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Nos. 21A244 and 21A247
IN THE
Supreme Court of the United States
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
STATE OF OHIO, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
On Applications for Stay or Injunction Pending Review of Petition for Writ of Certiorari
to the United States Court of Appeals for the Sixth Circuit
MOTION OF TORE SAYS LCC FOR LEAVE TO FILE ATTACHED AMICUS
BRIEF IN SUPPORT OF APPLICATIONS FOR STAY OR INJUNCTION
PENDING REVIEW; FOR LEAVE TO FILE WITHOUT 10-DAYS’ NOTICE;
AND FOR LEAVE TO FILE IN PAPER FORMAT
________________ ________________
Grant J. Guillot Russell A. Newman*
Counsel of Record THE NEWMAN LAW FIRM
GRANT GUILLOT, LLC 6688 Nolensville Road, Suite 108-22
5028 River Meadow Drive Brentwood, TN 37027
Baton Rouge, LA 70820 (615) 554-1510
(225) 614-7838 russell@thenewmanlawfirm.com
grant@grantguillot.com *Admission pending.
Counsel for Amicus Curiae, Tore Says LLC
December 28, 2021
ii
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Tore Says LLC respectfully moves under Supreme Court Rule 37.2 for leave
(1) to file the attached brief as amicus curiae in support of the Emergency
Applications filed on December 17-18 2021, designated Application Nos. 21A244 and
21A247, seeking a stay or injunction pending review of the Sixth Circuit’s decision
to dissolve a stay of the Occupational Safety and Health Administration (OSHA)
Emergency Testing Standard (ETS) on COVID-19 vaccination and testing, (2) to file
in unbound format on 8.5-by-11-inch paper, and (3) to the extent leave is required,
to file without 10 days’ advance notice to the parties of amicus’s intent to file.
By email on December 24, 2021, amicus sought consent from the parties to file
an amicus curiae brief in support of the Emergency Applications designated
Applications Nos. 21A244 and 21A247. Amicus attempted to obtain the consent of
all applicants who have thus far filed Emergency Applications in regard to the
OSHA ETS. Counsel for the Applicants in eight of the thirteen applications—Nos.
21A243, 21A244, 21A245, 21A247, 21A251, 21A252, 21A258, and 21A260—
consented to the filing. Counsel for the remaining Applicants had not responded as
of 12:00 p.m. on December 28, 2021. Counsel for the respondent U.S. Department of
Labor has not yet responded.
Tore Says LLC is a multimedia independent news outlet and online
community dedicated to educating American citizens as to their sovereign, natural
iii
rights as memorialized, in part, in the United States Constitution. Tore Says LLC
has an interest in ensuring that the Constitution is read, consistent with a literal
application of its text as intended by the founding fathers of this nation, to ensure
the federal government does not overstep and exceed the limited authority it has
been granted by the citizens of the United States of America (the People).
Pursuant to Rule 37.1, amicus respectfully submits that its amicus curiae
brief will bring to the attention of the Court relevant matters that have not already
been brought to the Court’s attention by the parties in the Emergency Applications
but that nevertheless may be of considerable help to the Court. Specifically, the
implementation of OSHA’s vaccine-and-testing rule for all businesses who employ
100 or more employees, which would impact “two-third of all private-sector
workers,” 86 Fed. Reg. 61,402, 403 (Nov. 5, 2021), or over 25% of the population, id.
at 61,475, infringes upon the constitutional freedoms that this Court has
consistently recognized as belonging to business entities. See, e.g., Santa Clara
County v. Southern Pacific R. Co., 118 U.S. 394 (1886); NAACP v. Button, 371 U.S.
415, 428–429, (1963); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14,
(1978); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 8 (1986);
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342 (2010); Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 687-91 (2014). The imposition of the OSHA
ETS on business entities is contradictory to the holdings of this Court recognizing
that certain liberties may not be restrained due solely to the corporate nature of the
iv
aggrieved party.
In addition, amicus asserts that the OSHA ETS violates the Ninth
Amendment to the United States Constitution, which, while seldomly addressed by
this Court, should nonetheless be considered a critical component of any thorough
and well-reasoned analysis of whether the ETS is able to pass constitutional
muster. As noted by Justice Goldberg in his concurring opinion in Griswold v. State
of Connecticut, “The language and history of the Ninth Amendment reveal that the
Framers of the Constitution believed that there are additional fundamental rights,
protected from governmental infringement, which exist alongside those
fundamental rights specifically mentioned in the first eight constitutional
amendments.” Griswold v. State of Connecticut, 381 U.S. 479, 488 (1965) (Goldberg,
J., joined by Warren, C.J. & Brennan, J., concurring in the judgment). Because no
express constitutional authority exists for the federal government to mandate the
vaccine-and-testing regime, which has been wrought with controversy from its
inception, businesses retain the fundamental right to determine whether to require
employees to undergo such measures.
Finally, amicus avers that even if a governmental entity possessed the
authority to mandate that employees undergo vaccination or testing measures in
response to the COVID-19 outbreak, such power would belong to the respective
states, not the federal government, by virtue of the Tenth Amendment to the United
v
States Constitution. As noted by the United States Court of Appeal for the Fifth
Circuit, “to mandate that a person receive a vaccine or undergo testing falls
squarely within the States’ police power.” BST Holdings, LLC. v. Occupational
Safety & Health Admin., No. 21-60845, 2021 U.S. App. LEXIS 33698, at *21, 17
F.4th 604 (5th Cir. Nov. 12, 2021), citing Zucht v. King, 260 U.S. 174, 176 (1922);
Jacobson v. Massachusetts, 197 U.S. 11, 25-26 (1905). Accordingly, the OSHA ETS
is unconstitutional as no federal police power exists that would validate the federal
government’s draconian imposition of the vaccine-and-testing mandate.
Given the expedited consideration of this matter of significant national
interest, amicus respectfully requests leave to file the enclosed brief without 10
days’ advance notice to the parties of intent to file (to the extent such notice is
required in this matter) and to file in unbound format on 8½-by-11-inch paper. The
Sixth Circuit granted the government’s motion to dissolve the stay imposed by the
Fifth Circuit on the evening of December 17, 2021, and the Emergency
Applications were filed in this Court on December 17-21. The Court has now set a
deadline of December 30 for respondent’s brief. In addition, on December 22, the
Court scheduled oral argument for Application Nos. 21A244 and 21A247 for
January 7. Because of the rapid schedule and because no party has opposed the
filing, amicus requests that the Court grant leave to file the attached amicus brief
without 10 days’ advance notice to the parties and in unbound format.
For the foregoing reasons, Tore Says LLC respectfully requests that this
vi
motion be granted.
Respectfully submitted,
Grant J. Guillot
Counsel of Record
GRANT GUILLOT, LLC
5028 River Meadow Drive
Baton Rouge, LA 70820
(225) 614-7838
grant@grantguillot.com
Russell A. Newman*
THE NEWMAN LAW FIRM
6688 Nolensville Road
Suite 108-22
Brentwood, TN 37027
(615) 554-1510
russell@thenewmanlawfirm.com
*Admission pending.
Counsel for Amicus Curiae, Tore Says LLC
December 28, 2021
Nos. 21A244 and 21A247
IN THE
Supreme Court of the United States
IN RE: MCP NO. 165, OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION, INTERIM FINAL RULE: COVID-19 VACCINATION AND
TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. REG. 61402,
ISSUED ON NOVEMBER 4, 2021
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
STATE OF OHIO, ET AL.,
Applicants,
V.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.,
Respondents.
On Applications for Stay or Injunction Pending Review of Petition for Writ of Certiorari
to the United States Court of Appeals for the Sixth Circuit
BRIEF OF TORE SAYS LLC AS AMICUS CURIAE IN SUPPORT OF
APPLICATIONS FOR STAY OR INJUNCTION PENDING REVIEW
________________ ________________
Grant J. Guillot Russell A. Newman*
Counsel of Record THE NEWMAN LAW FIRM
GRANT GUILLOT, LLC 6688 Nolensville Road, Suite 108-22
5028 River Meadow Drive Brentwood, TN 37027
Baton Rouge, LA 70820 (615) 554-1510
(225) 614-7838 russell@thenewmanlawfirm.com
grant@grantguillot.com *Admission pending.
Counsel for Amicus Curiae, Tore Says LLC
December 28, 2021
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES…………………………………………………………………….iii
INTEREST OF AMICUS CURIAE…………………………………………………………….1
INTRODUCTION AND SUMMARY OF ARGUMENT……………………………………..1
ARGUMENT……………………………………………………………………………………….3
I. The Court Has Recognized That Business Entities Are Afforded
Constitutional Protections; In Line With Those Decisions, Corporate
Entities Have The Autonomy To Determine Whether To Implement
Vaccination-And-Testing Requirements………............................................3
II. The OSHA ETS Infringes Upon The Unenumerated Rights Retained
By The People As Acknowledged By The Ninth Amendment To The
United States Constitution……………………………………………………...8
III. Even If A Government Agency Had The Authority To Regulate The
Implementation Of Vaccination-And-Testing Requirements In Places
Of Employment, That Authority Would Belong To The Respective
States And Not To The Federal Government………………………………..14
CONCLUSION………………………………………………………………………….............17
iii
TABLE OF AUTHORITIES
Cases Page(s)
Austin v. Mich. Chamber of Comm.,
494 U.S. 652 (1990)………………………………………………………………………….5
BST Holdings, LLC. v. Occupational Safety & Health Admin., No. 21-60845,
2021 U.S. App. LEXIS 33698, 17 F.4th 604 (5th Cir. Nov. 12, 2021)…………...…16
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014)……………………………………………………………………2, 6, 7
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (1824)…………………………………………………………………2, 5, 6, 7
Eisenstadt v. Baird,
405 U.S. 438 (1972)………………………………………………………………………...11
First National Bank of Boston v. Bellotti,
435 U.S. 765 (1978)……………………………………………………………………4, 5, 7
Gregory v. Ashcroft,
501 U.S. 452 (1991)………………………………………………………………………...15
Griswold v. State of Connecticut,
381 U.S. 479 (1965)……………………………………………………..8, 9, 10, 11, 12, 15
Grosjean v. American Press Co.,
297 U.S. 233 (1936)………………………………………………………………………….5
Jacobson v. Massachusetts,
197 U.S. 11 (1905)………………………………………………………………………….16
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952)………………………………………………………………………….4
Kingsley Int’l Pictures Corp. v. Regents,
360 U.S. 684 (1959)………………………………………………………………………….4
Marbury v. Madison,
1 Cranch 137, 2 L.Ed. 60 (1803)………………………………………………………9, 12
iv
Myers v. United States,
272 U.S. 52 (1926)………………………………………………………………………9, 12
NAACP v. Button,
371 U.S. 415 (1963) .................................................................................................. ..5
NFIB v. Sebelius,
567 U.S. 519 (2012)………………………………………………………………………..15
Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal.,
475 U.S. 1, 8 (1986)………………………………………………………………………….5
Roe v. Wade,
410 U.S. 113 (1973)……………………………………………………………………10, 11
Russell v. Croy,
164 Mo. 69, 63 S.W. 849, 853 (Mo. 1901)……………………………………………..3, 4
Santa Clara County v. Southern Pacific R. Co.,
118 U.S. 394 (1886)……………………………………………………………………3, 4, 7
S. Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020)……………………………………………………………………..16
Times Film Corp. v. City of Chicago,
365 U.S. 43 (1961)…………………………………………………………………………...4
United Public Workers v. Mitchell,
330 U.S. 75 (1947) .................................................................................................... 10
Zucht v. King,
260 U.S. 174 (1922)………………………………………………………………………..16
Statutes, Regulations, and Constitutional Provisions
U.S. Const. amend. I……………………………………………………..…………………4, 5, 7
U.S. Const. amend. IX…………………………………………….2, 7, 8, 9, 10, 11, 12, 14, 15
U.S. Const. amend. X…………………………………………………..……………..2, 7, 15, 16
U.S. Const. amend. XIV, § 1 ………………………………………..…………..4, 7, 10, 11, 15
v
86 Fed. Reg. 61,402, (Nov. 5, 2021)………………………………………………………..…1,3
42 U.S.C. § 2000bb et seq……………………………………………………………………..…6
Books, Articles, and Other Authorities
Declaration of Independence (US 1776)……………………………………..…………..12, 13
St. George Tucker, View of the Constitution of the United States,
in 1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF
REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT
OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA ed app. at
300 (St. George Tucker ed., Lawbook Exch. 1996) (1803)……………………….…...13
INTEREST OF AMICUS CURIAE 1
Tore Says LLC is a multimedia independent news outlet and online
community dedicated to educating American citizens as to their sovereign, natural
rights as memorialized, in part, in the United States Constitution. Tore Says LLC
has an interest in ensuring that the Constitution is read, consistent with a literal
application of its text as intended by the founding fathers of this nation, to ensure
the federal government does not overstep and exceed the limited authority it has
been granted by the citizens of the United States of America (the People).
INTRODUCTION AND
SUMMARY OF
ARGUMENT
As the world stands at what one can only hope is the precipice of the COVID-
19 era, the Court is once again faced with a decision that will monumentally
impact the ability of Americans to enjoy the natural rights bestowed upon them by
virtue of their sovereignty. The implementation of The Occupational Safety and
Health Administration (OSHA) Emergency Testing Standard (ETS) on COVID-19
vaccination and testing would unconstitutionally constrain all businesses who
employ 100 or more employees, thereby impacting “two-third of all private-sector
workers,” 86 Fed. Reg. 61,402, 403 (Nov. 5, 2021), or over 25% of the population,
id. at 61,475. Never has the federal government attempted such a blatant affront
on the sovereign rights of businesses and individuals. The founding fathers of this
1 Under Rule 37.6 of the Rules of this Court, amicus states that no counsel for a party authored
this brief in whole or in part, and no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person other than amicus or its counsel made a
monetary contribution to its preparation or submission.
2
nation may not have envisioned a world where a federal government drawing its
power solely from the consent of the governed would presume to enforce
vaccination and testing requirements on two-thirds of private-sector employees.
The framers of our Constitution and the authors of its amendments, however, did
have the incredible foresight to anticipate a time where businesses and individuals
would need to protect their inherent liberties from infringement by an
overreaching federal government.
The Ninth and Tenth Amendments to the United States Constitution clearly
reflect that any rights not delineated in the Constitution belong solely to the
people or, otherwise, the states. These two amendments provide critical context for
how narrowly our forefathers intended the Constitution to be construed. Moreover,
this Court on several occasions, including in Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 342 (2010), and Burwell v. Hobby Lobby Stores, Inc., 573
U.S. 682, 687-91 (2014), has also recognized that corporate entities are afforded
constitutional protections. Thus, as discussed below, the decision to mandate
vaccination and testing requirements in the course of employment belongs to the
employer or, to the extent any governmental entity would have the authority to
regulate such a matter, the state. Accordingly, amicus respectfully requests that
Court reinstate the stay of the OSHA ETS put into place by the Fifth Circuit.
3
ARGUMENT
I. THE COURT HAS RECOGNIZED THAT BUSINESS ENTITIES ARE AFFORDED
CONSTITUTIONAL PROTECTIONS; IN LINE WITH THOSE DECISIONS, CORPORATE
ENTITIES HAVE THE AUTONOMY TO DETERMINE WHETHER TO IMPLEMENT
VACCINATION-AND-TESTING REQUIREMENTS.
The OSHA ETS stands to impact two-thirds of the nation’s private-sector
employees, 86 Fed. Reg. 61,402, 403, and a staggering 25% of the country’s
population, id. at 61,475. One cannot deny that business entities across the nation
have a vested interest in ensuring the wellbeing of their respective employees and
business affairs are not adversely affected by a controversial and widely unpopular
vaccine-and-testing mandate. Indeed, this Court on numerous occasions over the
past 135 years has recognized that constitutional protections are inherent not only
in individuals but are also extended to private companies.
One of the first cases before this Court which highlighted the rights of
corporate entities was Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394
(1886). In that case, the Court ruled that the State of California improperly
assessed taxes to a railroad company; however, it is not so much the Court’s
holding, but a headnote written by the Report of Decisions and approved by Chief
Justice Morrison Waite, through which the case has earned its reputation as a
landmark decision concerning the constitutional rights of business entities. Russell
v. Croy, 164 Mo. 69, 63 S.W. 849, 853 (Mo. 1901). During the argument of the
4
matter, Chief Justice Waite declared,
The court does not wish to hear argument on the question
whether the provision in the fourteenth amendment of the
constitution which forbids a state to deny to any person
within its jurisdiction the equal protection of the laws applies
to corporations. We are all of the opinion that it does.
Russell, 63 S.W. at 853, citing Santa Clara Co., 118 U. S. 394. Thus, Santa Clara
Co. is widely considered a pivotal case through which the Court acknowledged the
constitutional rights (in this case, Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution) of business entities.
In another key decision, First National Bank of Boston v. Bellotti, 435 U.S.
765 (1978), the Court recognized that a corporation’s ability to spend unlimited
funds on ballot initiatives was part of its First Amendment right to freedom of
speech. Noting the Court’s history of affirming the constitutional rights of corporate
entities, the Court in Bellotti explained,
Freedom of speech and the other freedoms encompassed by
the First Amendment always have been viewed as
fundamental components of the liberty safeguarded by the
Due Process Clause, [internal citations omitted], and the
Court has not identified a separate source for the right when
it has been asserted by corporations. See, e. g., Times Film
Corp. v. City of Chicago, 365 U.S. 43, 47, 81 S.Ct. 391, 393, 5
L.Ed.2d 403 (1961); Kingsley Int’l Pictures Corp. v. Regents,
360 U.S. 684, 688, 79 S.Ct. 1362 1365, 3 L.Ed.2d 1512 (1959);
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500-501, 72
S.Ct. 777, 780, 96 L.Ed. 1098 (1952).
Bellotti, 435 U.S. at 780.
5
The Court’s recognition of the constitutional rights held by corporate entities
again came into focus in the 2010 case Citizens United v. Fed. Election Comm’n,
558 U.S. 310, (2010), in which the Court overruled Austin v. Mich. Chamber of
Comm., 494 U.S. 652 (1990), a case wherein the Court had previously upheld
prohibitions on independent expenditures by corporations. In doing so, the Court
held that political speech by corporations is a form of free speech protected by the
First Amendment. Noting that “[t]he Court has recognized that First Amendment
protection extends to corporations,” Bellotti, 435 U.S. at 780, n. 14 (internal
citation omitted), and that “[t]his protection has been extended by explicit
holdings to the context of political speech,” NAACP v. Button, 371 U.S. 415, 428–
429 (1963), Grosjean v. American Press Co., 297 U.S. 233, 244, (1936), the Court
reasoned that “political speech does not lose First Amendment protection ‘simply
because its source is a corporation,’” Bellotti, 435 U.S. at 784; Pacific Gas & Elec.
Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 8 (1986). Citizens United, 558 U.S.
at 342. Furthermore, the Court explained,
Corporations and other associations, like individuals,
contribute to the ‘discussion, debate, and the dissemination of
information and ideas’ that the First Amendment seeks to
foster” (quoting Bellotti, 435 U.S., at 783, 98 S.Ct. 1407)). The
Court has thus rejected the argument that political speech of
corporations or other associations should be treated
differently under the First Amendment simply because such
associations are not “natural persons.” Id., at 776, 98 S.Ct.
1407; see id., at 780, n. 16, 98 S.Ct. 1407. Cf. id., at 828, 98
S.Ct. 1407 (Rehnquist, J., dissenting).
6
Citizens United, 558 U.S. at 343.
Most recently, the Court in Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682 (2014), ruled that closely held companies cannot be prohibited from filing for
exemptions to federal laws on religious grounds. The Court was asked to
determine whether the Religious Freedom Restoration Act of 1993 (RFRA), 107
Stat. 1488, 42 U.S.C. § 2000bb et seq., permitted the United States Department of
Health and Human Services (HHS) to demand that three closely held corporations
provide health-insurance coverage for methods of contraception that violate the
sincerely held religious beliefs of the companies’ owners. Burwell, 573 U.S. at 687-
91. The Court held that the mandate was unlawful because it substantially
burdened the exercise of religion and was not the least restorative means of
serving a compelling government interest. Id. The Court explained,
In holding that the HHS mandate is unlawful, we reject
HHS’s argument that the owners of the companies forfeited
all RFRA protection when they decided to organize their
businesses as corporations rather than sole proprietorships or
general partnerships.
Id. The Court added, “Although HHS has made this system available to religious
nonprofits that have religious objections to the contraceptive mandate, HHS has
provided no reason why the same system cannot be made available when the
owners of for-profit corporations have similar religious objections.” Id. at 692.
Whether recognizing a business entity’s freedom from unlawful taxation
7
(Santa Clara Co.), acknowledging a corporate entity’s right to engage in free
speech under the First Amendment (Bellotti and Citizens United), or identifying
that a business owner’s closely held religious beliefs entitle the owner to see
exemptions to federal laws on behalf of the corporate entity (Burwell), this Court
has consistently maintained that constitutional protections do not lose their
legitimacy if asserted by a private business as opposed to a natural person. In this
vein, business entities also have the right to be free from the federal government’s
gross overreach of power through the imposition of the OSHA ETS.
Whether the constitutional provisions implicated through the vaccination
and testing mandate include the First, Ninth, Tenth, or Fourteenth Amendments
or some other provision, corporate entities across this nation have a vested right
in ensuring that their constitutional protections, as recognized in the litany of
cases discussed above, are not infringed upon through the actions of the federal
government. Certainly if a private company is entitled to engage in unsuppressed
political speech, oppose excessive taxation, and assert sincerely held religious
beliefs, so too should a corporate entity have the right to determine whether to
implement a company-wide mandate requiring vaccination or testing – a matter
that is poised to directly impact work forces on a never-before-seen level.
Because the federal government through the OSHA ETS has violated the
constitutional protections recognized by this Court as belonging to business
8
entities, amicus respectfully requests that the Court grant the Emergency
Applications filed in this consolidated matter.
II. THE OSHA ETS INFRINGES UPON THE UNENUMERATED RIGHTS RETAINED BY
THE PEOPLE AS ACKNOWLEDGED BY THE NINTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
The Ninth Amendment of the United States Constitution, which provides
that “[t]he enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people,” has been interpreted by the
Court to acknowledge the freedom from intrusion by government into matters not
delineated in the Constitution. In the matter of Griswold v. State of Connecticut,
381 U.S. 479, 488 (1965), in which the Court held that the Constitution protects the
liberty of married couples to buy and use contraceptives without government
restrictions, Justice Goldberg in his concurring opinion noted that “[i]n reaching the
conclusion that the right of marital privacy is protected as being within the
protected penumbra of specific guarantees of the Bill of Rights, the Court refers to
the Ninth Amendment, ante at 381 U.S. 484.” Griswold, 381 U.S. at 487 (Goldberg,
J., joined by Warren, C.J. & Brennan, J., concurring in the judgment). Justice
Goldberg explained,
The fact that no particular provision of the Constitution
explicitly forbids the State from disrupting the traditional
relation of the family – a relation as old and as fundamental as
our entire civilization – surely does not show that the
Government was meant to have the power to do so. Rather, as
the Ninth Amendment expressly recognizes, there are
9
fundamental personal rights such as this one, which are
protected from abridgment by the Government though not
specifically mentioned in the Constitution.
Id. at 495-96.
In his concurrence, Justice Goldberg recognized that the Court “has had little
occasion to interpret the Ninth Amendment.” Id. at 490. However, he noted that
“(i)t cannot be presumed that any clause in the constitution is intended to be
without effect” (citing Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803))
and that “[i]n interpreting the Constitution, ‘real effect should be given to all the
words it uses.’” Myers v. United States, 272 U.S. 52, 151 (1926). Griswold, 381 U.S.
at 490-91 (internal citation omitted). Justice Goldberg added that “[t]he language
and history of the Ninth Amendment reveal that the Framers of the Constitution
believed that there are additional fundamental rights, protected from governmental
infringement, which exist alongside those fundamental rights specifically
mentioned in the first eight constitutional amendments.” Id. at 488. Accordingly,
“the Ninth Amendment shows a belief of the Constitution’s authors that
fundamental rights exist that are not expressly enumerated in the first eight
amendments and an intent that the list of rights included there not be deemed
exhaustive.” Id. at 492.
Noting the relationship between the Ninth Amendment and other
constitutional provisions, Justice Goldberg explained,
10
While the Ninth Amendment—and indeed the entire Bill of
Rights—originally concerned restrictions upon federal power,
the subsequently enacted Fourteenth Amendment prohibits
the States as well from abridging fundamental personal
liberties. And, the Ninth Amendment, in indicating that not
all such liberties are specifically mentioned in the first eight
amendments, is surely relevant in showing the existence of
other fundamental personal rights, now protected from state,
as well as federal, infringement. In sum, the Ninth
Amendment simply lends strong support to the view that the
‘liberty’ protected by the Fifth and Fourteenth Amendments
from infringement by the Federal Government or the States is
not restricted to rights specifically mentioned in the first eight
amendments.
Id. at 493, citing United Public Workers v. Mitchell, 330 U.S. 75, 94—95 (1947).
The Court also briefly addressed the Ninth Amendment in Roe v. Wade, 410
U.S. 113, 122, (1973), where the district court had held that the “fundamental right
of single women and married persons to choose where to have children is protected
by the Ninth Amendment, through the Fourteenth Amendment,” and that certain
Texas statutes that criminalized abortion were unconstitutionally vague and
constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights.
While this Court, in ruling in favor of the plaintiffs, did not expressly rely on the
Ninth Amendment in recognizing the right to abortion, the Court did acknowledge
the district court’s reasoning in reliance on that constitutional provision, noting as
follows:
The principal thrust of appellant’s attack on the Texas
statutes is that they improperly invade a right, said to be
possessed by the pregnant woman, to choose to terminate her
11
pregnancy. Appellant would discover this right in the concept
of personal ‘liberty’ embodied in the Fourteenth Amendment’s
Due Process Clause; or in personal marital, familial, and
sexual privacy said to be protected by the Bill of Rights or its
penumbras, see Griswold v. Connecticut, 381 U.S. 479, 85
S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972); id., at 460, 92 S.Ct. 1029, at 1042, 31 L.Ed.2d
349 (White, J., concurring in result); or among those rights
reserved to the people by the Ninth Amendment, Griswold v.
Connecticut, 381 U.S., at 486, 85 S.Ct., at 1682 (Goldberg, J.,
concurring).
Roe, 410 U.S. at 129. The Court further explained that “[t]his right of privacy,
whether it be founded in the Fourteenth Amendment’s concept of personal liberty
and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment’s reservation of rights to the people, is broad
enough to encompass a woman’s decision whether or not to terminate her
pregnancy.” Roe, 410 U.S. at 113.
As Justice Goldberg, joined by Chief Justice Warren and Justice Brennan,
noted in his concurring opinion in Griswold, and as touched upon by this Court in
Roe, the Ninth Amendment recognizes that unenumerated rights are retained by
the American people (and, applying the line of cases discussed in the preceding
section, by private business entities), and these rights are protected from
infringement by the federal government. In addition, through application of the
Fourteenth Amendment, the states are also prohibited from these unenumerated
rights that belong to the people and business entities. Griswold, 381 U.S. at 493
12
(Goldberg, J., joined by Warren, C.J. & Brennan, J., concurring in the judgment),
citing United Public Workers, 330 U.S. at 94—95.
While the Ninth Amendment may be seldomly litigated, amicus respectfully
submits that the importance of the Ninth Amendment cannot be overstated. After
all, as acknowledged by Justice Goldberg in his Griswold concurrence, this Court
has stated “(i)t cannot be presumed that any clause in the constitution is intended
to be without effect” and that “[i]n interpreting the Constitution, ‘real effect should
be given to all the words it uses.’” Griswold, 381 U.S. at 490-91, citing Marbury, 5
U.S. (1 Cranch) at 174 and Myers, 272 U.S. at 151. The framers of our Constitution
and amendments could not have predicted every instance in which the federal
government would attempt to exert authority, and thus, it would not have been
possible or practical for them to delineate all fundamental rights that must be
safeguarded against government intrusion.
However, the Ninth Amendment memorializes the notion that the American
people, and by extension, private businesses, are sovereign citizens not subject to
the whims of an overreaching centralized government. The federal government does
after all exist solely through the consent of the governed. The immortal words
contained in the Declaration of Independence bears repeating in this instance:
We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the Pursuit of Happiness—That to secure these
13
Rights, Governments are instituted among Men, deriving
their just Powers from the Consent of the Governed…
Declaration of Independence (US 1776). While many interested parties in this
matter have raised arguments regarding the legal propriety of the OSHA ETS,
amicus poses a broader question – has the American people ever once consented to
having the federal government dictate how private businesses should regulate non-
workplace safety issues, such as the COVID-19 outbreak? If the answer is “no”, then
the inquiry should go no further, and the Court should strike down the OSHA ETS
as an impermissible overreach by the federal government.
Amicus asks the Court to consider the words of St. George Tucker, whose
View of the Constitution of the United States is considered the first extended,
systematic commentary on the United States Constitution after it was ratified and
amended by the Bill of Rights. Tucker explained:
The right of governing can, therefore, be acquired only by,
consent, originally; and this consent must be that of at least a
majority of the people. [Thus,] [l]egitimate government can
therefore be derived only from the voluntary grant of the
people, and exercised for their benefit.
St. George Tucker, View of the Constitution of the United States, in 1 ST. GEORGE
TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE
CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND
OF THE COMMONWEALTH OF VIRGINIA ed app. at 300 (St. George Tucker ed., Lawbook
Exch. 1996) (1803). Neither a majority of the American people nor of private
14
business entities operating in this country have voluntarily granted the federal
government the authority to regulate how corporate entities respond to COVID-19-
related issues. Therefore, no legitimate government right exists to justify the forced
adaptation of the OSHA ETS by private businesses across the nation.
In summary, the right of the American people and, by extension, American
businesses to remain free from unlawful government intrusion cannot and should
not be ignored. After all, the authors of the Ninth Amendment clearly foresaw the
need to prevent the federal government from interfering with rights that, although
unenumerated in the United States Constitution, are nevertheless critical
components of the framework of natural rights belonging to every sovereign
American citizen. Accordingly, amicus respectfully submits that the Emergency
Applications should be granted as the OSHA ETS infringes upon the unenumerated
rights of American citizens and business entities.
III. EVEN IF A GOVERNMENT AGENCY HAD THE AUTHORITY TO REGULATE THE
IMPLEMENTATION OF VACCINATION-AND-TESTING REQUIREMENTS IN PLACES OF
EMPLOYMENT, THAT AUTHORITY WOULD BELONG TO THE RESPECTIVE STATES
AND NOT TO THE FEDERAL GOVERNMENT.
On a final note, while amicus maintains that no government agency has the
authority to require employers to implement the vaccination and testing
requirements set forth in the OSHA ETS, if any governmental entity were to have
such authority, it would be the respective state governments and not the federal
government. Amicus restates its position that the unenumerated rights referred to
15
in the Ninth Amendment that belong to the American people and business entities
may be infringed upon by neither the federal government nor, through application
of the Fourteenth Amendment, the states. Griswold, 381 U.S. at 493 (Goldberg, J.,
joined by Warren, C.J. & Brennan, J., concurring in the judgment), citing United
Public Workers, 330 U.S. at 94—95. However, even if any governmental body were
to hold authority over how private businesses respond to COVID-19-based issues,
such authority would not belong to the federal government; rather, it would belong
to the states.
The Tenth Amendment to the United States Constitution provides, “The
powers not delegated to the United States by the Constitution, nor prohibited by it
to the states, are reserved to the states respectively, or to the people.” To that end,
this Court has stated, “In our federal system, the National Government possesses
only limited powers; the States and the people retain the remainder.” NFIB v.
Sebelius, 567 U.S. 519, 533 (2012). The “balance of power between the States and
the Federal Government was adopted by the Framers to ensure the protection of
‘our fundamental liberties,’” and reduce “the risk of tyranny and abuse from either
front.” Gregory v. Ashcroft, 501 U.S. 452, 458-59 (1991) (internal citations
omitted).
In regard to COVID 19-related personal health measures, as noted by the
United States Court of Appeal for the Fifth Circuit, “to mandate that a person
16
receive a vaccine or undergo testing falls squarely within the States’ police power.”
BST Holdings, LLC. v. Occupational Safety & Health Admin., No. 21-60845, 2021
U.S. App. LEXIS 33698, at *21, 17 F.4th 604 (5th Cir. Nov. 12, 2021), citing Zucht
v. King, 260 U.S. 174, 176 (1922); Jacobson v. Massachusetts, 197 U.S. 11, 25-26
(1905). The responsibility of the states to safeguard against health crises was
noted by Chief Justice Roberts in a recently issued concurring opinion, wherein he
stated, “Our Constitution principally entrusts ‘[t]he safety and the health of the
people’ to the politically accountable officials of the States ‘to guard and protect.’”
S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 207 L. Ed. 2d 154
(2020) (Roberts, C.J., concurring in judgment), citing Jacobson, 197 U.S. at 38.
In line with these statements, the ability to implement measures to
safeguard the public health has historically always resided with the states and not
with the federal government. Any attempts by OSHA or any other federal agency
to exercise a purported police power should be regarded as repugnant to the
United States Constitution, which, through the Tenth Amendment, expressly
recognizes the states, or the people, as retaining all powers not delegated to the
federal government by the Constitution. Accordingly, the OSHA ETS is
unconstitutional as no federal police power exists that would validate the federal
government’s draconian imposition of the vaccine-and-testing mandate.
While amicus adamantly maintains its position that the American people and
17
private businesses, as sovereign citizens, retain the right to make their own
informed decisions regarding COVID-19-related measures, if any government
agency were to have the authority to impose a vaccination-and-testing mandate, it
would be a state government and not the federal government. For this reason and
for the reasons set forth above, amicus respectfully requests that the Court grant
the Emergency Applications.
CONCLUSION
For all these reasons, this Court should grant the Emergency Applications.
Respectfully submitted,
Grant J. Guillot
Counsel of Record
GRANT GUILLOT, LLC
5028 River Meadow Drive
Baton Rouge, LA 70820
(225) 614-7838
grant@grantguillot.com
Russell A. Newman*
THE NEWMAN LAW FIRM
6688 Nolensville Road
Suite 108-22
Brentwood, TN 37027
(615) 554-1510
russell@thenewmanlawfirm.com
*Admission pending.
December 28, 2021 Counsel for Amicus Curiae, Tore Says LLC
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