WEBVTT - Vaccine Mandate War: White House Versus States 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.480 --> 0:00:11.840 Over seven hund thousand American lives have been lost to 0:00:11.960 --> 0:00:14.760 to COVID nineteen, including more than fifty six thousand in 0:00:14.800 --> 0:00:18.800 Florida and over sixty eight thousand in Texas, and every 0:00:18.880 --> 0:00:21.600 leader should be focused on supporting efforts to save lives 0:00:21.600 --> 0:00:25.279 and end the pandemic. Despite the statistics signed by White 0:00:25.320 --> 0:00:29.160 House Press Secretary Jen Saki, the governors of Texas and 0:00:29.200 --> 0:00:33.200 Florida are leading a full fledged assault on vaccine mandates. 0:00:33.520 --> 0:00:37.200 On Monday, Texas Governor Greg Abbott issued a broad executive 0:00:37.320 --> 0:00:41.159 order that bars virtually any COVID nineteen vaccine mandate in 0:00:41.200 --> 0:00:44.800 the state, and on Tuesday, Florida Governor Ron de Santis 0:00:44.920 --> 0:00:48.239 made good on his threat to find local governments that 0:00:48.280 --> 0:00:51.840 have vaccine mandates, ordering Leon County to pay a three 0:00:51.840 --> 0:00:54.640 and a half million dollar penalty. We are going to 0:00:54.840 --> 0:00:58.360 stand for the men and women who are serving us. 0:00:58.680 --> 0:01:01.560 We're going to protect Flora the jobs. We are not 0:01:01.600 --> 0:01:07.440 going to let people be fired. Because joining me is 0:01:07.480 --> 0:01:10.760 Harold Crant, a professor at the Chicago Kent College of Law. 0:01:11.480 --> 0:01:14.319 So how is de santisis three and a half million 0:01:14.360 --> 0:01:18.440 dollar fine likely to withstand a court challenge. I think 0:01:18.560 --> 0:01:21.399 it will stand if the state government has the authority 0:01:21.480 --> 0:01:24.840 under Florida law to and act such a band. States 0:01:24.959 --> 0:01:29.039 use their authority under either the general powers to act 0:01:29.080 --> 0:01:33.400 in an emergency and confront a disaster to preclude employers 0:01:33.480 --> 0:01:36.920 in their state from mandating vaccine destruct some of us 0:01:37.040 --> 0:01:41.080 as odd or bizarre, but it does not likely violate 0:01:41.120 --> 0:01:44.880 any federal constitutional right. We have not recognized the federal 0:01:44.880 --> 0:01:49.640 constitutional right to pursue particular types of treatment for diseases, 0:01:49.760 --> 0:01:52.320 and so in the absence of any kind of federal 0:01:52.440 --> 0:01:56.560 legislation mandating vaccines, and then it's within the states rights 0:01:56.640 --> 0:01:59.960 to preclude a band. Let's turn to the vaccine man 0:02:00.080 --> 0:02:02.840 date that OSHA has drafted and sent to the White 0:02:02.840 --> 0:02:06.280 House for review this week. Does the federal government have 0:02:06.400 --> 0:02:09.680 the power demand date a vaccine in that way? So 0:02:09.760 --> 0:02:13.760 Congress is delegated to the president the power to ensure 0:02:13.840 --> 0:02:17.600 workplace safety. And one of the aspects of workplace safety 0:02:18.160 --> 0:02:22.480 is that workers be free from any kind of exposure 0:02:22.600 --> 0:02:26.880 to diseases during their working hours. So OSHA, which is 0:02:26.919 --> 0:02:31.040 the agency in charge of insurance safety, regulates exposure to 0:02:31.160 --> 0:02:36.920 benzene exposure to asbestos. And the argument here, which we 0:02:36.960 --> 0:02:40.880 will see, is that the administration believes that exposure to 0:02:41.560 --> 0:02:45.480 COVID fits in with the same kinds of measures that 0:02:45.520 --> 0:02:49.360 have been taken before to protect workers in both private 0:02:49.400 --> 0:02:52.480 and public workplaces. So is the legal test going to 0:02:52.560 --> 0:02:55.840 be whether or not there's an emergency? OSHA has the 0:02:55.919 --> 0:02:59.560 power to issue an emergency standard. It doesn't take an 0:02:59.560 --> 0:03:02.840 effect goal, it's published right now. The target date is 0:03:02.880 --> 0:03:06.480 December eight, and then, supposedly, understand you, which is kind 0:03:06.520 --> 0:03:10.000 of heroic, it has to create a permanent standard overdraw 0:03:10.120 --> 0:03:13.880 the temporary standard within six months thereafter. But I think 0:03:13.880 --> 0:03:16.440 it might be helpful just to look at the language 0:03:16.800 --> 0:03:21.320 that the Congress used, because the question will be challenged 0:03:21.400 --> 0:03:25.120 in court. If they determine that employees are quote exposed 0:03:25.120 --> 0:03:28.600 to grave danger from exposure to substances or agents determined 0:03:28.639 --> 0:03:32.120 to be toxics or physically harmful, then they can create 0:03:32.320 --> 0:03:35.480 a standard. So is there a grave danger from exposure? 0:03:35.680 --> 0:03:37.960 That's really going to be the question, which one that 0:03:38.000 --> 0:03:41.240 hasn't been litigated much in court. OSHA has rarely issued 0:03:41.280 --> 0:03:44.800 a temporary emergency standard in the past, and so the 0:03:44.840 --> 0:03:48.640 private company's challenging Ocean's authority will say there is no 0:03:48.720 --> 0:03:53.400 longer a grave danger were sufficiently vaccinated, and therefore there 0:03:53.520 --> 0:03:57.240 is no power in the federal government to mandate vaccines 0:03:57.400 --> 0:04:01.560 in the workplace. So, taking a situation in Texas, private 0:04:01.600 --> 0:04:06.480 businesses face this dilemma. Violate the federal vaccine mandate or 0:04:06.880 --> 0:04:12.280 violate the state vaccine ban. Companies are in an undeunviewable situation. 0:04:12.400 --> 0:04:15.040 Right you have to either comply with the Ocean standard 0:04:15.280 --> 0:04:17.919 or with the mandate from the Governor of Texas. And 0:04:17.960 --> 0:04:21.960 what's interesting from a legal perspective is Governor Abbott claims 0:04:22.000 --> 0:04:24.600 that this is an emergency. In an emergency, he has 0:04:24.680 --> 0:04:27.880 these or of inherent powers to regulate private businesses, which 0:04:27.880 --> 0:04:30.279 in some ways is a mirror image of what President 0:04:30.320 --> 0:04:34.640 Biden is arguing through OSHA as well. So obviously, if 0:04:34.680 --> 0:04:37.039 there's a conflict, usually the federal government wins out under 0:04:37.080 --> 0:04:41.120 the supremacy cost at least with respect to federal intuntalities, 0:04:41.160 --> 0:04:44.839 but our contractors, but probably we'll win out with respect 0:04:44.880 --> 0:04:46.840 to private companies as well, But that will be up 0:04:46.839 --> 0:04:49.320 for the courts, and they'll have to determine two things, 0:04:49.480 --> 0:04:53.160 Whether the agency has exceeded this authority in providing for 0:04:53.160 --> 0:04:57.479 this vaccine mandate. And secondly, even if it has, whether 0:04:57.800 --> 0:05:00.200 the state has the power to override it with act 0:05:00.240 --> 0:05:04.840 to state employee situations. So if this question does get 0:05:04.920 --> 0:05:08.560 to the Supreme Court, how are the justices likely to rule? 0:05:09.760 --> 0:05:13.560 Congress does seem to have given the federal government authority 0:05:13.640 --> 0:05:18.800 to regulate harmful substances in the workplace, and exposure to 0:05:18.880 --> 0:05:21.760 COVID is no big reach. So even though the current 0:05:21.800 --> 0:05:25.839 Supreme Court has articulated interest in limiting the power of 0:05:25.960 --> 0:05:30.000 Congress to delegate wide areas of authorities to the agencies, 0:05:30.120 --> 0:05:32.800 I think, at least with respect to regulating the workplace, 0:05:33.000 --> 0:05:37.240 the bid administration is on powerful ground. It's not unassailable. 0:05:37.440 --> 0:05:39.680 We've never done this before on precedent, they have this 0:05:39.800 --> 0:05:43.320 kind of regulation reaching so deeply into the private workforce. 0:05:43.640 --> 0:05:46.000 So some members of the Supreme Court may be skeptical, 0:05:46.160 --> 0:05:48.839 but I think the language of the statute in terms 0:05:48.880 --> 0:05:52.480 of grave danger fits much more readily with what OCE 0:05:52.720 --> 0:05:55.760 is trying to do with this temporary emergency standard. Thanks 0:05:55.800 --> 0:05:59.240 how that's Harold Grant of the Chicago Kent College of Law. 0:06:01.800 --> 0:06:04.360 This is a painting of my aunt. She was taken 0:06:04.360 --> 0:06:06.800 off the walls of a home by the Nazis. Now 0:06:06.839 --> 0:06:09.560 you'd like to be reunited, wouldn't that be lovely? And 0:06:09.640 --> 0:06:13.320 then list justice. The film Woman in Gold is based 0:06:13.360 --> 0:06:16.599 on the true story of Maria Altman, a Jewish woman 0:06:16.640 --> 0:06:19.560 who won a battle with the Austrian government to regain 0:06:19.600 --> 0:06:23.200 ownership of Augustav Klimp painting of her aunt. After a 0:06:23.279 --> 0:06:26.200 ruling by the U. S. Supreme Court involving the Foreign 0:06:26.200 --> 0:06:29.920 Sovereign Immunities Act, the Jostices have decided to take another 0:06:30.000 --> 0:06:33.320 case involving the same law to decide whether the heirs 0:06:33.360 --> 0:06:36.520 of a Holocaust survivor can regain a painting by French 0:06:36.560 --> 0:06:40.360 impressionist Camille Pissaro that was stolen by the Nazis in 0:06:41.360 --> 0:06:44.320 nine My guest is mc sung Guila, chair of the 0:06:44.320 --> 0:06:47.800 appellate practice at buck Alter EMC, tell us about the 0:06:47.880 --> 0:06:53.680 history of this painting, Ruce and Honorey Afternoon Rain effect. 0:06:54.279 --> 0:07:00.200 So the Pizarro painting issue in this case was just 0:07:00.520 --> 0:07:04.680 by the Casper family from a well known art dealer 0:07:04.800 --> 0:07:07.800 who had acquired it from Pizarro himself. And it's a 0:07:08.000 --> 0:07:12.440 very special painting by Pizarro, and in fact was created 0:07:12.480 --> 0:07:16.000 by Pizarro during the Drive's Affair, which involved a violent 0:07:16.000 --> 0:07:19.080 anti Semitic movement in France, but he painted from his 0:07:19.160 --> 0:07:22.320 bedroom window there in France, So in any event, the 0:07:22.400 --> 0:07:25.960 Cospers had this painting. It was passed down from generation 0:07:26.000 --> 0:07:28.680 to generation. It was a family treasurer. It was on 0:07:28.800 --> 0:07:32.040 the living room wall at their home in Munich. And then, 0:07:32.200 --> 0:07:37.440 under the growing shadow of Nazi anti Semitism, Lily Caspier 0:07:37.880 --> 0:07:40.800 packed up her belongings and prepared to flee Germany in 0:07:40.920 --> 0:07:45.200 nine and the Nazis would only allow her in active 0:07:45.280 --> 0:07:48.480 visa if she quote unquote sold them the painting, and 0:07:48.560 --> 0:07:51.360 she sold it to them for three hundred and sixty dollars. 0:07:51.400 --> 0:07:54.840 After that, she never saw the painting again and the 0:07:54.920 --> 0:07:57.920 Costier family had no idea what happened to it, but 0:07:57.960 --> 0:08:01.960 it was eventually sold through an art gallery and now 0:08:02.400 --> 0:08:07.320 is part of a Spanish nonprofit organization and foundation that 0:08:07.520 --> 0:08:12.440 has a museum and has displayed the painting. This went 0:08:12.520 --> 0:08:15.560 to trial, what did it? A trial judge find. So 0:08:15.600 --> 0:08:19.480 actually this case is like many of the Holocaust art 0:08:19.480 --> 0:08:22.680 recovery cases, meant has a very long history of bumping 0:08:22.800 --> 0:08:25.640 up and down within the court system. So the litigation 0:08:25.680 --> 0:08:28.600 has been going on for twenty years, and this is 0:08:28.760 --> 0:08:31.840 I think it's the fourth appeal of various issues in 0:08:31.920 --> 0:08:35.640 the case. And I was involved with the earlier Ninth 0:08:35.679 --> 0:08:39.679 Circuit proceeding in which some Rey judgment had been granted 0:08:39.760 --> 0:08:43.280 for the Foundation against the castiers, and the Ninth Circuit 0:08:43.400 --> 0:08:47.360 overturned that thing. No, we think there is a travel 0:08:47.400 --> 0:08:51.360 issue of fact with regard to what Spanish law requires 0:08:51.400 --> 0:08:55.800 and who has proper right to the painting under Spanish 0:08:56.040 --> 0:08:59.640 property law, which has a different sort of adverse possession 0:08:59.720 --> 0:09:03.480 law then California laws, and the nights were good said, 0:09:03.559 --> 0:09:06.080 so we're gonna send it back to the district court 0:09:06.120 --> 0:09:08.280 and the district court will hold a trial. The District 0:09:08.280 --> 0:09:11.679 Court helped that trial and still concluded that the Foundation 0:09:11.880 --> 0:09:15.600 properly has the painting and the spears laws. And now 0:09:15.640 --> 0:09:19.960 they're challenging that on a fundamental question, which is which 0:09:20.360 --> 0:09:24.240 law do we apply? Under the Sovereign Immunities Act to 0:09:24.440 --> 0:09:28.040 decide the choice of law questions, so is it federal 0:09:28.120 --> 0:09:33.360 common law that decides which law we apply Spanish California, 0:09:33.640 --> 0:09:37.280 or is it California law that decides whether California or 0:09:37.320 --> 0:09:41.320 Spanish law should apply and they argue California law should apply, 0:09:41.440 --> 0:09:45.120 not Spanish law, and so the outcome would have been different. 0:09:45.760 --> 0:09:50.120 The Air's claimed that California law never allows the holder 0:09:50.200 --> 0:09:55.040 of stolen property to obtain good title. That's frequently the 0:09:55.200 --> 0:09:58.640 arguments that's made, which is, you can't get good title 0:09:58.679 --> 0:10:00.920 from a thief. Right, you can only get as good 0:10:00.920 --> 0:10:04.200 a title from someone as they had to give to you. 0:10:04.800 --> 0:10:09.360 And that is commonly the rule in US law and 0:10:09.480 --> 0:10:13.880 various state laws. What's the rule in Spanish law? In Spain, 0:10:14.200 --> 0:10:18.040 it depends on kind of this question of really, like 0:10:18.200 --> 0:10:22.080 how bad were you? You can get possessory right, but 0:10:22.160 --> 0:10:27.280 it depends on your knowledge, your participation in that. In 0:10:27.440 --> 0:10:30.120 other words, you can get good title from a thief 0:10:30.200 --> 0:10:33.559 under certain circumstances if you are to some extent innocence 0:10:33.679 --> 0:10:36.960 of that had no idea that it was stolen, you know, 0:10:37.000 --> 0:10:39.560 all of these various things back to that question, the 0:10:39.559 --> 0:10:42.920 wild will blindness. Last term, the Justice is ruled that 0:10:43.000 --> 0:10:46.840 the Holocaust survivors who were suing couldn't press their claims 0:10:46.840 --> 0:10:50.840 for arts stolen during World War Two against Hungary and 0:10:50.960 --> 0:10:54.760 Germany in U S courts. Just yet does that give 0:10:54.800 --> 0:10:58.080 any indication of how the court might rule here. It's 0:10:58.080 --> 0:11:00.560 hard for me because I always hope, I always hope 0:11:00.640 --> 0:11:03.000 that it's going to be positive for the errors in 0:11:03.040 --> 0:11:05.839 these cases. And I will say that they have been 0:11:05.920 --> 0:11:10.160 most interested in the Holocaust ART cases involving various issues 0:11:10.200 --> 0:11:12.760 involving the Foreign Sovereign Immunities Act that came up last 0:11:12.840 --> 0:11:15.960 term in the Germany case the years ago granted the 0:11:16.120 --> 0:11:19.559 Maria Altman case because that also involved another issue with 0:11:19.600 --> 0:11:22.200 regard to foreign soognmunit these acts. So they seem very 0:11:22.240 --> 0:11:25.600 interested in this particular statute and how and when it applies, 0:11:26.160 --> 0:11:29.640 and you know, the gateway to our court system. So 0:11:30.040 --> 0:11:33.240 we know Altman came out in favor of the claimants 0:11:33.280 --> 0:11:35.640 and the Germany case, you know, was not favorable to 0:11:35.679 --> 0:11:37.480 the claimants. So I would say we're going in with 0:11:37.520 --> 0:11:41.120 a fifty fifty batting average Foreign Sovereign Immunities Act and 0:11:41.160 --> 0:11:43.520 Holocaust ART cases, but I'm hoping this one goes the 0:11:43.559 --> 0:11:47.160 way of Altman. Thanks EMC. That's mc sun Gila of 0:11:47.200 --> 0:11:49.319 buck Alter And that's it for this edition of the 0:11:49.320 --> 0:11:52.160 Bloomberg Law Show. Remember you can always get the latest 0:11:52.240 --> 0:11:55.120 legal news on our Bloomberg Law podcast. You can find 0:11:55.120 --> 0:11:59.439 them on Apple Podcasts, Spotify, and at www dot Bloomberg, 0:11:59.520 --> 0:12:03.560 dot comm, slash podcast, Slash Law, and remember to join 0:12:03.640 --> 0:12:06.280 us weeknights at ten pm Wall Street Time for the 0:12:06.280 --> 0:12:09.840 Bloomberg Law Show. I'm June Basso, and you're listening to 0:12:09.880 --> 0:12:10.439 Bloomberg