Shannon Bream on Biden’s Vax Mandate at the Court

7 Jan 2022

BUCK: We have, as promised, Shannon Bream with us now. She is the chief legal correspondent over at Fox News, also a host at Fox News. Shannon, thanks so much.

BREAM: Great to be with you!

BUCK: What was your biggest either takeaway, a-ha moment, or the first thing as you finished listening this morning to the arguments over the Biden administration OSHA mandate over vaccines? What struck you about all this?

BREAM: Honestly, it was some of the information straight out of the gate that was coming out of some of the left-leaning justices didn’t seem to line up with the latest information that we’ve been given about Omicron, about the numbers of the cases. Listen, everybody in that courtroom and everyone acknowledges this is a serious situation. We have lost hundreds of thousands of Americans. But some of what they were saying from the bench that would lend support for upholding these mandates was just a lot of folks being factually incorrect.

CLAY: Thank you for taking the time to join us, ’cause I know how busy today is, Shannon, and also, by the way, I know you and I both had an awesome time down at the Florida beaches.

BREAM: (chuckling)

CLAY: You are a Florida native. How bad are you coping, before I get to the serious stuff, with the massive snowfall amounts that are currently falling in D.C.?

BREAM: Well, and you guys are getting it too in Nashville.

CLAY: I know. We’re getting slammed.

BREAM: So, listen. We got another round last night. We’re making the best of it. I’m looking out my window. I’m pretending it’s sand, and that mental trick is getting me through.

Shannon Bream

CLAY: All right. So Buck and I were just talking. It’s clear that the left-wing version of the Supreme Court — the Sotomayor, the Kagan, and also the Breyer votes — are going to support the right of the OSHA, Biden administration OSHA, to mandate these vaccines.

BREAM: Mmm-hmm.

CLAY: Will there be six votes on the other side to not allow this mandate to take place? I know it’s difficult, but based on your read of what you have seen so far, how is this gonna shake out in terms whereof the justices are coming down on the, quote, unquote, right side of the equation?

BREAM: Yeah. You know, it’s always tough to figure out exactly where they’re going after oral arguments, but the two cases — and we can talk about the two different ones, but I think the OSHA mandate is in more trouble than the health care worker mandate. If you’re talking about upholding it or not, there seemed to be a lot more skepticism about how far OSHA has gone. Justice Gorsuch brought up — and I don’t think he was the only one — the fact that there is a sense that the administration is doing an end around and run around so that Congress has not acted on this.

So they’re using federal agencies to try to get this done and that’s something, you know, Ron Klain from the White House raised a lot of eyebrows when he retweeted something saying that basically to that effect. So I think there was a lot more skepticism with the OSHA mandate and whether it’s overly broad and whether the government has the power to now affect the lives of 88 million-plus Americans by those workplace mandates.

BUCK: We’re speaking to Shannon Bream, chief legal correspondent for Fox News and a Fox News host. Shannon, there was some back and forth today. Clay and I sitting here and I, unfortunately, am thinking right now it’s probably gonna go 6-3 — this is just my guess — in favor of keeping the mandate. But we won’t know that for quite some time. In the meantime, there is the issue of the stay and there was some discussion as to whether they would take a few days to review before even ruling on the stay, meaning that they wouldn’t enforce the mandate while they figure out if the mandate’s actually constitutional. Do we know where that stands right now? Do we have some sense of that timeline?

BREAM: Yeah, I mean that’s highly possible because remember part of this mandate’s supposed to kick in in a couple of days and so Justice Alito and some others were pressing about, “Listen what do we do an administrative stay,” meaning we’re not making a pronouncement on the merits or how we’re gonna decide this case, but we’re just gonna try to pause things so that we can go through the thousands and thousands pages of briefs and of documents and things that have been submitted.

You know, kind of like they do those continuing resolutions over on the Hill. They’ll do funding for three days or for five days or something ’til they can get the bigger problem solved. I think it’s highly possible they may do a quick pause but there were justices who immediately pushed back saying, “People are dying every day. We have new cases every day, hospitalizations every day. So we really shouldn’t waste any time pausing this at all. We need to make a decision.” So I think whether they do that little quick administrative pause or they go straight to the merits and give us that decision, I think it’s just gonna be a matter of days, not the usual months that we’d be waiting for a case.

CLAY: Shannon, you got to listen to most all of the arguments. We were on the air as this thing continued. You mentioned the legislative sort of empty ground. But I thought it was fairly significant and strategically intelligent, and I said it at the time, that the Senate went on the record about their opinion of Joe Biden’s vaccine mandate, and they voted 52-48 against it. Now, Nancy Pelosi hasn’t allowed the House to vote.

But the Senate, two Democrats joined all of the Republicans to say, “Hey, we disagree with Joe Biden’s expansive use of the executive authority here through OSHA.” Did that come up in any kind of substantive way as a part of the discussion as a sort of valedictory in terms of people who would say, “Hey, you could never get this done if you had to use the legislative branch”?

BREAM: I had to step away a couple of times for TV reports that I missed, but I never heard a discussion or specific mention of the Senate or that vote.

CLAY: Does that seem significant to you? Isn’t that a decent argument that this is an executive overreach because the legislative branch, in some way, demonstrated they disagree?

BREAM: Yeah, I mean opponents of the mandate definitely are honing in on that, like, “Listen this has gotta go through Congress.” They repeatedly went back to that and said, “If that hasn’t been done, what you’re doing here is the federal breach,” ’cause remember months ago the administration told us: There will be a federal mandate’ that’s not something the federal government can do.

But again, opponents of this are arguing, “That’s what you’re doing through federal agencies. You’re, in essence, doing the thing you told us you could not do.” But listen. The liberal justices again repeatedly pointed to case numbers and deaths, and said, “Listen, this is so serious. The government clearly has an interest in protecting the American people, and this covers the most amount of people in a way that is very convincing to them. If they have to choose between their job and vaccination, it’s effective.”

BUCK: Shannon, where does the rest of the caseload right now stand on the various things? There are a handful of mandates that are being challenged. Can you bring us up to speed on where else this is gonna be playing out or where we stand with regard to this? There is the federal contractor mandate, right? There’s any number of… It sounded today like the justices just said military takes orders so military mandates gonna stand. But are there any others we should be looking out for?

BREAM: I mean, we’ve got so many. And the justices, a number of them, did bring up the federal contractor, the health care — the OSHA that affects, you know, private employers, too – -saying, “Why did the government take these specific actions? ‘Cause you’ve got federal agencies, essentially, that can tell people what to do. Why didn’t they take some other actions. Why these specific targets?” So it’s clear they’re reviewing all of these vaccines in some case under the same umbrella.

They’re gonna be decided as different cases. But whatever the court does in these cases — and I do think they could do a split here. I think the health care worker mandate has a much stronger chance of surviving these arguments. But they know that whatever markers they lay down are going to speak to the longer-term issue of federal powers, the federal branch, what it can do, the federal branch in this situation and any other. I mean, Justice Barrett brought it up a couple of times.

Listen, how do we know that this isn’t gonna still be going on in two years, another variant, more tests, more problems? She said, you know, when do we stop being under the emergency power for putting these back together, and when do we get back to normal order? So I think they’re thinking always, the justices, 10 chess steps ahead of where we are, and they know that the long-term implications with going to be very broad, potentially.

CLAY: All right, Shannon. That I think is well said, especially for Chief Justice Roberts. So this case is important — and as you just laid out, it could be seismically important in the years ahead as it pertains to the executive branch’s authority in regulatory agencies. But also, we got major blockbuster cases dealing with abortion that’s going to come down the pike in June.

BREAM: Mmm-hmm.

CLAY: How much horse trading could we see — and some people may be surprised by this — as it pertains to covid and also for future cases let’s say in abortion cases in terms of the political dynamics associated with the court?

BREAM: (chuckles) You know, I mean, that’s always possible. People like to think that they’re — like you said — that it’s just very clean. I mean, usually the Friday after they hear cases they take a private vote. Only they know what happens behind closed doors, no clerks, no anybody. But then it starts because they’ll assign who is going to write what opinion pretty quickly, and then you do start trying to persuade the votes you think may be close.

“Okay, if I include this paragraph from you in my opinion would you come over and vote with us?” There’s a lot of that goings-on back and forth. It’s the way the court works. I don’t think they would bleed that between cases, say, like covid and abortion, but I do think between those two covid cases there could definitely be some horse trading in there. We know they’ve had that abortion case for a little while. It’s gonna take a long time.

And, you know, our assessment coming out of it seemed that they would be willing to uphold the Mississippi 15-week and later ban on abortion. But the question remains, will they go further after Roe or Casey? So we always… It’s fascinating to me to watch. I’m a little bit of a legal nerd. (chuckles) Not everybody probably finds this as exciting, but there’s definitely so much behind the scenes drama that happens.

BUCK: Shannon Bream of Fox News. Shannon, thanks so much. Great to talk to you as always.

BREAM: Have a great weekend!

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