Vaccine Mandate War: White House Versus States

On Monday, Texas Governor Greg Abbott issued a broad executive order that bars virtually any COVID nineteen vaccine mandate in the state, and on Tuesday, Florida Governor Ron de Santis made good on his threat to find local governments that have vaccine mandates, ordering Leon County to pay a three and a half million dollar penalty. We are going to stand for the men and women who are serving us. We're going to protect Flora the jobs. We are not

going to let people be fired. Because joining me is Harold Crant, a professor at the Chicago Kent College of Law. So how is de santisis three and a half million dollar fine likely to withstand a court challenge. I think it will stand if the state government has the authority

under Florida law to and act such a band. States use their authority under either the general powers to act in an emergency and confront a disaster to preclude employers in their state from mandating vaccine destruct some of us as odd or bizarre, but it does not likely violate

any federal constitutional right. We have not recognized the federal constitutional right to pursue particular types of treatment for diseases, and so in the absence of any kind of federal legislation mandating vaccines, and then it's within the states rights to preclude a band. Let's turn to the vaccine man date that OSHA has drafted and sent to the White House for review this week. Does the federal government have

the power demand date a vaccine in that way? So Congress is delegated to the president the power to ensure workplace safety. And one of the aspects of workplace safety is that workers be free from any kind of exposure to diseases during their working hours. So OSHA, which is the agency in charge of insurance safety, regulates exposure to

benzene exposure to asbestos. And the argument here, which we will see, is that the administration believes that exposure to COVID fits in with the same kinds of measures that have been taken before to protect workers in both private and public workplaces. So is the legal test going to be whether or not there's an emergency? OSHA has the power to issue an emergency standard. It doesn't take an

effect goal, it's published right now. The target date is December eight, and then, supposedly, understand you, which is kind of heroic, it has to create a permanent standard overdraw the temporary standard within six months thereafter. But I think it might be helpful just to look at the language that the Congress used, because the question will be challenged

in court. If they determine that employees are quote exposed to grave danger from exposure to substances or agents determined to be toxics or physically harmful, then they can create a standard. So is there a grave danger from exposure? That's really going to be the question, which one that

hasn't been litigated much in court. OSHA has rarely issued a temporary emergency standard in the past, and so the private company's challenging Ocean's authority will say there is no longer a grave danger were sufficiently vaccinated, and therefore there is no power in the federal government to mandate vaccines in the workplace. So, taking a situation in Texas, private businesses face this dilemma. Violate the federal vaccine mandate or

violate the state vaccine ban. Companies are in an undeunviewable situation. Right you have to either comply with the Ocean standard or with the mandate from the Governor of Texas. And what's interesting from a legal perspective is Governor Abbott claims that this is an emergency. In an emergency, he has these or of inherent powers to regulate private businesses, which in some ways is a mirror image of what President

Biden is arguing through OSHA as well. So obviously, if there's a conflict, usually the federal government wins out under the supremacy cost at least with respect to federal intuntalities, but our contractors, but probably we'll win out with respect to private companies as well, But that will be up for the courts, and they'll have to determine two things, Whether the agency has exceeded this authority in providing for

this vaccine mandate. And secondly, even if it has, whether the state has the power to override it with act to state employee situations. So if this question does get to the Supreme Court, how are the justices likely to rule? Congress does seem to have given the federal government authority to regulate harmful substances in the workplace, and exposure to

COVID is no big reach. So even though the current Supreme Court has articulated interest in limiting the power of Congress to delegate wide areas of authorities to the agencies, I think, at least with respect to regulating the workplace, the bid administration is on powerful ground. It's not unassailable. We've never done this before on precedent, they have this kind of regulation reaching so deeply into the private workforce.

So some members of the Supreme Court may be skeptical, but I think the language of the statute in terms of grave danger fits much more readily with what OCE is trying to do with this temporary emergency standard. Thanks how that's Harold Grant of the Chicago Kent College of Law. This is a painting of my aunt. She was taken off the walls of a home by the Nazis. Now you'd like to be reunited, wouldn't that be lovely? And

then list justice. The film Woman in Gold is based on the true story of Maria Altman, a Jewish woman who won a battle with the Austrian government to regain

ownership of Augustav Klimp painting of her aunt. After a ruling by the U. S. Supreme Court involving the Foreign Sovereign Immunities Act, the Jostices have decided to take another case involving the same law to decide whether the heirs of a Holocaust survivor can regain a painting by French impressionist Camille Pissaro that was stolen by the Nazis in nine My guest is mc sung Guila, chair of the appellate practice at buck Alter EMC, tell us about the

history of this painting, Ruce and Honorey Afternoon Rain effect. So the Pizarro painting issue in this case was just by the Casper family from a well known art dealer who had acquired it from Pizarro himself. And it's a very special painting by Pizarro, and in fact was created by Pizarro during the Drive's Affair, which involved a violent anti Semitic movement in France, but he painted from his bedroom window there in France, So in any event, the

Cospers had this painting. It was passed down from generation to generation. It was a family treasurer. It was on the living room wall at their home in Munich. And then, under the growing shadow of Nazi anti Semitism, Lily Caspier packed up her belongings and prepared to flee Germany in nine and the Nazis would only allow her in active visa if she quote unquote sold them the painting, and she sold it to them for three hundred and sixty dollars.

After that, she never saw the painting again and the Costier family had no idea what happened to it, but it was eventually sold through an art gallery and now is part of a Spanish nonprofit organization and foundation that has a museum and has displayed the painting. This went to trial, what did it? A trial judge find. So actually this case is like many of the Holocaust art recovery cases, meant has a very long history of bumping

up and down within the court system. So the litigation has been going on for twenty years, and this is I think it's the fourth appeal of various issues in the case. And I was involved with the earlier Ninth Circuit proceeding in which some Rey judgment had been granted for the Foundation against the castiers, and the Ninth Circuit

overturned that thing. No, we think there is a travel issue of fact with regard to what Spanish law requires and who has proper right to the painting under Spanish property law, which has a different sort of adverse possession law then California laws, and the nights were good said, so we're gonna send it back to the district court and the district court will hold a trial. The District Court helped that trial and still concluded that the Foundation

properly has the painting and the spears laws. And now they're challenging that on a fundamental question, which is which law do we apply? Under the Sovereign Immunities Act to decide the choice of law questions, so is it federal common law that decides which law we apply Spanish California, or is it California law that decides whether California or Spanish law should apply and they argue California law should apply, not Spanish law, and so the outcome would have been different.

The Air's claimed that California law never allows the holder of stolen property to obtain good title. That's frequently the arguments that's made, which is, you can't get good title from a thief. Right, you can only get as good a title from someone as they had to give to you. And that is commonly the rule in US law and various state laws. What's the rule in Spanish law? In Spain, it depends on kind of this question of really, like how bad were you? You can get possessory right, but

it depends on your knowledge, your participation in that. In other words, you can get good title from a thief under certain circumstances if you are to some extent innocence of that had no idea that it was stolen, you know, all of these various things back to that question, the wild will blindness. Last term, the Justice is ruled that the Holocaust survivors who were suing couldn't press their claims for arts stolen during World War Two against Hungary and

Germany in U S courts. Just yet does that give any indication of how the court might rule here. It's hard for me because I always hope, I always hope that it's going to be positive for the errors in these cases. And I will say that they have been most interested in the Holocaust ART cases involving various issues involving the Foreign Sovereign Immunities Act that came up last term in the Germany case the years ago granted the Maria Altman case because that also involved another issue with

regard to foreign soognmunit these acts. So they seem very interested in this particular statute and how and when it applies, and you know, the gateway to our court system. So we know Altman came out in favor of the claimants and the Germany case, you know, was not favorable to the claimants. So I would say we're going in with a fifty fifty batting average Foreign Sovereign Immunities Act and Holocaust ART cases, but I'm hoping this one goes the

way of Altman. Thanks EMC. That's mc sun Gila of buck Alter And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg, dot comm, slash podcast, Slash Law, and remember to join us weeknights at ten pm Wall Street Time for the Bloomberg Law Show. I'm June Basso, and you're listening to Bloomberg