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Transcript: The Beat with Ari Melber, 9/9/21

Guests: Emily Bazelon, Lawrence Gostin, Eleanor Clift


President Biden announces new vaccine rules and mandates for the country. The deadline arrives for companies to turn over evidence to the insurrection committee. The Justice Department sues Texas over its abortion ban.



Hi, Ari.

ARI MELBER, MSNBC HOST: Hi, Nicolle. Thank you very much.

Welcome to THE BEAT.

Today, President Biden went farther than ever before towards policies requiring Americans to get vaccinated.


In a speech wrapping just within the last hour, the president announcing that the U.S. is going much farther than before. This is the most far- reaching COVID vaccine requirements the United States has ever released.

These new rules mandate employees at large companies must either get vaccinated or tested. This is a far-reaching measure that the United States had held back on during the Trump and Biden presidencies until now.


JOE BIDEN, PRESIDENT OF THE UNITED STATES: I will sign an executive order that will now require all executive branch federal employees to be vaccinated, all.

And I have signed another executive order that will require federal contractors to do the same. The Department of Labor is developing an emergency rule to require all employers with 100 or more employees that together employ over 80 million workers to ensure their work forces are fully vaccinated.


MELBER: This is a huge change. This will impact many Americans if the rule goes through.

Now, here`s what you need to know. One, the U.S. government is using its regulatory powers to require companies to carry out this partial mandate. Specifically, companies that employ over 100 people must require those workers get vaccinated, essentially.

Two, this rule provides an alternative for people who do not get vaccinated. Then they must submit to weekly testing. Three, the rule uses basically the corporate employer powers as the pressure here. It does not go as far as making it, for example, illegal for individual Americans to decline vaccination.

Four, the rule comes as the latest data shows vaccines are working. They are crushing COVID and the Delta variant. Indeed, people who are vaccinated have now just a one-in-5,000 chance of getting COVID after vaccination.

Scientists say those are very, very good odds. And, five, tonight, we can tell you, as the president just wrapped this speech within the last hour, this is a sweeping policy for the United States. It could impact over 80 million Americans. It`s brand-new tonight.

Now, it being that sweeping, that big, that`s good news to medical and policy experts who, say the COVID resurgence requires these kind of sweeping measures to ever get things back to normal. But that same fact I just shared with you, the scale of this policy, it is viewed as bad news to many critics of strict government COVID rules.

And we`re all living through this together. You know who they are. It ranges from libertarians, who may be skeptical of government overreach, to MAGA activists who`ve seized on COVID to attack the Biden administration over this stuff over and over, even as Donald Trump, their supposed leader, is officially and publicly and recently pro-vaccine.

Now, this is a huge change for America right now with major implications.

And we have a special panel of experts on hand to break it down in our coverage tonight. They join me in just a moment.

As for why the Biden demonstration is going this far now, if you`re watching TV right now and going, OK, sounds like big news, Ari, but hasn`t Biden been really keyed up on COVID from the campaign to when he took over? Why this change now? Could he have done this sooner? Why so big?

Well, the president actually gives some context to that in his speech. So I want to play just one other key part before we turn to the experts.

Biden argues the United States now is at a different crossing point, that it has the resources and the solutions in its power to fundamentally mostly end COVID in America. But, the president argues, we have to take this next step because he says politics has been standing in the way of those solutions.


BIDEN: A distinct minority of Americans supported by a distinct minority of elected officials are keeping us from turning the corner.

These pandemic politics are making people sick, causing unvaccinated people to die. We cannot allow these actions to stand in the way.


MELBER: The federal government has been pushing for these safety measures. And that is certainly a contrast, as the president was mentioning there, from some Republican governors.

In Texas, Republicans mulling another third special session just to prohibit vaccine mandates. In Florida, the MAGA governor there spending his precious time filing an emergency appeal, trying to reinstate a ban on masks, basically on mask mandates that he lost because a judge already struck it down.

We are at an inflection point. Anyone who says this is a long overdue step to get more people vaccinated has to reckon with the fact that President Biden didn`t do this earlier. This isn`t something that they wanted to.


United States policy, at least since this president took over, had been trying every single way to nudge, encourage and cajole people to get vaccinated; 75 percent of adults have done so.

But up against the problems we have been reporting that you have been living through, that we all know about, and up against the intransigence in many conservative areas, this is the president taking another politically controversial act, one that will bring more criticism, to do what he says and what apparently many epidemiologists -- excuse me -- epidemiologists say is now needed: Make more people get vaccinated if they have been holding out.

Let`s bring in our guests, Dr. Kavita Patel with the Brookings Institute, is also an MSNBC analyst, Michael Beschloss, an NBC historian, and Eleanor Clift from The Daily Beast and, of course, many McLaughlin panels.

Special coverage, I say, because, Doctor, this is quite a breakthrough in policy, and not one that they took lightly. I am curious what you think medically about what it would mean for the United States and COVID if employers go along with this, and thus many more people get vaccinated?

DR. KAVITA PATEL, MSNBC MEDICAL CONTRIBUTOR: Yes, Ari, it`s very clear that this is exactly what we`re going to -- what we need and what we`re going to have to do in order to really reduce the burden of COVID medically and economically.

And just I think, mentally, it`s just been fatiguing for so many reasons. So, getting into 70 percent vaccination rates, Ari, about six months ago is what we thought we needed for that kind of heralded herd immunity, or more concept of immunity in our country. Delta variant changed that.

And we`re now looking at needing 80 to 90 percent of the population vaccinated to get there. We no longer can deal with carrot. We`re really having to talk about these sticks. And I`m, frankly, happy to see them in place. I realize they will be controversial, but I will take that controversy that if it save lives.

MELBER: Yes, as you said, we`re clearly moving the sticks.

Eleanor, you have covered a lot of different battles like this across different administrations. This is clearly a turning point tonight. The president spoke about running out of patience with people who are delaying or even refusing to get vaccinated, given what we have learned and what we know.

Because this was a big speech, I want to play a little bit more of that, the president on his patience. Take a look.


BIDEN: Over 200 million Americans have gotten at least one shot.

We have been patient, but our patience is wearing thin. And your refusal has cost all of us. So, please do the right thing. This is not about freedom or personal choice. It`s about protecting yourself and those around you.


MELBER: Eleanor, your thoughts on the speech, the aggressiveness of the new policy, and what the president`s trying to do there, which is pre -- basically prebut the liberty arguments that we`re going to hear.

ELEANOR CLIFT, THE DAILY BEAST: Yes, the only thing I can find wrong with this speech is that he didn`t deliver it earlier.

And I understand why he didn`t. But here we are now, and it`s no more Mr. Nice Guy, no more coddling the unvaccinated, adding these requirements, using government, bringing in the dreaded agency OSHA to say that every business with over 100 employees has to have a vaccine mandate or regular testing.

That`s going to be tested as to its constitutionally -- constitutionality. So what? That will take time. And in the meantime, you may get some people vaccinated. And then his bid to people who are claiming this as their personal freedom, show some respect.

I felt like this was daddy Biden at the dinner table, and like all of us who watched that guy growing on the flight to the flight attendant because he didn`t want to wear his mask.

So I think this was a long time coming. I hope it arrests where we are. I mean, it`s not only the Biden presidency is at stake here. The economy, American society is all -- and a lot of lives. And he also singled out every constituency, talked to parents, talked to the unvaccinated, talked to the vaccinated who were so frustrated.

We have done everything right. And we keep getting thwarted. And he got in a couple of little digs, noting that big corporations already require vaccination, including FOX. And then at the governors, he said, talk about being a bully in schools, and that they`re undermining -- they`re undermining their own populations.

And, as he put it, they`re ordering mobile morgues. So I thought it was a balanced speech. It was tough, but it had its signature lines also: I have your back.

So I think this is a good moment. I just hope it has the results that he`s hoping for.


MELBER: Yes, and those results, we know from the science, Michael, include way fewer people going to the hospital or dying when there`s vaccination.

We know the vaccines work. We report on those facts. But there`s science, and then there`s policy. And this is a democracy, where people have every right to debate policy. They don`t have the right to menace and attack doctors at meetings at town halls.


MELBER: But this is a policy debate.

And, Michael, on the policy side, what might be difficult for the White House here is, for every Biden critic who said over this year, well, they`re trying to make me get vaccinated, tonight, that looks to be true.

BESCHLOSS: Well, there are people saying that.

And after Pearl Harbor, I`m sure, in 1941, there were people who were saying, Franklin Roosevelt is making me have national defense. He`s asking me to watch out for saboteurs and do other things that help to protect the public. Or 20 years ago this week, George W. Bush, these people might have contended, is making me do things that might stop terrorists from striking buildings again and flying an airplane into the Pentagon.

He was. That`s what a president does at a time of national emergency. We are now in a moment of national emergency. People are dying. People are suffering. Little kids in school will die because idiot governors are saying we will support measures that will prevent them from being vaccinated or that will not compel them to be vaccinated.

This is a matter of public health. One of the few sensible things that Donald Trump -- forgive me for mentioning that name -- said during the nightmarish 10 months that he was president during the COVID pandemic last year was, I feel like a wartime president.

Unfortunately, he said it almost only for a moment, and he never behaved like one. This is a president who`s dealing with COVID as if he`s dealing with a hostile enemy that can kill a lot of our people.

In contrast, Woodrow Wilson sat on his rear end, did not teach Americans how to defend themselves against influenza during World War I. He didn`t want to be unpopular, never said a word about the flu; 670,000 people died.

Donald Trump, as we know, said all sorts of crazy things about bleach and was all over the place. The result is hundreds of thousands of Americans died who did not need to die. President Biden understands that his fundamental responsibility is, protect Americans` lives. That`s what he`s doing.

MELBER: Well, Michael, you speak with clarity on the history, as usual.

It`s interesting you putting it in the context of the 9/11 anniversary that so many have thought about this week, because that horrific external attack took around 3,000 lives. And murder is different than virus, but the virus has taken hundreds and hundreds of thousands of lives, and, sadly, maybe hundreds of thousands more, depending on where we go.

So I get the scale that you`re encouraging us to think about.

Eleanor, because of your specialty, your expertise with the right-wing mind, loyal Eleanor Clift viewers or fans know how often you have sat face to face, which is great, and listen and rebut. And let`s have the dialogue.

So I`m going to tee up in the spirit of the McLaughlin Group, some of what we have also heard from the right and what I could tell you, having followed this town as you have, is going to go into overdrive tonight, which is the liberty talk about vaccine mandates.

And here it was and they warned you and they were right. This is a little bit of what`s been coming down the pike on the right. Take a look.


UNIDENTIFIED MALE: A plan is now under way to use vaccine mandates to take your guns.

TUCKER CARLSON, FOX NEWS: Force people to take medicine they don`t want or need.

LAURA INGRAHAM, FOX NEWS: Get injected with an experimental COVID vaccine.

REP. MADISON CAWTHORN (R-NC): The greatest threat to our children today does not come from COVID-19. It comes from woke liberal government officials like you.

UNIDENTIFIED MALE: If you like the idea of having masks forced on children by the government, you should move to Afghanistan and live with the Taliban and see how you like that.



MELBER: See how you like that.

Eleanor, politics is the framework for how we make policy. We have the doctor here. And she will get the last word on what`s happening in American policy tonight. But give us the politics here, because I feel like it`s about to turn up to an 11.

CLIFT: Donald Trump pioneered the vaccine. He pushed it through. He gambled billions of dollars on the fact that it might work.

He called it Operation Warp Speed. He took the vaccine himself, as did his entire family, didn`t do it in front of cameras, because he understood the motivations and the impulses of the people who support him. He launched a movement in this country that he can`t control anymore.


He spoke at one of his rallies last month, I think it was. And when he urged them to get the vaccine, they booed. So, the right wing, I probably have rolled my eyes and a lot of the things they have said over the years, but they have gotten their way with the vaccine in the most terrible way that`s costing lives.

And they have gotten their way with the Texas rule, temporarily, I hope, on denying women reproductive health care. So take them seriously, but fight them every step of the way. And I think Joe Biden showed some needed, necessary and overdue fight in the speech that he delivered today.

MELBER: Hmm, interesting coming from Eleanor Clift.

Dr. Patel, in closing, and for folks who may not have been with us at the very top of the hour, the president making news today, going towards what would be a partial mandate, farther than he`s ever gone for the COVID vaccine, 80 million Americans woke up today working at jobs where they could choose to do this or not, for the most part.

And now tonight, when this rule takes effect, going forward, unless it`s stopped in the courts, they will be under much more employer pressure to do so.

At a medical level, if this happens and goes forward, will it save lives? Do you have any idea how many?

PATEL: Oh, yes, Ari, absolutely, this will save lives.

And estimates -- if we can actually make this happen, by the way, rulemaking and regulations don`t necessarily happen as quickly as maybe I would like them to happen. But that`s exactly where all the administration`s -- the top officials are working, probably feverishly, to get that language out.

What it will result in is hopefully mitigating hundreds of thousands of potential deaths. There had been a projection that if we had continued and came across another variant, not just like Delta, but even more threatening, which is absolutely within our future if we can`t get a handle on this, that we could see death double even potentially.

Imagine a mutant that could escape the immunity that we have so preciously fought to protect. So that`s where the numbers are staggering, not to mention over 40 million Americans, maybe up to a third of whom are having devastating long-term effects, Ari.

So it`s not just the sheer number. If you think about the multiplier of effects, economic, on top of health, on top of racial disparities, on top of so many of the other things we have talked about, these vaccines can prevent not just the deaths from COVID, but the very likely deaths from a lot of our lives not being conducted on a day-to-day basis, even from a health perspective.

Children are not getting vaccinated. And it`s because we have been holding them back from seeing pediatricians out of fear. People are living in fear in many parts of this country. And, hopefully, that will end.

The most important thing the president did in my mind today was that reassuring tone that only Joe Biden can do that someone is protecting your interests. And he said it: My job is to protect all Americans.

He`s going to do that from a leadership and a medical perspective.

MELBER: Really important points, I think, here on more than one lane from Eleanor Clift, Dr. Patel there, and historian Michael Beschloss.

Thank you.

Coming up, we have a lot more in the program, because we haven`t even got to the fact that today is the deadline for compliance on the evidence of January 6, including some Republicans` phone calls. That`s a big deal in the riot probe.

Also, a move by DOJ today to go directly after the anti-choice law in Texas. Some people say it`s blatantly unconstitutional.

And later tonight, we`re going to get into something we didn`t even have time for yet, which is, whatever you think of what Biden did today, it`s a big move. Is it 100 percent legal and constitutional?

We have special experts on that by the end of the hour.



MELBER: Today is the first legal deadline in the January 6 riot probe.

Government agencies, as well as some big media companies, had until today to comply with this subpoena-powered committee`s requests, which can become quite binding demands, for a host of evidence, including communications between Donald Trump and his inner circle in those pivotal days leading up to what was a deadly insurrection.

Now, as the January 6 right probe moves forward, there`s also new intelligence that`s putting Washington edge, but also ready to prepare, formally on high alert for this rally we have told you about. MAGA organizers are calling it a -- quote -- "Justice for J6 Rally." And it is scheduled for September 18.

A new Capitol Police memo warns that there could be potential clashes and unrest, also citing a spike in violent rhetoric online that is specifically organizing and encouraging people who would participate in this so-called rally.

Authorities are planning to reinstall the temporary fence around the Capitol. That is like the one that went up following the January 6 attacks and makes it much harder for would-be criminals and thugs to breach the Capitol.

We`re also learning not a single Republican lawmaker who was invited to this rally has announced that they will indeed attend. So, we don`t know what`s going to happen until day of, but, as of right now, the news tonight is even individuals like Congressman Gaetz and Congresswoman Taylor Greene not slated to go.

Now, they also have played it both ways here, because this is sort of interesting. The rally claims to be about defending the people who were involved in January 6, which is a controversial position, to be sure.

Now, they went and called those people political prisoners in these sort of media prison visits. Now, they were turned away, but not before some right- wing news outlets caught that P.R. stunt.

This week, former Trump campaign staffer Matt Braynard also promoting this so-called rally and trying to get people to come.


MATT BRAYNARD, ACTIVIST: Our peaceful protest on behalf of the political prisoners who`ve been persecuted as a result of their participation in the January 6 rallies.

They`re trying to call our protests on September 18 insurrection 2.0. But my question is, when was insurrection 1.0? And I`m telling the American people who are sympathetic, do not be intimidated from showing up. That is your Capitol. That building was built by your forbearers.



MELBER: When was insurrection 1.0? It was on January 6.

Why are some Republicans getting shy about the very supporters they had previously been rallying with?

Want to get into the pressure on the GOP with a special guest when we`re back in 60 seconds.


MELBER: We`re talking insurrection 2.0.

And I`m joined by political strategist Chai Komanduri, a veteran of several presidential campaigns, including Obama.

How you doing, sir? Thanks for being here.


MELBER: I`m good, Chai.

When this backlash to the January 6 horror first began, there were some Republican officials who decried it. Then they, as everyone has seen, came back around and ate their words, and have made peace with the violent protesters.

You at the time said that made the GOP under that leadership a riot- adjacent party, which is an interesting point, and I think proved true for many of them. And yet what do you see as the reasoning behind these officials who are now avoiding this new rally?

KOMANDURI: Yes, it doesn`t feel to me that the GOP is the riot-adjacent party anymore.

It feels to me like they are the party of the riot on January 6. And that is something that Donald Trump has very much done. He has very much moved the party in the direction of being the party of January 6.

And the September 18 rally, quite frankly, feels to me like coming attractions for what we`re going to see probably with future Trump rallies and maybe a future Trump campaign. This is the direction that Donald Trump wants to go. He wants us to be the party of January 6.

He also wants to move the Proud Boys and the Oath Keepers, who were fringe figures in the GOP -- I remember when we were all shocked when these sorts of people showed up at Trump rallies. Well, now they`re organizing Trump rallies, essentially.

And if you look at the e-mail that Donald Trump sent, I believe it was yesterday, condemning the removal of the Robert E. Lee statue in Richmond, Virginia, these white nationalist causes have now become GOP causes.

And what was really an informal relationship, a secret relationship, a private relationship is now just all out in the open for everyone to see.

MELBER: Yes, I mean, you`re certainly right about that.

I mean, you used to have the dancing around, Republican candidates going to Jerry Falwell or a nod and wink. And here, as you say, it`s openly embraced.

But let me press you a little bit on the one part that doesn`t totally align, which is, why wouldn`t a Marjorie Taylor Greene go to this thing? I mean, we will see what happens on the 18th, but, as I reported, right now, they seem to be keeping some kind of distance.

KOMANDURI: Well, Marjorie Taylor Greene is not going because Kevin McCarthy has simply told her she cannot go.

I very much doubt that, if it wasn`t for Kevin McCarthy and Mitch McConnell, some of the Republican leadership, I`m sure that Marjorie Taylor Greene and Matt Gaetz would have been happy to attend this rally. After all, the rally is simply saying what they have been saying for the past several months.

The thing is that Kevin McCarthy and Mitch McConnell, they have a idea of how January 6, the January 6 commission and the history of January 6, was going to go. They believed that by not participating with this commission, they would simply be able to say this is a partisan witch-hunt, and then it would just simply fade away and not attract any interest.

Most swing voters do not like partisanship, as the importance of this bipartisan infrastructure deal. So they thought they could just simply brandish this as a partisan witch-hunt, and it would go away.

But what they didn`t realize is, they underestimated Nancy Pelosi, by putting Adam Kinzinger on the commission and then putting Liz Cheney, Liz Cheney, who belongs to a Republican family that is so iconic that Adam McKay a movie about how right-wing and conservative her parents were.

By putting them on the commission, she blew up that talking point. And so what they have now is a situation that they cannot control. What they thought they were going to do by not cooperating with the commission was that they were closing the door on the riot.


What has now actually happened is that they have opened the door on the -- and the rioters have come in, and they`re redesigning the house.

MELBER: Yes, I think you put -- you break that down well. It`s interesting that you say, yes, they`re having it both ways.

They say, oh, well, we don`t show up there, but then they can voice public support. That`s a very McConnell-esque move.

I`m running out of time. And my last question is the shortest and a little more baroque, which is, we also don`t know whether Pepe the Frog will show up. I don`t know if you have heard one way or the other.

KOMANDURI: I`m sure you`re going to see caricatures of Pepe the Frog.

I actually have a very great fondness for frogs, to be honest with you. Just between you and me, I used to have a pet frog that I was very enamored of.

MELBER: Didn`t know that.

KOMANDURI: And to see this now become a white nationalist symbol, the frog as an animal deserves better.

MELBER: Shout out to your pet frog and all pet frogs out there. Frogs are great creatures.

For those who aren`t as versed in the sort of right-wing Reddit, QAnon zone, there`s this Trump MAGA Pepe frog. He`s quite evil.

And, for me, on a much more mundane level, Chai, it kind of ruins the frog emoji, because, if you`re texting with anyone political, it feels like the right-wing weirdo frog and not just a neutral frog. And we believe in neutral nonpartisanship around here.

Chai, I didn`t know it would end like this, but it did. And I appreciate...


MELBER: Go ahead.

KOMANDURI: I was going to say, "Frogger," the video game, the great `80s video game, is now never the same, because of what the white nationalists have done.


MELBER: I hadn`t even thought about that. Well, we always go a little further.

Chai Komanduri, as always, thank you for being here. Slightly light Internet note among serious topics.

I want to tell everyone we have a lot more in the program, because we talked about what Biden`s new sweeping COVID move does. But is it 100 percent legal? He`s got to think about that. We have special experts for you on that tonight. It`s going to be part of the debate.

Also tonight, major action on this story we have been covering from the Biden DOJ, now suing Texas over that anti-choice law. More on that tonight.




BIDEN: The Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their work forces are fully vaccinated.


MELBER: A huge move out of the White House there, President Biden late today mandating the private companies with 100 or more employees, as you heard him just say, must get fully vaccinated. There is an exception for testing.

But, basically, we are going towards the mandate fight that America had avoided until tonight. And the question that`s posed beyond whether this is a good medical idea -- doctors say yes -- is whether it is also legal for the federal government to do.

Reporters have been wondering that today.


QUESTION: Is this constitutional, Mr. President?


MELBER: "Is this constitutional, Mr. President?"

A fair question, not one he chose to answer in that moment.

And I`m joined now for some of the possible answers. Emily Bazelon writes about law for "The New York Times Magazine." And Lawrence Gostin is a Georgetown law professor and director of the O`Neill Institute for National and Global Health Law, with experience at the WHO.

Thanks to both of you for being here.

EMILY BAZELON, "THE NEW YORK TIMES": Thanks for having us.


MELBER: Professor, I always try to be as clear as possible. This is a big move out of the White House here. It affects people`s lives. Americans are still absorbing it.

This segment, journalistically, is not about whether it is a good or bad idea, not about whether it makes a workplace safer in theory, which we discussed with a doctor earlier in the show. This segment, for people watching, is about whether this thing is legal and constitutional, yes or no.

I give you the floor.

GOSTIN: You know, Ari, I think he`s on rock-solid legal ground. This is bold, audacious and probably unprecedented in American history, as you combine it with the federal work force mandate.

But under the Occupational Health and Safety Act, the president and the Department of Labor has the full power to require health and safety rules in the workplace. And COVID vaccines are proven to be highly safe and effective. it will make the work force safe. And OSHA`s job is to do exactly that.

MELBER: Can I lawyer you a little bit? You up for it?

GOSTIN: Yes, please do. I love it.

MELBER: What do you say to an argument that this administration may face in court where people say, look, a lot of those type of rules feel like they`re in the workplace. So here`s these federal rules about how you handle me when you go into the meat plant, then you go home. But they don`t go into your kitchen, let alone your body.

What is your rebuttal to that? And what precedent does the government have?

GOSTIN: You know, the government has required vaccines in the workplace before.

And so have private businesses. The important thing to realize here is, is that people do have the right to make decisions about their own bodies, but they don`t have the right to expose their fellow workers or customers to a potentially dangerous or even deadly infectious disease.

And OSHA`s job is to protect the workplace. Infectious diseases are just as dangerous as having an accident in a meatpacking plant or a coal mine. In fact, they can be more dangerous. And so it`s absolutely within the jurisdiction of OSHA to be able to do that.

And I applaud the president for doing it.

MELBER: That`s the professor`s answer.

Emily, same question.

BAZELON: I think it`s important that the ACLU, whose job it is to protect civil liberties, is supporting vaccine mandates because they don`t see an equally effective alternative.

And so this is a way in which the science really informs the legal picture, and I think helps support what Professor Gostin is saying.


I do think there`s a wild card here, which is the Supreme Court and its conservative majority. We have seen, in previous cases, the court has been quite eager to support petitions from churches and other religious organizations that didn`t want to abide by public health rules about social distancing, how many people they could have in the congregation that states and cities had set.

This was kind of last year`s legal fight over COVID. And so one wonders, if a church or religious group were to sue over this vaccine mandate, where the court would stand.

I think it`s also important to point out, though, that, 100 years ago, where -- when we have some court cases during other moments of the state and local governments ordering quarantines when the Spanish Flu was here, the courts upheld those measures.

And so I think what you see there is, usually, courts defer to governments and give them pretty broad authority to protect public health. And the reason is pretty obvious. We`re all affected by contagious diseases. This is not really a choice about one`s individual freedom. It`s about one`s participation in society.


And the quarantine precedents, of course, are much more hardcore, because it doesn`t even just involve the power of the employer. It`s really a wider security measure. I think that the justices on the court, which generally have a fairly libertarian bloc at this point, what they would call it, are -- must be keenly aware, Emily, that we could have other pandemics come down the pike.

I mean, these are highly educated, well-read people. A lot of folks might not think about it because they`re busy trying to earn a living and get their kids in and out of school, but if you read up on what WHO and U.N. and TED Talks, all this stuff says, hey, you could have a new one where you would have to take even more emergency measures to save potentially any residential zone.

Do you think that fits in almost a nonlegal way, Emily, because I don`t know how much that`s going to be in a brief?

BAZELON: Yes, that`s a good question.

I mean, I do think there is a lot of history and precedent behind giving the government a lot of deference to protect public health. I mean, another relevant matter here are vaccine mandates in schools, right? I mean, traditionally, we require children to get vaccinated for measles, mumps, a host of other contagious diseases in order to attend school.

And that`s how we ensure that the whole population is vaccinated. In this case, because approval for the vaccine has come to adults first and has only reached children as old as 12, we are having to go -- or the government feels that it has to go through employers.

And that`s the kind of shift here, but it`s not an entirely -- it`s new and bold in its scope and sweep, but I think there are historical precedents that are relevant.


And legally, Professor, I mean, we have seen many cases take on a lot of political heat, from the Obamacare rounds to others. And so this could, depending on the vehicle, become like that. We saw that, last night, Trump, I believe, was on FOX News with Greg Gutfeld, trying to weave his message.

We will see. It may be updated for the right now that we have the new mandate. Take a listen to Donald Trump.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: I got vaccinated, and I feel very good. I think we saved millions and millions of people worldwide.

If you do get sick, you don`t get sick like they were before...


TRUMP: ... meaning you don`t die.

GUTFELD: Exactly.

TRUMP: So I would recommend. But I also say that let her have her freedoms. You know the word freedom, right?

GUTFELD: Yes, exactly.

TRUMP: And with you, she needs freedom.


MELBER: Professor, you know the word freedom, right?



MELBER: He does say, though, the vaccines work.

If there is a big enough case that, as Emily says, could go to the Supreme Court, though, it gives people a different way to argue this, sadly, perhaps in bad faith. Oh, I`m not against the vaccine, I`m against the mandate, and yadda, yadda.

Your final thoughts on how that could go?

GOSTIN: Yes, I mean, first of all, with President Trump, I mean, the -- nobody has a freedom to pose a risk to others. And all of us have a freedom to be safe when we go to work.

As far as the Supreme Court, it`s absolutely true that it`s a conservative majority, super conservative majority. But they have already refused to review the University of Indiana`s vaccine mandate, which indicates that they understand this.

And we don`t have to really guess about this. The Supreme Court has upheld vaccine mandates twice. And so, yes, this court is always a wild card. You never know where they`re going to go. But if they`re going to follow the rule of law, this is absolutely safe. And it`s the right thing to do ethically.


And you mentioned the Indiana case, which we covered. Folks may or may not remember. That was one of the first potential test cases, because you have a public university. And when they skipped that, it showed they weren`t -- they weren`t eager to jump into this.

It does seem legally that this it would be a harder one to duck, just because of the sheer scale. And it raises the issues around private companies.


GOSTIN: Yes. I think the...

MELBER: But, as you say -- go ahead.


No, the court -- ultimately, we`re the most litigious society in the world. People are eager to get things before the Supreme Court. They`re going to hear an abortion case that really seems to clearly violate Roe vs. Wade in Louisiana and in the Texas case.

MELBER: Well, I`m only -- and I`m only jumping in...

GOSTIN: So you never know with this Supreme Court.


MELBER: I`m glad you bring up that, because I have Laura Bassett standing by on that actual case.

So I`m going to fit in the break, part of my job here.

I want to thank the professor and Emily.

We`re going to get to Laura very shortly.

We also have the issues around protesters winning the battle to bring down that Confederate statue. We have an update on that and then an update on that Texas case later in the hour.

Stay with us.



MELBER: America`s racial justice reckoning continues in ways both large and more local. And we want to report on the record how an infamous symbol of racial hatred and white supremacy was forcibly finally taken down after quite a series of protests and campaigns over the years.

I`m talking about the monument of Confederate general Robert E. Lee, removed after 130 years in Richmond, Virginia. And, because it is relevant, something we discussed earlier in the broadcast, the former President Donald Trump put out a statement claiming that Lee was -- quote -- "the greatest unifying force after the war" and claiming that the removal of this monument to a traitorous white supremacist was actually a sign that our -- quote -- "culture is being destroyed."

Lee left the U.S. Army. He chose treason. He fought for the army that was against the United States and forced slavery. He testified before Congress calling for an ethnic cleansing and claiming that black Americans should have no rights whatsoever.

Trump adding, whatever you want to call it, trolling to injury, also made the outlandish claim that he thinks Lee would have won the war in Afghanistan, lamenting, "if only we had Lee a command our troops."

We`re talking about someone who is famous and infamous for one thing, losing a gigantic war. That is something for the record.

As I mentioned, we also have a very special guest standing by to deal with an update on the Justice Department suing Texas.

That`s next.



MELBER: That was fast.

The Biden Justice Department is suing the state of Texas already over its brand-new abortion law, which is the most restrictive in the nation. The law, as we have covered, attempts to ban abortions after six weeks, no exceptions for rape or incest, which is a departure from even many harsh such laws.

It also allegedly tries to empower private citizens to basically be vigilantes and take what would be, under the state`s view, legal action against people who do assist in abortion and then get a kind of a bounty, a $10,000 reward.


MERRICK GARLAND, U.S. ATTORNEY GENERAL: The obvious and expressly acknowledged intention of this statutory scheme is to prevent women from exercising their constitutional rights.

The United States has the authority and the responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.


MELBER: Attorney General Garland making it clear why the Biden administration is suing. They view this as unconstitutional under Roe v. Wade.

I`m joined now by Laura Bassett, the new editor in chief of Jezebel.

Welcome, and, also, congratulations professionally.

LAURA BASSETT, MSNBC COLUMNIST: Thank you, Ari. I appreciate it. Always good to be here.

MELBER: I wanted to get your bigger perspective here.

And for those who don`t know, Jezebel has been a pioneering place for women`s voices and feminism and a whole range of writers sand issues for a long time.

This is about the law. And we have had lawyers on in our coverage this week, but it`s also about power and gender, basically, gender discrimination within power.

I`m curious your view of this, along with the news that the Biden administration is swiftly trying to stop it.


Well, obviously the Texas abortion law is completely absurd on a number of levels. You mentioned that it bans abortion after six weeks. I want to be clear, biologically speaking, that that`s not six weeks after you realize you`re pregnant. That`s six weeks after your last period.

So this is before many women even realize they`re pregnant. It`s effectively a full ban on abortion in Texas. And the Supreme Court, in a very cowardly way, without even signing the majority opinion, has basically green-lit this law.

So while they didn`t necessarily overturn Roe v. Wade, they have effectively rendered it toothless. The right to abortion no longer exists in Texas, but everywhere, because the Supreme Court has signaled that Roe v. Wade doesn`t mean anything anymore.

So this is an absolutely massive deal in terms of reproductive rights. And then when you add on top of it the fact that Texas isn`t even willing to enforce this law itself, it`s deputizing citizens to enforce this law by spying on each other -- I mean, you can sue an Uber driver who brings the woman to an abortion clinic. You can sue that person for $10,000 in Texas.

Imagine how Republicans would feel if, for instance...


BASSETT: ... a blue state like New York banned guns and said the way we`re going to enforce this is, we`re going to have citizens sue each other.

Anyone who buys a gun, anyone who sells a gun, anyone who even drives you to the store to buy a gun, you can sue them for $10,000.


BASSETT: I mean, conservatives would be completely up in arms.

MELBER: So, what does that do? I have about a minute left.

What does that do, in your view, to the way that the state seems to be encouraging vigilantism against -- specifically against a group of individuals, women?

BASSETT: Right, exactly.

Well, it says we`re encouraging -- we are encouraging citizens to spy on women, to try to make money off of the fact that they`re getting a specific medical procedure. And this is in a state that is saying we want the government to stay out of our health care. We`re banning mask mandates. You can`t make us get the vaccine. You can`t make us get masks.

They`re all about freedom. They`re all about -- quote, unquote -- "pro- life." But when it comes to women`s uteri, they`re encouraging people to spy on each other and enforce this law against each other. It`s just wildly hypocritical and makes no sense.

MELBER: Yes, I appreciate your clarity, as well as your body of work and writing on this. And so we will be having you back to discuss it, because, as mentioned, the DOJ suit keeps this very much a live issue in the courts, what Texas is trying to do.

Laura Bassett, I want to thank you.

I`m out of time.

But I have good news for everyone. "THE REIDOUT WITH JOY REID" is up next.