North Korea offered a good look at its new hypersonic missile as Kim Jong Un vowed to build ‘invincible military’

North Korea claimed that a missile test in late September involved a new hypersonic missile.
North Korea claimed that a missile test in late September involved a new hypersonic missile. That weapon appears to have been on display at a big event this week.

  • North Korea showed off what appears to be a hypersonic missile at a defense exhibition in Pyongyang.
  • The weapon looks like it could be the purported hypersonic missile tested late last month, experts said.
  • At Monday’s event, Kim Jong Un vowed to build an “invincible military” to fend off US hostility.

North Korea gave observers a good look at what appears to be a new hypersonic missile at an event Monday celebrating the country’s defense capabilities, an event where North Korean leader Kim Jong Un said he would build an “invincible military” defend itself against US hostility.

Surrounded by various weaponry, Kim said at the Self-Defense 2021 exhibition in Pyongyang that North Korea is “not discussing war with anyone” but aims to “prevent war itself and to literally increase war deterrence for the protection of national sovereignty.”

During the big defense event, the North Korean leader reviewed various missile systems, including intercontinental ballistic missiles theoretically able to reach the continental US. Some systems have been tested, while others have only been displayed at military events.

Among the North Korean weapon systems presented at the exhibition and displayed in state-run media reporting on the event is what experts said appears to be the hypersonic missile that North Korea claims to have tested last month – the Hwasong-8.

North Korea announced in late September that it had test-fired a new hypersonic missile. At the time, state media reported on the test, noting evaluations of the “detached hypersonic gliding warhead.” There was only one photo from the test, and it was simply a silhouette of the missile.

Footage from Monday’s exhibition offered multiple views of the new weapon.

“That looks like the same glider they tested last month,” Jeffrey Lewis, the director of the East Asia Nonproliferation Program at the Middlebury Institute of International Studies at Monterey, told Insider, pointing out that “we can now see its shape more clearly. It’s not a cone but rather a winged body with a flat bottom.”

He added that the concept seems similar to the DF-17 that China unveiled in 2019 at a military parade marking the country’s National Day.

Military vehicles carrying hypersonic missiles DF-17 travel past Tiananmen Square during the military parade marking the 70th founding anniversary of People's Republic of China
Military vehicles carrying DF-17 hypersonic missiles travel past Tiananmen Square during the military parade marking the 70th founding anniversary of People’s Republic of China.

In both cases, the weapon design features a ballistic missile carrying a boost-glide vehicle on a transporter-erector launcher.

The rocket gets the hypersonic glide vehicle up to speed (at least Mach 5) before it detaches, moving along an unpredictable flight path that makes it harder to intercept as it rushes toward its final destination.

For North Korea, while it is clear that it is now in the competition to develop new hypersonic missiles, a competition that involves powerful countries like China, Russia, and the US, it is difficult to know where they are in the development process or how the system performs.

Ankit Panda, a North Korea expert and a Stanton Senior Fellow at the Carnegie Endowment for International Peace, explained to Insider that “it certainly looks like what we’d expect a notional hypersonic glider to look like.” But, he said, “that tells us little about the materials it’s made from or its real-world aerodynamic performance.”

South Korean military leaders said after last month’s missile test that “it appears to be at an early stage of development that would require considerable time for actual deployment.”

Panda said that while the weapons technology on display is noteworthy, “the bigger picture here is that this event was a full-scale celebration of North Korea’s defense scientists and technicians right as the new military modernization campaign spins up.”

“Kim’s trying to ensure that this community is full-on morale, especially while the broader economic picture in the country looks quite dire.”

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Texas Gov. Greg Abbott’s vaccine mandate ban won’t make airlines or other large businesses drop their plans, legal experts say

greg abbott texas
Texas Gov. Greg Abbott.

  • Texas Gov. Greg Abbott issued an executive order Monday banning vaccine mandates in the state.
  • Legal experts told Insider the order is unlikely to have an impact on large businesses that will have to comply with a proposed federal vaccine mandate.
  • Law professor Dale Carpenter called Abbott’s order “more of a political statement than a legal statement.”

Texas Gov. Greg Abbott’s executive order banning vaccine mandates in the state is unlikely to have much of an impact on large businesses looking to require their employees to get vaccinated against the coronavirus, legal experts told Insider.

After the Republican governor’s executive order was announced on Monday, Insider spoke to legal experts at Southern Methodist University (SMU) and the University of Houston who said that President Joe Biden’s vaccine mandate for large businesses will supersede Abbott’s order as soon as it becomes official.

Biden announced last month that the Department of Labor was developing a rule to require companies with more than 100 employees to have their workers get vaccinated or face weekly testing.

The president also signed an executive order requiring all federal executive branch employees to be vaccinated, as well as federal contractors and their employees.

Dale Carpenter, a law professor at SMU, said that he expects companies that have already started making their employees get vaccinated will continue to do so, because the Biden administration’s proposed mandate will eventually “preempt” Abbott’s order.

Carpenter called Abbott’s order “more of a political statement than a legal statement.”

“Ultimately, I don’t think it will have a real legal effect,” he said of Abbott’s executive order.

Abbott’s order raises specific questions about Texas-based American Airlines and Southwest Airlines, since both are government contractors that fall under the purview of Biden’s vaccine mandate executive order. American is giving employees until November 24 to get vaccinated or face termination. Both airlines issued statements on Tuesday saying they wouldn’t be calling off their mandate plans, according to Reuters.

“According to the president’s executive order, federal action supersedes any state mandate or law, and we would be expected to comply with the president’s order to remain compliant as a federal contractor,” the Southwest statement, obtained by Insider, read.

David Crump, a law professor at the University of Houston, said airlines have the power to ignore the state mandate because it’s trumped by the federal order.

“The supremacy clause to the Constitution says that federal law is the ‘supreme’ law of the land, and state laws give way to it,” Crump said. “The state mandate is of no effect in that case.”

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The Biden administration is looking for contractors and guards for a migrant detention facility in Guantanamo Bay – stirring outrage in lawmakers and advocates

guantanamo bay
In this Wednesday, April 17, 2019 photo reviewed by U.S. military officials, the control tower is seen through the razor wire inside the Camp VI detention facility in Guantanamo Bay Naval Base, Cuba.

  • The Biden administration is seeking to run a migrant detention facility in Guantanamo Bay, per NBC News.
  • A government contract solicitation says that guards must speak Spanish and Haitian Creole.
  • The listing comes as the Biden administration has struggled to accommodate Haitian migrants.
  • See more stories on Insider’s business page.

As the Biden administration struggles to process an influx of Haitian refugees at the US Southern border, it is seeking a private contractor to open a migrant detention facility in Guantanamo Bay, according to NBC News.

In a public government contract solicitation, the Department of Homeland Security says that it seeks to establish the facility at the US Naval Base in Guantanamo Bay, Cuba, with a capacity of holding 120 people.

The solicitation also includes a requirement that guards running the facility speak Spanish and Haitian Creole.

“The service provider shall be responsible to maintain on site the necessary equipment to erect temporary housing facilities for populations that exceed 120 and up to 400 migrants in a surge event,” the solicitation says.

Insider reached out to the White House for comment.

“DHS is not and will not send Haitian nationals being encountered at the southwest border to the Migrant Operations Center (MOC) in Guantanamo Bay,” a DHS spokesperson told Insider.

“The MOC has been used for decades to process migrants interdicted at sea for third-country resettlement. The request for information (RFI) recently posted is a typical, routine first step in a contract renewal, and unrelated to the Southwest Border. The contract was initially awarded in 2002 with the current term ending on May 31, 2022,” the spokesperson added.

The NBC News report has stirred up frustration within immigrant rights organizations that have also been demanding that the administration end Title 42, a Centers for Disease Control and Prevention public health order started during the Trump administration that has effectively closed border crossings and enabled the rejection of asylum seekers.

The Biden administration, however, has chosen to defend Title 42 in court. It said this week that it plans to appeal a judge’s decision to challenge Title 42.

“The treatment of Haitians and Black migrants by the Biden administration is inhumane and unacceptable,” the Immigrant Justice Network told Insider in a statement. “For months, advocates have called on the Biden administration to end Title 42, a Trump-era policy that has been used to deport thousands of asylum seekers.”

“We call on President Biden to immediately stop deportations and grant Haitian migrants humanitarian parole,” the statement added, “Sending Haitian migrants to Guantanamo Bay, a place known for human rights abuses, was a mistake in the 1990s and would be a mistake now.”

Although most famously known as a controversial holding site for terror suspects, in the early 1990s, the US sent up to 12,000 Haitian migrants attempting to seek refuge in Florida to migrant detention facilities in Guantanamo Bay, under the George H.W. Bush administration. According to NBC News, the policy was ideated by then-Attorney General William Barr.

Rep. Alexandria Ocasio-Cortez called the proposed Guantanamo Bay move “utterly shameful,” in a tweet on Wednesday.

Bob Carey, the former director of the Office of Refugee Resettlement under the Barack Obama administration, told Insider that, “There are few good solutions for the administration during a time of multiple crises in the context of COVID.”

“While the use of Guantanamo is a regrettable solution, it is far better than forced return to Haiti in the context of current conditions there,” he added. “Guantanamo is outside the US and that has legal implications as well, but wherever people are, they have a right to make an asylum claim.”

In recent weeks, as thousands of Haitians have crossed mainly into Del Rio, Texas, fleeing instability, an earthquake, and violence in Haiti, the Biden administration has resumed deportation flights to Haiti, and scenes of border agents on horseback scattering Haitian migrants have stirred outrage and prompted an official rebuke from the administration.

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Conservative lawyer penned 6-page memo on how Mike Pence could hand the 2020 election to Trump

Mike Pence and Nancy Pelosi in Congress.
WASHINGTON, DC – JANUARY 06: Vice President Mike Pence and Speaker of the House Nancy Pelosi (D-CA) preside over a joint session of Congress on January 6, 2021 in Washington, DC. Congress has reconvened to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump, hours after a pro-Trump mob broke into the U.S. Capitol and disrupted proceedings.

  • John Eastman is a lawyer and senior fellow at The Claremont Institute, a conservative think tank.
  • CNN this week published a two-page memo he wrote for Trump’s legal team.
  • A longer version, obtained by Insider, claims Mike Pence could have handed the election to Trump.
  • See more stories on Insider’s business page.

A six-page memo, presented to former President Donald Trump’s legal team just days before January 6 – and obtained by Insider – details a right-wing lawyer’s argument for how the previous administration could remain in power despite losing the 2020 election.

On Monday, CNN published a two-page memo from the attorney, John Eastman, that it said had been obtained by journalists Bob Woodward and Robert Costa and detailed in their new book, “Peril.”

That document outlined a six-part plan for former Vice President Mike Pence to follow on January 6, arguing that the Constitution granted him the right to reject electors from states where Trump’s legal team falsely alleged there was significant voter fraud.

But Eastman, a senior fellow at The Claremont Institute, a conservative think tank, told Insider that document was a “preliminary draft.” He provided a longer document – “the full memo,” dated January 3 and labeled “privileged and confidential” – that expanded on the novel and extraordinary claim, made in the purported draft, that the 12 Amendment to the US Constitution empowered Vice President Mike Pence to not just count the votes from the Electoral College but unilaterally determine their legitimacy.

“There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes,” Eastman wrote, stating that “all the Members of Congress can do is watch.”

Under this scenario, Eastman maintained that Pence could decide to count “Trump electors” that had been approved by Republican-led state legislatures – even after those states had already sent a certified slate of electors, approved by their governors, for President Joe Biden.

Even if there were not competing, pro-Trump slates, Eastman argued, Pence could thwart Biden’s victory by deciding for himself, “based on all the evidence and the letters from [pro-Trump] state legislators calling into question the executive certifications,” to not accept any slate.

Kermit Roosevelt, an expert on constitutional questions at the University of Pennsylvania Carey School of Law, told Insider the arguments are shocking. “We knew this theory was out there, but it’s alarming to see that it was written up and presented to Trump’s legal team and presumably taken seriously by them,” he said.

Roosevelt said that, while he did not doubt Eastman’s sincerity, he could not understand the reasoning.

“Legally speaking, the analysis is bad,” he said. Even if there were dual slates of electors – there were not – “it’s a fringe view to say that the vice president gets to decide which is valid.”

“I would say that this is a proposed coup cloaked in legal language,” Roosevelt added.

In total, Eastman suggested Pence could reject slates of electors from seven battleground states, including Pennsylvania, Georgia, and Arizona, disenfranchising millions of voters. To bolster this argument, he claimed it was “a position in accord with that taken by Harvard Law Professor Laurence Tribe.” A former Obama administration official, Tribe had cowritten an article in September 2020 – on scenarios where Trump could attempt to subvert the will of voters – that noted elections are decided by who has a majority of electors that are “appointed,” not necessarily the majority of electors from all states.

In a post on Twitter, Tribe accused Eastman of taking “snippets of my work wholly out of context.” He has never argued the vice president alone can determine the legitimacy of a state’s electors.

Eastman, who told Insider he presented the memo to Trump’s lawyers, said he only intended to cite Tribe’s uncontroversial view that there is no minimum requirement for the number of electors that ultimately decide a presidential contest.

Have a news tip? Email this reporter: cdavis@insider.com

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Texas’ abortion tip site is still offline. The group behind the website said they don’t care as long as they cut down abortion rates.

texas abortion
Opponents and supporters of an abortion bill hold signs near a news conference outside the Texas Capitol, in Austin, Texas.

  • Texas’ abortion whistleblower website quickly went down in early September after online attacks.
  • The group behind it, Texas Right for Life, said it’s unconcerned as long as abortion rates drop.
  • Local and federal officials have attempted to block the new Texas abortion law with little success.
  • See more stories on Insider’s business page.

The legislative director of Texas Right to Life, the group behind Texas’ abortion whistleblower site, told Insider that the state’s new abortion law has been an “unmitigated success” so far.

Texas recently enacted a law that forbids anyone from receiving an abortion if they are six or more weeks pregnant. Private citizens are able to enforce the law by suing anyone receiving an abortion, the abortion provider, or anyone who “aids and abets” a procedure.

Texas Right to Life, an anti-abortion advocacy group, created a website that solicits anonymous tips about people getting or helping people get abortions. The tip site went offline after its web host, GoDaddy, said it violated its terms of service. Before the site went down, TikTok users spammed its tip form with “Shrek porn”, the script of “Bee Movie,” and other internet memes.

Cybersecurity experts warned Insider about there are extreme risks that accompany an organization collecting such sensitive health information. Abortion rights advocates told Insider that the data collection itself places abortion-rights advocates in danger.

“I shudder even to consider the implications of an extremist anti-choice group having a database of Texans who are known to support reproductive freedom,” Dina Montemarano, the research director of NARAL Pro-Choice America, told Insider in an email.

But Texas Right for Life doesn’t seem to be fretting about its whistleblower site going offline.

Employees and representatives from the organization both said abortion rates have plummeted in the state since the Texas law went through – and to them, that’s what matters most.

“We’re looking at 15 days out of the strongest pro-life bill in the country being followed,” said John Seago, the legislative director at Texas Right to Life. “And that is unmitigated success.”

Texas’ new law has cut down the number of abortions in the state, The 19th reported. At Whole Women’s Health clinics, which provide abortions in the state, almost half of the doctors stopped working once the law went into effect.

Texas Right to Life also said the group is undeterred by repeated efforts from local and federal officials to invalidate the Texas law.

Kimberlyn Schwartz, the spokesperson for Texas Right to Life, wrote that “Texas will not be intimidated” by the US Department of Justice’s emergency motion to block the law. She said Texas Right for Life is working with several other states to pass similar laws around the US.

Schwartz also saidthe organization doesn’t mind the “limited victory” that Planned Parenthood had in a September lawsuit and echoed Seago, noting that Planned Parenthood already announced its intention to comply with Texas’ new abortion restrictions.

“Despite receiving a limited victory in the Travis County court, Planned Parenthood announced they will continue to comply with the law and cease all elective abortions after six weeks,” Schwartz said in a different post on Texas Right to Life’s website. “Approximately 100 babies and pregnant women per day will continue to be saved by the law.”

Schwartz and Seago each told Insider that Texas Right to Life is working on restoring their abortion whistleblower website but didn’t say when the site would return. They said the organization is adding additional security features to the whistleblower website before it comes online again.

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Justices Amy Coney Barrett and Stephen Breyer want to convince you that the Supreme Court isn’t political, but experts say ‘it’s naive to think people will’ believe them

Justice Amy Coney Barrett
US Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center in Kentucky on September 12, 2021.

  • Justices Amy Coney Barrett and Stephen Breyer have tried to defend the Supreme Court’s integrity.
  • “This court is not comprised of a bunch of partisan hacks,” Barrett said at the McConnell Center this week.
  • Yet experts said they’re ignoring the realities of how politics affects the court and its justices.
  • See more stories on Insider’s business page.

While critics blast the Supreme Court as hyperpartisan, Justice Amy Coney Barrett this week attempted to sway public perception, insisting the institution is independent from politics.

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she told attendees at the 30th anniversary of the University of Louisville’s McConnell Center, a department founded by Senate Minority Leader Mitch McConnell, the Republican lawmaker who championed Barrett’s nomination to the bench and introduced her at Sunday’s event.

Barrett’s colleague, Justice Stephen Breyer, likewise tried to protect the integrity of the Supreme Court this week.

“A lot of people will strongly disagree with many of the opinions or dissents that you write, but still, internally, you must feel that this is not a political institution,” he told The Washington Post on Monday.

The “single most important point that I hope people will take” from my 27 years on the nation’s high court “is judges are not junior league politicians,” Breyer, 83, added.

stephen breyer
Supreme Court Justice Stephen Breyer.

“It’s naive to think people will – it’s hard to believe that you can convince people of that,” William Lasser, a Clemson University professor focused on the politics of the Supreme Court, told Insider in response to the two justices’ comments.

Though the conservative and liberal members of the court sought to defend their roles, they are ignoring what experts claim is the obvious: politics undeniably affects the Supreme Court and its justices.

“If the justices have to defend themselves from being partisan, that’s already a problem in and of itself,” Lasser added. “The court has always been a political institution for its history.”

Public approval of the Supreme Court is at an all-time low

Justices have long tried to uphold confidence in the federal judiciary, often dismissing criticisms that its members are loyal to the Republican or Democratic presidents who appoint them. In one instance in 2018, Chief Justice John Roberts pushed back on then-President Donald Trump labeling a judge who ruled against his policy an “Obama judge.”

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement at the time. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Despite their efforts, public approval of the US’ highest court appears to be eroding. Just 37% of Americans – an all-time low – approve of the way Supreme Court is handling its job, according to a Quinnipiac University poll released on Wednesday. A Gallup poll conducted in July also found that public approval in the Supreme Court declined by 9 percentage points compared to the same month in 2020.

Supreme Court
Members of the Supreme Court pose for a group photo on April 23, 2021. Seated from left are Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer, and Sonia Sotomayor. Standing from left are Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett.

“Certainly, if you disagree with either of these justices, it’s hard to look at Justice Barrett, as a Democrat, and say, ‘I believe that she’s not acting like a Republican,'” Lasser said. “It’s hard to look at Breyer, if you’re a Republican, and not see a Democrat.”

Lasser took particular issue with Barrett’s comment on Sunday that the justices’ “judicial philosophies are not the same as political parties.”

“It’s true that their judicial philosophies are authentic and they believe them very deeply,” he said, but “they’re underestimating the extent to which these partisan viewpoints influence their judicial philosophies.”

Allison Orr Larsen, a law professor at the College of William and Mary, shared a similar point, telling Insider that it’s over-simplistic to call the justices political, but that the justices aren’t immune from politics.

“They have views about the way the world works and those views necessarily influence how they decide cases, particularly the high-profile ones,” she said. “I would not call that partisan behavior, but I would not call it strictly legal. There are political beliefs and normative commitments that divide the Justices from one another, and that is undeniable.”

abortion protest Brett Kavanaugh home
Protesters gather outside the home of Supreme Court Justice Brett Kavanaugh, Monday, Sept. 13, 2021, in Chevy Chase, Md.

‘The court is inevitably enmeshed in politics’

There are several other glaring ways in which the Supreme Court is plagued by politics.

To name a few: Republican and Democratic candidates regularly campaign on issues the Supreme Court rules on, the US president selects a Supreme Court nominee that the Senate then confirms them, and Americans frequently take sides in Supreme Court cases based on their political beliefs.

The heated confirmation hearings of Trump nominees Justices Brett Kavanaugh and Barrett highlight how politics have affected the court in recent years, according to Lawrence Baum, a political science professor at Ohio State University, whose expertise is the federal judiciary.

“Regardless of how the justices do their job, the court is inevitably enmeshed in politics,” Baum said. “It’s inescapable that the court is linked to a larger political world.”

Mitch McConnell
Senate Minority Leader Mitch McConnell of Kentucky.

Trump, McConnell, and the Republican-led Senate faced widespread backlash last fall for rushing to confirm Barrett in the weeks leading up to the 2020 presidential election.

Barrett has largely avoided the public spotlight since, but her comments at the McConnell Center over the weekend have sparked new criticism. Her choice to appear at an event hosted by the GOP leader while trying to persuade the public that justices aren’t partisan wasn’t “wise,” Larsen told Insider.

But Lasser, the Clemson University professor, pointed out: “Where else could she go?”

“She’s not gonna go to a very liberal place and give a speech because she’s not going to be invited to give a speech there,” he said. “These worlds have become, as all our politics has become and as our society has become, increasingly polarized around these very issues that the court has both shaped and responded to.”

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For employers, the devil will be in the details of Biden’s new vaccine mandate, an employment law expert explains

vaccine
  • President Biden announced employers of more than 100 people must mandate vaccines or weekly COVID-19 tests.
  • Insider spoke to an employment law expert about the potential legal challenges that could arise.
  • “The questions and challenges are likely to come from the details,” Domenique Moran told Insider.
  • See more stories on Insider’s business page.

Following the Biden administration’s announcement that employers with more than 100 employees will be required to mandate vaccines or weekly testing – a move that will impact more than 80 million workers- an employment law expert told Insider that the devil is in the details.

On Thursday, President Biden announced a six-point plan to try to beat back a rise in COVID-19 cases and hospitalizations and to increase the country’s vaccination rate. This includes enforcing fines of up to $14,000 per violation for employers that ignore the mandates.

Biden announced COVID-19 vaccine requirements for federal employees, contractors of federal agencies, and staff at all healthcare facilities that receive federal funding from Medicare or Medicaid. Unlike employees at private companies, these workers would not have the option to get routinely tested as an alternative to being vaccinated.

“We could see a fair amount of challenges regarding the details – who is going to provide testing, who is going to pay for it, are employers going to be required to pay people for the time they spend testing?” Domenique Moran, an employment lawyer with Farell Fritz, told Insider.

Business Roundtable, a lobby group including Amazon, Walmart, Apple, Google, and Home Depot, said in a statement Thursday that it “applauds” the plan requiring companies with over 100 workers to mandate vaccines or weekly tests.

However, as the Department of Labor and its Occupational Safety and Health Administration (OSHA) drafts its emergency temporary standard to carry out the mandate, Moran insisted that the language of the mandate will dictate the potential legal challenges from employers.

“We got a very high-level vaccine or test mandate, the questions and challenges are likely to come from the detail,” Moran said.

“For the OSHA rule to be enforceable, employers need to be given time and they’re going to need clarity on expense – burdening businesses with cost of vaccine, testing, and time off without federal support could undermine the economic wellbeing for businesses,” Moran said.

In April, the Biden administration implemented a paid leave tax credit, promising to cover costs necessary for businesses with 500 or fewer employees to “to provide full pay for any time their employees need to get a COVID-19 vaccination or recover from that vaccination.” And on Thursday, Biden said that qualifying employers would be required by the new mandate to provide paid time off for their employees to get vaccinated.

That credit expires on September 30, 2021, and Moran said that employers may need an extension given the new plan.

Another scenario that Moran described was how the one hundred employee mark for a business is defined by the OSHA ruling.

“There is a question regarding what are 100 employees, does the business have 100 employees always, or seasonally?” Moran said, adding that the order could leave questions open around how full and part-time employment are counted.

Politically, during the limbo period before the language has emerged, high-ranking GOP members have promised to sue the Biden administration for its latest mandate, which vaccine law experts say is likely to fail.

Overall, from an employer side, Moran said that challenges on the constitutional merit of the mandate will be incredibly difficult.

“Because here is a built in accommodation for those who don’t wish to be vaccinated, I think the fundamental policy articulated is less subject to be challenged,” Moran said.

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How a Supreme Court decision from 1905 set the stage for vaccine mandates

biden vaccine
President Joe Biden receives the COVID-19 vaccine.

  • A 1905 Supreme Court ruling grants states the authority to issue vaccine mandates.
  • The decision was upheld nearly 20 years later in a case barring unvaccinated children from school.
  • Experts say Biden’s new vaccine rule is the most far-reaching one to come from the US government.
  • See more stories on Insider’s business page.

Republican leaders and vaccine skeptics railed against President Joe Biden on Thursday after he required COVID-19 vaccines for federal employees, contractors, and businesses with more than 100 employees, accusing the commander-in-chief of overstepping the government’s authority.

But US history begs to differ.

It’s not the country’s first pandemic, and there’s a strong tradition of vaccine mandates to quell diseases like smallpox and polio.

Brian Dean Abramson, an expert in vaccine law, told Insider that while vaccines rules aren’t new, they usually come from the state, not the federal government. He said it was common in the 19th century for states and cities to require the smallpox vaccine.

“But it’s been a very long time since we’ve had anything this far-reaching, and we’ve never had anything this far-reaching come from the federal government before,” Abramson said.

The federal government has never attempted to issue a vaccine mandate to the scale of Biden’s, but prior Supreme Court rulings have shown the court’s willingness to allow them to proceed in various circumstances.

One particular case occurred in 1904. A Massachusetts town gave its citizens a choice: take the smallpox vaccine or pay a $5 fine. Pastor Henning Jacobson refused to pay the fine, leading to a 7-2 Supreme Court decision in 1905 in favor of the state and the validity of state-issued vaccine mandates.

Associate Justice John Marshall Harlan wrote the majority opinion, ruling that Harlan’s individual freedoms, such as not taking the vaccine nor paying the required fine, do not give him a free pass to restrict the liberty of others by allowing the virus to spread.

“There are manifold restraints to which every person is necessarily subject for the common good,” Harlan wrote. “On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”

The Supreme Court affirmed the decision in 1922, ruling it was well within the rights of public and private schools to exclude unvaccinated students. Associate Justice Louis Brandeis issued the majority ruling, citing the Jacobson decision.

“Long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination,” Brandeis wrote.

Unanswered questions in the Jacobson ruling could divide the courts

The landscape of the country has changed in the 116 years since the Jacobson ruling, presenting unanticipated challenges to the court’s decision.

Abramson told Insider the Jacobson v. Massachusetts case could both help and hurt the validity of Biden’s new mandate. He said the court’s decision could be interpreted in two ways in 2021:

  1. The Supreme Court favors vaccine mandates from all levels of government
  2. The ruling never expressly grants the federal government the power to issue a vaccine mandate, only states and municipalities

He said there’s also a “little bit of wiggle room” in the case that could grant larger exemptions for people with fears of sickness or injury from the virus. Abramson told Insider the pastor in the original case was worried about receiving the smallpox vaccine due to side effects previously experienced by him and his family members.

“Jacobson had fears about the negative effects of the vaccine but didn’t really substantiate those fears,” Abramson said. “If it were proven that someone actually would be seriously injured by a vaccine, then the outcome might be different.”

He said the court never made that determination and the Biden Administration may need to factor in more leniency for medical exemptions.

“They left some room to say that if someone has a medical objection to vaccination and can demonstrate that harm would come to them, they might have a constitutional right to avoid vaccination,” Abramson said.

GOP leaders are preparing to sue the Biden Administration

Republican governors across the country announced their plans Thursday night to fight the Biden Administration’s new mandate in court: Georgia Gov. Brian Kemp said he would “pursue every legal option,” Texas Gov. Greg Abbott said similarly, and South Dakota Gov. Kristi Noem made Biden a promise:

“See you in court,” Noem said.

State leaders are not the only politicians jumping into the legal fray against the Biden Administration. Ronna McDaniel, the Republican National Committee chairwoman, said the RNC also plans to sue the administration when the mandate goes into effect on November 1.

Biden said on Thursday he’s undeterred by the efforts from GOP governors to stymie the administration’s COVID-19 response.

“If these governors won’t help us beat the pandemic, I’ll use my power as president to get them out of the way,” Biden said.

Erin Snodgrass contributed reporting.

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A vaccine law expert explains the 3 most likely legal challenges Biden’s federal vaccine mandate might face

A woman holding a sign that says "no job is worth dieing for!" stands close to a man
Demonstrators protested a vaccine mandate at Houston Methodist Hospital.

  • President Joe Biden on Thursday announced a series of new COVID-19 vaccine mandates for employees.
  • The plan is the most substantial federal vaccine mandate in the country’s history, according to a vaccine law expert.
  • Brian Dean Abramson described to Insider the legal challenges the far-reaching mandate might face in court.
  • See more stories on Insider’s business page.

President Joe Biden on Thursday announced a series of new, stricter COVID-19 vaccine requirements targeting both the public and private sector.

Brian Dean Abramson, a leading expert on vaccine law, told Insider the plan is by far the most substantial federal vaccine mandate in the history of the country, in part, because there have historically been very few federal vaccine mandates at all.

The administration will require employers with more than 100 employees to mandate vaccines or weekly testing – a move that will affect more than 80 million workers. Federal employees, contractors of federal agencies, and staff at all healthcare facilities that receive funding from Medicare or Medicaid will also be required to show proof of vaccination.

The plan, which also includes the imposition of fines of up to $14,000 per violation for employers that ignore these mandates, is part of the president’s attempt to counteract the Delta variant’s threat in the US.

“They’ve come from the states,” Abramson said. “During the smallpox epidemics in the 19th century and early 20th centuries, it was fairly common for states to mandate smallpox vaccines for large portions of the population.”

Similarly, employer and school vaccine mandates have been historically abundant, as well, during different points in American history, Abramson said. Over the past few months, several large companies have already imposed their own COVID-19 vaccine requirements before Biden’s Thursday announcement.

“But it’s been a very long time since we’ve had anything this far-reaching, and we’ve never had anything this far-reaching come from the federal government before,” Abramson said.

Biden’s announcement that the Occupational Safety and Health Administration would soon be tasked with writing and enforcing the vaccine requirement elicited a slew of angry and defiant responses on Thursday afternoon, particularly from Republican lawmakers who accused the president of everything from “assaulting private businesses” to “trampling on civil liberties.”

With the fierce politicization of vaccines in recent months and the fervent political divide across the country, Abramson said the Biden administration’s vaccine mandate is certain to face legal challenges.

As he sees it, there are three prevailing questions that remain to be resolved.

Ohio vaccine

OSHA and the Commerce Clause

The first possible legal hurdle to the president’s intended vaccine mandate has to do with the Commerce Clause of the US Constitution, which gives Congress the constitutional power to regulate commerce both with foreign nations and among the states.

The question the courts will likely have to answer is whether OSHA, a federal regulatory agency tasked with keeping workers safe, has the power to broadly mandate vaccines under the Commerce Clause.

Congress passed the Occupational Safety and Health, which was signed by President Richard Nixon in 1970, that created OSHA.

OSHA has historically been given broad authority to regulate workplace safety, instituting a number of standards across a variety of industries. Similarly, the Commerce Clause has been construed fairly broadly to allow the government to step in and impose its will when it can demonstrate that something – in this case, COVID-19 – has an impact on interstate commerce, Abramson said.

“Obviously the COVID pandemic has affected interstate commerce,” he said. “It travels from state to state and it can be transmitted by people in any walk of life.”

The Commerce Clause gives Congress the broad power to legislate; Congress has the power to delegate authority to agencies like OSHA; and OSHA has the authority to make and enforce rules that protect worker health and safety.

A successful challenge under the Commerce Clause would be the most constitutionally effective in overriding or dismantling the Biden administration’s mandate, Abramson said.

“If there was a Commerce Clause challenge and it succeeded, that would have the strongest impact toward eliminating the ability of the federal government to require broad vaccination mandates,” he said.

But he also thinks that particular argument is weak. There’s a separate possible challenge he thinks is stronger.

Cars line up for Covid-19 testing in Miami, on August 3, 2020.
Cars line up for Covid-19 testing in Miami, on August 3, 2020. –

Overly burdensome or discriminatory requirements

Abramson said he anticipates several challenges will be raised regarding how exemptions are made available and applied to those who remain unvaccinated.

The two most likely vaccine exemptions will be for those who have a religious opposition to the vaccine, and those who have a certain disability covered under the Americans with Disabilities Act that prevents them from receiving the shot, Abramson said.

The question this challenge poses is: what is an appropriate, non-discriminatory, non-burdensome accommodation for those with exemptions?

Historically, school students who have been exempt from vaccine requirements have not been treated any differently after receiving approval for their exemption, Abramson said. But COVID-19 has prompted a shift in these standards, and those who once would not have been treated any differently due to their vaccination status, now find themselves facing extra restrictions, like testing and masking.

“The question of whether it’s discriminatory or burdensome is probably a stronger argument,” Abramson said. “But it isn’t an argument that necessarily eliminates mandates.”

If such a challenge succeeded – something Abramson conceded was possible – the federal vaccine mandate would likely not be dismantled or overturned. Instead, it would prompt the regulation to be rewritten in a more carefully tailored way, Abramson said.

Another hiccup in the overly-burdensome challenge is the fact that many vaccinated people have returned to wearing masks in public amid the spread of the Delta variant, meaning the presence of a mask no longer necessarily indicates whether a person is vaccinated or unvaccinated.

The question of antibodies

A third question, one that hasn’t yet demanded the same attention as the previous two, is whether those who already had COVID-19 should be subject to vaccine mandates.

Abramson said more and more unvaccinated people who already had the illness are starting to argue that they should be exempt from vaccine requirements because they have the COVID-19 antibodies that the vaccines deliver to their bodies.

He said the challenge could end up being a due process clause: If you can prove you had COVID-19, you may end up with a compromise rule where a specific number of antibody levels could possibly exempt you from the vaccine.

A long road ahead

Biden’s Thursday announcement detailing the federal government’s vaccine mandate was heavy on speechifying and light on specifics.

“We have to wait and see what OSHA says,” Abramson said, noting that the final version of the government’s mandate will likely be more nuanced. “There’s a long sausage-making process between here and there.”

He said it’s possible the final OSHA rule will incorporate measures to avoid the kinds of concerns that could lead a court to overturn the mandate.

“My anticipation would be with the initial challenges, we’re not going to see a suspension of this rule,” he said.

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A pro-Trump group organizing a DC rally for Jan. 6 defendants lost its tax-exempt status – but is still claiming donations are tax-deductible

Matt Brynard helping to move a statue of Donald Trump.
Matt Braynard (L) helps artist Tommy Zegan (R) move his statue of former President Donald Trump to a van during the Conservative Political Action Conference on February 27, 2021 in Orlando, Florida.

  • Matt Braynard worked as a data analyst on the 2016 Trump campaign.
  • His group, Look Ahead America, was founded in 2017 as a nonprofit.
  • But the IRS revoked the group’s tax-exempt status after it repeatedly failed to disclose spending.
  • See more stories on Insider’s business page.

A group founded by a former Trump campaign staffer that is organizing a rally this month on behalf of January 6 defendants is soliciting “tax-deductible” contributions despite losing its tax-exempt status last year.

According to its website, Look Ahead America is a “non-profit organization” founded by Matt Braynard, a former data analyst on the 2016 Trump campaign. Although ostensibly “non-partisan,” it has clear and avowed sympathies: On September 18, it is organizing what it calls a “#JusticeForJ6” rally at the US Capitol, conflating those arrested for taking part in the pro-Trump January 6 riot with “political prisoners.”

At least 638 people have been arrested and charged with crimes related to the January 6 insurrection, when rioters sought to prevent the congressional certification of President Joe Biden’s victory in the 2020 election. But while claims of mass voter fraud have been readily debunked, Braynard, like others, has raised a substantial sum of money to prove that it existed.

Donation link.
Look Ahead America falsely tells potential supporters that their donations are “tax-deductible.”

In the weeks after the election, Braynard raised more than $675,000 on a Christian fundraising platform to pursue amateur audits of the November vote. That campaign left him with what he described as a “surplus” of $84,000, which would go toward a “relaunch of Look Ahead America.” None of the money would benefit Braynard personally, he insisted. “That should be clear on the public 990 we file at the end of this year,” he wrote in a January update, referring to the mandatory spending disclosures that nonprofits are supposed to file with the IRS.

A month later, the group had already raised another $75,000, Axios reported, with part of the money going to a new treasurer who was said to be resolving its issues with the IRS.

On its homepage, Look Ahead America – now boasting of a dozen-strong leadership team – is asking for more money, saying it is needed to help “organize and guide patriotic citizens in lobbying their state legislatures and local governments on America First initiatives.”

Despite no longer enjoying tax-exempt status, however, potential supporters are promised that their donations will constitute a “tax-deductible contribution.”

Visitors can also purchase copies of “Otoya: A Literary Journal of the New Nationalism,” edited by Braynard. The magazine’s cover features an image of Otoya Yamaguchi, a member of the Japanese far-right who assassinated the head of his country’s Socialist Party in 1960 – and who is today an inspiration for extremists here in the United States, according to the Institute for Research and Education on Human Rights.

‘The answer to that is no’

Despite promising one, Bryanard’s group has never actually filed a 990 form, that would, among other things, reveal just how much he and others are paid. After three years of failing to disclose such spending, the IRS automatically revokes a nonprofit’s tax-exempt status; for Look Ahead America, that happened in May 2020.

Braynard told BuzzFeed he’s working on it. He reapplied for exempt status in January 2021, he said in August and was still waiting to hear back.

On Twitter, however, he suggested that already should have happened. And the former Trump staffer event insisted that his group can continue to operate as a nonprofit – and receive tax-free contributions – despite losing its tax-exempt status. “Per IRS rules, we are allowed to operate as a [501(c)(3)] while our reinstatement status is pending. We expect it to be resolved this month,” he wrote in July.

Is that true, though?

“The answer to that is no,” Rick Cohen, chief operating officer at the National Council of Nonprofits, told Insider. “From the time their status as a 501(c)(3) is revoked until such time that it is reinstated, donations are not deductible.”

As of August 9, Look Ahead America has still not been reinstated, per the most recent IRS list of active tax-exempt organizations in Washington, DC. And until it is, the IRS too says it should not be acting like it has been.

According to the agency, there is no exception: “a section 501(c)(3) that loses its tax-exempt status can’t receive tax-deductible contributions.”

Neither Braynard nor Look Ahead America responded to requests for comment.

Have a news tip? Email this reporter: cdavis@insider.com

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