Journal of the American Medical Association Internal Medicine.
In a study of more than 800,000 Swedish families, Scandinavian university researchers found that family members without “immunity” — prior infection or vaccination — had a 45-97% lower risk of COVID infection “as the number of immune family members increased.”
“The results were similar for the outcome of COVID-19 infection that was severe enough to warrant a hospital stay,” they wrote. Notably, the researchers weren’t able to perform a sensitivity analysis in fully vaccinated individuals because too few participated in the study.
Vaccination is also proving insufficient to protect older people, according to U.K. government figures published last week that showed fully vaccinated older age groups now had higher infection rates than unvaccinated younger age groups.
‘Battle of experts’
Judge Maloney determined that “no fundamental right is implicated” by MSU’s vaccine mandate, meaning employees must prove the policy “is not rationally related to a legitimate government interest.”
While Morris is “absolutely correct” that the 14th Amendment protects her right to privacy and bodily integrity, she has “no fundamental right to decline a vaccination” and yet remain employed, Maloney wrote, saying she’s unlikely to prevail.
The judge cited a 1985 ruling upholding mandatory childhood vaccination against a challenge based on philosophical as opposed to religious beliefs. That court noted that the Supreme Court’s Roe v. Wade ruling, which found a constitutional right to abortion, specifically distinguished its holding from the 1905 Jacobson precedent that upheld mandatory vaccination.
It’s irrelevant that the Massachusetts law challenged by Henning Jacobson was legislatively decreed and made no provision for natural immunity, Maloney wrote.
“Over the last year and a half, courts have looked to Jacobson to infer that a rational basis standard applies to generally applicable vaccine mandates; the facts of the case are obviously not going to be identical to every COVID vaccine case that has been or is currently being litigated,” the judge said.
He cited U.S. District Judge James Selna’s refusal to halt the University of California mandate in the face of natural immunity research as “persuasive authority” for his own ruling.
In the “battle of the experts” retained by NCLA and MSU, it’s clear “there is ongoing scientific debate about the effectiveness of naturally acquired immunity versus vaccine immunity” — and it doesn’t help Morris’s case, Maloney wrote.
The university is acting rationally by relying on state and federal guidance from “agencies that have extensively studied the COVID-19 vaccine,” and their view is that “the harm to others and the public could be serious” if MSU’s mandate isn’t enforced.
Morris is also not facing “irreparable harm” from her refusal to get vaccinated, a condition for a preliminary injunction, because she could eventually recover monetary damages from improper termination, Maloney said.
While more than 1,000 universities have COVID vaccine mandates as tracked by The Chronicle of Higher Education, not all large employers are mandating jabs.
Computer chip giant Intel reaffirmed Oct. 1 that it was still not requiring vaccination for its workforce, only requiring them to follow local laws. Managers may not ask for workers’ vaccination status, and employees are not allowed to decline to work with unvaccinated colleagues.
Oregon Senators Call for Investigation Into Alleged COVID-19 Statistical Manipulation
Oregon state Sens. Kim Thatcher and Dennis Linthicum, both Republicans, have petitioned Acting U.S. Attorney Scott E. Asphaug to launch a grand jury investigation into the measurement of COVID-19 statistics by the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA).
Thatcher and Linthicum submitted the petition in a letter (pdf) on Aug. 16 after gathering signatures from 1,718 Oregonians and 53,032 Americans.
In the petition, the senators expressed concerns over the measurement and reporting of COVID-19 vaccine adverse reactions including fatalities and injuries.
The lawmakers stated that a whistleblower, under sworn testimony, said the data reported under the CDC’s Vaccine Adverse Events Reporting System may have been underreported by a factor of five.
Regarding the diagnosis of COVID-19 through widely-used PCR tests, the senators said that the CDC and the FDA’s setting of one particular test parameter—the cycle threshold—generated “false positives resulting in inflated numbers of COVID cases, hospitalizations, and deaths.”
Harvard epidemiologist Dr. Michael Mina told The New York Times in August 2020 that tests with too high of a threshold may detect not just live viruses but also genetic fragments. Mina suggested setting the cut-off at 30 cycles or less.
Thatcher expressed concern over the cycle threshold of 28 when testing vaccinated individuals. According to the petition, a low cut-off is likely to “eliminate false positive results and thereby reduce the number of vaccine ‘breakthrough’ cases.”
Thatcher and Linthicum said that they consulted large groups of doctors, epidemiologists, and virologists on the subject of COVID-19 statistical reporting.
“Additionally, we are profoundly concerned that the scientific literature continues to provide empirical evidence that safe and effective treatments and management strategies for COVID infections exist but are not being made available to Americans most in need,” continued the letter.
Stand for Health Freedom (SHF), a non-profit organization that helped with the petition, said in a statement that the petition was submitted one month before public release to “protect those involved.”
SHF also cited a March 2020 study (pdf) alleging that the CDC over-emphasized COVID-19 as the cause of death in compiling its statistics while “circumvent[ing] multiple federal laws” in the process.
Approved Version of Pfizer’s COVID-19 Vaccine Still Not Available in US
Officials in 19 states confirmed this week they have not received the approved version, known as Comirnaty. So did pharmacies in New York, California, and Missouri.
A Pfizer spokesperson told The Epoch Times in an email that there are no doses of Comirnaty in the United States as of Oct. 12.
The lack of availability means vaccine mandates based on the Food and Drug Administration (FDA) approval are unlawful, lawyers representing clients challenging the requirements say.
“Under the emergency use authorization, everyone has an option to accept or refuse the product. And that means every person, military and civilian. So this is critical. All of the mandates, from the military to the civilian population, are violating federal law,” Mathew Staver, chairman of Liberty Counsel, a Christian legal group, told The Epoch Times.
The situation would be different if Comirnaty was available, he said.
Contact with state and federal officials and pharmacies revealed widespread confusion regarding the differences between the approved Pfizer-BioNTech vaccine and the version that received emergency use authorization (EUA) in December 2020 and continues to be administered under EUA now.
A number of officials were unaware of any differences and others insisted they were the same for all intents and purposes, including several officials with the Department of Health and Human Services (HHS), which handles distribution of COVID-19 vaccines.
“It’s the same thing,” an HHS official told The Epoch Times.
That’s a different message than that being sent to states, some of which have been told by federal officials not to expect doses of Comirnaty for a while.
“The CDC anticipates that Comirnaty will begin to ship some time in November at the earliest,” a spokesman for the Arizona Department of Health told The Epoch Times in an email, referring to the Centers for Disease Control and Prevention.
“The Maryland Department of Health has been told by the CDC that Comirnaty will not ship until the end of October/beginning of November,” a spokesman with the Maryland Department of Health told The Epoch Times in an email.
“According to the latest update DOH has received from the CDC, shipments of Comirnaty likely won’t begin until next month,” a spokeswoman with the Washington State Department of Health told The Epoch Times in an email.
“We don’t expect vials with the brand name ‘Comirnaty’ affixed to them to be delivered until later in the year,” a spokesman with the Idaho Department of Health told The Epoch Times in an email.
A spokeswoman for the Tennessee Health Department said that the federal government still has a large amount of the authorized doses and there is no timeline on when Comirnaty will be shipped.
The only state expecting doses soon is Delaware. Officials there were told 5,850 doses manufactured after the Aug. 23 approval date should arrive this week, a spokeswoman for the Delaware Department of Health said.
The FDA referred questions to the CDC and HHS. The CDC did not respond to repeated queries. The HHS official who wasn’t aware of the differences alleged approved doses were available, but said she was “puzzled” by followup questions on when they started being available and how many are available and ultimately referred questions to the FDA. A different HHS official indicated the agency is not tracking when approved doses enter the distribution system.
The FDA approved the Pfizer-BioNTech vaccine on Aug. 23. On the same day, the drug regulator extended the EUA for existing doses and for children between 12 and 15.
The approval triggered vaccine mandates across the country, including for the Department of Defense. Many officials said they were waiting for the approval to impose mandates.
In the letter extending the EUA, Denise Hinton, the FDA’s chief scientist, said the vaccines are “legally distinct with certain differences that do not impact safety or effectiveness.” The letter is no longer available on the FDA’s website, though the same language is used in an FAQ on the approved vaccine, known as Comirnaty.
In a followup missive on Sept. 22, Hinton wrote that the authorized and approved versions have “the same formulation” and that the products “can be used interchangeably to provide the vaccination series without presenting any safety or effectiveness concerns.”
Staver said that’s not accurate. “You cannot interchange BioNTech’s Cominarty with Pfizer’s [shot] from a legal standpoint. They are legally distinct,” he said.
“The FDA-approved Comirnaty and the EUA-authorized Pfizer-BioNTech COVID-19 vaccine have the same formulation and, according to the FDA labeling, can be used interchangeably to provide the COVID-19 vaccination series,” a Pfizer spokesman told The Epoch Times.
Federal agencies in various documents have indicated recently there is little or no Comirnaty supply in the country.
Both of Hinton’s letters stated that there is an insufficient supply of Comirnaty in the United States to distribute to the U.S. population in its entirety.
A document posted by the CDC last month said Pfizer “does not plan to produce any product” with new labeling, referring to Comirnaty, “over the next few months while EUA authorized product is still available and being made available for U.S. distribution.”
Sen. Ron Johnson (R-Wis.) has questioned (pdf) why the existing doses were not approved and, given the lack of Comirnaty supply, whether the FDA was “de facto endorsing vaccine mandates utilizing EUA vaccines?”
The FDA declined to answer questions on the approval process. Several experts told The Epoch Times that federal law appears to preclude approving existing authorized products.
To cast a wider net on the matter, The Epoch Times also contacted 12 private companies, mostly pharmacies involved in vaccine administration.
Walgreens, Kroger, H-E-B Pharmacy, Publix Pharmacy, Thrifty White Pharmacy, the Mayo Clinic, and Novant Health did not respond to requests for comment. CVS referred questions to the federal government. Northwell Health, a New York health care system, declined to comment.
The Legacy Specialty Pharmacy in Queens, New York said they do not have Comirnaty doses. A pharmacist at Lorena Pharmacy said he was not aware of any differences and thought the approval in August was only for booster doses, indicating they do not have Comirnaty. A pharmacist at Kilgore’s Medical Pharmacy in Missouri said they only get Moderna vaccine doses.
‘Playing hardball’: Biden plans massive new fines for businesses violating vax mandate: watchdog
Under $3.5 trillion reconciliation bill, businesses not complying with Biden OSHA vaccine mandate would be subject to fines ranging from $70,000 to $700,000, according to OpenTheBooks.com.
Tucked inside the $3.5 trillion budget reconciliation bill that passed out of the House Budget Committee are exorbitant new fines — ranging from $70,000 to $700,000 — that would apply to companies defying President Joe Biden’s COVID vaccine mandate, alleges Adam Andrzejewski, CEO/founder of OpenTheBooks.com.
If the provisions of the bill are implemented, the fines could bankrupt all non-compliant companies, warns the government spending watchdog.
“Buried on page 168 of the House Democrats’ 2,465-page mega bill is a tenfold increase in fines for employers that ‘willfully,’ ‘repeatedly,’ or even seriously violate a section of labor law that deals with hazards, death, or serious physical harm to their employees,” Andrzejewski writes in Forbes.
Last month, Biden announced by executive fiat that all private-sector businesses with 100 or more employees must comply with his most recent vaccine mandate, or pay a potential fine of $14,000 per violation. The order would impact more than 80 million Americans.
Open The Books argues violators would be subject to the drastically steeper new fines in the budget reconciliation bill.
According to the bill markup, Section 21004 of the OSHA Act of 1970 would be amended to increase fines in the Adjustment of Civil Monetary Penalties section. The changes made by the Democrat-controlled committee would increase the maximum penalty to $700,000 for willful and repeat violations; increase the minimum penalty to $50,000 for willful violations; and increase the maximum penalty for both serious and failure-to-abate violations to $70,000.
A senior House Democratic aide denied the stiffened penalties are targeted specifically at vaccine mandate non-compliance. Noting the fines fall under the jurisdiction of the House Committee on Education and Labor, the aide argued the provisions are related to labor law enforcement more broadly.
The fines were “marked up in committee and are not explicitly related to vaccines — just generally increase the level of fines that OSHA is able to levy when an employer is in violation,” the Democratic aide told Just The News.
The bill markup also amends the Fair Labor Standards Act of 1938 to increase penalties and fines. It increases maximum civil penalties to:
- $132,270 for child labor violations;
- $601,150 for child labor violations that cause the death or serious injury of an employee under the age of 18;
- $20,740 for willful or repeated minimum wage or overtime violations;
- $11,620 for tip violations.
It also amends the Migrant and Seasonal Agricultural Worker Protection Act of 1983 to increase the maximum civil penalty for violations of the law to $25,790.
Andrzejewski remains skeptical. “The push to increase the fines up to $700,000 per willful and repeated violation,” he countered, “was the anticipated emergency rule that OSHA will publish in the Federal Register allowing them jurisdiction to enforce Biden’s vax mandate on private companies. Period.”
The House aide “doesn’t deny that the fines would be levied as the enforcement mechanism of the president’s vax mandate,” he added. “That’s because Biden and the Democrats are playing hardball. Comply or face bankruptcy.”
Just The News contacted OSHA to provide clarification on whether enforcement of new fine ceilings will be applied to vax violators, but did not receive a response.
The changes come after Biden issued an ominous warning to the millions of Americans who refuse to get the COVID jabs. “We’ve been patient,” said the president. “But our patience is wearing thin, and your refusal has cost all of us.”
In June, prior to Biden’s executive order last month, OSHA published an emergency rule in the Federal Register stating it would have jurisdiction over COVID safety enforcement. Invoking the obscure Emergency Temporary Standard provision, the agency claimed the authority to enforce the mandate and impose fines, OpenTheBooks explains. The ETS has been used only 10 times in the agency’s 50-year history, according to an analysis by the nonpartisan Congressional Research Service.
Worse, argues the religious liberty legal aid nonprofit Liberty Counsel, the federal government would be imposing draconian fines on companies for not complying with an illegal mandate.
“The Food and Drug Administration (FDA) has done a bait and switch by announcing it approved its ‘first COVID-19 vaccine’ in order to push the ‘vaccine’ mandates and protect the Pfizer pharmaceutical company from legal liability,” Liberty Counsel said in August. “However, there is currently no fully licensed COVID shot on the United States market.”
Even if a fully licensed vaccine was available, it still couldn’t be mandatory, argues Liberty Counsel, because Title VII of the 1964 Civil Rights Act allows for religious exceptions.
“Employees and employers have constitutional protections against this lawless Biden mandate,” the organization’s founder and chairman Mat Staver says, adding that Liberty Counsel will “challenge his lawless executive order.”
In response to threats of lawsuits or Republican governors who have challenged the mandate, Biden said: “Have at it. We’re playing for real here. This isn’t a game.”
But 27 governors or attorneys general have vowed to fight it, including Florida Republican Gov. Ron DeSantis, who has sparred with Biden over mask mandates and vaccine passports.
“When you have a president like Biden issuing unconstitutional edicts against the American people, we have a responsibility to stand up for the Constitution and to fight back, and we are doing that in the state of Florida,” DeSantis said. “This is a president who has acknowledged in the past he does not have the authority to force this on anybody, and this order would result potentially in millions of Americans losing their jobs.”
Idaho’s lieutenant governor bans vaccine mandates while governor is away
Idaho’s lieutenant governor bans vaccine mandates while governor is away
Idaho GOP Gov. Brad Little was in Texas this week, says he’ll rescind order upon return
Idaho Lt. Gov. Janice McGeachin issued an executive order Tuesday substituting vaccine mandates for mandatory coronavirus testing in schools and colleges – prompting Gov. Brad Little, who is away at the U.S.-Mexico border, to say he had not authorized his second-in-command to act on his behalf.
Little says he will rescind any executive orders issued by McGeachin, a fellow Republican, while he is away, including McGeachin’s attempt to mobilize Idaho National Guard troops to send to the border.
“I am in Texas performing my duties as the duly elected governor of Idaho, and I have not authorized the Lt. Governor to act on my behalf. I will be rescinding and reversing any actions taken by the Lt. Governor when I return,” Little said.
He is expected back in his state on Wednesday.
Little was in Texas this week meeting with nine other Republican governors to discuss the crisis at the southern border.
McGeachin is angling for Little’s job come the 2022 election. In Idaho, the governor and lieutenant governor do not run on the same ticket, and Little and McGeachin have long had political differences.
This is not the first time McGeachin has taken an opportunity to utilize the governor’s absence from the state to her own political ends. In May, she issued an executive order banning mask mandates, which Little overturned once he was back in Idaho.
The order issued by McGeachin this week would prevent employers from requiring their employees to be vaccinated against COVID-19. It is an extension of the order Little issued in April that banned mandates at state facilities not including schools.
Los Angeles will require proof of vaccination to enter a range of businesses
The city of Los Angeles will begin requiring most people to provide proof of full COVID-19 vaccination before entering a wide variety of indoor businesses including salons, restaurants, gyms, museums and theaters.
The law was approved Wednesday by the City Council and will take effect Nov. 4, which officials say should give businesses enough time to figure out how to enforce the law.
Those with medical conditions that do not allow them to be vaccinated, or those with sincerely held religious beliefs that prevent them from being vaccinated, will be allowed to instead show proof of a negative coronavirus test taken within 72 hours.
Some businesses in L.A. have already begun asking for proof of vaccine, and in the state, health care worker vaccine requirements have helped increase vaccination rates at major health systems.
California has one of the country’s lowest case rates for the novel virus, coupled with some of the strictest rules. An estimated 70% of California residents aged 12 and older are fully vaccinated.
Last week, Gov. Gavin Newsom, a Democrat, announced that all school children will soon be required to be vaccinated – the first requirement of its sort in the nation.
White House: Some Federal Workers With Valid Vaccine Exemptions Could Still Be Fired
White House officials said President Joe Biden’s COVID-19 vaccine mandate for all federal workers and contractors allows for some religious or medical exemptions, but agencies may still fire certain employees where no other safety protocols are enough.
“There may be circumstances in which an agency determines that the nature of an employee’s job responsibilities requires heightened safety protocols if they are provided with a legally required exception,” according to new guidance posted on the federal government’s Safer Federal Workforce Task Force website this week. “In some cases, the nature of the employee’s job may be such that an agency determines that no safety protocol other than vaccination is adequate. In such circumstances, the agency may deny the requested accommodation.”
The task force said that in most cases, unvaccinated employees would have to maintain social distancing, submit to regular testing, and wear masks. But some agencies may require more measures in some cases, depending on the employee’s job.
“Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19,” the task force said in the update.
In creating a medical or religious exception, employees have to sign and declare their responses are accurate, according to a sample template provided by the task force.
“Any intentional misrepresentation to the federal government may result in legal consequences, including termination or removal from federal service,” one of the forms read.
For those seeking (pdf) a religious exemption, the form asks employees to say why they are objecting to receiving the COVID-19 vaccine.
“To be eligible for a possible exception, you must first establish that your refusal to be vaccinated is based upon a sincere belief that is religious in nature,” the sample form stated. “A refusal to be vaccinated does not qualify for an exception if it is based upon personal preference, concerns about the possible effects of the vaccine or political opinions.”
White House officials confirmed earlier this month that all executive branch employees and contractors need to be fully vaccinated by Nov. 8 with any of the three vaccines.
In a memo (pdf) released on Oct. 1, the White House’s Office of Personnel Management (OPM) advised federal workers shouldn’t wait until the last minute to get vaccinated because “other events often interfere with even well-laid plans.”
“Employees who refuse to be vaccinated or provide proof of vaccination are subject to disciplinary measures, up to and including removal or termination from Federal service,” said the letter. “The only exception is for individuals who receive a legally required exception pursuant to established agency processes.”
On Sept. 9, Biden announced sweeping measures targeting the federal government, the health care sector, and private businesses. Meanwhile, a number of Republican-led states and federal workers filed lawsuits against the Biden administration, arguing that his mandate is tantamount to federal overreach.
A group of federal employees filed a lawsuit against Biden in September, arguing that his executive order unfairly affects those of Christian faith. Other plaintiffs argued that the vaccine mandate doesn’t make any mention of “natural immunity” granted by a previous COVID-19 infection.
COVID-19 is the disease caused by the CCP (Chinese Communist Party) virus.
Court Sides With Unvaccinated Michigan Athletes in Mandate Case
Sixteen unvaccinated athletes won another round in their legal battle to play sports, despite Western Michigan University’s mandate that all of its inter-collegiate athletes get the COVID-19 vaccination shot.
In a unanimous published decision issued Oct. 7, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio, held that the university violated the athletes’ First Amendment rights.
All 16 athletes had filed for religious exemptions, which, according to the court, the university “ignored or denied.”
The court stated: “The university put plaintiffs to the choice: Get vaccinated, or stop fully participating in intercollegiate sports. By conditioning the privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs, the university burdened their free exercise rights.”
The three-judge panel denied a request by the university to stay a lower court’s preliminary injunction that stopped it from enforcing the vaccination mandate.
The mandate would have barred the athletes from playing in games, or even practicing with their teams, unless they were immunized against the CCP virus (Chinese Communist Party virus, a.k.a. COVID-19).
Attorney David Kallman, senior counsel with the Great Lakes Justice Center, who represents the athletes, told the Epoch Times: “It’s a great win for our clients and for religious liberty.”
According to Kallman the court’s decision is now a “binding precedent” in Michigan, Ohio, Kentucky, and Tennessee.
In a press release, Kallman wrote: “The Sixth Circuit Court vindicated their (his clients) religious convictions and that they can continue to be part of their teams.
“We trust all parties can move forward in a spirit of cooperation to uphold the important constitutional issues at stake, as well as taking appropriate measures to ensure the safety of everyone at WMU.”
The order affirms: “The First Amendment, as incorporated through the 14th Amendment, prevents a state from ‘prohibiting the free exercise’ of religion.”
The 14th Amendment also guarantees equal protection under the law.
Western Michigan University has no vaccination mandate for the student body as a whole.
However, its athletes are still required to wear masks at practice and be regularly tested for the virus. Those policies were not addressed in the athletes’ complaint.
University officials did not immediately respond to a request for comment.
California Professor Suspended After Suing University Over COVID-19 Vaccine Mandate
Dr. Aaron Kheriaty, a professor of psychiatry and director of UC Irvine’s medical ethics program, brought the lawsuit against the University of California (UC) system in August. He said he has recovered from COVID-19 and developed durable immunity to the CCP (Chinese Communist Party) virus that causes it, alleging that the university’s vaccination policy isn’t only unfair to him and other people with natural immunity, but is also a violation of their 14th Amendment rights.
The vaccine policy was upheld by a federal judge, who ruled in September that the UC system “acted rationally to protect public health by mandating the vaccine and not exempting individuals with some level of immunity from an infection.”
In the latest update through his personal newsletter, Kheriaty said UC Irvine hasn’t only placed him on “investigatory leave” for not complying with the vaccination requirement, but has also banned him from working on campus or from home.
“While on investigatory leave, you are not to perform any work for the university,” a notice from the university reads. “You are not to be present on the premises at the UC Irvine campus in Irvine, California, nor on any clinical space owned or operated by the University of California, Irvine.”
A significant portion of Kheriaty’s income involves working at the university clinics, whose terms of employment prevent him from starting a private practice.
“You might be thinking, a month of paid leave doesn’t sound so bad. But the language is misleading,” he said. “Furthermore, my contract stipulates that I am not able to conduct any patient care outside the University: To see my current patients, or to recoup my losses by moonlighting as a physician elsewhere, would violate the terms of my contract.”
Kheriaty said he wasn’t surprised that the university would immediately start procedures to fire him after the court victory, but didn’t expect to be unable to work at the university nor permitted to pursue work elsewhere. He described it as an effort to force him to resign to nullify his lawsuit.
The professor said he has no intention of resigning or withdrawing the lawsuit, warning that it’s a crucial moment when people must resist the institutions’ attempts to “set dangerous and unjust precedents.”
“Today’s precedents could later facilitate even more coercive mandates and infringements on civil liberties by unelected officials, done during a declared ‘state of exception’ or emergency that has no defined terminus—a dangerous precedent for a democratic society,” Kheriaty said.
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