Today, oral arguments in two cases are scheduled at the SCOTUS to address whether the federal vaccination mandate is a is a constitutional exercise of executive power as the pandemic rages around us. At issue in one case is whether the US Labor Department can legally impose a "vaccine-or-test" mandate to large employers [over 100 employees]; the issue in the second case is whether vaccines can be mandated for health care workers at facilities that receive federal funds. 

President Biden's administration implemented the "vaccinate-or-test" mandate through the Occupational Safety and Health Administration [OSHA]. Several challenges to the OSHA requirement arose immediately throughout the country; the dispute distilled into an appealed case right here in the Sixth Circuit. The Sixth Circuit panel assigned to the case reinstated the federal mandate in this opinion. 

The myriad parties to the suit that represented employers were granted certiorari; SCOTUS placed the case on its "fast track" merits docket. 

The federal government's argument was crafted during a sustained world-wide surge of the fast-spreading Omicron variant; over 800,000 people have died in the United States from the virus. This compares to the roughly 650,000 deaths from so-called "Spanish Flu" just over a Century ago. 

Amy Howe of SCOTUSBlog summarizes the legal position of the Solicitor General:

OSHA simply exercised the power that Congress gave it under the Occupational Safety and Health Act of 1970, which directs OSHA to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.” Emergency rules can go into effect immediately, without the notice-and-comment procedures normally required for agency rulemaking. In this case, [the Solicitor General asserts] OSHA concluded that the COVID-19 virus is “both a physically harmful agent” and a “new hazard,” and that unvaccinated employees who are exposed to the virus at work face a “grave danger.” 

Twenty seven states, led by Ohio, beg to differ. The states argue that the pandemic is being used as a "pretext" simply to get more folks vaccinated; the states assert hat not all hazards -like COVID- should be considered work-related for purposes of the "grave danger" emergency OSHA regulations. 

Another challenge to the OSHA emergency regulations comes from small business trade groups. They argue that forcing employers to implement a "vaccinate-or-test" policy foists unfair expenses on the company or their customers; the measures also disrupt an already-disrupted work force when workers [purportedly] quit in droves rather than comply with their employer's new COVID policy. 

Ms. Howe's blog post summarizes the federal government's response to the trade group and states' arguments:

[A] physically harmful agent, exposure to it in the workplace presents a grave danger to employees, and the [mandate] is necessary to protect employees from that danger.” Moreover, the administration adds, Congress not only envisioned that OSHA might require immunizations to protect workers, but in the American Rescue Plan of 2021, it also instructed OSHA to use its authority to protect workers from COVID-19 – and even appropriated funds for it to do so.

For their part, the health care workers' appeal focuses the Justices on the unprecedented "one-size-fits-all" nature of the OSHA mandates; they assert that the powers wielded by the Health and Human Services bureaucracy are too expansive without a clear statement from Congress. The Solicitor General, on the other hand, contends that Congress has already provided this power to OSHA and to HHS.

We here at Clarkston Legal will track this interesting case and let our readers know how SCOTUS decides the matter. These consolidated cases remind us of the Obamacare battles that made repeated trips up to the SCOTUS. 

Stay tuned.  

Post #631

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In the past ten-years, my law firm has produced a few short video clips to promote our mission statement. We have enjoyed just a few very slim slices of public exposure during this decade.

This 600th post publishes some of our best clips from the past 10-years. Take a look...

The very first clip features a closing argument following a three-day trial in a drunk driving case before the legendary Oakland Circuit Judge Steven Andrews way back in 2009. This poor-quality video was purchased from the Oakland County Circuit Court Administrator prior to the Court's ban on disseminating such videos of court proceedings.

This second clip features a panel discussion involving my first case before the Michigan Supreme Court back in 2006. Probably for the legal professionals among our readers.

Then we produced our first marketing video in 2010, designed for social media distribution. The colors were good, and the "actors" are actual clients. We really got a lot of mileage out of this short little clip.

Here is another throwback to the Oakland Circuit Court from 2009; a sentencing hearing for one of our few homicide cases. Now-retired and long-serving Oakland Circuit Judge Ed Sosnick can be seen presiding over the hearing. Our client pled to leaving the scene of an accident resulting in death; she was sentenced to 6-months in the "work-release" program.

More recently, I was able to generate a clip resulting from one of my rare appearances before the Michigan Supreme Court in People v Robertson; a case involving the "search and seizure" clause of the 4th Amendment to the United States Constitution. Boy, am I ever getting grey...

Finally, last year, we got it together and produced this gem with a pair of our best clients ever.

Time really does fly when you are having fun; this is certainly true in the professional setting.

If you or a loved one are facing the rough waters of a divorce or criminal charge, give us a call to discuss your options in a free  consultation.

Post #600
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We started this blog with the Oakland Press in March 2009.  Five years and 400 posts later, we realize how lucky we are to have support from our host, the Oakland Press, demonstrating that the First Amendment is alive and well.

Some of the topics we've been luck to follow over the past half-decade has been the rapid progression of the same-sex marriage civil rights litigation.  Another hot topic has been the gradual decriminalization, and even legalization, of marijuana; in some states and for some purposes.

Judges and attorneys are always fair game, as are our legislators and law enforcement.  These groups of professionals intersect at our legal system.

The goal of this blog is to shed some light, however small, on a portion of what goes on in this system.   We shift through local, county, state and national legal news feeds for the material we hope you find relevant, informative; occasionally even entertaining.

This blog is approaching 300k page views.  In our digital era, we get between 15 seconds to one minute of your time; we want to make it count.

Let us know how we're doing; leave a comment.

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Our good friend and colleague out here in Clarkston, David Shook, provides another bankruptcy-related guest blog post.

Many debtors imagine repo men descending on their homes to loot and pillage their estate seconds after the bankruptcy papers are filed in federal bankruptcy court.

While this makes for great television, the facts could not be further from the truth.  While there are cases where assets need to be sold for the benefit of creditors, there is a process to be followed, and the opportunity for hearing before a judge, prior to the sale of anything in a case.

Debtors are allowed to retain up to fixed amount of value in assets through a process of exemptions, which are written into the Bankruptcy Code.  Exemptions allow for the first dollars of any asset to remain in the debtors possession throughout the bankruptcy process.  If for some reason the Chapter 7 Trustee should choose to sell an asset for the benefit of the creditors (which is very rare) the Debtor would receive the exemption amount from the sale proceeds, prior to creditors seeing a dime.

Keep in mind the system focuses on the debtor’s value in the property, not the value of the asset.  I receive many a creditor phone call to inform me that “Bob” filed bankruptcy, but got to keep his Corvette, ski boat, etc.   If the Corvette is worth $25,000 but subject to a creditor lien of $23,000, Bob has only $2,000 in equity in the car.  Given The Code, allows the debtor an exemption of up to $3,450 in an automobile, there is no benefit to creditors in selling the car.  Thus the bankruptcy Trustee has no interest in the selling the Corvette, if “Bob” continues to pay the creditor on his car loan, he may retain it after bankruptcy.

On the other hand if the Corvette does not have a creditor lien, or the lien is small enough to warrant the sale of the asset, the exemption must be paid to the debtor from the sale proceeds.  In our example the Corvette is worth $25,000, but the creditor lien is only $5,000.   Here the Trustee might very well sell the car, pay off the creditor lien, and all expenses of sale, and retain $18,000.   The Trustee must give the Debtor the exempt amount from the sale proceeds.

While $3,450 might not sound like a good deal, depending on the amount of debt this may be a great deal.  In effect the debtor has traded the Corvette for $3,400 in cash and wiping clean all creditor claims.

If upon review, it is determined a debtor may have assets that cannot normally be retained in bankruptcy, Chapter 13 of the Bankruptcy Code may very well help.  One of the benefits of Chapter 13, which focuses on the repayment of debts over a 3 to 5 year period, is a debtor is allowed to “buy back” assets from the estate. 

In this example the Debtor is allowed to pay creditors the value of the Corvette ($25,000), less the lien and exemption ($5000 + $3,400 = $8,400) over the life of the plan.  Again depending on the amount of debt involved, paying $16,400 over a 36 to 60 month period may very well be a great deal.

So what can you keep in a bankruptcy?  One of the few clear benefits for the debtor in the 2005 bankruptcy reforms relates to retirement accounts. 

The vast majority of tax deferred retirement accounts, IRA’s, 401(k), 403(b), etc., are exempt from the bankruptcy estate.  While the probations against transfers discuss in my last post apply, and it is not advisable to move a $10,000 CD into a IRA on the eve of bankruptcy, normal contributions are exempt regardless of the balance in the account.  A debtor, who puts 6% of his gross pay into a 401(k) or contributes the maximum deductible amount to his IRA each year, has an unlimited exemption in the account.  As I tell clients, the difference between your case, and a case with $100,000 in an IRA, is the money you have after bankruptcy.

I have seen several cases over the years where the Debtor has hundreds of thousands of dollars in an IRA or 401(k).  In one example the Debtor had close to two million dollars in his IRA’s.  All of these funds where retained free of claims by creditors or the Trustee.

For all of the energy invested in wealth retention, the best protection is also the simplest.  Everyone with a paycheck should have some type of retirement account, and deposit as much as possible into the account, up to the deposit limit’s set by the IRS.

Great advice Dave.  Any of our readers with questions are encouraged to contact Mr. Shook for answers.

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By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' privacy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

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Since March 2009, we here at the LawBlogger have had the distinct privilege of posting law-related content via the Oakland Press in Pontiac, MI.  It has been a great relationship.

Over the past two and a half years, we have posted 150 times to this blog, attracting over 40,000 page views.  Very small by national standards, but we're proud of our readership.

On a daily basis, we know that many of our readers scan and absorb fresh content by:

• checking their email(s);
• perusing their news feeds;
• browsing several on-line newspapers and trade publications;
• surfing their social media feeds; 
• actually reading a home-delivered newspaper (old school); and
• occasionally watching news on television or the Internet.

We also know that our readers only have a brief moment to read our posts, so we try to make that moment count.

Going over some of our first posts was painful; the posts were soooo long, laden with detailed links.  When we first started blogging, I think we tried to publish a law review article in each post.

As a result, no one read past the first 3 paragraphs and we were only able to produce one or two posts a month.  That is no way to develop a readership.

When blogging, less is more.  Get to the point; stick to the point.

Thanks to our readers that have hung in there over the years.  We appreciate your feedback and comments.  Please keep them coming.  For our part, we will continue to deliver frequent relevant law-related content for your perusal.

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