Live Analysis: Supreme Court Hears Biden’s Mandate

This is Jay Sekulow with analysis of the Supreme Court arguments on the Biden mandate. Keeping you informed and engaged, now more than ever, this is Sekulow. We want to hear from you.

Share and post your comments or call 1-800-684-3110. And now your host, Jordan Sekulow. Well this is actually Jay Sekulow here and we're doing this remote because we've had some weather at our headquarters for our media center.

So welcome to the broadcast everyone. We're going to give you an analysis of what is still going on right now, which is your arguments if you're hearing this live, at the Supreme Court of the United States regarding the vaccine mandate issue. Now it was interesting that what is up in play here, and I want to be clear, technically most of this law goes into effect on Monday. So there were applications for stays filed, which means an application to ask the court to not put the law into effect until a decision is made on the constitutionality of the mandate. We have challenged the mandate, not based on science, because I am, as you know, an advocate of vaccines, but everybody makes their own decisions, but I'm clearly an advocate of vaccines.

I've said that, I continue to believe that, and that's the position that I personally have. But legally speaking, that is constitutionally speaking. I think that the OSHA, the agency that's been tasked with this, does not have that authority constitutionally or statutorily.

Now interestingly, in the beginning of the case, none of that was argued and we were very, very concerned on how it started. And of course, obviously we don't have any decision, but the law goes into effect on Monday unless there's a stay and it goes into effect in phases. The vaccine records are, if you've been vaccinated, you've got to send those to your employers.

I've already done that here. Our other organizations we work with and affiliated have started that process already as well. And then masks for those that are not vaccinated goes into effect. This is according to the government, which is the first time we've heard it by the way, this way, on Monday, and then testing in early February. Now having said all of that, in the beginning of this argument, it looked very bleak for the position that there was no statutory authority. And that's mostly because it really wasn't being argued. So I'm going to go quickly here, depending on the time we have, to Andy first. Never predict by an oral argument, especially an oral argument that is still going on as we're live.

That's absolutely right. You never can predict from an oral argument what the court is going to do. You can never predict what a jury is going to do for that matter. But in the Supreme Court of the United States, the arguments continue and you cannot predict what. At first, I thought we would not get a stay.

Then as time went on and the justices began arguing, our case for us in many respects, I began to see light at the end of the tunnel and thought that there would be, and perhaps think that there will be, a brief administrative stay based on the arguing, based on the questions that were put to the Solicitor General by the justices, especially Justice Alito and Justice Roberts. Yeah, I don't know if we have, we do have that actual question. Do we have time, Will, to run it? Because we're doing this remote here, folks, I don't have a time queue. Do we have time to run that?

Okay, let's play. This is actually that issue that Andy just raised. This is the question about whether a stay should be issued, which is what we've been arguing. This ETS was issued a couple of months ago, isn't that right? On November 5th, that's correct.

Yeah, on November 5th, all right, and it hasn't been enforced during that period. These cases arrived at this court just a short time ago. They present lots of difficult, complicated issues.

We have hundreds of pages of briefing. We're receiving very helpful arguments this morning. Does the federal government object to our taking a couple of days, maybe, to think about this, to digest the arguments before people start losing jobs? Well, Justice Alito, if you're asking whether it would be appropriate for the court to issue a brief administrative stay, certainly we think that that would be within the court's prerogative if it thinks that it's necessary to do that.

Ultimately, for the injunction that they're actually asking for here, the applicants would have to show an indisputably clear right to relief, which we think they can't satisfy. All right, and we will be back in just a few minutes. This is Logan Sekulow, by the way, and we are taking your calls at 1-800-684-3110.

That's 1-800-684-3110. I did also want to be clear. Some of you are asking, why are we remote? Well, if you could look outside right now, you'd know that we've got about six inches of snow and we can't get into the studio. At least we can't, but we've got some amazing crew people who did get in to make sure you get this broadcast. I want to thank all of them for getting there. All right, we'll be right back with more on Sekulow.

Call us 1-800-684-3110. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights, in courts, in Congress, and in the public arena. And we have an exceptional track record of success.

But here's the bottom line. We could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work.

Become a member today. ACLJ.org. Only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive. And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, a play on parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. Hey, welcome to the broadcast, everyone. We are giving you live analysis of the Supreme Court argument that if you are watching us live or listening to us live is going on still right now, it's on the vaccine mandate issue. Now, the way the mandate's set up, you either are vaccinated, which as I said, everybody in our sets are, or you get tested once a week and have a, and you wear a mask in the workplace. Now that goes into effect. This first time we really heard this, the federal government is conceding basically that the testing doesn't go into effect.

At least this is what I understand until February, but that the mask requirement, if you're not vaccinated, goes into effect on Monday, which, you know, obviously anybody that has got over a hundred employees has to do. Now, what's interesting here is the argument started out pretty, pretty difficult. I will be honest. I mean, I did not see a lot of sympathy for the, our positions. I think I felt a little bit better as it went on, although I think someone just texted me that Justice Kavanaugh basically indicated that they view the vaccine, the COVID virus as almost like a bio weapon, a biohazard. So it's going to be very interesting, but remember this is up on a stay. I want to get Harry Hutchison involved in this, who was instrumental in working on this case with our team and is also a law professor, of course, and senior counselor for the ACLJ.

Harry, what's kind of your read on it as where we are right now? I mean, obviously it's, the case is still going on folks as we're talking. Harry, I think the court acted fairly slowly in terms of the oral argument in clarifying what the mandate actually means, but once they took, for lack of a better term, affirmative action and were engaged, they made several things clear. First, it is clear that the mandate at issue, if not stayed by the court, does not require any testing by employees before February 9th.

Second, the mandate allows for a religious exemption and any application of this mandate to employees must allow for a religious exemption or face particular penalties for acting outside of the mandate. Third, the court doubts that the federal government has broad unlimited police power to issue a countrywide mandate. Therefore, there is support by at least three, maybe four justices for the proposition that the mandate exceeds the scope of OSHA's power. And quite importantly, the court admits that the vaccine poses a risk to individuals and therefore this mandate imposes some risk on employees and therefore the vaccine mandate should be weighed by each individual employee as opposed to some bureaucrat in Washington, DC.

Of course, the question is four votes is great, but five carries a case. The way I understand the mandate now, Harry and Andy, so I think Andy, we got to be clear here. Everybody was under the impression that everything went into effect Monday. Then the Solicitor General of the United States got up and said, no, wait a minute. And this is why I think she's trying to defeat a stay, frankly. She said, no, the vaccine card acquisition from your staff has to be done before now, but that's an administrative function that everybody could do. We're doing it, everybody can do it.

A lot of affiliated entities with us are doing it too. Then everybody was under the impression that the testing and the mask requirement if you're unvaccinated was to go into effect Monday too, but no penalties until February for that compliance, but it went into effect. Good faith attempt. She seemed to modify that as I played earlier in saying, no, it goes into effect in February. We haven't played that yet.

We'll find that one. But so it's still a bit confusing. The problem is, and Harry, I don't disagree with what you're saying, except it takes five votes to carry the issue. And I think the mistake that continued to be made here is arguing the efficacy of the vaccine, because I think it's beyond dispute that in fact, if you're vaccinated, you're less likely to be seriously ill. That is beyond dispute. It does not answer the legal question, however, as to whether OSHA had the authority. This is what we went back to, Andy, is a question of administrative authority that is lacking here. Jay, I wish we had made those who are arguing on behalf of the employers and the states would have made that clear instead of getting into the science and into the medicine. I wish that they would have made clear early on, like some of the justices did only in questioning of the Solicitor General, that we are arguing a legal position here, and that is that the federal government has no role in this under the Constitution of the United States.

The central government is a government of delegated, that is limited powers, and the remaining powers vest with the states under the 10th Amendment. Now, that is an argument that I did not hear with the clarity I would have wanted to hear come out of the petitioners, that is the employers and the states in the early part of the argument. I've heard every bit of the argument from the very beginning when the case was called through to the time we went on air, and I wish I had heard that argument. I need to say it is still being argued right now. I mean, so maybe they are addressing it, but it's being argued right now still. Yeah, and that could come up.

Let me say this. I want to play, this is, for those of you that are employers, we're trying to be really practical here. For employers, this is what the Department of Justice, the Solicitor General's Office, has now said as to the effective date of the various aspects of this mandate.

I think this will be helpful for employers and employees. So, here's what, listen to the, this was focusing on questions about why it's taken so long to get action. Take a listen.

We think that there are lives being lost every day. Well, brief compared, I'm sorry, brief compared to what? The months that it, excuse me, the months that it hasn't been in effect since November, whatever it is, when the courts have been active in this area, or brief, brief compared to what? Well, Mr. Chief Justice, I think that the agency well explained that the employers who are covered by this needed time to come into compliance.

The agency announced that it was exercising enforcement discretion because of the confusion that had been created by the Fifth Circuit's day. Maybe it would be helpful for me to explain exactly what the January 10th deadline means. With respect to compliance, the agency has announced that for employers who are acting in good faith, it is not going to enforce any of the provisions of this ETS until January 10th. And what that means as a practical matter is that employers need to be adopting their policies. They need to be ascertaining the vaccination status of their employees. And they need to be requiring masking for any employees who remain unvaccinated. So, it's not as though immediately employees are going to be quitting their jobs or leaving in response with the worst predictions.

On January 10th, if this standard remains in effect, then masking will immediately be required and the testing will kick in on February 9th. So, the way I understand it now is if you're vaccinated, get your vaccine information into your employer. If you're over 100 employees, your employees should set up, but they probably set up some kind of plan. So, your employees should set up, but they probably set up some kind of portal as we did. You get that. If you're not vaccinated, you're going to have to wear a mask in the office space.

But the testing requirement, according to the Solicitor General, doesn't go into effect now until February 9th. Logan, we've got a call. Let's go ahead and try to take a call before we go to break here. Sure. Let's go to Donna on Line 1 who's calling from Washington. Donna, welcome here on the air. Hi, thanks for taking my call. I'll try to be brief. It's kind of confusing to me.

You have to be brief because I only got three minutes, so go ahead. Okay. I'm currently on a medical leave. I work for a large telecommunications company who has indicated that by February 1st, everybody who works in the office must be vaccinated. I've been working from home for a year. There has been no timeline that I need to go back into the office, but apparently because I'm temporary work at home, I have to be vaccinated even though I'm not going into the office.

Will this stay have anything to do with that? Not really because your individual employer could still put requirements in different than what OSHA is mandating. In other words, an individual private employer could still say, we're going to require vaccinations of our employees. Usually it requires some kind of nexus to the workplace.

Now, if your job was permanently at home, that might be different, but if you're going to go into that office, they have the right to do that. In fact, they have the right... I don't want you to confuse what a private company can do to what the government is trying to do here. There are two different things. Private employers, and some private employers have, have said, we're going to have a vaccine mandate in place, period. Private employers can do that.

There's religious exemption, so there's those kinds of things, but the mandate isn't that. I think that's what is the critical aspect of this here. If you see me looking up, it's because I'm looking at the argument that's going on still on these cases right now as we're live.

But again, I think, Harry, we only have a minute and 30 seconds left, so give me a 45 second. I get a feeling we may get a, at least a temporary reprieve in an administrative stay sometime this afternoon. Again, it's tough to judge by oral arguments.

I've done enough of them to know that, but what's your sense of it? I agree with you, Jay. I think it's very clear that you'll get a stay of 48 to 72 hours.

Yeah, I think it's going to be short. Having said that, the good thing about that for employers and for employees, that gives us a time to figure out if what the Solicitor General said is actually the federal government policy, which gives you a little bit more room to implement this. Look, there's a general duty of care for your employees in the workplace.

People know that. We put in a filtration system to protect our employees. We've done social distance. We're doing everything we can, but again, the Supreme Court arguments are ongoing. We're going to continue to give you analysis. We'll take your calls. Logan will tell you what to do to get, if you want to be on air.

Yep. Give us a call right now. If you have your thoughts or opinions, if you've been listening to the case, maybe like a lot of us have this morning, we'd love to hear from you at 1-800-684-3110. Check out all the great content on ACLJ at ACLJ.org. If you're watching on social media, make sure you are sharing this with all of your friends.

Subscribe on YouTube. We'll be right back. Only when a society can agree that the most vulnerable and voiceless deserve to be protected, is there any hope for that culture to survive? And that's exactly what you are saying when you stand with the American Center for Law and Justice to defend the right to life. We've created a free, powerful publication offering a panoramic view of the ACLJ's battle for the unborn.

It's called Mission Life. It will show you how you are personally impacting the pro-life battle through your support. And the publication includes a look at all major ACLJ pro-life cases, how we're fighting for the rights of pro-life activists, the ramifications of Roe v. Wade 40 years later, Planned Parenthood's role in the abortion industry, and what Obamacare means to the pro-life movement. Discover the many ways your membership with the ACLJ is empowering the right to life.

Request your free copy of Mission Life today online at ACLJ.org slash gift. The challenges facing Americans are substantial at a time when our values, our freedoms, our constitutional rights are under attack. It's more important than ever to stand with the American Center for Law and Justice. For decades now, the ACLJ has been on the front lines protecting your freedoms, defending your rights in courts, in Congress, and in the public arena.

And we have an exceptional track record of success. But here's the bottom line, we could not do our work without your support. We remain committed to protecting your religious and constitutional freedoms.

That remains our top priority, especially now during these challenging times. The American Center for Law and Justice is on your side. If you're already a member, thank you. And if you're not, well, this is the perfect time to stand with us at ACLJ.org, where you can learn more about our life-changing work. Become a member today, ACLJ.org.

Welcome back to Secular. We are taking your calls at 1-800-684-3110. We are doing this show remotely today. If you're curious about maybe the quality difference or you're watching online, that is because we have had a pretty massive snowstorm and we have a few select crew members are able to make it in. I want to thank them for getting in and doing it because without them we will do the show. We knew this show to be very important as the case is ongoing in the Supreme Court.

A lot of us were listening this morning. Now, one of the things I wanted to bring up with you, dad, before we even talk about this is there at least was a moment brought up, which I think a lot of us as employers were concerned about with the testing requirement, is that right now getting tests is not easy. Whether you're looking at the at-home test, trying to find them, or even the hours and hours of lines, and that was brought up and it was sort of shrugged off.

Yeah, we kind of did the analysis and we think that's fine, but is that maybe why now it looks like testing may be pushed until February? Look, I told you in our brief and in the way I wanted to present the argument in the case, I would have gotten up there and this is what I would have said. And I think it's what Justice Alito said. We're not in any way degradating the effectiveness of vaccines. I'm an advocate and that's you could start that way.

So you kind of get that out of the way is number one. Number two, the fact of the matter is the world has changed since this ETS, emergency temporary order standards came into effect because now the exemption, it's either vaccine or testing in a mask, getting tests are very difficult and the way the test has to be administered is not easy either. So what you have is a situation where it's almost like legal impossibility and I think what you saw in that, and that's probably why the Solicitor General wisely, I think, conceded that they will not put the testing aspect of it in place until February 9th, although the masking is going into effect in January. That's not what the statute said or the rule says, the emergency order says, but that's how they're interpreting it.

So to say it's clear, it's not. It's far from clear, but I think at least it gives you a sense of where this could go, where it is going and how to interpret it because it is very difficult for the workplace. It's very difficult for the employer and the, frankly, and the employee here. Andy, I was going to ask you this one and then we'll take some calls.

I want to play some sound. It seems like that concession of the implementation of the order or of the regulation, the standard, they were kind of, I think that I'm not, I can't read the mind of the Solicitor General but it seems to me that she said that because they know how difficult it really is to comply. Well, I think that's true and I think the justices pushed her into a corner when they made her actually admit that there are complications in this rule and in this mandate or whatever you want to call it that need to be sorted out and before you can do that, you start penalizing people.

That's not fair and so she made a concession which I think was a major concession that had not been made up to this point and that is masks on Monday but testing and penalties not until February the 9th. Now, that is something that we had not heard from OSHA until this very morning and that concession in judicial in the court by the Solicitor General becomes de facto the position of OSHA and they're stuck with it now and the justices have heard that and they're going to make a decision on to whether grant this administrative stay based upon that representation made to them by the Solicitor General of the United States, Jay. Yeah, so the interesting part of that is that they could just say whatever in this case and it essentially becomes the law because that we've been trying to implement all these policies so they threw out something new and that just shifts it to where well they threw something out new it makes it de facto it changes their entire policy that seems crazy that's where people I think get very frustrated with us it's because ideas can get just thrown out there and all of a sudden everything that we just told our employees we had to do even though we don't necessarily want to we don't we had to do now get shifted because someone in a Supreme Court case just offhandedly says oh no no we've changed our mind. Well that's right but Andy's correct the Solicitor General binds the agency they are the agency's lawyer the Department of Justice represents OSHA and they bind the agency so the agency's now positioned their new regulation is no testing according to what they said at the Supreme Court until February 9th. Now what's interesting about that is does that defeat the need for an administrative stay? I would argue it doesn't because there's still all other aspects of compliance but that's why I think that the Department of Justice came up with that position. I thought it was it was actually a pretty swift move frankly and you know that's what lawyers do when you're up there listen I always say when you're up there bobbing and weaving if you were a boxer that's a boxing analogy when you're up there bobbing and weaving and you know you've got to be thinking about all these things while this case is going on and and I think that was their idea of maybe we can defeat the administrative stay it doesn't affect the long-term stay so much that'll come with a decision in it probably weeks but we'll see I mean we remain with something if look if the stay's not issued today or tomorrow it's not a very good sign. We had a comment come in from Cordell on Facebook they asked about specifically the heritage suit that we're a part of and they're curious if this is a part of that and how do they choose who gets to argue what? Why aren't we up there doing that right now? Okay so that's good our case actually we represent the Heritage Foundation that case has been accepted by the Supreme Court as part of all of this but you're only seeing what you're seeing is two hours of oral argument for for basically four cases and really more like 12 cases the oral arguments are very small not insignificant but a small part of the briefing that goes into this is where the real meat of the work is we our briefs were filed accepted reviewed are part of the record we it's part of the case we have a case what happens so the oral argument was basically by the government so that's the Solicitor General's office representing the United States and then the state of Ohio and then one of the lawyers representing the National Independent Business Federation so that's how that was set up and but our case it will be directly impacted by all of this obviously and that's why getting the case up there was such a big deal it's complicated you're seeing it play out I mean it's complicated to comply it's it's a complicated situation and and the atmospherics aren't great right now we all know that that's just the reality of the of the situation so do we have time to play this fight will I'm probably not really got two minutes left but let me go back to uh Harry here for a moment assume we get the you know I'm Harry one of the things I'm thinking about is she conceded that an administrative stay might be appropriate and then said that the testing doesn't go in effect until February trying to kind of defeat her own administrative say but like you said administrative stay gets you what a couple of days yeah I think it probably gets you a maximum of three days uh I doubt it would go longer than that um but I would also concede that the court has to look at tons and tons of briefing I would also say that the council for the National Independent Business Association or Federation did not do a good job on the constitutional issues at stake and the federalism federalism issue at state stake and so I think uh initially my assessment was this um argument against the vaccine mandate was going to go down in flames yeah you know it's interesting I try to not criticize lawyers when they're arguing the case because unless you've been there and done it uh it's very easy to criticize but when you're up there having to do it it's tough and look he had an argument you don't also know what the clients were requesting here so I'm I'm not trying to defend it I'm just trying to say it's when you're the advocate up there it's difficult I would have argued it differently no question but everybody's got their own technique style and and legal now I think got a little bit better towards the end but we'll see all right we've got another half hour logan coming up that's right if you don't get us on your local station join us live right now on facebook and on youtube and at aclj.org we are broadcasting live on all those outlets and make sure if you are watching that to share like comment and check out our great work at aclj.org you can catch the show later on as well on the podcast feed on aclj.org and the aclj app we'll be right back for decades now the aclj has been on the front lines protecting your freedoms defending your rights in courts in congress and in the public arena the american center for law and justice is on your side if you're already a member thank you and if you're not well this is the perfect time to stand with us at aclj.org where you can learn more about our life-changing work become a member today aclj.org keeping you informed and engaged now more than ever this is secular and now your host jay secular i feel like a uh a sports caster that's calling a play-by-play because the reality is the supreme court argument that we're talking about is still going on while we're live so i mean we're just dealing with what we you know we're giving you the best analysis we can what's up is the uh the mandate which either requires a vaccine or in the alternative a test and a um and wearing a mask if you're in the workplace it seemed early on that there was not a lot of support for issuing a stay that's the way the case started out there was skepticism by a lot of justices including justice thomas justice alito uh justice roberts and justice roberts actually seemed to become the more aggressive on our position which is the lack of statutory authority to implement it now the government made a huge concession i think trying to defeat the need for a stay by saying that while the vaccine issue of if you're vaccinated you got to provide your vaccine card to your employer which is not a big big issue you put it up and but that the testing if you're not vaccinated actually doesn't go in effect until february which is the whole thing if you think about it the way that the situation is now this thing was done in october september october and the world has changed a lot and that's why these things don't work but the real issue that should have been addressed head on in my view was what the President said was that there was in fact no federal solution to this that it's up to the states which is the position we've taken and that's and i'm talking about President biden there we actually agree with him on that he agreed with us and secondly that the there was a lack of statutory and constitutional authority they hit the statutory first before they hit the constitutional um because of the lack of statutory authority would avoid the ability of of this agency to be the agency that's putting this mandate in place so having said all of them i keep looking up my screen and seeing if i'm seeing anything that's coming up my sense right now is that we have a situation logan where we may see a short-term administrative stay uh that's possible uh and we may we may not and we don't think that now the testing is required until february 9th so we may see everybody may be modifying their positions based on that you asked a great question which is can a government lawyer bind an agency and the answer is yes yeah that's pretty crazy i think for a lot of people to hear that just those simple changes can really throw everything uh you know into effect now we had that situation when we when you watch this case where it did seem like it did seem like the government lawyers uh were conceding a little bit they were conceding yeah maybe you could do a stay maybe you could do uh you know delay it seemed like they gave themselves wiggle room in this knowing that the testing situation is what it is and maybe we're the other side but didn't give as much uh was that an interesting uh play do you think yeah i think the solicitor general actually was smart in saying that um administrative stay could be appropriate uh on a limited basis i think she was smart in saying that the testing mandate won't go to effect until february that means the court could issue a full opinion on that because if you're already vaccinated the only thing you have to do is show your card and that's it so uh i think way less extreme it sure did i think that but look that's good lawyering whether you agree with the position or not it's good lawyering i think the problem with some of the the positions that were being advocated at least early on in my view was scaring the court because there was this statement that this is grave danger and grave concern but but but you know oh she can't do anything and that sounds really extreme instead of getting up and saying lack of statutory authority um test the mandate can't even be put in effect we could have taken that away but again i am not going to criticize the lawyers that presenting the case because they're the ones up there and and people have done that to me they criticized me when i've won cases nine zero they're not so critical when you win nine zero but they are during the argument so i i i'm not gonna i'm not gonna blame the lawyers they had clients you don't know what the client state of ohio i'm sure requirements they wanted issues they wanted left so those are normal kind of things that you have in place but having said all of that um we're still you see me looking down and looking up as we're still analyzing this as we're calling it live as it's happening and giving the best analysis we'll take your phone calls when we come back as well logan because people do have questions on this that's right we are going to take some phone calls one eight hundred six eight four thirty one ten some lines are open right now we do have some calls already ready to go we'll get to those in the next few segments one eight hundred six eight four thirty one ten while some special guests join us later in the show as well but again one eight hundred six eight four thirty one ten to have your voice heard on this critical issue right now and always support the work of the aclj go to aclj.org look at the amazing work that we're doing and the great content we're producing the challenges facing americans are substantial at a time when our values our freedoms our constitutional rights are under attack it's more important than ever to stand with the american center for law and justice for decades now the aclj has been on the front lines protecting your freedoms defending your rights in courts in congress and in the public arena and we have an exceptional track record of success but here's the bottom line we could not do our work without your support we remain committed to protecting your religious and constitutional freedoms that remains our top priority especially now during these challenging times the american center for law and justice is on your side if you're already a member thank you and if you're not well this is the perfect time to stand with us at aclj.org where you can learn more about our life-changing work become a member today aclj.org only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive and that's exactly what you are saying when you stand with the american center for law and justice to defend the right to life we've created a free powerful publication offering a panoramic view of the aclj's battle for the unborn it's called mission life it will show you how you are personally impacting the pro-life battle through your support and the publication includes a look at all major aclj pro-life cases how we're fighting for the rights of pro-life activists the ramifications of roe v wade 40 years later plan parenthood's role in the abortion industry and what obama care means to the pro-life movement discover the many ways your membership with the aclj is empowering the right to life request your free copy of mission life today online at aclj.org slash gift this is logan secular we're gonna go jump right to the calls our phone lines are completely jammed and keep calling 1-800-684-3110 and mike pompeo will be joining us in the final segment of the show to wrap us up but let's go to rena who's calling on line one from california rena you're on the air hi guys hi jade listen i want to know if the if the justices violate the constitution and allow this illegal federal mandate to stand what is we the people's recourse to protect ourselves legally against them doing that well first of all if the supreme court justices say that it's not unconstitutional if the the mandate's not unconstitutional then the law of the land i want to be clear on this is it's not unconstitutional so you could disagree with it you could think the supreme court got it wrong but that does not equate to a situation where you can then go violate the law you do that at your own peril including serious penalties and fines in this particular case so the law will be determined by the supreme court here if they if they address the merits you know it's a temporary order so i you know andy one of the things i thought about and but so by the way if they once they make the decision that's it i mean there is no now they could but there's 15 different ways this could go they could make a temporary decision send it back to the sixth circuit i mean so we're not going to know anything andy here definitive until we get the decision from the court but what we do know definitive is if the court were to say that the mandate is in fact constitutional well that's the law that's it that's what that's why it's called the supreme court of the united states it's the court of last resort and if the supreme court of the united states says that the mandate is constitutional so be it that ends it you follow the law you do what the law says until and unless the supreme court oh decides if they ever do to reverse themselves but you don't go violating the law so you have no alternative that's why it's called as i said the supreme court of the united states but harry there's another would your other alternative be to just find an employer that's you it's harder easier said than done has less than 100 employees and is not going to be violent you know following this i mean sadly to say the case but maybe that's your only theoretical option except a private employer with less than 100 employees could still impose a mandate themselves this is just whether the government could do it a private employer certainly can can put these in place subject to you know religious freedom and freedom of of conscience issues but i mean generally those would be difficult in the case like this so a private employer certainly could do it i mean the question here i guess harry is that's a good one logan too is there's so many different ways the supreme court could go especially in light of the solicitor general's intentional i would say concession about the application of the testing requirement that it really could go a lot of different ways here we it's very hard to predict i think you're absolutely correct and essentially the government has admitted that this mandate for practical purposes does not really go into effect presumably until the 9th of february so in some respects the government is asking for not directly of course an administrative stay um till that particular date or basically saying okay we are not going to go after employers uh the second point of course is that in order for osha to go after employers based on my understanding of the law and there's some disagreement on this um they may need cooperation from state uh osha departments i don't know we looked at that actually last night and that's going to depend on this the various states have different rules on that so there's like 21 states i think that have state osha's that implicate on these issues there are you know 28 states that do not or something like there's 50 states i don't know what but it was like 21 or 22 that did so that's where i get you're right it could get very confusing except if they don't issue a stay at which point the law the supreme court has basically let the law go into effect which i think there's four justices that would clearly do that logan let's go take a call sorry let's go to ben from north dakota online to ben you're on the air hi thanks for taking my call i just have a quick simple question what is the our employees legally obligated to provide vaccination status to their employers uh well your employer if a private employer could number one require it and they have the right to do that um if you're vaccinated uh to ask for your card as proof and then and then have that for osha private employers could mandate that themselves private employers have other employers don't so it's it's it this issue is whether osha whether a federal agency has the authority to do this and that's what's being really debated right now yep we had another call came in they just dropped but i think we should ask you know get that question answered and that was from doug in texas doug sorry about that he said he understands all the cases are consolidated but will the aclg's filing be specifically considered by the supreme court of the united states and how does that work yeah so all the briefs everything has been consolidated there's there's multiple orders but yes all of our briefs were accepted filed read that's how the courts do it and the clerks go through these in great detail and the opinion in these two cases will have will be the opinion in all of the cases so all you're seeing today and it's a great question it's just the oral argument portion there are hundreds thousands of pages of briefs that have been filed in this case with literally within a couple of weeks thousands of pages between both sides so that's all there what about update on how long you think this will take until we have at least some kind of decision no people are expecting the potential if we know there'll be a stay do you think if there be a stay do you think we'll know relatively quickly and then when is the decision because a lot of times people think the supreme court they think of these arguments happen and then six months later we get a decision okay so here here's the thing i think if we're going to get an administrative stay we get it today or tomorrow sunday at the latest if we don't get an administrative stay by the weekend i think it's not a great sign andy what do you think i agree with you i think if there's going to be an administrative stay granted in the case it's going to be granted after the conference this afternoon it could be as late as any time tonight the court issues orders 24 7 it could be tomorrow it could be monday sunday i think if we get a stay well however come before monday when the mask goes into effect the new mask mandate i would say because they change their policy on that go ahead logan all right let's go to dan online for dan you're on the air hey guys big fans thank you so much for holding this tune in all the time been trying to get to you and ask this question for a while uh i don't see how anything eua mass testing or these vaccines could be mandated i thought case law was clear in doe vs rumsfeld that nothing eua could be mandated there is no commodity that's not being produced the fifth circuit already definitively found that is not available yeah but here's what happened the fifth circuit case was then all the cases were consolidated to the sixth circuit under the multi-jurisdiction statute what that means is the fifth circuit decision was basically left in place until the sixth circuit ruled for the rest of the country and they did and they held that the mandate in fact was constitutional that included a republican appointee to the sixth circuit court of appeals then uh what happened was the cases went to the supreme court of the united states we requested along with everybody else an administrative stay pending the disposition we didn't get it uh they didn't issue a stay the opinion stayed in effect the opinion of the sixth circuit right now is in effect which has the mandate going into effect with the now modified issue of that the testing requirement will not take place until february i know this is technical but we got a lot of employees and a lot of employers that are listening to broadcast i'm trying to be as clear as i can that effectively logan as you asked did modify that rule they can bind but also it's one of yes one of our producers just put in else said the fda has also approved these vaccines now so it's no longer just emergency use authorization for at least the initial doses no that's correct i mean so all right that really didn't come up much of the that was not a big part of the argument today yep hey do we have any other calls or is that it our producers can tell us all right i'm gonna assume i assume that we're good right we got we're still screening calls we'll take as many as we can but right now we are starting to wrap up the show uh for calls but in the next segment we're gonna be joined by mike pompeo who will be joining us uh to discuss all these issues and uh talk about uh the great content by the way if you haven't read his content that he puts on aclj.org every week i encourage you all to go to aclj.org and read some of the great content that is there and see the great videos in the series and all the great stuff we put out yeah this is just a you're what if you watch the one hour a day that's just a small small portion it's kind of like the oral argument it's just a small portion of the overall uh scope of what we do as an organization in the content that we produce yep you know what i want to thank our team that came in through her through uh very uh treacherous roadways and they got in safely which we said if you can't get in safe don't go but they did and we're that's why we're all in different locations literally all four of us or someplace else because of the technology we have we're able to do this both on facebook youtube uh whatever rumble whatever you're watching us on right now and also on our radio stations around the country uh because of your uh support for the aclj so i want to say a huge thank you to our team i want to put this back in perspective what is being asked what's up is the court is an application for a long-term stay and a short-term stay administrative stay so that this doesn't go into effect monday a longer-term stay so that the case can be considered um the department of justice solicitor general who binds the agency here said that the masking requirement will go into effect monday but the testing requirement will not that was a change from previous osha positions uh as early as as late as yesterday so they modified their position somewhat where the justices come out on this the oral arguments are like logan said a small slice of of the overall aspect of the case so we'll see um i'm i'm we're gonna see we're gonna know i think very soon mike pompeo is joining us in just a few moments we'll take uh his comments be very interested to hear what he has to say back with more in a few minutes only when a society can agree that the most vulnerable and voiceless deserve to be protected is there any hope for that culture to survive and that's exactly what you are saying when you stand with the american center for law and justice to defend the right to life we've created a free powerful publication offering a panoramic view of the aclj's battle for the unborn it's called mission life it will show you how you are personally impacting the pro-life battle through your support and the publication includes a look at all major aclj pro-life cases how we're fighting for the rights of pro-life activists the ramifications of roe v wade 40 years later playing parenthood's role in the abortion industry and what obama care means to the pro-life movement discover the many ways your membership with the aclj is empowering the right to life request your free copy of mission life today online at aclj.org slash gift the challenges facing americans are substantial at a time when our values our freedoms our constitutional rights are under attack it's more important than ever to stand with the american center for law and justice for decades now the aclj has been on the front lines protecting your freedoms defending your rights in courts in congress and in the public arena and we have an exceptional track record of success but here's the bottom line we could not do our work without your support we remain committed to protecting your religious and constitutional freedoms that remains our top priority especially now during these challenging times the american center for law and justice is on your side if you're already a member thank you and if you're not well this is the perfect time to stand with us at aclj.org where you can learn more about our life-changing work become a member today aclj.org welcome back to secular to wrap it up we are joined by senior counsel for global affairs at the aclj of course former secretary of state mike pompeo who tweeted this yesterday tomorrow's arguments this was yesterday obviously we're talking about what we're talking about tomorrow's arguments before the supreme court of the united states are critical and i pray they do what is right and reject President biden's unconstitutional mandate so secretary pompeo thanks for joining us jordan it's great to be with you hey mike so this is jay and i wanted to you know i feel like i'm calling you know a live baseball game here because we're talking about this while we're live and it's still the argument itself is still alive we've taken the position that statutorily and constitutionally uh that this was an unconstitutional move and statutory authority wasn't there to do this um and without getting into the the weeds what was up in the case here was an administrative stay initially and then a longer term stay uh while the court gives the disposition um give us your sense of of the the significance of this because the problem here is not so much and i've been a big advocate of of the vaccines i've been very clear on that and uh you know i'm i'm proud to say that other people have different positions of free country but here's the thing that i don't understand i don't understand why the court didn't initially give an administrative stay and the solicitor general today changed the effective date of this at least as to the testing until february which was interesting i think that was to avoid the maybe administrative state but what's your sense of the situation yeah i think jay you've scoped this out pretty well first principle this is osha rule right i remember when we were trying to do things through administrative processes they have ultimately failed to execute so as a purely legal matter i think this is ultimately going to be found by the supreme court not to be uh permissible or appropriate i think they're going to strike this down as for the immediacy of this you could hear and the response from the government under the questions that justice alito asked this morning uh they they they they know that they sat on this for a long time and now are declaring that this is an emergency in a way that doesn't permit the court the capacity to do this in a reasoned way i think the courts are going to find that that's the case on the on the bigger issue on the practical import of this i think you've got this exactly right these these mandates don't function to serve the purpose for which the biden administration the justice department has put their legal defense forward uh we we know that this covid thing is going to be here for a while we we know that most people are choosing to become vaccinated it is keeping them from going to hospitals keeping them safer those are all good things but the federal government issuing a mandate for such a thing and doing it at on pain of loss of the capacity to take care of your family and feed your children and pay your lease and your rent um i think that is an outrageous overreach by the united states government as a policy matter and i think they'll find it both unlawful and illegal as a legal and constitutional matter as well you know i would have gotten up and you know it's i say i don't ever want to criticize the lawyers that are arguing because i've done this many many times now and for four decades and so you know you're up there bobbing and weaving it's you know it's easy to criticize when you're not the one i'm going to come up with this but one of the things i i said was i would have initially said uh first of all that what President biden said was correct that there's not a federal solution here that the states have to solve this because the states can deal with it on a local on the state basis where there's issues and they can even delegate that to the counties that's number one number two the testing mandate problem is not that the test is so invasive it's that you can't get the test so it's it's the doctrine of legal impossibility you can't even comply with this so you know i find the whole approach here to be constitutionally awkward to say the least and that may be a new phrase but and and constitutionally suspect but trying to apply this i mean we were up until i mean mike last night with our hr people trying to figure out what do we do for monday i mean this is how complicated this situation is and you've got employees that can't be vaccinated because of immuno-compensation how do you can they get tested in time i mean these are real situations that people have and like i said i'm pro-vax but the the government doing this is just difficult to conceive of how this can roll out smoothly and of course that's why the government said oh no no no we're not going to have testing until february now which is not actually what the mandate says no that's right but jay this this is not an academic exercise this is a a real exercise where real lives are going to be impacted not only the individual's lives and their family's lives but the the lives of businesses trying to figure out how to get enough pilots to fly airplanes and for companies like yours businesses like yours organizations like the aclj to continue to perform their important missions this was this was put together hastily in an attempt to suggest somehow that they were doing something because i think as a political matter President biden claimed he was going to destroy the virus we can see by the hundreds of thousands of cases every day he hasn't done that uh so he's got a politically difficult bridge and so he put they sent osha off the department of labor off to put together rules to do something and i think now the poor lawyers are having to defend this can say that the do something theory is he's used constitutionally awkward i think that's pretty diplomatic and kind maybe you can run the state department one day um i think i think this is constitutionally a disaster from the perspective of our governance model this would give osha the right to do just about anything in the name of safety for the workplace you know i always try to be i always try to be kind to the lawyers arguing because i've been in that position where you get the left you know the kind of a left hook question i should say justice stevens who was a really nice guy but he would give you anytime he would say the words supposing is part of his hypothetical you knew you were about to get a left hook so get your get your arms up because you got to block it um having said that all right so we look at this i think about what happened when when you were in office and operation warp speed and all of these things moved in a systematic way and then looking at it now i hate to get into the politics of this but it seems like i mean as i said the department of justice changed the policy while they were up there today yes and the cdc and the nih and others are changing their protocols and their guidance every day sometimes multiple times a day it certainly feels like it's to the whims of public perception of what's taking place what we need is good science rational debate good good logic in the presentation of how the federal government messages and then let these governors let these county commissioners let these school boards make good decisions for their own systems their own states their own regions and we'll get to a solution that is workable to deal with this ongoing challenge from covid much more quickly yeah you know i was going to say mike i totally agree on that part i think that the the part of the what you saw today unfold and it's still unfolding as we're live is that the lack of clarity of the mandate itself has created part of the a really big part of the problem here uh quickly let me let me close with this mike we only got about a minute left here we don't know what the supreme court's going to do maybe they'll issue a stay maybe they don't but the end result of this does show that uh supreme court justices make a big difference they do we can never forget that the aclj has done a wonderful job of highlighting the different positions the different justice taking talking about why this matters uh we we all know that these elections elections for President united states and for the united states senate matter because those are the folks that choose who our justices are and if they choose people who are political and aren't prepared to defend the constitution then there's real risk to the republic all right secretary of state former secretary of state mike pompeo to the senior council to the aclj thanks for being with us appreciate your insight as i said we're calling it live as we see it and i appreciate that logan back to you that's right we got to wrap up this show thank you all for calling in for being part of the broadcast today thanks to obviously our crew who is able to safely get in to produce this as we you know host this show remotely so i want to thank them and really appreciate all their hard work as we keep this live analysis going now something big changes something big happens we'll do our best to keep you updated the best way to do that is to make sure you are actively involved with the aclj so go to aclj.org like this page like this page if you're watching on facebook subscribe on youtube we'll try to be as current as we can run instagram right everywhere you you get media we are there so make sure you are staying up to date with what is going on in the world by following everything that we do at aclj.org that's going to do it for today's show thank you guys so much for joining us we're back on monday hopefully in studio this snow will melt and we'll see you then for decades now the aclj has been on the front lines protecting your freedoms defending your rights in courts in congress and in the public arena the american center for law and justice is on your side if you're already a member thank you and if you're not well this is the perfect time to stand with us at aclj.org where you can learn more about our life-changing work become a member today aclj.org