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Supreme Court Declines to Review NY Vax Mandate That Has No Religious Exemption

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On the final day of its term Thursday, the Supreme Court refused to review a New York state law requiring healthcare workers to be vaccinated—without providing the option of a religious exemption. Justices Clarence Thomas, Neil M. Gorsuch, and Samuel A. Alito Jr. dissented from the majority. The Washington Post explains:

In the New York vaccination case, the court had rejected in December an emergency request from doctors, nurses and other medical workers who said they were being forced to choose between their livelihoods and their faith. They said they should receive a religious exemption because the state’s rule allows one for those who decline the vaccine for medical reasons.

In August of last year, New York state announced a vaccine mandate for healthcare workers that included exemptions for religious reasons, but just over a week later the state’s Department of Health took away that exemption. New York Attorney General Letitia James said in a brief to the Court:

Like longstanding similar state vaccination requirements for measles and rubella, DOH’s rule at issue here contains a single, limited medical exemption.

But not a religious one.

Back in December, when the Court rejected the emergency request, Justice Gorsuch was critical, writing:

The State’s executive decree clearly interferes with the free exercise of religion—and does so seemingly based on nothing more than fear and anger at those who harbor unpopular religious beliefs. We allow the State to insist on the dismissal of thousands of medical workers—the very same individuals New York has depended on and praised for their service on the pandemic’s front lines over the last 21 months … One can only hope today’s ruling will not be the final chapter in this grim story.

He continued:

These applicants are not ‘anti-vaxxers’ who object to all vaccines. Instead, the applicants explain, they cannot receive a Covid-19 vaccine because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.

The state argued that the coronavirus vaccines do not contain aborted fetal cells. However, three EUA (Emergency Use Authorization) vaccines in current use were based on reproductions of fetal cells from abortions done in the 1970s and 1980s. The shots themselves, however, do not actually contain fetal cells.

Judge Thomas noted in dissent:

There remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves.

He was frustrated that his colleagues refused to review the case, arguing that the Court should provide guidance to lower courts “before the next crisis forces us again to decide complex legal issues in an emergency posture.”

While the Court has delivered opinions that have cheered conservatives recently, most notably the Dobbs abortion case and today’s West Virginia v. Environmental Protection Agency decision, this one is surely going to leave many scratching their heads. It seems counter-intuitive that the Court would refuse to even review a law that forces people to inject themselves with drugs they may object to or do not need. Yes, vaccine mandates are not new—but mRNA vaccines are, and they haven’t been around long enough to know the long-term effects. Also confounding is that vaccine mandates like these are partly to blame for the worker shortages being felt everywhere from the travel industry to summer camps. Most important is that the vaccines don’t stop infection or transmission, which would make a sensible person question the mandate on nonreligious grounds.

The Supreme Court got this one wrong.

Biden's Big Immigration Win May Actually Be a Big Loss

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The Biden administration is celebrating a win at the Supreme Court in Biden v. Texas, which will allow him to proceed with getting rid of the Trump-era “Remain in Mexico” policy.

The policy allowed officials at the U.S. border to make immigrants wait in Mexico rather than cross into the United States by citing a public health crisis – COVID-19 – as the reason they cannot allow more people in. The rule was decried as racist by Democrats, and upon entering office, Biden worked to undo it. He was initially blocked by a judge in Texas, but took it all the way to the Supreme Court, securing a win.

Biden and the Democrats celebrated the ruling as a big win, but they have also guaranteed that voters, particularly those who are worried about the immigration crisis at the border, will be told in nonstop ads that Biden fought all the way up to the Supreme Court for the crisis.

Rescinding this policy opens the already-thrown floodgates even wider, allowing for greater numbers to flood the border with very little in the way to stop them from overwhelming border patrol. The Biden administration has thus far been reluctant to give federal agents any support, detention facilities, or funding to maintain control at the border. The result has been a flood of immigrants and a crisis that remains unchecked.

Illegal Immigration
Townhall Media/Julio Rosas

The death of 51 migrants in a truck trailer, a tragedy of human life we hadn’t yet seen in this crisis, was a clear sign that we are failing not just to protect our border, but to protect human life.

By winning at the Supreme Court, Biden and his administration are taking ownership of the crisis. They are saying they want all of these people coming in from South and Central America, flooding our border and causing chaos among law enforcement in the region. They are laying claim to the resulting human and drug trafficking that happens in the region. They are saying this is all part of the plan.

The crisis at the border will only get worse now that the Biden administration has cleared the way for more immigrants to be allowed in. This is their crisis now. And you have politicians all along the border and in several states where immigration is a top issue who will cut every ad imaginable linking Biden’s win to the worsening crisis.

Biden and his people denied that his election and rhetoric were an open invitation to those seeking to enter the country. There are multiple new stories that show differently. There are interviews with immigrants who say they are accepting Biden’s invitation and heading this way. That’s his legacy, and the win in Biden v. Texas is just more proof of that.

I suspect that the Biden administration didn’t actually want a win here. They wanted a 6-3 majority to say that they couldn’t do this. They wanted to tell their activist based “We tried!” and then move on. But they can’t now. The Supreme Court, with Kavanaugh and Roberts joining the liberal justices, has put the immigration crisis squarely on Joe Biden.

SCOTUS sends gun and magazine ban cases back to lower courts

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I was hoping that the Supreme Court would grant cert to one or more of the Second Amendment cases that have been pending in conference in light of their decision in Bruen, and technically I got my wish. All four cases were indeed granted cert in today’s orders, but all four decisions were immediately vacated and the Court sent the cases back down to the respective appellate courts for further review “in light of” the decision in New York State Rifle & Pistol Association v. Bruen.

The Association of New Jersey Rifle & Pistol Clubs, which is the plaintiff in a case challenging that state’s ban on the purchase or possession of ammunition magazines with a capacity greater than ten rounds, quickly sent out an alert to its members about the development, saying that “these developments strongly imply that the outcome of the mag ban case might be different under the new Bruen rules,” adding that the Court “also took a similar action in a challenge to an assault firearms ban in Maryland,” which also “implies that assault firearms bans may not survive scrutiny under Bruen, and the potential implications for New Jersey are significant.”

As we’ve previously discussed, the four cases in question involve challenges to New Jersey and California’s ban on “large capacity” magazines as well as Maryland’s ban on so-called assault weapons and Hawaii’s “may issue” permitting process for open carry (the similar “may issue” requirement for concealed carry was upheld by the Ninth Circuit in a case called Peruta v. San Diego back in 2016). The Third, Fourth, and Ninth Circuits will now have to revisit their decisions upholding all of these gun laws, all of which relied on the two-part interest-balancing test explicitly rejected by the Supreme Court in Bruen.

Instead, the courts will now have to determine whether these types of bans are “consistent with this Nation’s historical tradition of firearm regulation”, specifically at the time of the ratification of the Bill of Rights and in the post-Civil War period when the Fourteenth Amendment was ratified. It’s going to be awfully difficult to do so given that there is no historical tradition of banning entire classes of firearms or limiting their ammunition capacity.

The AR-15 wasn’t the first major advancement in firearms technology after all, and yet when single-shot cap and ball pistols were made outdated thanks to Samuel Colt and his repeating revolvers, there was no widespread attempt to ban them from the consumer market (though there were regulations on the manner in which they could be carried). Similarly, when the first repeating rifles came to market there was no hue and cry to ban them in the name of public safety or calls to remove these “battlefield weapons of war” from the hands of civilians. Heck, I can’t even find any evidence of a 19th century equivalent to Joe Biden complaining that “no one needs to load on Sunday and shoot all week long”, despite the introduction of a 16-round fixed magazine in early repeating rifles.

Unfortunately, we’ve seen lower courts play plenty of games with our right to keep and bear arms since the Heller decision was handed down, and I suspect that isn’t going to entirely change simply because SCOTUS has become more blunt in their directions to trial and appellate judges. The Fourth Circuit, for example, originally upheld Maryland’s ban on so-called assault weapons because they determined the semi-automatic rifles are “like” machine guns, which they said could be banned under the Heller decision.

It’s entirely possible that they’ll try to pull that same stunt again, but based on Thomas’ majority opinion, I don’t think the Court is going to have much patience for the judges (or anti-gun politicians) that continue to defy their ruling or the text, history, and tradition of our right to keep and bear arms. Justice may not come as swiftly as many gun owners would like, but I’m confident that it will be done.

EXCLUSIVE: New Mexico Rep. Yvette Herrell Says Scrapping Remain in Mexico 'Will Worsen the Continuing Disaster'

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The Supreme Court ruled that the Biden administration has the power to end the “Remain in Mexico” policy in a 5-4 decision Thursday, which means that some migrants may no longer have to wait in Mexico while waiting for their immigration hearing in court.

Former President Donald Trump and Republicans touted the policy as a way to effectively control the influx of people at the border. The Biden administration tried to get rid of the Migrant Protection Protocols, but they were blocked by lower courts, Fox News reported.

Rep. Yvette Herrell (R-New Mexico) voiced her opposition to the Supreme Court’s ruling and said that this could make the border crisis more disastrous. In an exclusive statement provided by her communications director, Herrell said:

“If there are concerns about humanitarian issues in Mexico, the Biden administration can work to solve those. But allowing anyone for any reason immediate entry into our country will worsen the continuing disaster we have seen over the last 30 months: nearly 3,000,000 people have tried to enter our country illegally, 700,000 have eluded capture, and 1,000,000 were released into our cities by the Biden administration, never to show up for a hearing.”

“It is a disgrace that Joe Biden and DHS Secretary Mayorkas care so little for the security of our communities and our nation,” she added.

Herrell represents New Mexico’s Second Congressional District, which covers the entire southern border of the state.

While there are serious concerns about the quality of life in Mexico for the migrants waiting, the policy was one of the few ways that the authorities could mitigate the heavy flow of people coming into the United States.

“Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion,” Chief Justice John Roberts wrote in the majority opinion.

According to Axios, about 70,000 migrants were impacted by “Remain in Mexico” under the Trump administration, and 6,000 who were part of the program under Biden starting in December 2021 received help from the United Nations.

In the fiscal year 2022, there have been 1,536,899 migrant encounters at the southern border as of May, according to U.S. Customs and Border Protection data.

The Supreme Court Returns Legislative Power to the Legislative Branch

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To cap off its term, the Supreme Court handed down a much-awaited decision in West Virginia v. the Environmental Protection Agency. The decision, which severely limits the EPA’s presumed authority over carbon emissions, is being celebrated as a big win for those wishing to see regulatory power curbed.

In its decision, the Court — via Chief Justice Roberts — determined that “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan,” and that on the question of “whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act,” the answer is a resounding “No.”

The Court’s decision is more than just a win for the energy industry, however. Based on the Court’s ruling, we are looking at a future where the legislative branch of the government actually has to legislate.

In today’s ruling, the Supreme Court has decided the legislative branch, not the executive, is actually in charge of rule-making. A federal bureaucracy has only the power it is specifically granted by Congress. The decision reaffirms what is specifically stated in the Constitution as far as the powers of each branch go.

Article I of the Constitution specifically states that “All legislative powers herein granted shall be vested in a Congress of the United States,” while Article II tasks the executive branch with taking care that “laws be faithfully executed.” There is a clear separation of powers between the two branches, and there is Supreme Court precedent that Congress isn’t allowed to “abdicate or to transfer to others the essential legislative functions with which it is thus vested,” as determined in A. L. A. Schechter Poultry Corp. v. United States.

This gets to the heart of the problem that led us to today’s decision. For decades now, Congress has been doing just that. They have passed laws just vague enough for federal agencies to interpret however they like, essentially allowing agencies that are part of the executive branch to create new laws and rules from seemingly nothing. The lines between the branches blur, and the checks and balances in place in the Constitution are weakened as the executive branch bypasses the legislative branch to do what it wants.

Coal Plant, Supreme Court AP/Reuters Feed Library

For years now, conservatives have been telling Republicans in the House to use the power of the purse to curtail executive branch excesses. They have not. They’ve been tasked by their voters to stop runaway regulatory regimes. They’ve abdicated on that front. One can only assume that Congressional Republicans are just too lazy to actually have those fights anymore, and because of that, the country suffers.

The EPA tried very hard to expand its regulatory power well beyond what the Clean Air Act of the 1970s allowed. They would likely not have been emboldened to do so had Congress actually fought to keep its power rather than delegate it away. Thus, the question as to whether the agency can or cannot do this comes before the Supreme Court, which, at this point, is so exhausted from questions that should really be covered by Congress’s power that they are now openly saying “Go to Congress to get what you want — like you’re supposed to.” It’s not a matter of overturning the poorly-decided Chevron case or anything like that. It’s just a straight-up demand that Congress do its job and for federal agencies to stop overreaching.

This, whether the left likes it or not (and they really, really don’t) is what democracy is actually supposed to look like. It’s not up to the federal bureaucracy to save the planet, and it’s not up to the executive branch to decide how to go about it. It’s up to the voters to elect the people they want to pass the policies they want to see put in place. And if enough people who care about the environment can get the right politicians elected, then something can be done about it. If you can’t win those elections, then revise your campaign strategy and try again.

That’s how it’s supposed to be. That’s how you’ll actually get the change you want. You certainly won’t get it by circumventing the Constitution to over-regulate the rest of the country.