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Editor's Note: We’re taking a brief hiatus in observance of Martin Luther King Jr. Day; we’ll be back in full swing Tuesday morning. Have a great holiday weekend!
“The Supreme Court on Thursday put the Biden administration’s vaccine-or-test mandate for large employers on hold, while litigation over its legality continues in the lower courts. Over a dissent from the court’s three liberal justices, the court ruled that the Occupational Safety and Health Administration exceeded its power in issuing the mandate. Congress may have given OSHA the power to regulate workplace dangers, the court explained, but it ‘has not given that agency the power to regulate public health more broadly.’ At the same time, the justices – by a vote of 5-4 – granted the administration’s request to be allowed to temporarily enforce a vaccine mandate for health care workers at facilities that receive federal funding.” SCOTUSblog
The right generally supports the rulings, arguing that OSHA exceeded its authority.
“The health risk the unvaccinated pose to the vaccinated appears to be small, and exaggerating it undermines the incentive for people to get vaccinated. If anything, it’s the unvaccinated who need protection from the vaccinated, since the vaccines, as powerful as they are in preventing severe cases of Covid, are proving less effective at blocking transmission of the latest variant…
“Workplace safety is a pretext. On this theory, the administration just wants higher vaccination rates, understandably enough. It knows it cannot order Americans to get vaccinated: Issuing mandates ‘is not the role of the federal government,’ White House press secretary Jen Psaki said back in July. But it wishes it could, and so it went looking for any legal authority that could be used, however implausibly, to give it some of that power…
“The question before the Supreme Court is not whether vaccination is a boon or even how far governments should be able to go to encourage it. Remember: Ohio says it could order all its residents to get the vaccine, but is still challenging the federal mandate. It’s whether to accept an unprecedented extension of federal power that Congress has not clearly authorized and that the administration cannot defend openly and honestly.”
Ramesh Ponnuru, Bloomberg
“The mandate for health care workers was issued under the auspices of CMS, applying to all facilities that receive federal Medicare and Medicaid funding. The federal government has always had wide leeway to attach strings to the taxpayer cash it pays to private entities when it contracts with them. If you don’t want to abide by Uncle Sam’s conditions, like making sure your entire staff is vaccinated, don’t sign the deal…
“At a gut level, from a health standpoint, the two rulings make sense. We want health care workers to take every precaution to limit transmission because they cater to the sick and elderly, the two groups at highest risk of severe illness from COVID. Forced to choose between stretching the feds’ power over vaccination and placing the frail and infirm at greater risk of dying, the Court tilted towards the former…
“But the calculus changed as the setting changed to the average American workplace, where those exposed to the virus by co-workers will be at lower risk of a bad outcome. In that case, the Court reverted to skepticism of expansive government power. Feels like a classic half-a-loaf John Roberts compromise.”
Allahpundit, Hot Air
“We think the dissenters have the better reading of the healthcare law, but at least the CMS statute has some relation to the health regulation it imposed. Had the Court blessed OSHA’s mandate on private employers, the message to regulators would have been that they can do whatever they want as long as they call it an emergency…
“The Court must ‘enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans,’ Justice Gorsuch wrote in his concurrence. ‘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.’”
Editorial Board, Wall Street Journal
The left criticizes the main ruling, arguing that OSHA acted within its mandate.
The left criticizes the main ruling, arguing that OSHA acted within its mandate.
“The federal Occupational Safety and Health Administration, or OSHA, has the ability to issue an emergency standard when employees are ‘exposed to grave danger from exposure to substances or agents determined to be toxic or from new hazards,’ which sounds a lot like COVID-19…
“All of the conservative justices insist that what OSHA imposed in response is a ‘vaccine mandate,’ even though there are plenty of ways to get out of it: testing negative weekly; working from home, alone, or outdoors; even claiming religious or medical exemptions, They say the rule is unprecedented, ‘a significant encroachment into the lives — and health — of a vast number of employees.’ Then again, so is the pandemic…
“They point out you can also get COVID-19 somewhere else, although with a few exceptions, like school for students, they are places where people have a choice to go. As the dissenters note, at work, ‘individuals have little control, and therefore little capacity to mitigate risk.’ But the conservative majority shows more concern for the supposed ‘billions of dollars in unrecoverable compliance costs’ and ‘hundreds of thousands of employees’ who they say will quit — a number that has shrunk wherever mandates are already in place and reality has interfered — than for the workers inhaling the aerosols of untested, unvaccinated colleagues in close quarters.”
Irin Carmon, New York Magazine
“‘It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace,’ the majority wrote. ‘This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.’ Apparently it is OSHA’s fault that it did not exist during the Spanish flu epidemic of the 1910s and that humanity was lucky enough to avoid another pandemic of this magnitude in the intervening century.”
Matt Ford, New Republic
“The majority invented a distinction between hazards that occur solely in the workplace and hazards that occur in and out of the workplace. Because the pandemic exists outside the workplace, it is not the kind of ‘grave danger’ envisioned by the statute, and ‘falls outside OSHA’s sphere of expertise.’…
“In a rare joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan shredded this anti-textual approach to statutory interpretation. By dismantling OSHA’s authority over hazards found in and out of the workplace, they wrote, the majority imposed ‘a limit found no place in the governing statute.’ This limit is not even supported by history: The agency has long regulated risks ‘beyond the workplace walls,’ including fires, excessive noise, unsafe drinking water, and faulty electrical installations…
“If that weren’t enough, OSHA put forth uncontested evidence that COVID–19 ‘poses special risks in most workplaces, across the country and across industries.’ The virus ‘spreads more widely in workplaces than in other venues because more people spend more time together there,’ the dissenters noted. OSHA ‘backed up its conclusions with hundreds of reports of workplace COVID-19 outbreaks.’”
Mark Joseph Stern, Slate
A libertarian's take
“In the end, the five-month saga of Biden's private-employer vaccine mandate highlighted just about all of the major problems with how the federal government operates these days. Here was a major policy change implemented not by the legitimate legislative authority (Congress) but by the executive branch, which increasingly sees its authority as covering anything that's not been explicitly forbidden. Congress then stood by and waited for the Supreme Court to invalidate the order, effectively forcing nine legal scholars to do its job…
“The outcome is the right one—Biden's order was a breathtaking overreach of federal power into the affairs of private individuals and businesses—but this is, to paraphrase Kavanaugh, not how the everyday exercise of government should work.”
Eric Boehm, Reason
