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ACLJ Wins Major Mandate Case At Supreme Court

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow
The Truth Network Radio
January 14, 2022 12:00 pm

ACLJ Wins Major Mandate Case At Supreme Court

Sekulow Radio Show / Jay Sekulow & Jordan Sekulow

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January 14, 2022 12:00 pm

The U.S. Supreme Court issued an emergency stay yesterday blocking President Biden's "vaccine mandate" power grab, delivering a significant constitutional victory for our client, The Heritage Foundation, as well as employers and employees all across the country. Jay, Jordan, and the rest of the Sekulow team discuss this major victory for the Constitution and the ACLJ. This and more today on Sekulow .

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Today on Sekulow, a major victory for the ACLJ at the Supreme Court. 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. A major victory for the American worker. Yesterday at the U.S. Supreme Court, two-thirds of the American workforce was beginning to comply with the Biden administration's vaccine mandate. And for most of you and your employer, that meant that you either had to show your vaccine card and prove to your employer that you were vaccinated, the employer had to build a new database of people who were vaccinated.

And then make sure, you know, that was ready in case the definition might have changed, you know, later on to having to have to have a booster shot to be considered fully vaccinated. And then you were also, if you wanted to allow the option, you could either terminate the employers who weren't vaccinated or you were allowed the option of weekly testing and masking at a time when it's very difficult to even find those tests and you'd have to have a database of testing. This even applied, as the Supreme Court noted, to only 9% of landscapers and groundskeepers would be considered outdoor workers for this not to apply.

Think about that. Lifeguards at the pool this summer, they would actually be considered indoor employees because there is some time where they might be inside for landscapers because they spend some time in vehicles together. But the Supreme Court in a resounding 6-3 decision told the Biden administration that OSHA and this agency under the Department of Labor does not have the constitutional power or the authority under statute to implement this kind of widespread mandate. And again, I want to just reinforce, this was a victory for two-thirds, nearly 100 million American workers and their employers who won't have to be in this bizarre employer-employee relationship, which I'll tell you, folks, was becoming very bizarre. Well, we were having to do it. And the employees, of course, couldn't get tested because the tests weren't available, so that was one. And then at the same time, you had the situation. There was not a lot you could do about it.

And we have a very high vaccination rate, actually, here. But it made it very difficult for these employees to do. We had to create this database. Let me say what happened here. I hope that this decision, and I really believe this is going to happen, depoliticizes this issue.

And I think it does. It's not a mandate, so no one can make you do it. You do what's best for you. For me, that was getting vaccinated. That's a decision that I made based on my advice with my doctor and the science.

That's where I came out. But what this does is the government never had the authority. This was what we argued, that the Occupational Safety and Health Administration did not have the statutory authority to do this, and that they overreach by doing it. And six justices, Andy, of the Supreme Court agreed with us.

That's exactly right, Jay. The gravamen of the opinion, the heart of the opinion was that the Congress did not give the Labor Department through the OSHA, the Occupational Safety and Health Administration, the statutory or regulatory authority, I should say, to interfere in the mandating of vaccines or testing or any of those things that they attempted to do because it just wasn't in the congressional mandate. And what Congress gave was not that power. That power was not given to OSHA. Therefore, OSHA had no authority to regulate and to interfere in that particular thing. It was a resounding victory, in my view, for the Constitution of the United States because it emphasized the fact that only delegated powers by the states to the federal government apply, and even then the federal government has limited authority under what it can do and give to its agencies.

Yeah, and let me say, I see it a lot in the chat. There was a second case. It was not the same case.

We were not a part of it. We represent the Heritage Foundation, private employers. About the medical employers, that was a separate, and their employees, a separate case entirely. And by the way, if you work for one of those companies, not one of them challenged it.

The challenges were coming from the states and individual employees. Your employer, your hospital, the Supreme Court noted it. Unlike Heritage who challenged it for their employees, your employer didn't. And the Supreme Court took note.

It was right on the edge, 5-4. So if you're upset there, I'd actually direct your anger towards your medical employer who decided not to challenge this on your behalf. We'll be right back on Secular. 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, 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. Welcome back to second. We're going to take your phone calls to throughout the broadcast. We're going to be joined by Kevin Roberts. He is the President of the Heritage Foundation.

He'll be joining us later in the broadcast. Mike Pompeo later in the broadcast as well to weigh in on this, but I just kind of want to walk through to how quickly the ACLJ was able to engage with the Heritage Foundation. They came to us. They were interested in filing the challenge. It was the first time the Heritage Foundation ever went to federal court as the actual petitioner. They had filed a couple of amicus briefs before, but they had never been represented before federal court. That just wasn't something they had done before. And they decided this was important.

This was so important that they wanted to do so. And they chose the American Center for Law and Justice to represent them. So on November 29th, 2021, so right after Thanksgiving holiday, the ACLJ filed a federal lawsuit in the US Court of Appeals for the District of Columbia on behalf of the Heritage Foundation.

You have to file where they're based. On December 7th, we filed the Heritage Foundation's opposition to the defendant's motion to dissolve the stay. Remember the stay then was dissolved. That was December 17th, 2021.

The Sixth Circuit dissolved the stay. So this set the mandate to go into effect January 4th when people returned to work after the New Year's holiday. On December 18th, this is, again, just the significance of the amount of work.

And remember, we get to these dates. When I talk about November 29th is when we filed, I'm sorry, it was days in between, not weeks, days our attorneys had to get that ready. December 18th, the ACLJ filed the Heritage Foundation's emergency application for stay of agency action at the US Supreme Court, or a grant of cert. On December 20th, the case was docketed at the Supreme Court, the Heritage Foundation case. And Justice Kavanaugh said the government's response was due by 4 p.m. on Thursday, December 30th. So we're all working right through every single holiday.

Thanksgiving, Christmas, and New Year's. December 21st, the Supreme Court announced that the oral argument would be on January 7th, that was last week. December 23rd, two days before Christmas, an order issued that a reply from us, if any, would be due on January 3rd, two days after New Year's Day. The ACLJ filed on January 3rd, the Heritage Foundation's reply. And on January 13th, the application for stay was granted by the US Supreme Court, and that was, of course, the victory yesterday. So I need people to understand, I'd like everybody to understand, and again, none of this happens without our member support, because this, you know, we talk about Thanksgiving, so we're working on this right before Thanksgiving.

Thanksgiving comes, you're still working on it, you have Thanksgiving, and then you're still working on it. In a six-week period of time, we went from the Sixth Circuit Court of Appeals to the Supreme Court of the United States for the decision. So, I mean, you talk about record break speed. Jordan and I did Sean Hannity's case yesterday, and we talked about, you know, we've had about 20 wins at the Supreme Court, maybe a little bit more with some of the summary reversals we've gotten over the years, probably closer to 25 or 28. But, you know, and then I said, oh, wait a minute, no, we just got this one.

So that's, you know, 20, 28, 29 now. And the fact is that this case moved at record speed, but we were very tailored in our approach, because when you've lost a case in the lower court, what you want to do is somewhere in the opinion, you want it to say reversed or stay granted. And everybody's talking about, well, maybe they'll strike it down on constitutional grounds. We led with the lack of statutory authority, and this is what the Supreme Court said, OSHA has never imposed such a mandate, nor has Congress.

Indeed, although Congress has enacted significant legislation addressing COVID-19, it has declined to enact any measure similar to what OSHA has done. We agree that the applicants are likely to prevail, and we grant their applications and stay the rule. And the court then went and said that because this did not apply just to the workplace. So that's what was so interesting about this, but we went for a very specific type of relief here, Andy, the stay based on a lack of statutory authority. We addressed the constitutional issues, of course, because you never know where it's going to go, but we focused on the statute.

That's exactly right, Jay. The stay is what we wanted to have in place. That is the preclusion by the Biden administration in enforcing this anti-COVID vaccine mandate testing stay that had been put into place. And we focused on what did the Congress give in terms of authority to OSHA, and the Supreme Court found that it did not give it authority to do anything other than occupational hazards and workplace safety. It's not a public health arm. It's not a public health institution. It did not have the authority to do that, and we focused very, very laser-like on the statutory authorities given by Congress to this agency, and the Supreme Court found they did not have that authority.

You can't do it. And we move with lightning speed on this, Wes, as you saw. Yeah, there is no other organization that's positioned quite like we are to defend the Constitution and to represent the rights and freedoms of ordinary Americans, businesses and groups, even states and cities, through our representatives in Congress that we have direct contact with, through advocacy in the media, through our FOIA requests, but especially in the courts, Jay. And we're defending the rights of ordinary Americans and our Constitution, and Jay, it's all made possible, think about this, through donations, through people who support the ACLJ.

It's amazing. Yeah, you all get to thank you here. I mean, we get to do the work because you're support of the ACLJ, which is just incredible, so I'm going to say that throughout this entire broadcast, thank you.

I want to go to Tham Bennett. It was interesting because the one thing that the opinion does say is that while OSHA could not do this, Congress might be able to do it, and certainly the states, and I think we all agree the states have the authority to do it under the police power. But you see nothing moving in Congress on this, correct? I mean, I think this issue is now depoliticized and people will make smart decisions, I hope.

Yeah, it's a major win all the way around. You know, I think there's disagreements here in town on whether or not Congress should have the ability to pass a statute and do this, but the court, in its opinion, referenced that the Senate has actually taken a substantive vote on this. They voted on a sense of the Senate on whether or not the mandate should stand, and there was actually bipartisan opposition to the mandate, Jay. The vote was 52 to 48, and the court recognized that that was the most significant vote that Congress had taken. So look, even if Congress were to come back and say, we want to implement this mandate statutorily, and even if hypothetically the court would let that stand, Jay, there just aren't the votes in either chamber to do that.

So we're not going to get a statutory mandate on this. I feel very confident about that. All right, we're getting a lot of calls coming in, Jordan.

We want to try to help people with questions they might have. So let's go ahead and take them. Yeah, Mike's calling from Utah on Line 1. Hey, Mike, welcome to Sekulow. You're on the air.

Thanks for taking my call. I'm an embedded systems engineer. I work for a Fortune 150 defense contractor. It was unclear to me, based on the things that I watched on the news yesterday and on your program, whether or not DOD contractors are going to be exempt or part of this mandate still, or if we're going to be like private industry.

Let me ask you this. You work for a private defense contractor, though. So what is their policy? I think they're going along with what the CDC says, and I think that they're unclear as to whether or not they are forced to abide or not. So there's a reason why they're unclear.

So, Mike, this is like another category of this case. So we've seen the case for private employers. These are not government contractors. That's two-thirds of the American workforce, no mandate for them. Then we see the case, okay, for the medical employees, but remember, these hospitals, they take upwards of 70% of their income coming in.

It's coming in from CMS, Medicaid and Medicare services. But your case is still in the district court, and so there are, depending on where you are, I know Utah even filed in a case in Georgia, and right now the district court there has issued a stay on any mandates for government contractors, but you have to kind of go district by district. So I think your employer is doing the right thing, Mike. I don't know if they filed and challenged to it, but your state has in Utah. They're going to be looking to probably the circuit courts and potentially the U.S. Supreme Court on how this will impact your defense contractor. But as it was pointed out by you, and I think that this is what's clear, is your employer is doing the right thing.

They're trying to figure out what to do. But so far, Mike, they have not issued any mandate on you, have they? I'm vaccinated. But have you had to give them your card or anything like that yet where they're building a database? I did give them my data. Interestingly enough, Monday I actually contracted omicron, and so I'm actually home now.

So even though I'm fully vaccinated, I actually contracted this week. So I think they're in the same position we were three days ago, which was four days ago, which is we started the good faith compliance with the law because that was, we're lawyers, we comply with the law even if we don't like it. And that was before the testing requirements kicked in.

So we started to build a database that's no longer necessary now for us. That's probably what your employer's doing. You know, you can't really rely on just a district court opinion, Dad, but that's where these cases are.

They are moving through the district courts, and then that'll move to the circuit courts, and then that will impact more states. So I think, again, your employer's going to figure it out for you and do the right thing. Yeah, there's a lot of nuances still to be determined on this, but the one thing that's clear is this mandate is done. For two-thirds of the whole workforce. Yeah, for two-thirds of the workforce, and that was good. Now, again, we're getting questions on this, and can private employers put in their own protocol? Sure. Can't stop a private employer from doing that. That's allowed. So, again, those are individual decisions that companies made.

We put in a filtration system. That was our decision. It wasn't mandated by the government. That was the decision we made.

So private employers could have a vaccine mandate. They're allowed to do that. Yeah. I mean, that's allowed. The government can compel it. That's the difference here. Exactly.

And there have to be some exceptions. Let me 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, the 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 Sekulow. So a big victory, two-thirds of the American workforce free of this federal mandate. Their employer not forced to do anything. The employees, again, it's a huge victory. And it was because, and I want to make it clear, your employer stood up for you. So your state stood up for you, your employers, this national, you know, the Federation of Independent Businesses and small businesses, they stood up as an entire trade association. The nonprofit sector, I mean, and the court named that. They said, you know, it's states, private employers, nonprofit organizations, associations of businesses that all stood up to say, we don't want to be in this position. We know what we need to do what's best at our small business or our company. Because remember, it was 100 or more employees, so it impacted a lot of small businesses.

Let us do what's best. Let us work with the states and the municipalities, but we don't need this federal mandate that treats the landscaper and lifeguard the same way as someone working in a meatpacking plant. Well, and that's what they said, and the court said that. I mean, what's good about the opinion is, and it was a procurement opinion, by the way, which means it's unsigned.

It's not by, we know it's six to three. There was three justices sent, but the chief justice along with Justice Alito, Justice Thomas, Justice Gorsuch, Justice Barrett, and Justice Kavanaugh all came to the same conclusion that OSHA did not have the statutory authority to do this. That doesn't mean, again, that states can't, because they say the states can, and they say that Congress can't, actually, in the Gorsuch opinion, his concurring opinion. He believes, and they say that in the Procarum opinion as well. But I think what this did, and I go back to this fan, it does depoliticize this, which I think is healthy for the American people. And as I said, I'm a big advocate of the vaccine.

As you all know, I lost a brother to COVID, so this is very serious for me, and my brother was not vaccinated, and I regret that, but there's nothing, I can't say it over and over again. That doesn't mean the government had the authority to just mandate it through an agency that had no authority to do that in the first place, but I do think it depoliticizes that, and I think that's a good thing. Yeah, Jay, I totally agree with you. I think it's a huge win on a number of fronts. It's clearly a win for liberty.

It's clearly a win on a proper recognition of the limits of federal government. I do think it depoliticizes the vaccine and other options available for people that contract COVID. I've had COVID as well, Jay. I'm also vaccinated. I'm glad to have an individual opportunity to choose the best options for my family and me. I think this opinion does all of those things.

Jay, I actually think more people are going to choose the vaccine because the government is not mandating it upon them, and I think that's a good thing. I'll tell you one thing, too. I was kind of chuckling as Jordan was going through that timeline because, Jay, you know this is true. This just always happens in Washington, D.C. The biggest issues and the biggest cases always seem to come at the most inconvenient times. You either have a Friday evening document dump or you have a Thanksgiving and a Christmas holiday where all of the filings are due. But, Jay, look, if you want to fight for liberty, that's what you've got to do, and that's what we do at the ACLJ.

I've interviewed lawyers before. This has been years and years ago, and they would say, well, I don't work on this day and I can't work on that. We said, well, what if you had an emergency stay at the Supreme Court?

I have gotten calls from the Supreme Court in years past on Christmas Eve where they needed something on a case that we were involved in, and it was Christmas Eve. And guess what we did? We responded, and here we responded in record speed.

Basically, for us, about two months' worth of work, six weeks' worth of dates where you had filings and responses and then argument and then decision. So it moved really quickly here. I mean, if you look at it, it's remarkable, and I want to thank our entire team, and that includes our production team.

I mean, yesterday was a perfect example. We had a production going on in another studio. We had just finished radio. There was no decision. The decisions came out Thursday morning at 9.30.

Nothing happened. So everybody said, well, that's it. I'm in my office. We're waiting for – we're working on other things, and then all of a sudden the opinion comes.

We've got a production going in in a smaller studio next door in our building, in our office. And then we did – Jordan and I did Hannity Radio, took a 10-minute break to kind of let our voices rest. As you can tell, our voices are shot a little bit.

And then we went and did about a 15-minute thing on Facebook and Periscope and all the different social media platforms. But that's because we're able to do that because of you all. So when we have this victory at the Supreme Court of the United States, and it is a big victory, we want to thank you for that. And I think, you know, Wes, you've kind of experienced it by watching this. You don't practice law. You're legally trained.

You have a master's of law. But you saw it. And it was a lot of work and a lot of effort, but a good result. Yeah, a team effort for sure. Not just the team here at ACLJ, but the people who support the ACLJ and our multipronged capabilities to effect change and to represent freedom and democracy to defend the Constitution.

And again, it's possible because of the people who support the ACLJ. And I know I'm like a lot of people on staff here. We're just glad we get to be a part of it. We're going to Mary's Call of Virginia online, too. Hey, Mary, welcome to Sekulow. You're on the air. Mary, you there?

Hi, Jake. Thank you for taking my call. Yeah, I'm here. Yeah, you're on the air.

Thank you. Yes. The question I had for you, Jay, was now that the Supreme Court has gotten rid of the mandate, are companies that are with 100 employees or more still going to be mandating the requirements for the vaccine? Because I feel the company I work for is still going to be mandating it.

Yeah, they can. And they don't have to be 100 employees. It could be 10 employees. I mean, private companies can say, look, we mandated a filtration system in our offices.

We put them in offices all over our facilities and not just here in our other office locations as well. So private employers still have the capability of saying, you know what, if you're going to work here, we're going to require a vaccine. There's nothing in the law that prohibits a private employer for setting workplace conditions. The only thing they have to offer is probably a religious exemption. The government made that argument in court, so even the Biden administration now exact and for people who really cannot get the vaccine because they're immunocompromised. Obviously, they're not going to be terminated because of that. So there's still going to have to be some system set up within even a private employer who decides to do this on their own. It allows for certain exemptions based off either religious exemptions or this would damage your body in a way because you're immunocompromised.

And that's a case-by-case basis. Let me go back to the phones again. Linda in Texas on Line 4. Hey, Linda. Quickly, Linda, go ahead.

Hello. My name is Linda and I'm a nurse and I work at a Title I school district. A lot of our students are Medicaid. As a nurse, I don't trust the COVID vaccine science period, but also it's not a win for us nurses if we participate in companies that take Medicare and Medicaid. Here's the issue.

Here's the issue, Linda. While a lot of nurses challenged it and individuals and states, your employer didn't. The hospitals didn't.

The hospital, and I'm not saying just yours specifically, no hospitals. So the Supreme Court noted that was a close decision too, 5-4. I think that if the actual employers would have been there making that case of how many they're losing, but no one was there to file that affidavit from the employer to say, you know, we can't operate as a hospital because this is impacting too many of our nurses and doctors and staff. So I would take this up, as the Supreme Court noted, your employer didn't challenge it for you.

That's just the bottom line. And it was noted, it was a big enough deal that it was noted by the Supreme Court in that decision. That's why Heritage, groups like that, stood up for their employees. And also, small businesses stood up for their employees.

Yeah, and listen, Heritage has not been anti-vaxxed at all. No, but they stood up. They didn't want that weird... They didn't want the government engaged in something that the government didn't have the authority to do. That's what this case is all about. Separation powers. Separation powers and federalism.

Exactly why Heritage exists. All right, we've got another half hour. We're taking your calls, 800-684-3110, but I want to thank you for supporting the work of the American Center for Law and Justice. This was a big win at the Supreme Court of the United States.

I hope it depoliticizes this whole issue. And people forget that this vaccine was created under President Donald Trump through warp speed. And it's probably saved, not probably, it has saved millions of lives.

But the government was not in the position to do what they were trying to do here. And that was the right decision of the Supreme Court. We'll take your calls when we come back from the break, 800-684-3110. 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 Sekulow. And now your host, Jordan Sekulow.

All right, welcome back to Sekulow. Just to reset for you, a major victory for two-thirds of the American workforce yesterday at the U.S. Supreme Court. Your ACLJ, representing the Heritage Foundation, in their first challenge as a petitioner in federal court in their entire history, chose the ACLJ to represent them in court. States were in court. The Independent Business Association of Small Businesses were in court.

Other nonprofits. The court noted, because I keep comparing and contrasting the different cases, that everybody lined up here to say, in the private employment world, and all the different kinds of private employers, that this was wrong, that OSHA did not have the statutory authority, this was not a workplace danger. And as the court worked through, this is a danger that you face just like any other.

Air pollution or crime, it's a danger you face by being a human being. And it's not specific to the workplace because you can catch COVID at home, schools, sporting events, any kind of gatherings of people. And because of that, it's not OSHA. It's not a workplace-specific danger. And so it was, as the court said, you cannot use a blunt instrument approach to every employee. You can't treat the lifeguards the same as the meat packers. You don't treat medical staff the same way you treat people who work in a production studio. And so the court, they understood, too, this idea that if the federal government and the Gorsuch concurrence went any further, if the federal government started having this power, we'd have emergency after emergency. They'd always come up with an emergency to issue a mandate that they didn't have to go through the normal process.

It was so outside the norm of what is in constitutional principles and statutory construction, it was way out of line. Let's go ahead and take a phone call. Yeah, this issue I want to take right off, it just came in, but Ashley in Texas, because this is a good question. Ashley, welcome to Secular, you're on the air.

Hi, thank you so much for taking my call. Our governor here in Texas, Governor Abbott, has signed an executive order that states that no entity can force the vaccine, essentially, for employers or employees. And I was just curious, with the private companies, can they still enforce it even with this executive order being in place? Those cases are working through right now. They're different than this. It's a different issue. What happened is that by the decision yesterday, Texas, that law is no longer in direct conflict with federal law. So you don't have a federal statute that overrides it. That was kind of the issue before.

Now you're going to find it out in court. Can a state governor order a private company to do something that they don't want to do? It's a completely different question, and this doesn't impact that. I think it opens the door to those challenges being able to be worked out, because if the federal statute by the OSHA would have been upheld. Some insurance companies are mandating it. But this, again, it kind of cleared the way for these cases to move forward. But it depoliticized all this.

That's why military cases are moving forward as well. Can we deal with it with a minute left? I can try to take one more before we go to the break. Let's take Nancy in Texas. Really quick, Nancy.

Go ahead. Yes. It was brought to my attention yesterday that House Bill 5746 passed the House and is on its way to the Senate. It's supposed to be a bill about NASA's leasing authority. But it was amended yesterday afternoon and passed after being stopped. Yeah, we talked about all this yesterday on the broadcast. We talked about it because we don't have much time, Nancy. We talked about it yesterday on the broadcast. It was changed into a Voting Rights Act.

They used this as a shell bill. What's the status? They were supposed to vote last night. But two senators, while Joe Biden, this has been a horrible week for the President. While Joe Biden was at the U.S. Senate, one of those senators, Kristin Sinema, that we asked you to call her office yesterday, went to the floor of the Senate and said, I don't support changing the filibuster. She didn't say she didn't support the legislation.

She said, I don't support changing the filibuster to pass it. Now it was supposed to go before the Senate yesterday. Now they're looking at Tuesday. So they've already missed their first deadline. It's not over yet. They've missed their first deadline, which was trying to get this done before the Martin Luther King holiday on Monday.

That is no longer the case. So it appears now the earliest this will be brought up by the U.S. Senate is now Tuesday. So there's already been a little victory there in the fact that they've already lost track because two U.S. senators came out and mentioned Sinema and said they don't support changing the filibuster for this. We remain 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, what's going on in Hollywood'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. We are honored to be joined by our client, of the Heritage Foundation, great organization, Heritage.org, Dr. Kevin Roberts. Kevin, welcome back to the broadcast. Here we are.

You and I were texted last night. This was a great win. What's so interesting to me, and I'm so thankful, is that it's exactly what we argued. It wasn't getting into the science of this vaccine or not this vaccine. It got into the law. And to an issue that has been a huge concern for Heritage really since your founding, and that was the whole separation of powers and states' authority in these kind of matters. So the decision was great, but also the rationale for the decision was great. What was your reaction? Well, my reaction first and foremost was gratitude to you and Jordan and everyone at ACLJ for representing us.

And secondly, as I've told many people, Jay, my reaction was you were spot on. I mean, this is exactly what you predicted, that the merits of a number of cases that focused on separation of powers, on the proper role of government rather than getting into the weeds of the science, because we know it's too premature in the history of this disease to figure that out, was the right way to go. And so we're just ecstatic here at the Heritage Foundation, not just because we and many others, any employer with over 100 employees, have won these cases.

We're ecstatic because it is a line in the sand against this regime that they better not cross again. You know, Kevin, one thing the Court noted here, and it was interesting to me, because they actually focus in on this in these cases, this line of cases, is who brought the challenges. And they noted it wasn't just the states. It wasn't just big companies. It was the small businesses, and they actually said, and nonprofit organizations, that basically the entire private employment world together stood up and said no. And for the Heritage Foundation, and as you're President now of the Heritage Foundation, this was a big step, too, to stand up for your employees, because this was the first time Heritage had ever been a petitioner in federal court.

Well, that's exactly right. It's like I told our board several weeks ago, Jordan, and I told my colleagues the very first hour I was on post here on December 1st, I will never, the Heritage Foundation will never ask for your private health data. We are never going to submit to an unconstitutional government order that requires that. We were very confident, given your representation, we were going to win this case.

But let me be clear. When it comes to putting government back in the box, it is a series of battles. We have won one battle, but we've not won the political and policy war. And just know, the Heritage Foundation, all of us here, stand at the ready for the next battle, not just for us and that very special relationship that I have with my colleagues here as their employer, but for all Americans, and I don't even care if they're left of center and disagree with us, we want to protect their rights from an overreaching government this day and every day. You know, it was interesting in this case because, Kevin, when you and I first talked way back in the beginning of December, it seems like a lifetime ago, it was only six weeks.

There's been so much activity in this thing. We went through the timeline of this. When you go through the timeline, Kevin, just put this down in our history books, you get into the, you become the President of Heritage. I mean, it was announced before, but you didn't become effective until January 1st. We filed, you were already involved, obviously, on November 29th, before you were officially the President, but you were obviously the incoming President. We filed another motion on December 7th. On the 21st, the 17th, the court ruled against us at the Sixth Circuit. On the 18th, we filed an emergency application with the Supreme Court of the United States. On the 20th, the case is docketed. On the 21st, the Supreme Court announced oral arguments for January 7th. On the 23rd, two days before Christmas, the court issued an order that we had to reply by January 3rd, right through New Year's. We filed on January 3rd.

The case was argued on January 7th, decided on January 13th, and the application for stay is granted. And I might add, this is the first time Heritage has ever been in a lawsuit where you've been a plaintiff. Isn't it awesome?

I mean, this is sort of a view into the future. I'll add one little tidbit there that I think everyone will appreciate, just a personal story. My family and I moved from Texas starting last Saturday. We arrived in Northern Virginia at our new home on Wednesday. And so one of my senior management colleagues here at Heritage texted me last night and said, Roberts, you're 24 hours in Northern Virginia.

We want our first Supreme Court case. What are you going to do next? And my response today, very heartfelt, was I'll just call Jay and Jordan and see what ideas they have.

Yeah, there you go. No, I appreciate that. Listen, I also want to thank your staff and your team. I've worked with your team for, I mean, I go back with Paul Larkin and John Malcolm.

I think I don't want to, I don't care. I'm 65. I think I've been working with these guys since we were in our late 20s. And you've got others there, too, that we've worked with. And they did a great job. And I know Thanh Bennett, our Director of Government Affairs, enjoys working with your team as well. And obviously we're going to continue that effort. This was a big, big win.

Jordan? Yeah, that's right. I think that this shows that when conservative movement groups come together, and again, the Supreme Court noted it. They noted who were the plaintiffs here.

It was important to the court to note who actually was challenging this mandate. It wasn't just states. It wasn't just big companies. It was small businesses. It was nonprofit organizations.

They came together in this unity. And as you said, Kevin, I mean, this is one battle. It was a bad week for the Biden team. But they are going to consistently try and do what they can at federal power grabs. We know that from this administration. And the left is just getting more radical when it comes to that. Well, that's right. And what I would say, two things real quick, Jordan.

The first is for just the regular listener out there. We know that the Heritage Foundation is seen by so many people in America as being at the vanguard of America, the vanguard of conservatism. And we're never going to miss an opportunity to take the lead so that individuals can do what they do.

And that spread the word through all of their different networks through their comments on the news and so on. That's, y'all know better than anybody. The justices pay attention to that kind of thing, as you pointed out. The second and last thing is never doubt that when you are faced with a decision, go on offense.

Heritage Foundation is an offense every day. We've won this with your help. We're so grateful most of all for your work and really happy for private employers that we've won. But there are more battles ahead.

Keep the pedal to the metal. We've got a country to take back. I just want to again thank, it's been an honor, Kevin, representing you and representing the Heritage Foundation. I look forward to our continuing relationship. Congratulations on your appointment. Congratulations on your move. We're supposed to get a snowstorm here this weekend that I think is heading right your way.

So you're from Texas. You're not used to a lot of snow. Get ready.

You're in the mid-Atlantic. You're going to see some. But this storm, at least this storm has now passed. And you know, Kevin, I said this. I want to get your comment on this. I said the good thing about this, besides that it was the right statutory interpretation, constitutional principles. It also depoliticized the issue of vaccines and therapeutics. It depoliticized that. And I think wherever you are on the spectrum, it is of yes, no, maybe.

Depoliticizing it is a good thing for the American people. Well, it is. And you would appreciate, in fact, I was going to relay this to you anyway, Jay, that a physician friend who's a friend of Heritage told me last week. And he said, Kevin, I was a little circumspect about Heritage filing suit on this. And then I read the merits of the case and realized, y'all aren't getting into the science.

Y'all aren't getting into the medicine. You are doing what we would expect Heritage Foundation to do. And use the word that you did, Jay. You're depoliticizing something that must be. That is true north for Heritage and for America. If all of us across the political spectrum could spend more time doing that, making sound policy decisions, I think we would all be a lot more fulfilled in our everyday lives as Americans. Yeah, I think this history is going to show that this actually decision and the position we advocated, which was not to get into the science and not to attack the science, but to go because obviously I've been vaccinated. I've said it a zillion times. The fact of the matter is, by going to the constitutional principles and the statutory principles, we serve the interests of the Constitution, of the statute. And I do think depoliticizing this is good for the American people.

And in the long term, we'll show it to be a positive amendment. Kevin, congratulations. Thrilled to have you on. Look forward to having you on again. Next case. All right, my friend? Sounds good. Thanks, my friend.

Take care. All right, folks, we are going to take your phone calls to 1-800-684-3110. That's 1-800. I think we can grab one now. John in Pennsylvania, because we want to clear up things for people with questions. There's a lot of questions out there. Hey, John, welcome to Sekulow. You're on the air. Yes, sir.

Thank you for taking my call. One quick question. How do you think yesterday's OSHA ruling will affect the President's mandate for federal employees? Different. I mean, it's different.

I know the question's going to be where those challenges are. The Medicare, Medicaid one was unique to the healthcare situation and what the hospital signed up. So it's different.

And the court noted that even in our case, that one of the reasons why OSHA lost here was that they tried to use a blunt instrument, treat every employer the same. And so I think that – listen, there's a potential now to start – I think that makes it suspect. I do think it makes it suspect, John. Because they're going to look and say, what job do you have in the federal government? So are you more like the person in the medical or a research scientist maybe dealing with COVID? Or are you someone who's out working in a totally different environment? So I think that's what it's opened the door to is actually using – surprise, surprise, which we don't always get from the court – common sense, which is what employers also argue. Employers want their employees to be at work. It's not like they want their employees sick. So they want to figure out the best way to get their employees to work. And bigger employers have had the tougher job of doing that than some of the smaller employers.

But I think, you know, no one should forget that. The court understood that as well. People don't want all their employees sick and they don't want their employees not to be able to get into the workplace if they're someone who works in an office. And so you look at each place and let them decide what's best for their employees because the employers want to protect their employees. They want them working. I mean, that's why you make the salary you make.

It's because you work for your employer. So I think, again, common sense is very important here. Yeah. Again, thank you for those of you that support the work of the ACLJ. I want to keep – let's stay live during this next break. I want to – from Facebook and Periscope, I've got something for Andy and Fan and Wes I want to ask. So stay tuned, folks.

We'll be right back. …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, the 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. 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 joined now by our Senior Counsel for Global Affairs, former Secretary of State Mike Pompeo. Secretary Pompeo, first, just your reaction to the U.S. Supreme Court.

You've been traveling the country since leaving the Office of the Secretary of State. This has been bothering people around the country. It's been kind of bothering employers and employees. This mandate by the Biden administration, a power grab that the Supreme Court said if they allowed would be never-ending. They'd always be doing this.

They'd always be looking for emergency orders. And now for two-thirds of the American workforce, which is about 100 million people, these federal mandates are not going to apply to them or their companies. Jordan, this is a good outcome on so many levels, as you just described it. The first one is for individuals who now have the capacity to make good decisions for themselves. People have said, well, we're going to have to learn to live with this. I have to tell you, I think most Americans have figured out how to live with this. Second, we saw a massive federal overreach here, and we saw the United States Supreme Court reject that. That's good news, not just on this issue of COVID, but good news on so many fronts. And finally now, employers, too, have the freedom to make good decisions for their own workplace.

I ran a small company for seven or eight years back in South Central Kansas. I wanted to be able to make good decisions for the health, for the safety, for the shareholders, for my team, for my customers, everybody involved. And the federal government had stepped in and taken that away from these small business owners, and yesterday the Supreme Court restored that balance, and it's a good thing for the country, for the economy, and for workers all across the nation. Mike, one of the things I said during the break here, we were talking to our folks on social media, and that was elections have consequences. One of those consequences happened to be during your administration, three justices of the Supreme Court, President Trump was able to nominate and appoint, who are now serving on the court, and this was a six to three decision. So these situations make a big difference, and the importance of Supreme Court nominees, I drill down on that often on this broadcast, and I have for 40 years. I have litigated the Supreme Court in the 80s, the 90s, the 2000s, the 2010s, and the 2020s, so over almost five decades of litigation, and it's important, but this is where you see how important it really is. Jay, nothing could be more true.

You know this. You've now lived it. I think the American people are living it as well. Remember the hearings on these mandate cases? Remember the counterfactual statements made by a couple of the justices? One should remember who nominated and confirmed those justices that made outrageous statements about freedom and about people being like machines. Those weren't nominations by Republican Presidents. The Republican Presidents tend to pick really capable, constitutionally grounded, people who understand the things that have made America successful and do the job of interpreting the law, not creating it, and that's what you saw yesterday. This would have gone very differently. Had Secretary Clinton won that election in 2016, yesterday would have been very different. It's a great thing because they would have walked away, the justices that she would have picked, three of them, would have walked away from this and said, you bet, the federal government can go grab this, go reach here, go do this to the American people.

I'm confident of that. It's unfortunate. It's not political. It is legal and constitutional.

Democrats tend to do that. Yeah, no. What I am really pleased for, and I thank our ACLJ members all over the country, because our team put this together from beginning to end in eight weeks. It went from the Sixth Circuit to the Supreme Court of the United States to a decision in six weeks. We were working on it about two weeks before the first public filing to get it ready.

So it moved at lightning speed. Our team did a great job. Our donors supporting the work of the ACLJ made it all happen. But I also think, Mike, that this depoliticized this issue, which I think is important for the American people as well. It's not making this a political issue now.

You do what's best for your family, for yourself, with your doctors. That's what you people need to be making the decision. The government had no business getting in, especially OSHA, had no business getting in here. But it does, I think, depoliticize some of this as well. I think that's very true. I hope we see the same kind of depoliticization when we come to the cases that protect every human life as well. Another issue that the ACLJ has been front and center on, that's sitting before the court today, that they'll decide here in the next handful of months again. We want the court to do its function, perform its function. We want families and communities and cities to do their work, taking care of themselves.

We want the federal government to be out of the way as much as is humanly possible and consistent deeply with the Constitution. The ACLJ has done great work of making sure that every time they reach someplace they ought not to be reaching, they come, they file, they make cogent, good arguments that ultimately prevail. And making sure we get the right nominees to the Supreme Court is an important part of that as well.

It sure is. And look, if you just look at the age of the Supreme Court and where it is now, the next Presidential, I mean, it could happen this cycle, of course, to, you know, not hoping that on anybody. And all these calls for, there's calls for, you know, the left is trying to get justice prior to retiring. I think, by the way, every time they try to do that, I think these justices say, you know, they're not going to do it. And by the way, if you ever get a Supreme Court appointment, take it, because they live to be 100. I mean, it's great. I mean, I'm saying that in a good way. I mean, they serve a long time.

It's a lifetime appointment, and they can serve for 40 years, some of them. Let me ask the last question here, and that is, obviously, we're thrilled with the win. You just mentioned Dobbs. In the next case, I'm hopeful this bodes well. It was similar kind of rationale here, deferring there to the state in their decision on protecting life. I think that's the trend of where this is going, which will be great. But when you see this situation, Mike, now, and you're looking at midterm elections in just a couple of months, it's hard to believe, but here we are again, and then the Presidential stuff will start up right after that, in all reality. There's a lot at stake for the country in the next 48 months.

We have seen that. The American people are suffering from that, whether it's inflation or the fact that the shelves aren't stocked or the fact that it's hard to find folks who want to go to work. All of these things are a result of governmental choices, policies that have been put in place under President Biden with Democrat control of both houses of Congress. I think the American people – I don't see this as deeply political. I think the American people are going to see that it's just not working for them and for their families and for their schools and they're going to walk away from this.

I think, you're right, we will start voting here in the United States in September of this year, just a handful of months away in some states. It's time that the American people demand they take back the things that are most fundamental to them, and I think they're going to. Well, I appreciate your work with us and your work also as Secretary of State, but also now being the clarion voice that you are on all of these big issues.

And great information that Mike Pompeo, former Secretary of State, now our Senior Counsel, has on ACLJ.org. We encourage people to go there. Thanks for being with us, as always, and we love working with you. Yes, sir. So long.

I want to go to Dimitro, Washington State, Line 2. Hey, Dimitro, thanks for holding on. You're on the air.

Hello, hello, guys. Thank you so much. On behalf of the community, I want to say from the State of Washington, I want to say thank you very much for your job. This is unbelievable. Incredible.

Thank you, guys. Just four months ago, we were at a protest against vaccine mandates for our friends who are in the medical field here in Washington, Vancouver. And I told them that, you know, sometime later, if we don't stop it there, it's going to come to me. And it did come to me, you know, a few days ago, I was very relieved yesterday for the decision of Supreme Court that I don't have to actually move to a different state, just like my friends lost their jobs and moved to a different state. On a state level, though, I really want to ask you, on a state level, if states, because our state is really liberal, if they decide to move forward with something like that, what can we do, what options do we have, and what powers do they have? So they have the most power, and that's what the Supreme Court will look at, is you get to choose where to live. And there's some consequences to where you live.

That can be beneficial, positive, but that's where the power really lies. Now, they've still got to be, they're representing the people. So while you might say, oh, I'm in a really liberal state right now, that doesn't mean they're going to necessarily rush to mandate private employers do this. But they certainly have much more power at the state and local level, but you also have the decision to leave.

And unfortunately, many people have had to move because they've been sick and tired of living under blue states. The conservatives were clear, the state did have the power to do it. 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.
Whisper: medium.en / 2023-06-27 12:47:58 / 2023-06-27 13:12:13 / 24

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