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Why are courts blocking vaccine mandates?

 January 14, 2022 at 4:23 PM PST

Speaker 1: (00:00)

Why the us Supreme court blocked the business vaccine mandate.

Speaker 2: (00:04)

At one point in the dissent, the dissenters, it was actually a jointly signed opinion called it perverse

Speaker 1: (00:10)

I'm Maureen Kavanaugh. This is K PBS midday edition Ch LA Vista is buying its surveillance. Drones from China.

Speaker 3: (00:28)

When a product is so bad for privacy, that even the Pentagon is refusing to use it. I think that should be raising alarm bells

Speaker 1: (00:39)

And a preview of events for, or Martin Luther king Jr day in San Diego. That's ahead on midday edition.

Speaker 1: (01:00)

Most large business as in corporations across America are on their own. Again, regarding the question of employee COVID vaccinations on Thursday, the us Supreme court blocked a vaccine mandate issued by the Biden administration, the vaccine or testing mandate. Would've applied to companies with 100 employees or more yesterday Supreme court decision similarities with December San Diego superior court ruling, which stopped San Diego unified school district from enforcing a student vaccine mandate. So why are courts blocking measures that could slow down the spread of a disease that is already killed almost 850,000 Americans joining me to explain the law all behind these rulings is legal analyst. Dan Eaton, a partner at the San Diego law firm of Selzer Kaplan, McMann and Vitech. And Dan, welcome back to the show.

Speaker 2: (01:52)

Sure. Good to be with you again, Maureen,

Speaker 1: (01:54)

The Supreme court's decision against Biden's vaccine mandate was 6, 2, 3 split down along conservative and liberal lines. What is the argument against the vaccine mandate for businesses?

Speaker 2: (02:06)

Well, what the majority said was that the occupational safety and health administration went beyond the, uh, statutory bounds of regulating occupational hazards by trying to regulate a pandemic that is broadly afflicting, uh, society. And it said, no, you're outside of your lanes. And therefore you went too far, uh, in trying to issue a mandate. That's going to affect everyone. Indiscriminately afflicting people no differently from say pollution and crime appoint. The conservative majority specifically made in its UN in opinion, but

Speaker 1: (02:45)

In their dissent, the liberal justices argue that OSHA does have the authority. How do they come to that conclusion? It was

Speaker 2: (02:53)

A very strongly written dissent. Uh, more in fact, at one point in the dissent, uh, the dissenters, it was actually a jointly signed opinion, uh, called it perverse. That was the word that was used, uh, given the circumstances of the pandemic. And I'm quoting here to read the acts grant of emergency powers in the way the majority does as constraining OSHA from addressing one of the gravest workplace hazards in the agency's history close. What they essentially said was that look, an agency charged with regulating the workplace and has expertise is far better than a court, which has no such expertise and no political accountability to do so,

Speaker 1: (03:31)

But somehow the OSHA vaccine mandate for healthcare workers employed at facilities that received federal money was approved by the court. What made that

Speaker 2: (03:40)

Different? The answer is actually in the way you phrased that excellent question, Maureen, which is it was a very different statute and that particular statute, which dealt with the grant of federal money for, uh, those, uh, under the, uh, Medicaid and Medicare programs, the issue, uh, was whether the, uh, secretary of health and human services could condition the grant of money to these healthcare facilities, having their staffs vaccinated. And that is a power that agencies routinely exercise conditioning, the grant of taxpayer money on compliance with certain regulations that said the majority of five to four majority was allowable within the statutory grant. In other words, when you were talking about different kinds of laws, you are going to have from time to time, different outcomes, even when you were talking about essentially the same kind of regulation in this case, a vaccine mandate.

Speaker 1: (04:33)

Now the San Diego judge who ruled against San Diego unified also said the district lacked the authority to issue a student vaccine mandate. Why is that?

Speaker 2: (04:44)

But that gets to the point that I just made it reinforces the idea that you are talking about an issue of whether COVID 19 is on one of the list, which allows, uh, a list of, uh, diseases that you can sort of bypass the ordinary regulations, issue. These kinds of mandates and condition attendance at school for being vaccinated. And it's not the legislature has not yet acted. And, uh, therefore because of the, uh, Sandy superior court said, if any action is gonna come with respect to vaccine mandates, it's gonna have to come from the legislature. You can't do it as an individual school district. It's an issue of staying within the lanes of the statutory grant of authority in all of these cases.

Speaker 1: (05:28)

So is it a legal problem then that governing bodies like Congress and state governments are not issuing these mandates themselves?

Speaker 2: (05:37)

Well, it sounds like it's more a political consideration than anything else. The interesting is when you talk about the essential question, which is who gets to decide these issues, justice Gorsuch went out of its way almost as a rejoinder, uh, to the liberals about who gets to decide to say, there is no question that state and local, uh, authorities get to regulate public health. Generally. It's just that a lot of them have not in California. For example, we have our own mandate with respect to, uh, vaccination of healthcare workers that preceded the one that, uh, the Supreme court just up held in yesterday's ruling. So, uh, the bottom line is it's more it issue of the political bodies, making different political considerations. There is a real question about whether the, uh, state political actors, state, and local political actors have this authority. It is clear as your question suggests that that power, if it exists, hasn't been exercised.

Speaker 1: (06:32)

Is there anything in these recent rulings that block private companies from mandating that their employees get vaccinated or frequently tested for? COVID

Speaker 2: (06:41)

No, and it is very important that people understand that, that, uh, it, it absolutely does not affect the power of private employers of any size to require vaccination. Of course, there are some to aids that prohibit private employers from, uh, imposing a vaccine mandates like Texas, California is not one of them. Private employers retain the ability to require their employees, uh, to be vaccinated as a condition of employment in the, at will private setting. There are all kinds of complications when you get outside of that setting, which applies to the vast majority of the workplace.

Speaker 1: (07:21)

I've been speaking with Dan Eaton, legal analyst and partner at the San Diego law firm. Selzer Kaplan, McMann, and Vitech Dan, thank you very much.

Speaker 2: (07:29)

Great to be with you.

Speaker 1: (07:35)

The Chula Vista police department is using Chinese made surveillance drones. The Pentagon says might pose a national security risk KPBS as Amitha Sharma spoke to privacy and technology experts about what that might mean for the city. Located seven miles from the us Mexico border.

Speaker 4: (07:54)

The us department of defense says drones produced by Chinese manufacturer. D E I pose potential threats to national security. Eight of the 10 Chula Vista police department, drones are made by DJI. According to the city's website, that is a serious problem, says Albert Fox Conn, who is executive director of the New York based surveillance technology project. When

Speaker 3: (08:18)

A product is so bad for privacy, that even the Pentagon is refusing to use it. I think that should be raising alarm bells.

Speaker 4: (08:29)

The drones are central to the police department's public safety strategy and data from them is run through its new realtime operations center. The Chicago based tech conglomerate at Motorola solutions provides key software for the center in its contract with Chula Vista, Motorola solutions disclaims any liability for DJ's use of the data. It collects through the drones. K PBS reached out to the Chula Vista city council and mayor Mary Salas, who approved the contract, but they refused to comment also refusing to comment where city manager, Maria Kacha, Dorian and city attorney Glenn gins, both of whom signed the contract with Motorola San Francisco lawyer, Wil Cooper specializes in disputes. He says, there's good reason why Motorola would want that limitation on liability.

Speaker 5: (09:20)

The more risky it is, the more sensitive it is. The more likely the parties to that agreement are gonna want to get the most protection they can

Speaker 4: (09:29)

D is among the world's leading drone manufacturers, accounting for more than half of the global market. It, but in recent years, the company has been flagged by several federal agencies for security reasons. In 2017, the us Homeland security department stated that DJ's science and technology is providing us critical infrastructure and law enforcement data to the Chinese government. Toula Vista began its drone for program in 2018 and purchased DJI drones. As recently as 2020

Speaker 6: (10:01)

People don't realize the deaths of Chinese espionage and the fact that they use any opportunity. Jim Lewis

Speaker 4: (10:07)

Is a researcher at the DC based bipartisan center for strategic and international studies. He says the us is engaged in the biggest espionage battle with China it's ever had.

Speaker 6: (10:19)

The way people engage in espionage has changed. It's moved largely to technology and digital devices. So

Speaker 4: (10:27)

How could the Chinese government get data from a drone into LA Vista? Technology experts say it starts with the fact that D can still access a drones software. Even after it's been sold. Lewis says just like your cell phone carrier has access to your data DJ. And by extension, the Chinese government could view drone footage by tapping into the software when it's being updated Chula Vista's contract with Motorolas says the police department requested the DJ software. D I declined an interview request, but referred KPBS to a statement it made last year in the statement, the company said it had done nothing to warrant. The suspicion Lewis says D I company representatives have told him it does not turn over data to the Chinese government.

Speaker 6: (11:15)

It doesn't matter because they don't have the right to say know in China, under Chinese law.

Speaker 4: (11:20)

Aha, Sharma KPBS news.

Speaker 1: (11:33)

This is KPBS midday edition. I'm Maureen Kavanaugh. This weekend in the arts. There's a pairing of photography and contemporary dance, a couple of outdoor or virtual Martin Luther king Jr day celebrations and some outdoor blues. Joining me with all the details as KPBS arts editor and producer, Julia Dixon, Evans, and Julia. Welcome.

Speaker 7: (11:57)

Hi Maureen. Thanks for having me

Speaker 1: (11:59)

Now. First is art. We can see from the sidewalk though, you do recommend making an appointment to see at indoors too. Tell us about disremember

Speaker 7: (12:09)

Right. This is an exhibition by photographer, Doug MC minimi, who is a professional dance photographer, and he's also a former dancer. And for this project, he took local choreographer. Comli summons, pretty recent work called purposely accidental. This choreography was commissioned by San Diego, go dance theater during the pandemic, and Somon wrote it about her home country of Laos, how it is the most bombed per capita in the world. The statistics are pretty staggering. Something like 80 million bombs remain UN detonated for decades. They're effectively landmines. And she said that the mines are so omnipresent country they're in the landscape. And also in daily tragedy and this stance, this choreography was striking. It debuted in a virtual performance and it was also performed outdoors last spring. It has a solo dancer. And one of the things the photographer was inspired by was these really crisp gestural movements. He says he has photographed so many dances before, but this was the first he'd ever considered turning into art like this. Uh, somehow the choreographer said it had been pretty inspiring being part of this transformation into a still photography show

Speaker 8: (13:31)

In the creative process. We have to trust what and how things come out and we can have an approach, but that's part of what we do. And cuz art is

Speaker 7: (13:43)

Alive. So you can see most of this exhibition from this sidewalk at art produce in north park and they are keeping the gallery lit up at night. In fact night is the best time. See it, but if you do make an appointment to go in, you can have the place to yourself and listen to a soundtrack with the dance music and then a speech by former president Obama to the people of Laos. And you can also experience the, the photography that's under foot on the floor. And here's why Doug McIn did that

Speaker 9: (14:16)

By placing the photos on the floor. I wanted to give us just the faintest of faintest echos of that anxiety as well. And uh, that you are suddenly very aware of where you're stepping.

Speaker 1: (14:29)

Doug MC minimi is disremember is on view at art produce in north park. Now through January 29th. Now in LA Jolla, there is another interdisciplinary art exhibit at the Athena music and arts library. Tell us about LA Jolla reading

Speaker 7: (14:45)

Room. Yeah. This one combines the idea of, of large scale sculptural installation with the idea of a reading room. And this one is by Matthew Hebert and Jared Stanley. They've built these massive architectural sculptures that fill the gallery. They look kind of like MAED of, of reading desks and each one they will play a recording. They've gathered a bunch of sound by recording artists, writers or book lovers thumbing through or, or discussing, or even reading out loud from art books in the museum's collection. And altogether it's like this cacophony of sound it's part community hive, mind, part noise, art and part love letter to reading rooms. And this one opens tonight with their reception at six 30 and then they have regular gallery hours from 10 to five 30 on Saturday. It'll be on view through March 12th, that's

Speaker 1: (15:41)

LA JOA reading room opening tonight at the Athena Monday is Martin Luther king Jr day. And Julia tell us about some events around San Diego to memory the

Speaker 7: (15:52)

Holiday. So there's an outdoor event at the world beat center on Monday from one to four 30, they have recently switched this to an outdoor event and scaled it back a little bit, but there's tons of musical performers, there's food and outdoor market. Um, they'll be performances by native American drummers, then a keynote from speaker Shane Harris. And if you're looking for something virtual Alliance, San Diego is hosting their 34th annual all people celebration. That'll be online again. Alliance San Diego is a social justice organization and they'll have two performers lined up for this one is to stalker from the New York based true groove. And another is vocalist Jada holiday. This is Monday morning from 10 to 11:00 AM, but ticket sales do end on Sunday evening. And

Speaker 1: (16:44)

If you can't make the virtual event Monday morning, the keynote speaker at the all people celebration, disability rights activist, Rebecca Coley will be joining us Monday at noon on midday edition. And Julia finally, some music outdoors, Mar Kay is performing at Panama 66 tonight. What's that gonna be like? Right.

Speaker 7: (17:06)

So if you don't know, Panama 66 is an outdoor restaurant and bar that's part of Sanga museum of art, kind of integrated with public free gallery and also the public free sculpture garden and in the free gallery right now, which is the hall between the restaurant and the bathrooms and the main museum. You can catch John Raymond, morale's powerful, destroyed art exhibition called disestablishment. And that's only up until the end of this month. Panama 66 of course is also a great place to see live music outdoors. If you're wanting to avoid indoor performances or crowds, marque is a blue singer with such a great voice and she will be accompanied by a jazz piano player, ed corn Houser, and be McKenzie Layton, Mar Kay has been releasing some new songs lately with piano player, Carl sunny Leland, it's hopefully a sign of a forthcoming album and here's their brand new single it's a version of dystopian blues, which was originally written for K as part of the Alfred Howard writes songs with friends project.

Speaker 10: (18:13)

I get them every time every

Speaker 1: (18:30)

Marque performs at Panama 66 tonight from six to 8:00 PM. Now as always be sure to check with event organizers for any last minute changes before heading out, you can find tales on these and more OS events or sign up for Julia's weekly slash arts. I've been speaking with KPBS arts editor and producer Julia Dixon Evans. And thank

Speaker 7: (18:56)

You, Julia. Thank you, Maureen. Have a good weekend.

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On Thursday, the U.S. Supreme Court struck down a vaccine mandate issued by the Biden administration that would have applied to companies with 100 employees or more. Legal analyst Dan Eaton breaks down why vaccine mandates are being blocked. Plus, the Chula Vista Police Department is using Chinese-made surveillance drones the Pentagon says might pose a national security risk. And, this weekend in the arts, there's a pairing of photography and contemporary dance, a couple of outdoor or virtual Martin Luther King Jr. Day celebrations, and some outdoor blues.