The Supreme Court got it right on private employer mandates

When OSHA issued a vaccine mandate aimed at all companies with 100 or more employees, every federal judge in America should have known that it was a severe case of bureaucratic overreach.  However, too many Democrat presidents have installed legal mediocrities across the federal bench, with the result that, while the Fifth Circuit got it right, the Sixth Circuit got it wrong, creating a split that sent the issue to the Supreme Court.  Thankfully, by a 6-3 majority, the Supreme Court made the right decision.  Unfortunately, the Court's dissenting über-liberals proved that they are as execrable on paper as they appeared to be during oral argument.

The majority decision came from Justices Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett.  They deserve no congratulations.  A first-year law student should have gotten this one right.

Under the authorizing statute, OSHA "is tasked with ensuring occupational safety — that is, 'safe and healthful working conditions.'"  Usually, OSHA needs to go through a long process of notice, comment, and public hearings for any regulations.  However, OSHA can create "emergency temporary standards" that bypass the whole process.  To do so, the labor secretary must show that there is a grave danger from substances or agents in the workplace and that an emergency regulation is the only way to protect the employees.

The Court noted that, while OSHA created some incredibly narrow exemptions to the mandate, they "are largely illusory."  For the most part, the regulation "operates as a blunt instrument.  It draws no distinctions based on industry or risk of exposure to COVID-19."  Lifeguards and gardeners are under the same regulation as medics and meatpackers.

After discussing the onerous standards (forced vaccinations or forced, expensive testing), plus enormous employer fines, the short decision gets to the heart of the matter, which is that OSHA exceeded its statutory authority.  Thus, requiring 84 million employees to get a shot or pay for weekly medical testing is "a significant encroachment into the lives — and health — of a vast number of employees."

The act authorizing OSHA plainly does not extend to that kind of power.  "The Act empowers the Secretary to set workplace safety standards, not broad public health measures."  Thus, "the Act's provisions typically speak to hazards that employees face at work."  When you have a disease that anyone can catch anywhere, then "it is not an occupational hazard" as to any specific workplace.  "That kind of universal risk is no different from the day-to-day dangers that all [people] face" in their daily lives.  And here's the nub of the decision:

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.

(The Court kept carving out little exceptions for "occupation-specific risks related to COVID," which is the hook it needed for the second opinion it published Friday, this time with Kavanaugh, who seems to have been gelded since the leftists turned his confirmation hearing into a vicious clown court, and Roberts, self-gelded, joining Breyer, Sotomayor, and Kagan.  Using this hook, they allowed the mandates to stand as to health care workers.  This is stupid, given that the CDC has conceded that the "vaccine" does nothing to prevent transmission, so it protects neither health care workers nor patients.)

Image: Supreme Court justices (edited in befunky).  Public domain.

The Court, therefore, gutted the mandate.  Again, the Supremes don't deserve congratulations for maintaining some minimum standard of the separation of powers.  Still, they were brighter than the three dissenting justices — Breyer, Sotomayor, and Kagan — who wrote such a breathlessly stupid dissent that it made my eyes hurt.

Even though they're longtime representatives of the ultimate (and unelected) deliberative body in America, this dismal trio's dissent is one long panicked scream of hysterical fear.  The law is irrelevant.  The dissent can be summed up as "We're all going to die."  Their opening paragraphs shower the reader with scary numbers about COVID.

The dissenting justices, however, forget to mention one important fact, which is that the CDC has conceded that the vaccine does nothing to stop COVID's spread.  By ignoring this pivotal point (and hey, they're the ones who brought up the COVID facts), the dissenting justices are essentially saying that, because people are as likely to catch COVID at work as they are anywhere else (although they claim that the workplace is even scarier than other places), that gives OSHA the right to do what it takes to make sure they don't.

As always with leftist opinions, the dissent offers lots of long quotations from statutes and laws, none of which proves the point.  For example, the dissent proudly states that the mandate "lasts only six months."  That doesn't acknowledge that vaccines are forever.  They may not prevent disease, but their long-term effects are still unknown.  Even the majority decision acknowledges that "a vaccination, after all, 'cannot be undone at the end of the workday.'"  It's not like removing a hard hat.

The dissent also quotes the language authorizing emergency regulations:

(A) that employees are exposed to grave danger from exposure to substances or agents deter­mined to be toxic or physically harmful or from new haz­ards, and (B) that such emergency standard is necessary to protect employees from such danger.

Then, proving their mastery of Merriam-Webster's, the justices proudly define a "new hazard" (it's a hazard that's new).  This ignores that the language manifestly refers to a hazard arising from the workplace, not a hazard present in the workplace because it's in the air we breathe everywhere we go.  This is an unsubtle but very important distinction, much like the difference between being hospitalized with COVID versus being hospitalized because of COVID.  As the majority says, "imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not 'part of what the agency was built for.'"

We should all be grateful that six Supreme Court justices managed to do their job (although we always knew that Thomas and Alito would).  And we should be embarrassed that, thanks to Presidents Clinton and Obama, we have three weak-minded, cowardly people with way too much power sitting on the bench.

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