Part 2: SCOTUS' Elegant Concurrence on the OSHA Vaccine Mandate, and its Nonsensical Dissent
While the concurring Justices used detailed precedent and elegant language, the dissenting Justices cobbled their language from MSNBC.
And the unpacking continues.
While Starbucks just decided to rescind its vaccine mandate, Carhartt has chosen to keep theirs in place. Companies saw the handwriting on the wall and began enacting their own corporate mandates before Biden announced his OSHA mandate on September 9, 2021, and those companies made the choice to preemptively strike. Once SCOTUS stayed the mandate, they were on their own. Only more time (and the stock market) will tell which companies will keep the policy, and which will ditch it.
In terms of the Supreme Court opinion last week, as I said in Part 1, the Justices concurrence was elegantly written, and even had traces of characteristic snark that creeps into the opinions of Justice Clarence Thomas and Justice Neil Gorsuch.
Like this paragraph:
“After a 2-month delay, the Secretary of Labor issued the promised emergency standard. 86 Fed. Reg. 61402 (2021). Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more employees. There are narrow exemptions for employees who work remotely ‘100 percent of the time’ or who ‘work exclusively outdoors,’ but those exemptions are largely illusory.
“The regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers. OSHA estimates that 84.2 million employees are subject to its mandate. Id., at 61467.
The Justices used a “blunt instrument” in writing that assessment. If this matter was so urgent, and as the dissenting Justices said (we’ll unpack that in a minute) OSHA had studied this and created standards that were customized for every workplace and economic outcome, then why did it take them so long to get the language filed, let alone wait to enforce it until January 4, 2022? Where’s the urgency if COVID-19 is such a crisis? The Biden administration’s actions show that they do not take these mandates seriously, otherwise they would have had their ducks in a row.
“Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’ In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
And Congress has not acted clearly. If anything, the are stuffing their fingers in the ears going, “Lalalalalala,” and allowing the Biden administration to use an administrative agency with unbending statutes to authorize what people must put in their bodies in order to continue to work.
As the concurring Justices point out, here’s where Biden and OSHA made their mistake: The rule in the OSHA statute does not address public health, but is being used to dictate an issue that falls under the purview of it. Public Health is outside of OSHA’s scope of expertise. If this was Health and Human Services, there may have been some wiggle room. Not so here.
The Justices speak to Biden’s solicitor general saying, in a nutshell, that COVID-19 is a workplace danger.
“She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
And as stated above, Congress has been MIA on that.
“OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”
Indiscriminate Approach. That is brutal. In other words, OSHA is not king of the world, and the agency was not formed to assess risks in general, or risks in health, just Occupational risks.
Duh.
And when has the government’s weigh in on costing billions of dollars to companies vs. saving millions of lives their aegis? Saying the federal government must act is a House on Fire concept, and SCOTUS clearly is saying NO. It is not OSHA’s role to take its government authority and weigh these tradeoffs. It is the role of our elected representatives to do so; but as becomes more evident, they have essentially abdicated authority.
With this decision, SCOTUS has thrown it back into their lap.
“It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
One lawsuit had 27 States—more than HALF of the Union—opposing these mandates. What were they thinking?
“The federal government’s powers, however, are not general but limited and divided.”
Precedent: The States hold great power to maintain and look over public health at the local levels. The federal government, does not.
Over and over throughout the opinion and concurrence, SCOTUS reminds us that OSHA is not the agency tasked with such matters. That OSHA has been declaring an emergency, yet has been slow to write language and assign dates. This does not indicate urgency; what is does indicate is laziness and hubris.
“Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace. Historically, such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers. Meanwhile, at the federal level, OSHA arguably is not even the agency most associated with public health regulation. And in the rare instances when Congress has sought to mandate vaccinations, it has done so expressly. E.g., 8 U. S. C. § 1182(a)(1)(A)(ii). We have nothing like that here.”
Bottom Line: Congress is accountable and responsible for regulating such matters through the democratic process outlined in the Constitution.
Congress, do your job.
“The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials. Sometimes lawmakers may be tempted to delegate power to agencies to ‘reduc[e] the degree to which they will be held accountable for unpopular actions.’ R. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv. J. L. Pub. Pol’y 147, 154 (2017). But the Constitution imposes some boundaries here.
“If Congress could hand off all its legislative powers to unelected agency officials, it ‘would dash the whole scheme’ of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives.”
Has this not been exactly what has happened over the past two years? Particularly in certain blue states—Looking at you, California. Unelected officials, and governors and mayors drunk on power, have ruled the day for far too long.
This was probably the most powerful paragraph in the entire concurrence:
“The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.”
One of the readers over at RedState made this apt assessment:
“The Supreme Court’s decision is great, but let’s all understand one thing…. We didn’t actually ‘win’ anything. All we did was NOT LOSE. We managed to keep something that we already had…. The freedom to choose whether or not you want to get jabbed with a needle.”
So very true. All SCOTUS did was reaffirm our rights and privileges under the Constitution, as the consenting Justices wrote:
“The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress. This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.” [emphasis mine]
Of course, no 6-3 decision is complete without reviewing the dissent. As stated in Part 1, Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan dissented. But, compared to the concurrence, it read like fear-mongering nonsense.
“Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers. The disease has by now killed almost 1 million Americans and hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.”
First of all, it’s a VIRUS, not a disease. Second, most Americans have seen their workplaces transformed because government enforced that transformation. Had companies been allowed to deal with the virus on a case-by-case basis, studied the data, and crafted their own measures that fit their workplace and personnel, it would be a different landscape. This, “The sky is falling” ridiculousness sounds like Justices Breyer, Sotomayor, and Kagan have been watching too much MSNBC.
“So the administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to: It took action to address COVID–19’s continuing threat in those spaces. The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (Standard), requiring either vaccination or masking and testing, to protect American workers. The Standard falls within the core of the agency’s mission: to “protect employees” from “grave danger” that comes from “new hazards” or exposure to harmful agents. 29 U. S. C. §655(c)(1). OSHA estimates—and there is no ground for disputing that the Standard will save over 6,500 lives and prevent over 250,000 hospitalizations in six months’ time. 86 Fed. Reg. 61408 (2021).”
Congress didn’t charge OSHA to do anything—the Biden administration and his Secretary of Labor did. They overstepped, pure and simple. As the other Justices clearly laid out, and the idiot Chief of Staff Ron Klain admitted on Twitter, OSHA was a workaround to prevent vaccine and mask mandates from going before a legislature, because they knew they would fail. And no grounds for disputing this Standard would save lives? The breakthrough cases, hospitalizations, and deaths of people who are fully vaccinated and boosted is doing a good job of disproving those numbers. It’s pure horse hockey.
“In our view, the Court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies. We respectfully dissent.”
So, their colleagues parsing of the law and seeing how it lines up with the Constitution is acting outside of its competence? The legal precedent that shows OSHA has never before been called upon to issue such a mandate, and anything close to trying has been struck down is a misapplication of legal standards?
Interesting. What do they think they are here for?
“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized?”
Once again, the Justices are invoking Congress, and Congress has had little to do with tasking OSHA to implement this mandate. The President did authorize it, then allowed the agency to use a narrow statute in a limited rule, broadly. It has little to do with who has the knowledge and expertise, and everything to do with using a bureaucratic arm of the government to strong arm the American people into compliance.
Justices Breyer, Kagan, and Sotomayor then tried to play the, we are unelected non-experts card.
“Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes? Here, an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed.
“The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy.”
This is an unmitigated falsehood. It took them two months to come up with language for this mandate—they have evaluated nothing. If they had, they would have seen the damage these mandates have done to the food service and restaurant industries.
“It has considered the extent to which various policies will mitigate those risks, and the costs those policies will entail. It has landed on an approach that encourages vaccination, but allows employers to use masking and testing instead. It has meticulously explained why it has reached its conclusions. And in doing all this, it has acted within the four corners of its statutory authorization—or actually here, its statutory mandate.”
It is clear that Justices Sotomayor, Breyer, and Kagan hold statutory authority and mandates equal or greater than the Constitution. Thank God there were at least six of the justices who ruled according to the Constitution.
Which makes the split to this ruling even more interesting. In Part 3, I look at the Biden’s CMS vaccine mandate which SCOTUS upheld.